BACK

NICN - JUDGMENT


             IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA 

IN THE BENIN JUDICIAL DIVISION 

HOLDEN AT BENIN

BEFORE HIS LORDSHIP: HON. JUSTICE A. A. ADEWEMIMO

DATE: 14TH JULY, 2025                                                   

SUIT NO:  NICN/BEN/20/2023

 

 BETWEEN 

 

ORIGHOMISAN KAKA                                           …….….…………CLAIMANT

 

AND

 

  1. OBAX  WORLDWIDE  LIMITED                              
  2. DEACON FRIDAY OSAZUWA
  3. HRH. JACKSON AKENZUA, JP                    ….. ………..…. DEFENDANTS   
  4. LEWIS OYEMAH                                                                                

 

                                                                                          

REPRESENTATION

Dr. S. O. Daudu, Esq. for Claimant

D. O. Okpievba, Esq. for 1st Defendant

Chris Otasowie, Esq. with R. E. Afe, Esq. for 2nd – 4th Defendants

 

 

JUDGMENT

 

  1. The claimant initiated this suit against 1st, 2nd, 3rd and 4th defendants vide a General form of complaint dated and filed 2nd day of June, 2023, with a statement of facts and other accompanying processes. Wherefore he is seeking the following reliefs against 1st – 4th defendants jointly and severally: 
    1. A Declaration that the purported termination of the Claimant’s employment from the 1st Defendant vide a letter dated 31st August, 2020 addressed to the Claimant but served on and received by the 2nd Defendant is unlawful, irregular, high-handed, invalid, null and void and of no effect whatsoever.  
    2. An Order directing the 1st Defendant to reinstate the Claimant to his position as a Support Staff to NPDC Oredo OML 111 Field Plant Facilities Operations in the service of the 1st Defendant without any loss of his seniority or progression, entitlements or any remunerations whatsoever.   
    3. An Order of Court that the purported replacement of the Claimant with the 4th Defendant in the services of the 1st Defendant is unlawful, irregular, high-handed, invalid, null and void and of no effect whatsoever.  
    4. An Order that the 1st Defendant should pay to the Claimant his accumulated entitlements and emoluments from the date of purported termination to judgment at the sum of N75,00.00 per month. Interest on Claim Number (d) above at the rate of 25% per annum from the date of purported termination until judgment.
    5. Post judgment interest at the rate of 10% per annum until the entire judgment sum is paid up.  
    6. The sum of N1.5 million only being cost of filing this suit including but not limited to the cost of legal representation.  
    7. Twenty million (N20,000,000) naira as General damages.

 

  1. The brief facts of this case is that, claimant was employed by 1st defendant vide a letter of Appointment dated 1st August, 2017, and was deployed as a support staff to NPDC Oredo OML III Field Plant Facilities Operations. He was placed on a monthly salary of N75,000.00 excluding allowances, and his employment was later confirmed vide letter dated 1st of December, 2017. Claimant alleged that 1st defendant did not pay certain stipends due to him from NPDC in 2019, as a result of which he laid a complaint in 2020. He averred that upon his complaint, his supervisor confirmed that the stipend was N500,000 out of which he promised to pay him N295,000.00 but never did, and 1st defendant also failed to pay same.  

 

  1. The claimant averred that on 10th of August, 2020, 2nd defendant purportedly acting under the auspices of Community Relations Committee for Ologbo community wrote the Managing Director of 1st defendant. The 2nd defendant sought the stoppage of Claimant’s monthly salary on the ground that he and one other person have been declared wanted by the police in connection with the kidnap and murder of one Sunday Eitche.

 

  1. Claimant averred that he worked at NPDC all through July and August, 2020, and his salary for July, 2020 was paid, but that of August is unpaid till date, he further averred that he worked from August - December, 2020, and January-March 2021. Claimant alleged that the Police arrested him in March, 2021, and he was detained at the Correctional Centre from 12th March, 2021 till December 2021, after his release Claimant met with Human Resources Manager of NPDC, who arranged a meeting between him and 1st defendant. 
  2. The claimant stated that it was at the meeting on 25th of August, 2022, that he was informed for the first time that he has been disengaged since 2020. He averred that he was not served with a letter of termination by 1st defendant or by any one, although he saw a photocopy of same attached to 1st defendant’s reply to his pre-action notice written by the Law Firm of Desmond O. Okpiavbe & Associate.

 

