IN THE NATIONAL INDUSTRIAL COURT OF JUSTICE OF NIGERIA
IN THE LOKOJA JUDICIAL DIVISION
HOLDEN AT LOKOJA
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATED: 17th November, 2022
SUIT NO: NICN/LKJ/02/2020
BETWEEN
ANDREW MENYANGA ---------------------------------------CLAIMANT
AND
1. KAINOS EDGE CONSULTING LIMITED
2. UNITY BANK PLC ---------------------------DEFENDANTS
REPERESENTATION
J.U Usman for the Claimant
B.M. Musa for the Defendants
1. Claimant averred that he worked under a contract employment for the 2nd defendant through the 1st defendant. He averred that he has also been engaged by another consulting company still as a contract employee for the 2nd defendant, but he has been involved with the 2nd defendant for over 10 years.
Claimant averred that irrespective of his long time service, he has been short-changed as he has been under paid over the years, he averred that based on the code of conduct of the 2nd defendant, he had never made any payment of money to any of the bank customers above the sum of Fifty Thousand Naira (#50,000.00) without the authorization of the Accountant by name Mr, Okechukwu Jacob Ogbuotibo First sought and obtained. Claimant continued to assert that he has suffered great injustice as a result of the action of the defendants, and went on to avert that his employment with the 2nd defendant was terminated, he averred that the reasons stated on his termination letter was baseless and unsubstantiated allegation of fraud as he has not been arraigned before any competent Court, the claimant avers that the said letter of termination was sent to him via email and was also communicated to him vide phone call. He went further to aver that the 2nd defendant without any authorization from appropriate court freeze three of the claimant’s account. He averred that in reaction to the above he instructed his counsel’s to write the defendants to unfreeze his account, his counsel who charged him the sum of One Million, Five Hundred Thousand Naira (#1,500,000.00).
It is against this backdrop that claimant vide his complaints dated 15th January, 2020. The claimant seeks the following reliefs against the defendants;
a. A declaration that the termination of the Claimant’s appointment by the defendants was wrong
b. An order for the re-instatement of the claimant as a staff of the defendants.
c. An order for the payment of all outstanding/entitlements accruing to the claimant resulting charged all the while he was working for the 2nd defendant as a contract staff
d. The sum of One Million, Five Hundred Thousand Naira (#1,500,000.00) only was cost of filling and persecuting this suit
2. The 1st defendant in its response herein, denies every allegation contained in the claimant’s statement of claim and asserted that claimant was employed vide a letter of appointment and puts the claimant to the strictest proof thereof for the paragraph 6,7,8 and 9. 1st defendant asserted that July 31st, 2019 and August 1st 2019, it received an Internal Report of findings of cash transaction to the tune of N322,000.00 (Three Hundred and Twenty Two Thousand Naira) only was unlawfully paid by the claimant to persons unknown to the bank without observing the requisite due diligence and against laid down procedure. It asserted that the bank policy is that due diligence and validation of customers BVN must be carried out before any payment is made on any transaction particularly on customers who thumb print. It asserted that a letter of complaint was received by the bank from persons who claimed to be the children of a deceased customer, who they claimed died and a debit alert was received from his savings account on 31st July 2019 and August 1st 2019. It was observed that savings of Mr Musa Salami (deceased) experienced its last withdrawal on July 27, 2017 thereafter, only monthly pension inflows. It asserted that 1st defendant issued a query via email to the claimant on why he did not validate nor print out the customers BVN, claimant’s response was that he cannot remember and did not save the transaction on the bank system as required because he did not have the knowledge. 1st defendant further investigation on the bank’s CCTV also revealed that there was no customer at the claimant’s counter on the dates and specific times of the payment. It continued that only the sum of N322,000.00 was only recovered from the claimant as the claimant withdrew monies from his First bank and paid monies back into the customer’s account. 1st defendant asserted that upon the 2nd defendant’s suspicion, a further review of the claimant’s previous approved transaction from June 2019 also show debit to some other savings account (Thumb print) without observing due process to the tune of N873,000.00 (Eight Hundred and Seventy Three Thousand Naira) only. It asserted that consequent of the received report on the claimant stated therein, it terminated the employment of the claimant via a letter dated 9th October, 2019. It also asserted that 1st defendant responded to the letter received from the claimant dated 25th October 2019 for immediate reinstatement, as claimant’s fraud in wilfully making the payment amounted to gross misconduct and breach of his employment contract for which he was summarily dismissed for, therefore urged the Court to strike out for no cause of action.
3. The 2nd defendant in its statement of defence asserted that the claimant was not sent by the 1st defendant to work as a staff of the 2nd defendant under any contract of employment but that the claimant was still a staff of the 1st defendant who had posted claimant as a teller i.e. the claimant service was merely outsourced to the 2nd defendant, and therein 2nd defendant put the claimant to the strictest proof, he denied the assertion of the claimant that he has been working with them for ten years now. it asserted that in breach of a term in the code of conduct amongst other terms, claimant had made payment of monies to bank customers without verification, confirmation and authorization. It asserted that further investigation on the transaction revealed that claimant was part of such fraudulent syndicate. He averred that 1st defendant terminated the claimant’s employment and that the terms and condition of claimant’s employment gives the 1st defendant the right of summary dismissal without notice in the event of serious dishonesty, misconduct/ gross negligence.
2nd defendant thereof pleaded the particulars of the said misconduct, dishonesty and fraud. 2nd defendant continued to assert that claimant be put on a strictest proof on his averment that 2nd defendant freezed three of his account Unity bank plc, United Bank for Africa and First Bank Plc. It went on to assert that it did not receive any letter from the claimant to unfreeze the claimant’s account. It asserted that claimant was queried by email dated 7/10/2015 issued by the 2nd defendant and email of the claimant’s response dated 8/10/2015. It asserted that claimant is not entitled to any of all the relief sought by him.
4. 1st defendant filed its final address where it raised two issues for determination
1. Whether this Honourable Court has jurisdiction to entertain this suit filed by the claimant against the 1st defendant? And
2. In the event that the above issue is resolved in the affirmative, whether the claimant succeeded in proving his case against the 1st defendant as to entitle him to the reliefs sought?
5. Learned counsel submitted that by virtue of Order 3 rule 2 of the National Industrial Court of Nigeria Civil Procedure Rules, 2017 it is unambiguously provided thus: “Civil Proceedings that may be commenced by way of Complaint include all matters in which the Court has exclusive jurisdiction as provided in Section 254C(1) paragraphs (a) – (k) and (m) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) or by any Act or law in force in Nigeria.” And that it is glaring that the claimant commenced the instant suit by way of Writ contrary to the express provisions of Order 3 rule 2 of the Rules of this Court. In other words, this suit commenced using a procedure which contravened the provision of the Rules is, ab initio, incompetent.
6. Learned counsel submitted that he fundamental defect in the claimant’s originating process lies in the flagrant disregard of the mandatory requirement for commencing action of the kind instituted by the claimant. By virtue of Order 3 rule13 of the Rules of this Honourable Court, it is expressly and unequivocally provided thus: “Where the Claimant is challenging the termination of appointment, the suspension or dismissal of the Claimant therefrom, the Complaint SHALL BE accompanied by the Claimant’s letter of appointment, if any, together with a letter of confirmation of appointment, letter(s) of promotion where applicable, notice or letter of suspension, termination of appointment or dismissal AND all other documents the Claimant wishes to rely upon at the trial of the suit.
