IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP HON. JUSTICE R.B. HAASTRUP
DATE: APRIL 15, 2016 SUIT NO. NICN/MKD/88/2013
1. Dangote Cement Plc
(Owners of Benue cement company Plc) Defendants
2. Mr. Michael Etu
Mrs. O.A. Okoliko, for the claimant.
C.O. Alechenu, and with him Miss A.O. Edoka, for the defendants.
The claimant took up a complaint against the defendants on 21st October 2015, ( with the accompanying processes – affidavit of verification, statement of facts, list of witnesses, deposition on oath of witness, list of exhibits and copies of the exhibits). The claimants reliefs are contained in paragraph 23 (a – e) of the statement of claim, jointly and severally against the defendants as follows:
a. A declaration that the claimant’s employment with the 1st defendant is still valid and subsisting having regards to the terms and conditions of service as contained in the letter of employment dated 1/2/2006.
b. A declaration that following the claimant’s subsisting employment, the claimant is entitled to the full payment of all his arrears of salaries and allowances with effect from November 2010 until judgement is delivered.
c. An injunction restraining the defendants, their agents, servants or privies from further preventing or denying the claimant access to the company in furtherance of his subsisting employment.
d. Fifty Million Naira (N50, 000, 000.00) as general damages.
e. Interest on the judgement sum at the rate of 10% per annum from the date of judgement until fully paid up.
In the alternative, whereby the claimant’s employment is held to be validly terminated, the claimant still claims against the defendants as follows:-
a. A declaration as wrongful the termination of the claimant’s employment without recourse to due process and the terms and conditions of service also contained in the contract of employment.
b. A declaration as false and malicious the allegations of embezzlement levelled against the claimant with regards to his employment which could not be proved or sustained in court.
c. A declaration that the defendants are liable in substantial damages to the claimant for false and malicious allegations.
d. The sum of Fifty Million Naira (N50, 000, 000.00) aggravated and exemplary damages against the 1st defendant for wrongful termination of employment.
e. The sum of Fifty Million Naira (N50, 000, 000.00) aggravated and exemplary damages against the 1st and 2nd defendants for false and malicious allegations leading to public scorn, disgrace, trauma and humiliation.
f. Interest on the judgement sum at the rate of 10% per annum from the date of judgement until fully paid up.
The defendant entered formal appearance and then filed its defence processes (the joint statement of defence, list of witness, list of exhibits, and witness statement on oath and copies of the documents to be relied upon at the trial). These processes were all deemed properly filed and served on 2nd April, 2014. With the leave of court, the claimant on 2nd day of December 2014 amended his statement of facts and reply to defendants’ joint statement of defence. This was filed vide his motion for amendment dated 14/11/2014 but filed on 17/11/2014. The defendants equally filed their consequential amendment vide the motion dated 06/02/2015 but filed 10/02/2015.
At the trial, the claimant testified on his own behalf as CW, while James Onoja Ikwuje, one of the staff of the defendants at its Gboko plant testified for the defendant as DW. Parties at the close of trial were asked to file and exchange their respective written addresses in accordance with Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. The defendants filed its written address dated vide a motion dated 8/7/2015 and filed on 10/7/2015. The defendants’ written address was deemed properly filed and served on 17/12/2015. The claimant’s written address is dated and filed 11/11/2015, while the defendants’ reply on points of law to same is dated 23rd November 2015, and filed 25th November 2015.
The case of the claimant is that he was a staff of the 1st defendant’s company in Gboko, between 1992 and 2003 when he was disengaged on 5/12/2003 from services of the 1st defendant for reason of redundancy. Prior to his disengagement, he served in the accounts & finance department of the 1st defendant, then known as Benue Cement Company Plc. That he was reabsorbed in 2005 by the 1st defendant who took over the management of Benue Cement Company Plc, following the privatization of Public Companies by the Federal Government. Claimant served under the headship of the 2nd defendant as the General Manager of the 1st defendant in charge of finance, and rose through the ranks to become the central cashier, and had no history of embezzlement or financial impropriety against him throughout his years of service.