  1. The 1st defendant entered appearance in this suit vide a memorandum of Appearance dated 21st but filed 22nd of June 2023, with a statement of defence and other accompanying processes. 1st defendant denied each and every material fact in the statement of facts and contended that claimant’s employment was terminated because he abandoned his duty post. 
  2. The 2nd, 3rd and 4th defendants on their own part entered appearance vide a Memorandum of Appearance dated and filed 27th of October, 2023, they also filed a Joint Statement of Defence with other accompanying processes. They denied all material facts in the Statement of Facts, and contended that they are not parties to the employment relationship between claimant and 1st defendant. 
  3. Trial in this suit commenced on 23rd of January, 2024, with Orighomisan Kaka, the claimant testifying as CW1, he adopted his written statement on oath and tendered several documents which were admitted and marked Exhibits K-K16, after which he was cross-examined by 1st defendant’s counsel and counsel to 2nd - 4th defendants, respectively. Under cross-examination by 1st defendant’s counsel, he testified that he was not a staff of 1st defendant, and that he is a staff of NPDC employed by 1st defendant. Upon been shown Exhibit K, he confirmed that he was deployed to NPDC vide Exhibit K, which was issued by 1st defendant.
  4.  CW1 testified that he is a School Certificate holder, and he knows the meaning of support staff, he also confirmed he was a Field Marker in Pump Department of NPDC, since August, 2017. Claimant testified that he knows 3rd defendant very well, and after taking a look at Exhibit K9, he maintained that same was not written by the Head of his Community as there are two Communities within Ologbo, i.e. Itsekiri and Benin, and he is Itsekiri. 
  5.  The claimant confirmed that his community nominated him for employment with 1st defendant and directed same to 2nd defendant, he further stated that he was not the only one that was recommended to 1st defendant for employment. CW1 denied that his appointment was terminated, and that he left his duty post unattended before he was arrested for kidnapping and murder which he knew nothing about. He however confirmed that he was charged to court and detained at the Correctional Centre and police custody from March 2021 to December 2021. 1st defendant hereafter closed his cross-examination of CW1.
  6.  CW1 was cross-examined by counsel to 2nd- 4th defendants, he admitted that 1st defendant is a registered company and has control over its own activities, he further confirmed that 2nd- 4th defendants are not members of 1st defendant, and do not take decisions on its behalf. CW1 admitted that job slots in 1st defendant was given to Ologbo community, and it was 2nd defendant who received nominations from Itsekiri community for onward submission to 1st defendant. He further admitted that when he was employed, he was given terms and conditions of employment, that is, Exhibit K2 which regulates his relationship with 1st defendant.
  7.  CW1 admitted that Exhibit K2 provides that termination of employment is for cause, and 1st defendant has a right to terminate his employment, while one of the conditions of his employment is that he must attend work regularly. Claimant denied he was aware of the kidnapping and murder of Sunday Etchie, and that he was declared wanted in respect of same, but admitted he was arrested and detained on the charge for 9 months. 
  8.  He confirmed that all through the 9 months he was in detention, he did not attend work, but sent a message to the company informing them of his travail, he however does not have any document to proof 1st defendant and NPDC were informed. CW1 maintained that the essence of informing 1st defendant was for them to grant approval for his absence and still retain his job, but he agreed that 1st defendant as a private company has a right to approve or disapprove his request. CW1 maintained that while he got approval from NPDC for his absence, same was not the case with 1st defendant. 
  9.  CW1 admitted that he read Exhibits K7 and K8, and same did not state that his employment was terminated as a result of 2nd and 3rd defendants’ letters, he however disagreed that 1st defendant has a right to replace him. He maintained that since it was NPDC that employed him, they are the ones that can order for his replacement. Claimant closed his case after giving evidence, and the case was adjourned for defence of 1st defendant.

 

  1.  1st defendant opened its defence on 24th of November, 2024, with one Kingsley Eroamuno, a Business Strategy and Performance Manager with 1st defendant, testifying as DW1. He adopted his written statement on oath and closed his examination-in-chief after identifying several documents already tendered by CW1 i.e. Exhibits K1, K2, K3, K5, K6, K7, K8, and K9, counsel for 2nd - 4th defendant however declined to cross-examine this witness. 
  2.  DW1 was subsequently cross-examined by claimant’s counsel, he maintained that 1st defendant is a corporate body and that he knows the claimant from the record but not personally. DW1 denied that 1st defendant relied solely on Exhibits K5 and K6 to suspend claimant’s salaries and allowances, as 1st defendant has its own rules of engagement. He also confirmed that CW1 was not issued a query because he could not be reached, but he admitted that CW1 was deployed to NPDC by 1st defendant.
  3.  DW1 gave evidence that no query was received from NPDC about CW1, but 1st defendant conducts its own monthly assessment, he also confirmed that claimant’s employment was terminated on 31/8/2020, he is however not sure he was paid his August salary. DW1 admitted that claimant’s letter of termination was served on the Community because he could not be reached at that time, and as at 1st March, 2021, he was no longer working for 1st defendant. The witness maintained that Exhibit K4 reveals that CW1 was already enrolled for NPDC workshop planned for 1st March, 2021, and that was why he was privileged to attend. 
  4.  DW1 admitted that CW1 was employed based on the relationship between 1st defendant and NPDC, and copies of letters of termination are usually sent to NPDC, but he does not have proof of such in the claimant’s case. DW1 admitted that Deacon Friday Obazuwa (2nd defendant) was served with claimant’s letter of termination, and he also wrote 1st defendant for his replacement. 1st defendant closed its defence with the evidence of DW1, and the case was adjourned for the defence of 2nd – 4th defendants.

 

  1.  2nd - 4th defendants opened their defence on 3rd February, 2025, with Deacon Friday Osazuwa, i.e. 2nd defendant, Secretary and Ex-Head/Secretary of community Relations Committee (CRC), Ologbo community, testifying as DW2. He adopted his written statement on oath, identified Exhibits K5 and K8 which were tendered by CW1 and tendered a document which was admitted by the court and marked Exhibit CO5. DW2 was subsequently cross-examined by 1st defendant’s counsel. He maintained that he is the secretary to Enogie of Ologbo and Ex-secretary of Community Relations Committee (CRC), and that CW1 has a history of violence in the Community. DW1 confirmed that he wrote 1st defendant and asked them to withhold claimant’s salary because of his involvement in a kidnap and murder case. 
  2.  He was thereafter cross-examined by claimant’s counsel, he maintained that Deacon is his birth name, and although he has his own house, he lives in the palace because of his position. The witness confirmed that he has evidence to support his appointment as Secretary/Head Community Relations Committee (CRC) but they are not with him in court, he also confirmed that the community recommended CW1 for employment, but the letter of recommendation is also not with him in Court. DW1 denied that 2nd- 4th defendants had a hand in the travail of Claimant, and though he wrote 1st defendant to withhold his salary, he cannot lay his hands on any document pertaining to his arrest and arraignment for kidnapping, armed robbery and murder.
  3.  DW2 further admitted that he has no evidence before the court to prove that NPDC wrote 1st defendant complaining about claimant’s absence from work, and admitted that he wrote Exhibit K9 so that 1st defendant can allow replacement of CW1 with another person, to ensure that the community will not lose its slot. The witness admitted that claimant’s letter of termination was given to him, as all correspondence from 1st defendant for those employed through the community pass through the CRC. He however admitted he was unable to serve the claimant as he could not be located, though he was aware of his arrest and detention. 2nd- 4th defendants closed their defence after the evidence of DW2, and the case was adjourned for adoption of final written addresses.
  4.  Counsel for the parties subsequently filed their respective written address, and same were adopted before this court on 28th April, 2025.
  5.  1st defendant’s final written address is dated and filed 28th of February, 2025, wherein D.O Okpiavbe of counsel for 1st defendant formulated two issues for determination, to wit: 
    1. Whether on the state of the pleadings and evidence led at trial, the Claimant has proved his claims against the Defendants on the preponderance of evidence.  
    2. Whether this Honourable Court has the jurisdiction to entertain the claimant’s claim as contained in statement of facts dated 2nd June, 2023.