He submitted that the accompanying documents SHALL BE exhibited along with the statement on oath as bundle of exhibits in support of the Claimant’s claim before the Court.”
He submitted that the claimant in initiating this suit cannot adopt a procedure contrary to the mandatory requirements of the Rules, therefore It is their submission that the observed defects in the claim means it fails the due process. He cited the case of MADUKOLU & ORS V. NKEMDILIM (1962) LPELR – 24023(SC) at pp. 9 – 10 Paras F – D).
On issue two; learned counsel submitted that in the instant suit, the averments in paragraphs 5, 6, 7, 8, 9, 10, and 15B of the 1st defendant’s statement of defence which have not been taken care of in the statement of claim were not replied or controverted by claimant. The veracity of the averments in the paragraphs mentioned above was unchallenged by the claimant. He submitted that by virtue of Section 123 Evidence Act 2011, it is provided that: "No fact needs to be proved in any civil proceeding in which the parties to the proceeding or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands. He also cited the case of CYPRIAN V. UZO (2015) LPELR-40764(CA); ADELEKE V. ASERIFA (1986) 3 NWLR (Pt. 30) 575; IWUOHA V. NIPOST (2003) 8 NWLR (Pt. 822) 308; ANSA V. NTUK (2009) 9 NWLR (Pt. 1147) 557.
Learned counsel submitted that a summary of the claimant’s case against the 1st defendant is captured in paragraphs 4, 5, 8, 10, 11, 13, 14 and 21 of his statement of claim. Essentially, the claimant’s claim is that he was employed by the 1st defendant as a contract staff to work for the 2nd defendant and that his employment with the 2nd defendant was terminated. Consequently, he is praying this Honourable Court to declare that the termination of his employment was wrong. He submitted that the onus of establishing the above condition is fixed squarely on the claimant and cite the case of NIGERIAN ROMANIAN WOOD INDUSTRIES LTD. VS. J. O. AKINGBULUGBE (2011) 11 NWLR (pt. 1257) 131 at 148 the Court of Appeal succinctly puts it thus: “It is not the duty of the employer to prove any of these facts”
Learned counsel submitted that there is not a scintilla of evidence to show that the dismissal of the claimant by the 1st defendant from her employment was wrongful. The failure of the claimant to make mandatory pleadings as re-affirmed in NIGERIAN ROMANIAN WOOD INDUSTRIES LTD. (supra) and the absence of any piece of evidence led by the claimant to discharge the burden placed on him by law is fatal to the claimant’s case against the 1st defendant. Suffice to say that, no evidence was led by claimant to impeach the act of the 1st defendant in terminating claimant’s employment.
Learned counsel went on that claimant’s averment that the reason stated in his termination letter is baseless and unsubstantiated allegation of fraud. The Supreme Court in the case of KATTO v. CBN (1999) LPELR-1677(SC) (per Emmanuel Olayinka Ayoola, JSC) held inter alia thus:
“The law is now clear beyond peradventure that in purely master and servant relationship devoid of any statutory flavour and in which the relationship is purely contractual, termination of an employment by the employer cannot be wrongful, unless it is in breach of contract.
Learned counsel continued that the claimant did not only failed to plead with particularity and adduce credible and convincing evidence of the entitlements claimed as well as other reliefs sought but wholly failed in proving his claims against the 1st defendant, more so the claimant did not show in his pleading and at trial how the 1st defendant is connected with the purported allegation. The letter claimed to have been written to the 1st defendant by claimant’s counsel was not tendered in evidence by the claimant.
He cited on the authority of PPA V. PDP & ORS (2009) LPELR-4865(CA) (Pp. 55 – 55 Paras. B – D), that mere averments in a party’s pleading does not prove anything without the support of evidence to establish same, we urge this Honourable Court to disregard the said allegation.
He therefore concluded by submitting that claimant who complains of unlawful termination of his employment to establish same by proving the required facts.
7. 2nd defendant filed its final written address, wherein learned counsel for the 1st defendant raised four issues for determination;
a. Whether the employer and employee relationship i.e. contract of service between the claimant and the 1st defendant is a master and servant relationship for which it is the terms and conditions of employment between the claimant and the 1st defendant that governs the employer and the employee relationship between the claimant and the 1st defendant since there is no terms and conditions that governs the relationship between the claimant and the 2nd defendant.
b. Whether the claimant had pleaded and had also proved breach of the terms and conditions of appointment either by the 1st defendant or by the defendants which is needed to be proved in a master and servant relationship as required by law.
c. Whether it is the 1st defendant or the 1st & 2nd defendants that can terminate the employer and employee relationship between the claimant and the 1st defendant for good reason or for bad reason or for no reason at all.
d. Whether the claimant had proved that his termination was wrong to the extent that same is illegal or a nullity and whether if the claimant is entitled to an order for the payment of any outstanding/entitlements which was alleged by claimant was accruing to him resulting from the fact that he was working for the 2nd defendant as a contract employee/staff and whether claimant was entitled to an order of re-instatement with the 1st defendant or with the 1st & 2nd defendants as well as an order for the sum of N1, 500,000 as cost of filing and prosecuting the suit.
8. On issue a,b,c,d, learned counsel on behalf of 2nd defendant submitted that since the above issues are interwoven, the arguments in respect of same will be made simultaneously. He then submitted that the employer and employee relationship between the claimant and the 1st defendant though same is a contractual relationship, a master and servant relationship for which the employee i.e. the claimant has the onus to plead and prove who employed him amongst the two defendants as well as the terms and conditions of service and the manner in which the said terms and conditions of the offer of employment was breached either by the 1st defendant or the 2nd defendant or both of them. But the said onus was not pleaded, proved or discharged by the claimant as required by law. Learned counsel cited the case of KATO VS CBN (1999) 5 SCNJ PG 1 AT 4 RATIO 1 AT PAGES 1-4, IBAMA VS SHELL PETROLEUM DEVELOPMENT COMPANY 2006 1 FWLR PT. 296 PG 234 AT PG 236 RATIOS 1 & 2 PARTICULARLY AT PG 250 -251.
Learned counsel submitted, claimant had failed to plead and prove the terms and conditions of his offer of appointment in this case particularly claimant failure to link the breach of any terms and conditions to any of the defendants which is fatal to the claimant case and neither can the claimant put the burden on the 1st defendant or the defendants who has pleaded the terms and conditions if any in the statement of defence. He cited the case of NINGI VS FBN PLC (1996) 3 NWLR PT. 435 PG 220 CA AT 224 RATIO 6, where the court held that it was the responsibility/duty of plaintiff to plead the terms and conditions of his contract of service in his statement of claim and failure to do so is certainly fatal to his case as the plaintiff cannot thereafter turn around to shift the burden on the Respondent even if the Respondent had pleaded in its statement of defence that the termination of the Appellant were done in accordance with the terms and conditions of service.
Learned went further that in a case of wrongful termination where a party seeks a declaration for wrongful termination, he must put before the court the condition of service, in his pleading and adduce evidence on the noncompliance with the terms of the condition or service affecting the termination of his employment.
Learned counsel continued to submit that a servant/claimant seeking a declaration that the termination of his employment is a nullity just as the claimant has sought before the court, the claimant/servant must plead;
a. That he is an employee of the defendant
b. His appointment and the terms and conditions of his appointment
c. Who can appoint and remove him
d. Circumstances under which he can be terminated; and
That he could only be terminated by an authority, other than the defendant. He cited the case of MOROHUNFOLA V KWARA TECH (1990) 4 NWLR (PT. 145) 506 SC
Learned counsel then submitted that even where the claimant’s appointment was terminated for any given reason, the motives for same is irrelevant. He cited the case of NFOR VS ASHAKA CEMENT CO, LTD (1994) 1 NWLR (PT. 319) 222 CA PG 224 RATIO 4.
As it is not for the employer who is a defendant to an action brought by the employee to prove any of the above mentioned material facts. He cited the case of NIGERIAN GAS CO, LTD V DUDUSOLA (2005 18 NWLR (PT. 957) 292 CA, Hence, an employee who complains of wrongful termination of employment by his employer has the onus to prove the wrongful termination of the said employment.
Learned counsel submitted that in a contract of employment, the court cannot compel an employer to retain the services of the employee. In the same manner, the employee cannot be compelled to remain in the services of an employer. Consequently, the court cannot grant a declaration against an employer to retain the services of the employee, he cited the case of NFOR VS ASHAKA CEMENT CO, LTD (1994) 1 NWLR (PT. 319) 222 CA
Furthermore, learned counsel urge the court not to grant any general damages to the claimant because the claimant is not entitled to general damages as it is inappropriate to award general damages in a breach of contract of employment, as award of general damages is known only in the law of tort. He went on that in cases of breach of contract, damages do not exceed an amount naturally arising from the contract as may be expressed or seen within the contemplation of both parties. He cited the case of U.T.C. VS MOKORUKU (1993) 3 NWLR (PT. 281) 295 CA.
9. Learned counsel submit that, there is no contract of employment between the claimant and the 2nd defendant in the first instance hence, the 2nd defendant cannot by any shred of unsubstantiated evidence be said to have breached any contract of employment that will amount to any unlawful termination and that onus is on the claimant that his employment was unlawfully or wrongly termination to prove same which was not discharged by the claimant in this case. He cited the case of BUKAR MODU AJI VS CHAD BASIN DEVELOPMENT AUTHORITY & ANOR 2015 6 NWLR PT. 1486 PG 554; and KWARA POLYTECHNIC VS ADEFILA (2008) ALL FWLR PT. 431 PG 914; KATO VS CENTRAL BANK OF NIGERIA (1999) 6 NWLR PT. 607 PG 390, where the court held thus – on a case of wrongful termination, the onus is on the plaintiff to prove before the court, the terms of the contract of employment and to prove in what manner, the terms were breached by the employer because the terms of the contract of service is the bedrock of the case and it is not the duty of the employer to prove any of these.
Added to the above, learned counsel submitted that the 1st defendant can terminate the employer and employee relationship between the claimant and the 1st defendant for good reason or for bad reason or for no reason at all. He cited the case of NITEL PLC V AWKA (2006) 2 NWLR (PT. 964) 391 CA RATIO 6.
10. Learned counsel submitted that the claimant is not entitled to an order for the payment any alleged or purported outstanding entitlement because the claimant has not pleaded and particularized any outstanding entitlement as it falls within the realm of special damages, which should be strictly proved with particularity and also by arithmetical calculation as required by law. He cited the case of S.P.D.C. NIG LTD VS KATAD NIG LTD (2005) ALL FWLR (PT. 263) 675 AT PG 681 RATIO 14, OLUIGBO VS UMEH (2004) ALL FWLR (PT. 196) 823 AT PAGE 842, NWANJI VS COASTAL SERVICES NIG LTD (2004) ALL FWLR (PT. 219) 1150 AT PG 1153 RATIO 3 AT PAGE 1165 and AGIRI VS OGUNDELE (2005) ALL FWLR (PT. 250) 81 AT PAGE 88 RATIO 10 AT PAGE 103
11. Learned counsel submitted that the claimant pleaded the sum of N1, 500,000 as cost of filing the suit and also for prosecuting the suit which falls within the realm of special damages but the claimant did not prove the said special damages as required by law as credible evidence needs to be adduced to substantiate the particulars of the said special damages of N1, 500,000 and even when claimant gave evidence in his further statement on oath that he has a receipt for the payment of N1, 500,000, the claimant ought to have furnished the court with documentary evidence to show that he was entitled to some outstanding salaries, allowances, e.t.c. for not less than 10 years because in law, learned counsel continued that the court cannot make its own estimates of outstanding salaries and allowances for the claimant as court do not make a case for a party since claimant had not pleaded and proved same and neither has the claimant claimed any specific sum of money as outstanding salaries and allowances in this suit. He submitted that claimant was not also entitled to general damages because same was not also claimed by the claimant and even in law in order for a court to award general damages together with special damages in a case of contract of service of master and servant relationship between the claimant and the 1st defendant/defendants same would amount to double compensation. He cited the case of GAMBO VS IKECHUKWU (2004) ALL FWLR (PT. 204) 178 AT PAGE 182 RATIO 8 AT PAGE 189, A.C.B. PLC VS NDOMA-EGBA (2001) FWLR (PT. 40) 1780 AT PAGE 1783 RATIO 4 AT PAGE 1797.
12. Learned counsel vehemently submitted that in a master/servant relationship where an allegation of fraud is alleged in a letter of termination or dismissal after an opportunity has been given to an employee to defend himself just like the claimant, the said letter of termination/dismissal of the said termination/dismissal cannot be set-aside simply based on the fact that the claimant was not subjected to criminal prosecution before his dismissal. He cited the case of IMONIKHE VS UNITY BANK PLC 462 NSCQR PG 544 AT 557 RATIO 2 where his lordship per W.S.N. Onneghen JSC opined thus: “Where fraud is alleged in a letter dismissing an employee who was given opportunity to defend himself whether dismissal must be set aside. To now raise the issue as to who is to prove “fraud” and who is not to, granted that the issue was a life issue arising from the letter of dismissal is clearly farfetched. It is clear that appellant is fishing for grounds that clearly do not exist or arise for consideration. Appellant was given the opportunity of defending himself against the allegations leveled against him and he utilized same. He was therefore given fair hearing, so I hold the considered view that his dismissal in the circumstance cannot be set aside simply because he was not subject to criminal prosecution prior to the dismissal”.
Learned counsel submitted that the claimant in his witness statement on oath who testified that his letter of termination was sent to him via email did not tender the said letter of termination vide the required procedure entrenched in Section 84(1), (2) & (4) of the Evidence Act which reveals the requirement/conditions to be satisfied before a computer generated evidence via email can be tendered. He cited the case of KUBOR VS.DICKSON [2013] VOL 26 W.R.N PG. 15 PG 27.