 

  1.  On issue one, counsel contended that claimant has failed to prove his case against the defendants with the preponderance of evidence, and this suit deserves to be dismissed.  He submitted that the onus to prove wrongful termination lies on the claimant, and he cited PATRICK ZIDEH VS. RIVER STATE CIVIL SERVICE COMMISSIONER (2001) FWLR (PT. 46) 821 at 826 (CA). He noted that claimant’s appointment was terminated on the ground that he absconded from work, he cited AKINOLA VS. FIRST BANK OF NIGERIA PLC (2008) 27 NLLR (PT.58) 1. He therefore posited that there is no basis for claimant’s claim in paragraph 49 (a) to (h) of the statement of facts.

 

  1.  Counsel submitted that defendant’s right to terminate claimant’s appointment is not in doubt, and even where there is no provision to do so, such term would be implied to the effect that it can be terminated upon giving reasonable notice. Counsel relied on the case of GARUBA VS K.I.C LTD & ORS (2005) LPELR-7739 (CA) at pages 18-19, and argued that claimant has failed to discharge the burden placed on him by law in this case. He noted that claimant led evidence that his appointment was wrongfully terminated without fair hearing, and that by the provisions of Section 36(1) of the CFRN; 1999 (as amended), the time-tested principle of fair hearing is the impression of a reasonable person at the trial, and his observation that justice has been done. Counsel cited ALECHENU VS. UNIVERSITY OF JOS (2015)1 NWLR (PT. 1440) 333 at 367, paras. F-H.

 

  1.  Counsel pointed out that under cross-examination, the claimant stated that he was incarcerated at the Correctional Centre for over 9 months based on allegation of kidnapping and murder. He submitted that documentary evidence is the best form of evidence, and that no oral evidence will be allowed to discredit or contradict the content therein, he cited ESEKHAIGBE VS.  FRSC (2015) 12 NWLR (PT. 1474) 520 at 534, paras. C-D. Counsel referred to Exhibits K, K1, K2, K3 and K4, and argued that claimant lied under oath when he denied being an employee of 1st defendant, and noted that these Exhibits contradict claimant’s oral evidence, he urged the court to so hold.

 

  1.  1st defendant’s counsel noted that claimant’s employment was not immediately terminated after he abandoned/absconded from his duty post, and was indicted by the police due to the allegation of crime, but he was terminated due to his failure to resume at his duty post. Counsel noted further that a master has the right to appoint or terminate the employment of its servant, and the servant owes it a duty to obey the order of transfer or redeployment. Counsel relied on SULE VS. NIGERIAN COTTON BOARD (1985)2 NWLR (PT. 5) 17 and NWOBOSI VS ACB LTD. (1995) LPELR (2021) at pp. 49-50 paras. F-C. a
  2.  He emphasized that claimant’s appointment is one of master and servant relationship with no statutory flavor, and as such, the master has a right to terminate the appointment at any time for no reason or any reason whatsoever. He went on to cite OSIEVWORE VS. NEPA (2002) FWLR (PT. 124) 398 at 408 (SC); and some other cases, and submitted that 2nd, 3rd and 4th defendants were wrongly joined in this suit. Counsel therefore urged the court to strike out their names as they were not parties to claimant’s employment contract. He noted that claimant admitted under cross-examination that 1st defendant is not his employer, and that he was employed by 2nd defendant, and therefore he urged the court to resolve issue one in favour of the defendants and against the claimant. 
  3.  On issue two, learned counsel submitted that this court does not have jurisdiction to hear and determine this suit as per the statement of facts. He noted that the claim by CW1 and statement of facts are contradictory on who actually employed him, and he urged the court to strike out the case. Counsel maintained that assuming this court has jurisdiction to entertain this suit, CW1 has also failed to prove his entitlement to the reliefs sought, and he urged the court to resolve issue two in favour of 1st defendant. In conclusion, counsel urged the court to dismiss the claimant’s case against the 1st defendant. 

 

  1.  2nd - 4th defendants final written Address is dated and filed 28th of March, 2025, wherein Esohe Idehen, Esq of counsel for the 2nd - 4th defendants raised a lone issue for determination in this suit to wit: 

Whether based on the evidence before this court, the Claimant has proved a case against the 2nd, 3rd and 4th Defendant so as to enable this court grant his reliefs against them as prayed in his Claim.

 

  1.  On the sole issue, counsel for 2nd -4th defendants submitted that the claimant has not discharged the evidential burden required by law to enable this court grant the reliefs in this suit. Counsel referred to Sections 131(1) and (2) of the Evidence Act, 2011 and cited SENATOR CHRIS ADICHIJE VS. HON. NKECHI J. NWAOGU (2010) 12 NWLR (PT. 1209) 419 at 429. He noted that this case arose out of the employment relationship between claimant and 1st defendant, and it was established during trial that the employment was terminated by 1st defendant. He noted that Exhibits K, K2 and K2 confirms that the employment relationship is not clothed with statutory flavor, and was at best a master and servant relationship which is regulated by conditions and terms of service contained Exhibits K1 and K2.

 

  1.  Counsel urged the court to hold that 2nd- - 4th defendants are not privies to the contract of employment in this suit, he referred to Exhibits K, K1, K2, K6 and K7, and noted that 2nd-4th defendants did not participate in the termination of claimant’s employment in any way.        Counsel continued that assuming 2nd – 4th defendants’ request to withhold claimant’s salaries suggested that his employment be terminated, the content of Exhibit K7 reveals otherwise, and that the employment was terminated as a result of absence from work.