Added to the above, learned counsel submitted that the claimant have not tendered particulars of any documents such as any of the account opening document of any of the banks to wit: Unity Bank Plc, U.B.A Plc and First Bank Nigeria Limited and neither is there any scintilla of evidence, that claimant BVN had been tampered with by the 2nd defendant nor did the claimant tendered any letter which he said he wrote to the 2nd defendant to unfreeze the claimant accounts. Hence learned counsel submit that the failure of the claimant to tender the alleged or purported letter he said he wrote to the 2nd defendant either by himself or through his lawyer amounts to withholding evidence which is contrary to Section 167(d) of the Evidence Act for which the claimant should reap the adverse. Consequence of such an act because section 167(d) of the Evidence Act
13. Learned counsel submitted that the claimant did not claim/sought any reliefs against the 1st & 2nd defendant jointly and severally and/or same is fatal to the claimant case. Furthermore he submitted that the, Exhibits “A1, A2, A3, A4 & A5” tendered by the claimant are unhelpful to the claimant as it has not satisfied and neither does it take place of the materials or the necessary requirement which should be proved by the claimant in this suit as required by law.
Learned counsel submitted that, in order to further demonstrate the non-liability of the 2nd defendant in this case under cross – examination the claimant testified that he was issued or appointed by the 1st defendant as its’ employee and when further cross-examined if he has any letter of appointment given to him by the 2nd defendant (Unity Bank Plc)to show he was appointed as staff through the 1st defendant the claimant testified that he had no letter of appointment given to him by the 2nd defendant as its’ employee.
Learned counsel submitted that, the claimant who said he was converted from causal staff to permanent staff did not front load/plead the alleged letter of conversion more so it is also contrary to the terms and conditions contained in the claimant appointment letter with the 1st defendant (Exhibit B) where in paragraphs 2 & 3 of the terms and conditions of Exhibit B. in paragraph 2’ stated thus “This is a contract of appointment hence, you will not be entitled to other benefits enjoyed by permanent staff of the bank”.
Also, the claimant who testified under cross-examination that he was short-changed for over 10 years salaries even when he was an employee of Karanda Management Services Limited he did not sue Karanda Management Services Limited to enable the said company to be a party in this suit and the claimant did not also plead in what way and manner that the 1st defendant short-changed him since 2017-2019 when the claimant was engaged to work with the 1st defendant
Similarly, when the claimant was cross-examined on whether the claimant has any evidence/documentary evidence that Jacob Ogbuotibo Okechukwu verified, confirmed and authenticated the payment which was made by the claimant and whether same was frontloaded by the claimant, for which the claimant testified that no evidence was pleaded and frontloaded by him.
14. Learned counsel submitted that claimant admitted under cross-examination that Exhibit A5 obtained from First Bank Nigeria Limited as regards freezing his account were made during the pendency or currency of this case which is no doubt an inadmissible documentary evidence because same is contrary to section 83(3) of the Evidence Act which provides thus: “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish”.
Learned counsel submitted that 1st defendant did not take over liability of Karanda Management Service Limited as alleged by the claimant and equally, urge the court to rely on Exhibits, “Y, Y1, Y2, Y3 & Y4” tendered by the 2nd defendant in dismissing the claimant claim/reliefs against the 2nd defendant if any.
15. Claimant in his response to the 1st defendant final written address raised two issues for determination
1. Whether this honorable Court has jurisdiction to entertain this suit filed by the claimant against the first defendant and
2. In the event that the above issue is resolved in the affirmative, whether the claimant succeed in proving his case against the 1st defendant as to entitle him to the reliefs sought
16. On issue one; learned counsel submitted that the reason why a copy of his letter of employment was not tendered was based on technicality as he has explained in Court in his evidence that his letter of employment was missing. He submitted that 1st defendant tendered among other document a copy of the claimant’s said letter of employment. Learned counsel cited the case of Adegoke & Anor [2007] LPELR-354 (SC) where it defined the word technicality. He submitted that in most cases it has become a vogue once a Court is inclined to doing substantial justice by deflecting from the rules it quickly draws a distinction between justice and technicality so much so that it has become not only a cliché but an enigma in our jurisprudence. He submitted that technicality is to drum down an other wise mysterious case. he went on to submit that there are instances where a party due to no fault of his is unable to comply with the rules of Court, where there is such non-compliance the attitude and reaction of the Court will depend on the facts and circumstances of such case. He cited the case of Buhari v. Obasanjo [2003] 17 NWLR (Pt 850) pg 587 where it submitted that law is civilized and hold its respect and due observance to the society, so it should be progressive and act as a catalyst to social engineering where it relies on mere technicalities. He submitted further that the Supreme Court had held that procedural defect and irregularities which can be cured should not stand in the way of Justice.
17. Finally, on issue two, learned counsel submitted that on the second issue raised by the 1st defendant it is his submission that same is misconceived and misconstrued, as the main issue canvassed by the claimant is that his termination was premised on a crime that was never investigated nor prosecuted, more so the claimant was not give fair hearing as provided in the Section 36 of the constitution.
18. Claimant in his response to 2nd defendant’s final address, wherein Learned counsel for the claimant submitted that the 2nd defendant’s understanding and submission with respect to this case is misconceived and misconstrued as the main issue canvassed by the claimant is that his termination was premised on an allegation of crime that was never investigated nor prosecuted. He submitted that the claimant was not given fair hearing as provided in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) particularly subsection 4. He submitted that the defendant is the one who gave a reason for his termination therefore must substantiate it. He went to submit that the allegation of fraud is a criminal allegation which was never investigated nor prosecuted and that the Law is trite that in an allegation of this nature, the claimant is presumed innocent. The question which comes to mind is whether claimant therein can be punished or his appointment terminated for an issue which the Law presume him innocent. He therefore urge the Court to enter judgment in his favour.
19. I have carefully perused the processes filed in this case, the exhibits tendered by both parties, the final written addresses of both parties. I am of the view that issues that best determine this case are;
a. Whether this Court is vested with jurisdiction to entertain this case and if this is answered in the affirmative;
b. Whether claimant is entitled to the reliefs sought.