 

  1.  Learned counsel referred the court to the evidence of DW1 who testified that claimant’s employment was not terminated as a result of 2nd and 3rd defendants’ letter, while CW1 conceded under cross-examination that the affairs and decision-making powers of 1st defendant is not subject to the control of 2nd and 3rd defendants. He further noted that the only offence committed by 4th defendant in this suit is that he accepted a job slot from 1st defendant upon the recommendation of the 2nd and 3rd defendants as a community.

 

  1.  In conclusion, counsel submitted that claimant has failed to lead cogent and compelling evidence against 2nd -4th defendants as the ones responsible for the termination of his employment, he urged the court to so hold. He further urged this court to dismiss this suit with the reliefs sought for being vexatious, gold digging and malicious with substantial cost. 

 

  1.  Claimant’s final written Address is dated and filed 11th day of April, 2025, wherein Dr S.O Daudu, Ph.D of counsel for the claimant formulated three issues for determination to wit: 
    1. Whether the Claimant has established his case of unlawful termination of his employment with the 1st defendant to be entitled to the reliefs sought from this Honourable Court. 
    2. Whether exhibits 5, K6, K8 and K9 have not established a prima facie case of interference of the 2nd, 3rd and 4th Defendants with the employment of the Claimant with the 1st Defendant and ought to be restrained, by this Honourable Court.  
    3. Whether this Honourable Court has the jurisdiction to entertain the Claimant’s suit? 

 

  1.  On issue one, counsel submitted that the claimant has established the case of unlawful termination of his employment by 1st defendant to be entitled to the reliefs sought. Claimant’s counsel referred to Exhibit K2, i.e contract of employment between the claimant and 1st defendant, and pointed out that in paragraph 21 of Exhibit K2, 1st defendant can only terminate the employment of the claimant by providing the claimant with a minimum notice or payment in lieu of such notice, which was not done in this case, and as such renders the purported termination unlawful, null and void and of no effect.

 

  1.  Counsel referred to Exhibit K5 and pointed out that the claimant’s salary has already been suspended before the alleged termination of his employment vide Exhibit K7. He noted that 2nd defendant admitted that claimant’s termination letter was served on him, but he did not give same to him even though he was aware of his detention. Counsel pointed out that Exhibit K2 revealed that claimant’s primary place of work is NPDC OML III, Field Plant Facilities Operation at Ologbo. He noted further that claimant’s job responsibilities were assigned by NPDC, and 1st defendant admitted under cross examination that the did not receive any complaint against the claimant from his primary place of assignment.

 

  1.  Learned counsel noted that since claimant’s employment till the date of his employment was terminated, he has never been found wanting or abscondment, and there is no oral or documentary evidence that shows he was indicted or queried for any wrong doing. Counsel submitted that there is no evidence to show that claimant was not at his duty post in July and August, 2020, and he referred to paragraph 17 of Exhibit K2 and Exhibit K8. Learned counsel also pointed out that 1st defendant admitted in paragraphs 15 and 16 of her statement of Defence that claimant’s employment was terminated based on Exhibits K5 which is the letter received from 2nd defendant at the instance of 3rd defendant.

 

  1.  He added that what is even more worrisome is that the purported termination of the claimant’s employment was neither communicated to him since August 31, 2020, nor NNPC E&P Limited until two years after the purported termination. He therefore urged the court to hold that it was irregular and unlawful for 1st defendant to rely on Exhibit K5 as the basis for purportedly carrying out a staff assessment which allegedly revealed that the claimant was not at his duty post. He cited ODIASE VS. NNPC (2003) 10 NWLR (PT. 828)88.  Learned counsel pointed out that claimant maintained that he was at his duty post throughout August, September, October, November, December 2020 and January, February, and March 2021 before he was detained by the Nigeria Police. He further ascribed claimant’s detention to 2nd and 3rd defendants and noted this fact was not denied or controverted by1st, 2nd and 3rd defendants, he referred the court to Exhibit K4.

 

  1.  Claimant’s counsel urged the court to hold that the period of 12th March, 2021 to December, 2021 when the claimant was in detention to the knowledge of the 1st, 2nd, 3rd and 4th defendants is not a ground for terminating the claimant’s employment for absence of duty post without permission. He posited that to hold otherwise would be to set a dangerous precedent in that, once a worker is arrested by the security agencies whether for right or wrong reasons, it would be a ground for termination of employment.

 

  1.  Learned counsel argued that in Exhibits K5, K6, K8 and K9, the reason for the termination of claimant’s employment as contained in Exhibit K7 is claimant’s alleged involvement in kidnapping and killing of late Sunday Eneche. He submitted that the law is settled that any person alleged or charged with any criminal offence is presumed innocent until he is proven guilty, and cited Section 36(5) of the CFRN; 1999 (as amended); and other cases. Counsel submitted therefore, that it was wrong and unlawful for the 2nd and 3rd defendants to rely on mere accusation to interfere in claimant’s employment by writing to 1st defendant vide Exhibit K5 and K9, so that he will be replaced by 4th defendant. 

 

  1.  He submitted that 1st defendant was in breach of claimant’s right to fair hearing for failure to afford him the opportunity to defend himself before terminating his appointment, and added that there is no evidence that claimant was queried for not been at his duty post. Counsel referred to Section 36(1) of the CFRN 1999 (as amended), and cited OTAPO VS. SUNMONU (2011) ALL FWLR (PT. 576) 419 and some other cases. Learned counsel submitted that claimant’s employment with 1st defendant is with statutory flavor and as such a pensionable employment as shown in Exhibit K2. Counsel urged the court to so hold, and to resolve issue one in favour of the claimant by granting all the reliefs sought.

 

  1.  On issue two, counsel urged the court to hold that by virtue of Exhibit K5, K6, K8 and K9, the 2nd, 3rd and 4th defendants unlawfully interfered with claimant’s employment with 1st defendant. He urged the court to rely on claimant’s omnibus prayer for further order or other orders as this court may deem fit to make in the circumstances of this case, and thereby grant an order of perpetual injunction restraining 2nd, 3rd and 4th defendants from interfering with claimant’s employment with 1st defendant. Counsel also relied on Section 6 of the CFRN; 1999 (as amended), and urged the court to resolve issue two in favour of the claimant. 

 

  1.  On issue three, counsel contended that this court has the jurisdiction to entertain this suit, noting that in determining jurisdiction, recourse should be had to the statement of claim, he pointed out that claimant’s suit is centered on unlawful termination of his employment. He therefore argued that same borders on the employment and termination of employment, and relied on Section 254(1) of the CFRN; 1999 (as amended), and Section 7 of the National Industrial Court Act, 2006. Counsel pointed out that 1st defendant raised the issue of contradiction in the testimony of CW1 as the basis for challenging the jurisdiction of this court. He submitted that contradiction in the testimony of a witness testimony is not a ground for challenging the jurisdiction of the court, counsel maintained that there was no contradiction in claimant’s testimony. Learned counsel therefore urged the court to dismiss the objection raised by 1st defendant in her final written Address.

 

  1.  In conclusion, claimant’s counsel urged the court to resolve the three issues raised in the address in favour of the claimant, and to grant the reliefs sought. In addition, he urged the court to issue restraining order against 2nd, 3rd and 4th defendants to stop them from interfering with claimant’s employment with 1st defendant either by themselves, privies or any other person claiming through them.
  2.  I have carefully read all the processes filed, considered the oral and documentary evidence adduced, as well as the final submissions of counsel in their final written address in this suit, thereafter, I have deduced the following issues for determination in this case to wit: 
    1. Whether or not the termination of claimant’s employment by 1st defendant is wrongful or unlawful.
    2. Whether or not the Claimant is entitled to the reliefs sought.
  3.  It is important to dispense with some preliminary issues that arose in the written addresses filed by counsel in this suit before delving into the substantive issues for determination. The employment relationship between 1st defendant and claimant is one of the issues in contention, in this regard, claimant’s counsel has argued that the employment relationship between 1st defendant and claimant is statutory and pensionable, while 1st defendant has maintained that same is a private employment, otherwise known as Master and Servant. On this issue, I find that the three categories of employment relationship recognized in Employment law are: (a) Private Employment a.k.a. Master and Servant, (b) Statutory employment and (c) Employment at the pleasure of the Employer. 
  4.  In this regard, see Salami V. Union Bank of Nigeria Plc [2010] LPELR-8975 (CA), where Lokulo-Sodipe, J.C.A. of blessed memory held as follows:

“The law is settled that types of employment can be conveniently classified into three namely, (i) those regarded as purely master and servant; (ii) those where a servant is said to hold an office at the pleasure of the employer; and (iii) those where the employment is regulated or governed by statute, often referred to as having statutory flavor……”

  1.  Whereas a statutory employment is governed by statutes or regulations derived from statute, a private employment is governed by terms and conditions voluntarily executed by parties, while Employment at the pleasure of an employer is subject to the discretion and whims of the employer. 
  2.  In resolving whether or not the claimant was in a statutory employment with 1st defendant, see paragraph 2 of the extant statement of facts, wherein the claimant averred that 1st defendant is a corporate body duly registered under the extant laws with a registered office, and bestowed with power to sue and be sued. This ordinarily infers that 1st defendant is not a creation of statute, being a private company with limited liability and the appointment or discipline of its staff is not derived from a statute.
  3.  In this wise, it can be said that 1st defendant could only have entered into a private employment relationship with the claimant on terms and conditions agreed upon by them, see Exhibit K2 which is designed to guide the employment relationship between the company and its employees. On the strength of the above, the employment relationship between claimant and 1st defendant in this suit can only be that of Private a.k.a.  Master and Servant and not statutory employment. I so hold.
  4.  The 2nd Preliminary issue is defendant’s argument that the jurisdiction of this court is ousted, as a result of the evidence led by Claimant that his employer is NPDC, not 1st defendant. It is on record that claimant tendered his offer and letter of Employment, i.e. Exhibits K and K1 respectively as well as Exhibit K2 all issued by the 1st defendant, he also led evidence that even though he was employed by 1st defendant, he worked directly for NPDC. 
  5.  In the light of the above, I find no material contradiction in his evidence, the fact is, 1st defendant is an independent contractor who employed the claimant, after which he was deployed to work with NPDC, as such CW1 was in a triangular employment relationship with both of them. Moreover, Exhibits K, K1 and K2 are indicative of the employment relationship between 1st defendant and claimant, therefore, while 1st defendant is the primary employer of claimant NPDC is the secondary employers. In other words, 1st defendant is the main employer in the instant case, and had the power to appoint claimant, deploy him to work anywhere, and ultimately or terminate his employment. Thus, the contention by 1st defendant on the employer of claimant lacks substance and proper parties are before the court.

 

  1.  The 3rd and last preliminary issue to be resolved is whether or not 2nd, 3rd and 4th defendants are privies to the employment contract and therefore are proper parties to be sued in this suit. The claimant’s counsel has argued that 2nd and 3rd defendants’ letters to 1st defendant led to suspension of his salaries, and eventual termination of his employment. Claimant also led evidence that 2nd and 3rd defendants wrote 1st defendant and asked that his salaries be stopped on the ground that he was wanted for Murder and Kidnapping of one Sunday Etchie. He further alleged that the same set of people were behind his replacement by 4th defendant, and that all their actions were motivated by malice.

 

  1.  The 2nd, 3rd and 4th defendants however pleaded and led evidence in their defence, through DW2 that CW1 was one of those recommended to fill the employment slots assigned to Ologbo community by 1st defendant as part of local content implementation and social responsibility offered to indigenes. They admitted that they informed 1st defendant about the criminal allegation against CW1 so that the Community will not lose the slot to another Community, and nominated 4th defendant to fill same.