20. It is germane for me to address the issue of Jurisdiction objection raised by the 1st defendant. To the objection the grouse of the 1st defendant that the originated processes filed by the claimant are unknown and completely alien to the rules of this Honourable Court. 1st defendant raised this issue at his final written address rather than raising a notice of preliminary objection. The objection hinges on the processes filed by the claimant and to the 1st defendant they fall short of the rules of this Court and thus incompetent. It is correct to say that by Order 3 of the rules of this Court, a form of commencement of action in this Court may be one of 7(Seven) ways listed in rule 1 of Order 3. It may be by Complaint, Original Summons, Originating Motions, Application for Judicial Review, Notice of Appeal or Petition, Referral from the Minister of labour and productivity and by any other means that may be prescribed by the rules, Act or any law in force in Nigeria. It is evident on record that writ of summons” is form commencement of action recognized by law in Nigeria. This is the title of the Originating processes known at the High Court of FCT, States High Courts and Federal High Court. it is also the position of NIC Rules 2017 that the rules of any State High Court may be applicable to the rules of this Court, in other words since “writ of Summons and statement of claim” are known as originating processes in the High Court, they can be applicable and be recognized by this Court as a means of commencement of an action. It is equally, clear by Order 5 Rule 1 of the same rules of this Court, which urges the Court to regard or treat a non-compliance with the rules as mere irregularity. It provides thus- 5(1) “Failure to comply with any of these Rules may be treated as an irregularities and the Court may give any direction as it thinks fit”
The rules of this Court is sync with the type of cases that the Court handles, gives room for flexibility of its procedure. Hence Order 5 Rule 6(3) provides thus “In any proceeding before it, the Court shall apply fair and flexible procedure and shall not allow more technicalities to becloud doing justice to the parties based on the law, equity and fairness while also considering the facts of any matter before it.. It is obvious that the objection of the 1st defendant herein is a procedural competence for initiating the suit, which falls within the precinct of the Court’s adjectival laws. It has been held as same is settled law that non-compliance with procedural requirements for initiating an action by itself, an irregularity. In the exercise of jurisdiction should not be confused with total lack of jurisdiction. I must equally state that procedural jurisdiction may be waived. See the cases of Ostankino Shipping Co Ltd v. The Owners The MT Bata 1 [2022]3 NWLR (Pt 1817) 36@391-392, Paras B-B; Bakari v. Ogundipe [2021]5NWLR (Pt 1768)1@41, Paras E-F. I find that the Writ of Summons titled the originating process in this case is in general context also a means of commencement of an action by an aggrieved party. To yield to the argument of 1st defendant is to push the Court backwards into the dark days of technical justice which the Court has since moved away from. See the cases of Aeronautical Engineering & Tech Services Limited v. Northwales Military Aviation Services Limited [2020] LPELR-52267 (CA); and Adamu v Stae [2017] 16 NWLR (pt 1692)393, Paras C-D. Therefore, I find the use of the words “writ of Summons and Statement of Claim” as mere semantics and a procedural defect being equally a means of commencement of action as in General form of Complaint and statement of facts’ as they being called in this Court. I thus find and so hold
21. The grouse of the claimant for instituting this suit is that his termination of his appointment by the defendant was wrongful,
It is settled law that the onus of proving the reliefs sought by the claimant lies squally on him to prove wrongful termination of his employment. See the case of Nigerian Romanian Wood Industries LTD v. J.O Akingbulugbe [2011] 11 NWLR (Pt.1257) 131 @ 148; the Court of appeal held that where the Claimant is claiming that his employment was unlawfully terminated, he must plead and lead evidence to establish the following: that he is an employee of the defendant; (b) The terms and condition of his employment (c) the way and manner and by whom he can be removed and (d) the way and manner the terms and conditions of his employment was breached by his employer. See also the cases of Igwilo v CBN [2000] 9 NWLR (pt,672) 302; Longe v FBN [2010] 6 NWLR (pt. 1189)1 S.C.
22. The claimant in this suit sought for a wrongful termination which is a declaratory relief. It is trite law in accordance to Judicial authorities that in claim for declaratory reliefs as in the instant case, the claimants must succeed on the strength of their own case and not on the weakness of the defendant’s case .i.e. claimant would not be entitled to judgment even on admission of the defendants
It is the duty of the claimants to first prove the existence of non-existence of what he or she asserts by relevant, admissible and credible evidence. Once this burden so placed on the claimant is discharged, the onus then shifts to the defendant.
See the case of EHINLE V IKORODU LOCAL GOVT (2021) 1 NWLR (PT. 1759) 279 (a) 316-317 PARAS G PARAS A-B and UZODINMA vs IHEDIOHA (2020)5 NWLR PT (1718) 529 @ 578, PARA D-G
The claimant in its claim asserted that he was a staff of the 2nd defendant employed through the 1st defendant, he also asserted that he was employed by the 1st defendant as a contract staff and sent to work as a staff of the 2nd defendant under its contract by the 1st defendant. The claimant failed to prove his assertions by showing no evidence of employment. The claimant pleaded that he is in a contract appointment with the 1st defendant to work for the 2nd defendant, but did not tender any letter of contracts to prove his employment. It is paramount for the claimant who is seeking for wrongful termination of his employment to proof his employment, this is because proof of employment describes or shows the terms of contract on parties, what binds them both, the court then must treat as sacrosanct the terms of an agreement freely entered into by the parties. See the supreme court case of Chief Godwin Onemu & ors v. Commission for Agriculture & National Resources, Asaba & 4 ors (2019) All F.W.L.R (pt 1009) Pg 1 at P. 23, paras D-F, which held that “A party should plead all the facts and all the documents he intends to rely on at the trial of the case. During that trial, he should establish by evidence, oral or documentary, those facts on which his case rests and depends.
23. The terms of contract between parties are clothed with some degree of sanctity and if any question should arise with regard to the contract. The terms in any document which constitute the contract are invariably the guide to its interpretation, which points out my emphasis in this instant suit as to why it is very important parties show evidence of employment in order to know the type of employment entered into by both parties. See the case of WEST AFICAN OFFSHORE LTD v. ARIRI (2015) 18 NWLR (PT, 1490) 177 DATE THURSDAY, 23 OCTOBER, 2014. COURT; CA. YUSUF v DARNIER AVIATION NIG LTD (2004) 10 NWLR (PT) 880 1 REFERRED TO (PP. 198-199) PARAS G-D.
24. The claimant asserted in his final written address that his reasons for not providing his letter of employment was because it went missing. Although this assertions goes to no issue as it was not pleaded in the claimant’s claim because parties are bound by their pleadings. The claimant did not issue a notice to produce to the defendants instead he asserted that his expectation is to rely on the defendants own because the letter of employment was tendered by them. The bed rock of this case is that the claimant is asking for a declaratory relief that his employment was wrongfully terminated. It is settled principle that in a declaratory action a plaintiff cannot rest on the strength of the defendant’s case. the claimant has however failed in this instant in failing to establish the prima facie case of his claim.
25. It is however important that we resolve other arising issues in this instant suit before reaching into conclusion, this brings us to first ascertain the type of employment entered into by both parties in this suit. The claimant has asserted that he was in a contract appointment with the 1st defendant to work for the 2nd defendant. The 1st defendant admits to have been in employment with the claimant via a letter of appointment dated 2nd June 2017, while the 2nd defendant denied and averred that claimant was a staff of the 1st defendant before claimant service ws outsourced temporary by the 1st defendant as a casual worker to work with 2nd defendant.
It was also posited in the cross-examination of Claimant witness by the 2nd defendant. Where the claimant confirm to the court that he was employed by the 2nd defendant through the 1st defendant.
From the above posited assertions, it can be construed that the employment relationship between the claimant and the defendant is one of master and servant relationship but tripartite arrangement.
The claimant’s pleadings in his pleadings vide paragraph 11, 13, 14, 15,16 & 17 averred that his termination was terminated via email and communicated to him on a phone call, with a reason of an allegation of fraud, he averred that consequent of the allegation, his accounts were freezed without authorization of any Court with whatsoever since August 2019, more so, his BVN has been tempered. The 1st defendant on one hand vide his pleadings asserted that on July 31st, 2019 and August 1st 2019, it received an Internal Report of findings of cash transaction to the tune of N322,000.00 (Three Hundred and Twenty Two Thousand Naira) only was unlawfully paid by the claimant to persons unknown to the bank without observing the requisite due diligence and against laid down procedure.
The 2nd defendant also asserted same that the claimant on July 31st, 2019 and August 1st 2019, it received an Internal Report of findings of cash transaction to the tune of N322,000.00 (Three Hundred and Twenty Two Thousand Naira) only was unlawfully paid by the claimant to persons unknown to the bank without observing the requisite due diligence and against laid down procedure, 2nd defendant went on to aver that on further review of the claimant’s previous transaction, from June 2019, it shows debit to some other savings accounts (Thumb print) without observing due process to the tune of N873,000.00 (Eight Hundred, Seventy-Three Thousand Naira).