 

  1.  The evidence before this court confirms that claimant was initially recommended for employment with 1st defendant by 2nd and 3rd defendants, but this does not detract from the fact that they are not parties to the employment relationship. Assuming that 2nd and 3rd defendants played a key role in claimant’s employment and probably the termination of same, they are still not parties to the employment contract, at best they might be described as meddlesome interlopers. In line with this, the primary responsibility for any breach of the terms and conditions of employment in this instance is borne by parties to same, that is, claimant and 1st defendant. 
  2.  In this regard, no third party is liable for the breach of the contract, as the doctrine of privity of contract stipulates that a contract can only be enforced by parties to same, see Exhibit K2, which was executed by 1st defendant and claimant. On account of the evidence placed before this court, I hold that 2nd - 4th defendants are merely desirable parties to the just adjudication of this case, as this court cannot go beyond the interpretation of the rights and obligations of 1st defendant and claimant as contained in the employment contract executed by both of them.

 

  1.  On the first substantive issue for determination, I have stated earlier that parties in a private employment relationship as in this case are bound by terms and conditions voluntarily executed by them, and every action or inaction of parties is subject to such conditions and terms, see John Oforishe v Nigerian Gas Company (2018) 2 NWLR (Pt. 1602) 35 at 53-54. In view of this, the court will have to examine the contract of employment between parties for a just determination of this case.

 

  1.  1st defendant has anchored its defence on claimant’s absence from his duty post, which ultimately led to termination of his employment, which was attributed to monthly assessment conducted by the company. 1st defendant further contended that this decision was taken notwithstanding 2nd and 3rd defendants’ letter urging the company to suspend claimant’s salary and nomination of his replacement. 

 

  1.  The claimant however hinged his complaint against 1st defendant on lack of fair hearing before his salary was stopped, and his employment terminated. It is worthy of note that 1st defendant did not controvert the evidence that claimant’s salary was stopped, and he was issued a letter of termination due to his absence from duty. They also admitted that they received letters from 2nd and 3rd defendants in Exhibit K6 which lends credence to the allegation of absenteeism levied against claimant. In view of the above, the pertinent question will be whether 1st defendant gave claimant an opportunity to respond to the allegation of absenteeism before suspending his salary, and eventual determination of his employment with 1st defendant.

 

  1.  In answering this question, I have considered the evidence led by CW1 that he was arrested by the police, and detained at the Correctional Centre for about nine months, which was confirmed by DW2, who tendered Exhibit CO5, i.e. on enrolment of order admitting claimant to bail. I have also considered the evidence of DW1 that the inability to locate CW1 led to suspension of his salaries, and service of claimant’s letter of termination on 2nd defendant. However, Exhibit K2 contains a termination clause which stipulates that the employment is determinable without cause and at any time with minimum notice, or payment in lieu of the period of notice at the end of the probationary period, i.e. 6 months as contained in Exhibit K2. 

 

  1.  It is on record that claimant was employed vide Exhibit K dated 1st August, 2017, and was offered a full employment for a year, which is renewable, see Exhibit KI dated 1st December, 2017, and Exhibit K2 (Employment Contract) which specifies six months probationary period. The facts placed before this court by 1st defendant reveals that the incident that culminated in the suspension of claimant’s salary occurred in August 2020, which means that claimant has completed his probationary period as at the time his employment was terminated, and was therefore entitled to reasonable notice before same can be determined.

 

  1.  Although, 1st defendant attributed its failure to issue CW1 with a query, and service of his letter of termination on 2nd defendant to the fact that he could not be reached, but this is unsupported by the facts in this case. It is not in doubt that claimant’s primary place of assignment was NPDC and, Exhibits K4, K10 and K11 confirms the fact that he attended a workshop/training organized by NPDC in March, 2021, after the 1st defendant had allegedly terminated his employment vide Exhibit K7 dated 31st August, 2020, which was served on 2nd defendant.  

 

  1.  The fact that the letter of termination addressed to claimant was served on 2nd defendant  is therefore questionable, the manner Claimant’s employment was determined is indefensible, since 2nd defendant is not privy to the contract of employment in this instance. Furthermore, the evidence proffered by 1st defendant that NPDC was carried along in the termination of claimant’s employment is unverifiable, as 1st defendant could not produce any evidence that NPDC was copied. Conversely, the evidence before this court reveals that it was on 31st of August, 2022, that it was notified vide Exhibit K8 of the termination of claimant’s employment, wherein it was alluded that a letter was received from the community, with no reference to a previous letter on the issue. 

 

  1.  There is no doubt that an employer is within his right to terminate the employment of an employee accused of a crime once found guilty, and that same is determinable summarily. The position of the law however, requires that an employee accused of crime is presumed innocent until found guilty by a court of competent jurisdiction. In that wise, such an employee must be given a fair hearing, and subjected to trial by a competent court of law before his employment can be determined, see NDUKAUBA V. KOLOMO & ANOR 2005 ALL FWLR PT 248 1602@1614, where it was held:

“It is not in doubt that a court faced with an allegation of breach of fair hearing does not have to concern itself with the correctness or otherwise of the decision reached in breach of the principle of fair hearing.”

 

  1.  In the instant case, there is no evidence at all that claimant was afforded a hearing on the allegation against him, he was neither issued with a query nor was he served with a notice to terminate his employment contract personally see Exhibit K2. The failure to notify claimant of the allegation against him; failure of 1st defendant to issue him a query prior to the suspension of his salaries before terminating his employment, and service of the letter terminating his employment on a 3rd Party, i.e. 2nd defendant constitutes breaches of his constitutional right to fair hearing, as well as the terms and conditions guiding his employment.

 

  1.  It is the position of law that a letter of termination can only take effect on the date same is served on the affected employee. 1st defendant’s counsel rightly submitted in his written address, that going by the doctrine of privity of contract, the contract of employment in this case is strictly between claimant and 1st defendant. Flowing from the above, service of the letter of termination on a 3rd party cannot discharge 1st defendant from its primary duty as an employer, to notify the claimant of the termination of his employment personally.

 

  1.  In the Unreported case of Anyaehie v. Fidelity Bank Plc Suit No. NICN/LA/622/2012 delivered by my learned brother Oyewumi .J. (as he then was) the court held:

“The law is well settled that a notice of termination/resignation takes effect from the date the letter was received by the employer or its agent, See WAEC V OSHIONEBO [2006] 12 NWLR (PT 994) 258; ADEFEMI V ABEGUNDE [2004] 15 NWLR (PT 895) 1; The apex Court reiterated and reaffirmed this position of the law in CHRISTIANA YARE V NATIONAL SALARIES AND WAGES COMMISSION [2013] LPELR 20520, S.C. Both parties are ad idem that the claimant was lawfully employed however, the point of divergence is on the mode and effective date of termination. It is trite law that where an employee's contract of employment is terminated without notice, the effective date of termination is the date on which the letter was communicated. In an English case of HORWOOD V LINCOINSHIRE COUNTY COUNCIL [2012] U.K.E. @ 0462/11.; it was held that where an employee's contract of employment is terminated without notice as it is in this case, the effective date of termination is the day that notice is communicated.”

 

  1. The letter of termination having not been served personally on the claimant is therefore wrongful and ineffective until it was brought to his attention vide an attachment to counsel to 1st defendant’s letter (Exhibit K16) dated 24th of February, 2023. In this wise, same cannot be said to take a retroactive effect, and came into effect on the date it was received by claimant.

 

  1.  Although 1st defendant raised a defence that they were unable to serve claimant with a query and letter terminating his employment because his whereabout was unknown, they however failed to controvert the evidence that claimant was at a time incarcerated, and thus incapacitated. The position of the law is that if a party is incapacitated by way of ill health or incarceration, the employer is still obliged to give him a hearing before he can be punished once he became available. 

 

  1.  The claimant led evidence about his arrest and detention, he further led evidence that he wrote 1st defendant about his incarceration, and thereafter attended a workshop organised by NPDC after his release from detention, but 1st defendant failed to respond till they issued Exhibit K16. DW1 however, led evidence that NPDC was notified about the termination of claimant’s employment, while the attendance of CW1 at a workshop organised by NPDC was because he was earlier nominated to attend the workshop before his employment was terminated, this however was not substantiated by the evidence placed before this court  

 

  1.  There is no evidence forthcoming from NPDC that CW1 was earlier nominated for the workshop before his employment was terminated, and since 1st defendant was not the organiser, the evidence of DW1 on this issue can only amount to hearsay. It also defies logic that an employee whose employment has been terminated is allowed to attend a workshop meant for those in the employment after he has exited the Service of the Employer.

 

  1.  It is trite law that civil cases are decided based on the preponderance of evidence proffered by parties, and in this instance, the preponderance of evidence tilts the scale in favour of claimant. Not only that 1st defendant is in breach of Claimant’s right to fair hearing when they suspended his salaries, and terminated his employment vide letter issued to 2nd defendant but also by serving the letter of termination on a 3rd Party. Therefore, the 1st issue for determination can only be resolved in favour of the claimant. In essence, I find that the suspension of claimant’s salary, termination of his employment by 1st defendant without notice or affording him a hearing, and service of the letter of termination letter on a 3rd party (2nd defendant) constitutes a breach of his constitutional right to fair hearing, and Exhibit K2 (Employment Contract) which renders the termination wrongful. I so hold.  

 

  1.  In the same vein, a willing employee cannot be forced on an unwilling employer, therefore 1st defendant having indicated interest to end the employment relationship with claimant cannot be compelled to reinstate him in a private employment relationship guided by an employment contract executed by parties. Thus, it follows that termination of claimant’s employment having been found to be in breach of the employment contract and principles of fair hearing can only amount to wrongful termination.
  2.  Consequent upon the above, the only available remedy in this instance is in damages which will be calculated at an amount the aggrieved employee is ordinarily entitled to receive for the period of notice required to terminate the employment. In this regard, see Arinze V. FBN 2020 LPELR -51517 (CA). However, Exhibit K2 did not specify the period of notice, as it only mentioned “….minimal notice or pay in lieu of such notice…..” .
  3.  As a result, the court will have to apply the common law principle of reasonable notice, see NORTON TOOL CO. LTD VS. TEWSON (1972) ICR 501. The claimant led evidence that he was on a monthly salary of N75,000.00k, and this amount is evident from Exhibit K2. In the circumstance, I find that a month notice is also reasonable to terminate the employment relationship between parties in this case. Consequently, a sum of N75,000.00K is hereby awarded to the claimant as a month salary in lieu of notice for the wrongful termination of his employment by 1st defendant. I so hold.  
  4.  On whether or not the claimant is entitled to the other reliefs sought in this case, starting with relief “a” which is for a declaration that the purported termination of his employment vide letter dated 31st August, 2020, served on 2nd defendant is irregular, high handed, unlawful, invalid null and void. The law is trite that courts do not grant declaratory reliefs in default of defence, or based on admission without hearing evidence, as such, the court must be satisfied that a party is entitled to same, see Kwande & Anor v Mohammed & Ors. (2014) LPELR-22575(CA), where Gumel JCA held:

“The law is settled that courts do not grant declaratory reliefs in default of defence or indeed on admissions without hearing and being satisfied by such evidence. The burden of proof on a claimant in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such reliefs are not granted even on admission by the defendant.”