26. The Claimant’ assertion that his termination letter was sent to his email and communicated to him vide a phone call. It is the correct view in the case of Ukoha & Anor v. Osilama [2016] LPELR 42936 (CA) 26-30 paragraph f; The Court held while relying on the English case of Gisda CYE vs Barrat [2010] LPELR- 17827 9UKSC) p.41 that an employment contract is brought to an end by a dismissal letter sent by or on behalf of the employer to the employee at his address and delivered to that address.
In this instant suit, the claimant’s appointment was terminated vide an email, and it is not in dispute that the claimant did not indeed receive the said email as it was also communicated via phone call as asserted by the claimant in his pleadings. The message herein was construed and comprehended properly to the claimant that his employment is been terminated. Such an employment is deemed terminated whether wrongly or unlawfully terminated. It has also been earlier founded that the claimant’s appointment with the defendants is one with a master and servant relationship employment and in an employment relationship like this, Once an employer has mulled over an intention to terminate an employee, even though the steps taken is wrong the employment still remains terminated. See the case Keystone vs Clerk [2020] LPELR 49732 CA pg 1 @ 24-28 Paragraph D.
Therefore I find that the claimant’s appointment is deemed terminated on the date of such delivery vide email.
27. The claimant in this instant suit asserted that his employment was terminated with the reason of allegation of fraud laid against him by the 2nd defendant. The 1st defendant also confirms vide its pleadings in paragraph 3,4 & 5 that it received a report from the Internal Report of findings of unusual transactions from the 2nd defendant.
The 2nd defendant who found the said allegation of fraud against the claimant is the one asserting. It is settled law that he who assert must prove, Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exists. Citing Section 132 of the Evidence Act 2011 which provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” See the Supreme Court case of Edeani Nwavu & Ors. vs. Chief Patrick Okoye & Ors. (2008) 18 NWLR (Pt. 1118) Pg. 29 at 61, Mohammed JSC was quite instructive in stating that, the general concept of burden of proof in civil proceedings postulates the obligation being placed by law on a plaintiff to present evidence in proof of the fact in issue. In other words, the burden of proof is on the person who is expected to supply the evidence required in proof of his claim.
28. The 2nd defendant who wants you to believe that the claimant committed fraud has the burden to proof beyond probability, more so, as it is a criminal offence, he is required to specifically plead the particulars of offence and proof beyond reasonable doubt. See the case of Taylek Drugs Co Ltd v. Onankpa [2018] LPELR-45882 (CA) 1(a) 35-36, Para D and; Bico Nig Ltd & Anor v. Electronic Connections Ltd [2016] LPELR- 41318 (CA) 1 (a) 22-23, Para F.
More so, it is important to ascertain the allegation of fraud laid against the claimant by 2nd defendant carries far much wider implication than impugning the truth or correctness of a document. At common law, its foundation is deceit of which the intention to mislead and false representation are material. In equity it is, in sum infraction of fair dealing and its consequences upon the person aggrieved are of paramount importance. Thus, an allegation of fraud contained in a pleadings of a party, no matter how seemingly grave, unless its particulars are duly pleaded and credible evidence led in support to prove it beyond reasonable doubt as required by law, where it remains unproved, it therefore goes to no issues. See the case of Ajayi & anor v. Suru & ors [2019] LPELR – 48791 (CA).
The 2nd defendant herein pleaded the particulars of fraud vide its pleadings. Wherein he pleaded that a cash transaction of the sum of 322,000.00 only was unlawfully paid by the claimant to the persons unknown without observing the requisite due diligence, the said sum was said to be recovered from the claimant after an investigation was made.
There’s no report of the investigation of the said amount, there is also no evidence of transaction, even when 2nd defendant asserted that the said sum was recovered from the claimant, the 2nd defendant has not still justified his assertions of the transaction of the said amount by the claimant.
The said Sum of N873,000.00 said to have been withdrawn from 8 separate account in paragraph 20 of the particulars of fraud pleaded to by the 2nd defendant, the owner of the accounts been withdrawn from though pleaded was not proved. The 2nd defendant did not show cause before this Court to justify what was asserted, no record of transactions of the said withdrawals, it was only pleaded in its fact. There are no testimonies before this Court of all the name of persons who are the persons said to have been defrauded by the claimant as pleaded in paragraph (20) of the 2nd defendant’s particulars of fraud It is trite law that says where a party fails to adduce evidence in support of any assertion in his pleading he is deemed to have abandoned his pleading on the fact. See the Supreme Court case of Alhaji Risikatu Lopade & 1 0r (2011) 11 NWLR (part 1259) page 505 at 534 paragraph C-D.
By virtue of evidence Act, a matter in dispute in a suit cannot be proved by hearsay evidence. See the case of Hon Dr Willie Ogbiede v. Mr E Arigbe Osula [2004] 12 NWLR (pt 886) 86@115, Para B. The names of the persons pleaded in the 2nd defendant’s particulars of fraud are said to have been allegedly defrauded by the claimant, which makes those names a matter in dispute in a suit. The 2nd defendant cannot now come on their behalves to allege their complains, there should be testimonies of each person’s alleging that some unusual transactions went on in their account with the 2nd defendant, a sworn affidavit as a witness to establish that a complaint was made and whether it should be believed to be true or not.
29. The evidence adduced by the 2nd defendant to prove its allegation of fraud against the claimant in Exhibit y2 of an unauthorized transaction of deceased account no. 0008746872- Sadiku Achaja same evidence was issued query about for the claimant to reply to. In the said reply, claimant aver to consummating the two transactions but the circumstances in which those transactions took place are through one Shaibu Asema who was his BSM that acknowledges the payment of such transactions before giving him to consummate.
30. The 2nd defendant who has the burden to proof did not provide any testimony of the said Shuaibu Asema who is supposed to be the BSM in the 2nd defendant’s employment, to discredit or justify the claimant’s assertions. It is true that claimant also asserted in his cross-examination of the claimant witness by the 1st defendant that he was aware of the 2nd defendant policy in respect to BVN with withdrawal of the sum of #50,000 and above, but the 2nd defendant has failed to satisfy to the Court with a report of the investigation said to have been made to to have come into conclusion that the claimant intended to mislead and false represent a transaction without due diligence to the policy of the 2nd defendant. Allegation of fraud carries far much wider implication than impugning the truth or correctness of a document. There is nothing to show that the 2nd defendant actually considered justifying the explanation on Exhibit y2 before terminating the claimant’s appointment. The reason given for the termination of the claimant is the allegation of fraud. It is doubtful if the 2nd defendant have justified the dismissal of the claimant in view of all the assertions left not discredited which is an essential part of this case because of the reason given for the termination of the claimant. It is in view of this that I find that the claimant’s termination is wrongful by the defendants. I so hold.
31. More so, these adduced evidence of an unauthorized transaction of one Mathew Adaji’s account number 0008664635 Exhibit y4, was not herein pleaded in the 2nd defendant’s pleadings. It is trite law in the case of NTEOGBWUILE V OTUO 2001 88 LRCN 2357. On facts contained not pleaded; a court cannot use unpleaded facts contained in an Exhibit except such facts qualify as legally admissible opinion evidence. Parties are bound by their pleadings .i.e. evidence which is not founded on pleaded facts goes to no issue as it lacks any base or foundation to rest upon, while any pleadings in respect of which no evidence is led are deemed abandoned. In effect, where the pleadings are deficient no matter how cogent the evidence led, the case would fail. See OLANIYI VS ELERO (2008) All FWLR (PT. 411) 975. In OKHUAROBO & ORS. VS. AIGBE (2002) 9 NWLR (PT. 771) 29, the Supreme Court held that a Court cannot found its judgment on the evidence of material facts not pleaded as such evidence in law, goes to no issue.