  1.  I have held earlier that termination of claimant’s employment vide letter served on 2nd defendant is wrongful, and parties in this suit are in a private employment, whereupon I have awarded N75,000.00k as a month salary in lieu of notice to claimant. Therefore, it follows that this relief is meritorious to the extent that termination of claimant’s employment by 1st defendant vide letter of termination on 2nd defendant can only be declared wrongful. I so hold.
  2.  Relief “b” is seeking for reinstatement of the claimant to 1st defendant’s employment without any loss of seniority, progression entitlements, or remunerations. This relief is only available in a statutory employment, and by the nature of claimant’s employment, it cannot be sustained being a private employment, as such, this relief is refused. I so hold.
  3.  Relief “c” is for an order that the purported replacement of the claimant with 4th defendant is unlawful, irregular, invalid null and void. This relief is also unsustainable, 1st defendant cannot be compelled to retain or dispense with the service of an employee in a private employment, this relief fails and is refused.
  4.  Relief “d” is for an order for payment of claimant’s accumulated entitlements and emoluments from date of the purported termination i.e. August 2020 till this Judgment, and interest at a rate of 25% per annum. CW1 led evidence that his salary was stopped sometimes in August 2020, and he heard about termination of his employment for the first time on the 25th August, 2022, while he was arrested and incarcerated from 12th March tisll December, 2021. 
  5. Claimant further led evidence that he worked throughout the months of August - December, 2020, as well as January - March 2021, eight (8) months in total, but he did not specifically set out the months he is claiming in this relief. There is no doubt that this relief is a claim in special damages, and must be specifically pleaded and strictly proved.
  6.  In Tanko & Anor v Mai-Waka & Anor. (2009) LPELR-4277 (CA) Peter-Odili JCA (as he then was) held:

“Special damages are damages which are of the type which the law will not infer from the nature of the act. They are not in the ordinary course of events. The law therefore requires that they must be claimed and proved strictly… any claim for loss of earnings is a claim in special damages in the sense that full particulars must be given by the plaintiff in his pleading of his rate of earning and such other facts as may be necessary to enable the Court to calculate, as best and accurately as it can, the actual amount of the plaintiff’s loss.”

  1.  Although CW1 led evidence that he was being paid N75,000.00k per month before his employment was terminated, and that his salary from August, 2020 was unpaid. Nonetheless, he still bears the burden to specifically set out the particular months for which his claiming in view of his admission that he was absent for nine months due to his incarceration. In addition, the claimant can no longer feign ignorance that his employment has been terminated by 1st defendant from the time same was brought to his attention, and in this instance being a private employment, he can only claim salaries for work done. 
  2.  Thus, claimant’s failure to specifically set out the months he was at work in this relief, and renders this relief vague, and inappropriate in a claim for special damages likewise the claim for emoluments or entitlements till Judgment. Claimant’s employment has been effectively terminated on the day he received Exhibit K7, thus, he is no longer entitled to entitlements thereafter. In the case of Beta Glass Plc. v Epaco Holdings Ltd. (2010) LPELR-3872(CA), the Court of Appeal held per Augie JCA that:

“The claimant must establish his entitlement to special damages by credible evidence of such character as would suggest that he indeed is entitled to such an award.”

  1.  In all, claimant’s evidence falls short of the standard of proof required to sustain a claim in special damages, as a result, this relief including the claim for 25% interest per annum thereon fails and are hereby refused. I so hold.
  2.  Reliefs ‘e’ and ‘f’ are for Post-Judgment interest and cost of litigation, this is usually awarded to a successful litigant, at the discretion of the court, which must be exercised judicially and judiciously. The claimant therefore having succeeded in some parts is entitled to same which will be awarded in due course.
  3.  Relief ‘g’ is for N20,000.000.00k (Twenty Million Naira) general damages, ordinarily, the quantum of damages that is awarded in cases of wrongful dismissal or termination is the amount an Employee is entitled for the period of notice. However, in line with the international best practice, particularly Convention 158 of the ILO on termination of Employment, any employment that is wrongfully terminated/dismissed, will attract adequate compensation as it is rare for such an Employee to be reinstated, see MRAKPOR & Anor V. P.S.C 2016 LPELR- 40489 CA where Ndukwe- Anyawu J.C.A held: 

“Normal practice is that an illegally removed employee has only one remedy and that is that of damages. It is rare for an employee to be reinstated in wrongly dismissed….”

  1.  A look at Section 19(d) of the National Industrial Court Act, 2006, stipulates that this Court is empowered to grant compensatory damages, same is reproduced as follows:

“The Court may in all other cases and where necessary make appropriate order, including-

(d) an award of compensation or damages in any circumstance contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear.”

  1.  The law is trite that general damages is what the law presumes to be the direct, natural or probable consequence of the act complained of, or damages resulting from the loss flowing naturally from the breach of contract. This is also said to be incurred in due consequence of the breach, see Okoro J.C.A in NEPA v. Malam Muhammad Auwal [2010] LPELR-4577 (CA).
  2.  In the instant case, the claimant led evidence that his salary was stopped without notice for months, and his appointment terminated without notice or fair hearing. I have given due consideration to the above facts, and especially the violation of claimant’s right to fair hearing as well as the subsequent loss of his means of livelihood, and I find that claimant is entitled to this relief, as his loss can only be assuaged by an award of damages. In this regard, see BRITISH AIRWAYS vs. MAKANJUOLA (1993) 8 NWLR (PT 311) 276 at 288; SAHARA ENERGY RESOURCES LTD. V MRS OLAWUNMI OYEBOLA 2020 LPELR – 51806 (CA).
  3.  Consequent upon the above, I find that the claimant has established his claim for an award of damages in this case, and he is therefore entitled to same in line with the above expositions. This relief is therefore meritorious, consequently, I hereby award a sum of N5,000,000.00 to the claimant as general damages to be paid by 1st defendant in this suit.  I so hold.
  4.  In conclusion, I declare and order as follows: 

 

  1. It is hereby declared that termination of claimant’s employment by 1st defendant vide letter dated 31st August, 2020, served on 2nd defendant is wrongful, as a result, the claimant is awarded a sum of N75,000.00k as a month salary in lieu of notice for the wrongful termination of his employment.
  2. Reliefs 3, 4 and 5 are refused.
  3. A sum of N5million is awarded to the claimant as general damages to be paid by 1st defendant.
  4. All monetary award in this Judgment are to be paid within 60 days failure of which it shall attract 10% interest per annum.

 

A cost of N400,000.00k is awarded against 1st defendant

 

Judgment is entered.

 

Hon. Justice A. A. Adewemimo

Presiding Judge