Therefore, the evidence adduced by the 2nd defendant cannot stand alone on its own, because it was not founded in the 2nd defendant’s pleadings, hence such evidence is deemed abandoned and goes to no issue. I find and so hold
32. The claimant averred in his pleadings, that prior to his engagement with the 1st defendants, he was engaged by another consulting company still as a contract employee for the 2nd defendant, and he averred that he has been so engaged by the 2nd defendant for over 10 years. To the 1st defendant, it puts the claimant to the strictest proof. To the 2nd defendant, it denied and asserted that the claimant was not engaged by another consulting company as a contract employee of the 2nd defendant, the claimant was merely outsourced by the 1st defendant to work for the 2nd defendant, 2nd defendant also averred that claimant has not been engaged by the it for over 10 years. It is settled principle of law in the case of Akinfe v. U.B.A. plc. [2007] 10 NWLR (Pt. 1041) 185 CA. when an employee complains that his employment has been wrongfully terminated, he has the onus
a. To place before the Court the terms of the contract of employment and
b. To prove in what manner the said terms were breached by the employer. It is not for the employer who is a defendant to an action brought by his employee to prove any of these.
The claimant who wants the Court to believe his assertions did not place before it the terms of contract of employment let alone to prove the length of time he spent with the 2nd defendant. He also did not prove his assertions that he was engaged by another consulting company still as a contract employee for the 2nd defendant, because how does he expect the Court to ascertain his claims without the binding contracts that created the said employment relationship in the first place.
In the 2nd defendant cross-examination of the claimant.
Q: in Paragraph 5 of your statement of facts, what do you mean?
A:Karanda service ltd, I was employed by unity through Karanda services ltd.
Q: do you have any letter of employment from Unity Bank
A; the letter was given to me by Karanda Management service through Unity Bank
Q: where is the letter issued to you by Karanda Management service ltd
A: I do not have it in Court
Q: how long were you employed by Karanda
A: from 2008-2017
Q: what year did you work for the 1st defendant
A:I cannot remember but Karanda Outsourced me to the 1st defendant
33. From the above posited, claimant also did not provide cogent explanation to his questions been asked of him, he cannot remember the year he was outsourced by Karanda to the 1st defendant, he did not provide letter of appointment issued to him by Karanda Management service ltd. As claimant was not able to provide information to satisfy how he worked for the 2nd defendant through Karanda, how does he expect the Court to justify his assertions? The Court cannot speculate but only adjudicate on what is before it ………..
It is trite law that facts pleaded and not proved goes to no issue………………
34. Claimant averred that he was under paid by the 1st defendant in his paragraph 6 of his statement of facts. 1st defendant’s cross-examination to the claimant witness, he was asked for how many years has he been surcharged, he said throughout his work with the 2nd defendant, over 10 years, he also averred he does not know how much he was surcharged when asked, and did not have any frontloaded document in respect of the said claim. A clear perusal of the evidence tendered by the claimant, did not reflect any document to prove the claimant’s claim of surcharge.
It is not uncommon to find employers wanting to surcharge an employee for lost money or property, case laws exist which hold an employee liable to the employer for negligence in looking after the property of the employer but none of the authorities dispensed with requirement of fair hearing before any action is taken against the said employee. In the case of Shafiu Adejare v. MDS Logistics plc unreported suit No. NICN/LA/20/2013, delivered on 28th June 2016. The NICN affirmed this position when it held “the Courts have generally held that an employee cannot be surcharged (i.e. make somebody repay from personal funds any losses stemming from negligent or intentional mismanagement of a fiduciary responsibility) by an employer without first being given a hearing on the issue; or where there are more than one culprits, the yardstick used for the apportionment of indebtedness and hence the surcharge”. The hearing referred to here is a hearing as to the surcharge, not just a hearing as to the alleged wrongdoing. And so in Mrs Omoshola Shafqat Ogungbuaro v. Access Bank PLC unreported suit no. NICN/LA/289/2014, delivered on 30th October 2018. The NCN clarified the position and held that: There are two levels of investigation expected here: the one to establish guilt or the employee: the other to justify the surcharge as well as the yardstick for imposing the surcharge where there are more than one culprits. The defendant assumes the first, the investigation to establish guilt, suffices for the second.
The claimant in this suit is the one asserting therein, he must prove. He did not provide sufficient evidence to satisfy the alleged claim of a surcharge because even the hearing as to the surcharge must disclose the yardstick by which the actual surcharge was arrived at. The hearing in this regard is different, from the general disciplinary hearing and it is when they have done the hearing of surcharge and they find employee liable that’s when the disciplinary hearing comes in place Mrs Omoshola Shafqat Ogungbuaro v. Access Bank PLC Supra.
In this suit, the claimant did not establish a prima facie evidence to even warrant the 1st defendant to even defend or justify himself on the alleged claim of surcharge. Where facts pleaded is not adduced with evidence to prove such fact, such fact is deemed abandoned goes to no issue. See the case of Edeani Nwavu & Ors. vs. Chief Patrick Okoye & Ors (Supra). So I do not think the claimant can claim surcharge.
35. Claimant asserted that 2nd defendant freezed the three accounts belonging to him without any authorization from appropriate Court or any Court whatsoever since August 2019 and no due process was followed. To the 1st defendant denied been aware of such dealings. To the 2nd defendant, it denied by averring that it is not true that the claimant has bank account of Unity Bank Plc, U.B.A. (United Bank of Plc) and First Bank plc, that was frozen, the claimant is put to the strictest proof.
The claimant is the one asserting here therefore must prove. From the adduced evidence tendered by claimant. It only shows one of the account was freezed vide a letter of application dated 16th March 2021 from the 2nd defendant, the First bank account of the claimant (Exhibit A5)
The content of the Letter herein states
“Please be informed that the Bank received the monthly BVN watclist for the month of February, 2021 from Nigeria Interbank Settlement Systen (NIBSS) notifying us that your BVN has been placed on watch list (category 1) in respect of fraud related issues, at the request of Unity bank PLC
It is clear from the above that the 2nd defendant request for the Claimant’s account; First Bank PLC to be frozen in respect of fraud related issues. The reason so given, which is the allegation of Fraud, by the 2nd defendant to freeze the Claimant’s account has been earlier found to be of no issue, as the 2nd defendant who alleged the offence of fraud has the onus to prove beyond reasonable ground but yet failed to satisfy the Court with one. See the case of Afribank(Nig.) PLC. V. Osisanya [2000] 1 NWLR (pt.642) 592 CA
An employer is not bound to give reasons for terminating the appointment of his employee, however, where the employer gives reasons for the termination, the onus lies on the employer to establish the reason stated.
The 2nd defendant having failed to prove the allegation of fraud, the right thing would have been is to make an order directing First Bank to unfreeze the claimant’s account with them but first bank is not a party to this suit. The Court cannot make an order on a party that is an absential to this suit.
I can only direct that the 2nd defendant who made request to freeze the Claimant’s first bank account, should also request for it to be unfrozen as the allegation of fraud made lack proper proof.
36. Claimant in his relief a’ is asking for a declaration that the termination of the claimants appointment by the defendant was wrongful. It has been earlier founded that the type of employment entered into by the claimant is one with a Master and Servant employment but a tripartite arrangement. In a tripartite arrangement, there is usually a contract of employment between the deployed employee(s) on the one hand and the labour contractor on the other hand. As enjoined by the ILO, the National Industrial Court is guided by the principle of the primacy of facts, in determining whether there is an employment relationship, hence the Court is guided by the facts of what was actually agreed and performed by the parties and not by the name the parties gave to the contract. The claimant has averred that he was outsourced by the 1st defendant to work for the 2nd defendant, these facts herein was also not denied by the defendants. Which brings the court to the conclusion that there exist a tripartite employment relationship with the claimant and that in the determination on who to place liability on, these Court will be guided what was actually agreed on and performed by parties and not by the name the parties gave to the parties,
37. The question to ask, Is Claimant’s wrongful termination gleaned towards the 1st defendant or the 2nd defendant, as it was the 2nd defendant that alleged an offence of fraud against the claimant, it was consequent of this allegation, the claimant’s appointment was terminated. The 2nd defendant is found to have failed to justify the reason of terminating the claimant’s employment. In view of the above the 2nd defendant allegation against the claimant is deemed abandoned and fails. These however makes the termination of the claimants wrongful. It is settled principle that where there is a wrong remedy follows. See the case of Oloja v. Gov. Benue State [2022] 3 NWLR (Pt 1816)1 Date : Friday, 26th March,2021 Court S.C. The 2nd defendant is the one who alleged a wrong against the claimant and has failed to prove, therefore must be liable. As seen in Chevron Nigeria Limited v. National Union of Petroleum and Gas Workers (NUPENG) & anor unreported suit No. NIC/LA/37/2010. Delivered: on the 2nd December 2013 and Diamond Bank Plc v. National Union of Banks, Insurance and Financial Institution Employees (NUBIFIE) & 3 Ors Unreported Suit No, NIC/ABJ/ 130/2013, Delivered: in the 6th February 2019. These Court is called to make a finding of liability as NICN readily found the existence of a triangular employment relationship for the purposes of determining whether the defendants legally picketed the claimants. Also the case of PENGASSAN v. Mobil Producing Nigeria Unlimited [2013] 32 NLLR (Pt. 92) 243 NIC., where although the NICN acknowledge the reality of triangular employment relationships, and held that liability in terms of payment of benefits and the like was not proved.
38. The law is trite that where a wrong has been established, nominal general damages will follow without need to specifically plead or prove the damages. See Eneh v. Ozor & Anor(2016) LPELR-40830(SC);
The quantum of damages recoverable depends on whether wrongful termination of employment was as a result of failure to give required notice or as aresult of an alleged malpractice and if the former, the quantum may be employee’s salary in lieu of notice, but if the latter since such termination carries with it some stigma on the character of the employee, he shall be entitled to substantial damages far beyond the payment of salary in lieu of notice. In the more recent case of Sahara Energy Resources Ltd v. Mrs Olawumi Oyebola [2020] LPELR-51806 (CA) The Court of appeal affirmed the award of two years’ salary as compensation/damages against the defendant for unlawful didmissal. See also the case of Promasidor Nig. Ltd & Anor v. Asikhia [2019] LPELR-46443 (CA). it is in line with the above decision of the Court of Appeal coupled with the provision of Section 19(d) of the National Industrial Court Act, 2006 which empowers this Court to award damages/compensation in deserving cases that I award damages to the Claimant one year basic salary as compensation for the stigma of fraud leveled but unproven against him. Claimant herein did not plead the amount of his salary but asserted in the cross-examination of the claimant witness by the 2nd defendant that is salary is the sum of #58500 (Fifty Eight Thousand and Five Hundred Naira only) in view of this assertions. The court therein award to him one year salary of #58,500 as general damages. I so award
39. Claimant in his relief 2 is asking for an order for the re-instatement of the claimant as a staff of the defendants
It has been earlier found that the claimant’s appointment is one that is clothed with Master and servant employment and the Law is settled in the case of Obo V Comm. Of Education Bendel State [2001] 2 NWLR (Pt.698) 625 SC. As willing as an employee might be to work for an employer, an employer cannot be compelled to accept an employee, such an employer can only be made to comply. These relief however fails
40. Claimant in relief 3 is asking for an order for payment of all entitlements accruing to the claimant resulting from the fact he was working for the 2nd defendant as a contract employee/staff. It is settled principle that a claim is circumscribed by the reliefs claimed. The duty of a claimant is to plead only such facts and material as are necessary to sustain the reliefs and adduce evidence to prove same i.e. he cannot obtain releifs not claimed. See the case Obe v. Mtn Nig. Comms Ltd [2021] 18 NWLR (Pt. 1809) 415 Date: Friday, 16 April, 2021 Court .S.C.
Claimant herein, did not plead any amount he claimed to have accrued to him resulting from working for the 2nd defendant as a contract employee/staff, let alone proof it. Parties are bound by their pleadings. These relief however fails, as parties are the owners of their cases and are in the best position to know their claims or reliefs, therefore the Court cannot go outside the claims or reliefs in search of other claims or reliefs not before them. See the case of Adetoun Oladeji (Nig) Ltd v. N.B. Plc [2007] 5 NWLR (Pt. 1027) 415 Date; Friday, 25 January 2007 Court: S.C. I find and so hold
41. Claimant in relief 4 is asking for the sum of One Million Five Hundred Thousand Naira [N1,500,000.00) only as cost of filling and prosecuting this suit. This relief is seeking for special damages, it is trite that special damages must be specifically pleading and strictly proven. It is the duty on the party who avers special damages to put before the Court sufficient material to guide the Court in its decision to award same. See the case of F.B.N Plc v Banjo [2015] 5 NWLR (pt. 1452) 253 @ 274 paras G-H; paras G-H; Paras. D-E;
42. The claimant is seeking for special damages in the sum One Million Five Hundred Thousand Naira [N1,500,000.00), as cost of filling and prosecuting this suit. The claimant is seeking for special damages but there is nothing before this Court to substantiate. It is well settled that a claimant who claims special damages must specifically plead the sum claimed with distinct particularity stating the sum claimed item by item with corresponding monetary value of the item claimed which must equally be supported by credible evidence. See the case of UBN v. Nwankwo [2019] 3 NWLR (Pt 1660)474; NBC Plc v. Ubani [2014] 14 NWLR (Pt 1398) 421 @ 475, Paras D-E. The claimant herein who would want the Court to grant special damages in this case failed to do so all that is required of him by specifically pleading and proving her entitlement to the sum claimed. Thus this Court cannot grant unsubstantiated claim, but the law is settled that costs including cost of litigation is at the discretion of the Court. the rules of this Court, particularly Order 55 empowers this Court to grant costs of action as its own discretion. I find from the facts of this case that had 2nd defendant not made an unfounded allegation of fraud against him, he would not had to institute this case. it is in light of this that I award the sum of N100,000 as cost for the claimant.