The claimant went on that on 21/10/2010, a memo was served on him, written by the 2nd defendant requesting him to hand over his duties to some other person, which the claimant immediately complied with; after which the claimant was directed vide the letter dated 6/1/2010 to proceed on his annual leave. Upon his resumption from the said leave, the 2nd defendant ordered the 1st defendant’s security to hand him over to the police at the Area Command Division in Gboko, where he was detained on allegation of fraud and financial embezzlement amounting to the sum of N818, 322.00. To the claimant, he was not queried regarding any offence as alleged to warrant his arrest, but was only a victim of witch-hunt by the 2nd defendant. Following a petition by the 2nd defendant to the Commissioner of Police in Makurdi, the claimant was arraigned in court, and later released on bail.
Upon his release on bail, he approached the premises of the 1st defendant to resume his normal duties but was denied access by the 2nd defendant, who informed him on phone to go and pursue his case in court. That despite the case being struck out by the court in his favour, the 2nd defendant still refused him access to the office to enable him resume work, but instead claimed he was no longer a staff of the 1st defendant. According to the claimant, he was not served with any letter or notice of termination, or even paid any salaries in lieu of notice of termination as provided in the terms and conditions of service, which is incorporated in the staff handbook. That the defendant is therefore in breach of the disciplinary procedures as stipulated in the conditions of service. To the claimant, he was as a cashier on a monthly salary of N66, 520.00, on salary Grade level 06 steps II, and his last salary was paid to him in October 2010 after which the defendant ceased to pay any further salaries till date. He went on, that since his employment has not been terminated he is then entitled to the payment of his full salaries and allowances. That he has suffered disgrace and public scorn as a result of the false and malicious allegations of embezzlement levelled against him by the defendants, which has caused social and economic hardship to him and his family. The claimant accordingly filed this suit praying for the reliefs as per paragraph 23 of his statement of facts, jointly and severally against the defendants.
The defendants denied any liability and contended that the claimant is not entitled to all the claims and reliefs as claimed, urging the court to dismiss same for lacking in merit. The defendants then proceeded to frame ten issues for the determination of the Court as follows:
1. Whether the 1st defendant as sued in this case is a juristic personality capable of suing or being sued.
2. Whether where a disclosed principal has been sued for the acts and/or conducts of an agent such an agent could still be sued or proceeded against by the claimant or plaintiff in the same suit.
3. Whether this Honourable Court has the jurisdiction to entertain or grant the alternative reliefs in paragraph 23 b, c, d and e of the claimant’s claim.
4. Whether Exhibit CW1R (Benue Cement Company, Plc Annual Report & Accounts 2009) and Exhibit CW1S 1-3 (Proposed merger between Dangote Cement, Plc and Benue Cement Company, Plc) are of any evidential value in the circumstances of this case.
5. Whether the purported written statement on oath of Mr. John Jen filed on the 21st October, 2013 and the purported additional written deposition on oath of claimant – John Jen filed on the 17th November, 2014 are valid in law.
6. What is the nature or type of contract of employment in this case?
7. Whether the claimant’s employment was wrongfully terminated so as to entitle him to his claims before this Honourable Court.
8. Assuming (without conceding that the termination of the claimant’s contract employment was wrongful, what would be the nature or type of damages that the claimant would be entitled to?
9. Assuming (without conceding) that the termination of the claimant’s contract of employment was wrongful, whether the claimant can be foisted upon the defendant as an employee within the circumstances of this case.
10. Whether the claimant can be paid salaries, wages, emoluments and allowances for the period in which he was not working for the defendant in the circumstances of this case.
In arguing the 1st issue, the defendants reiterated the facts of their case as pleaded in paragraph 3 (a), (b), (c) and (d), and submitted that a suit is only competent and maintainable when the proper party is sued. The grouse of the defendants here is that a non-juristic personality has been sued in this case, which renders the action incompetent before this court and the court in the circumstance lacks the jurisdiction to entertain same, citing A.C.B. Plc & Anor vs. Emostrade Limited (2002) FWLR (Pt. 104) 540 @ Pages 551 – 553; Goldmark Nigeria Limited & 3 Ors vs. Ibafon Company Limited & 4 Ors (2013) ALL FWLR (Pt. 663) 1830 @ Pages 1833 & 1856, Paras. A – C. That the wrong names of the 1st defendant “Dangote Cement Plc (Owners of Benue Cement Company) by which it was already sued cannot be corrected by an amendment; as the claimant ought to show that it is a name known to law. This claimant has failed to do, even as admitted by CW1 under his cross examination that no search was conducted by him regarding the legal personality of the 1st defendant. According to counsel Exhibit DWB is clearly distinguished from the name sued as 1st defendant which has not been challenged by the claimant. As a result, the 1st defendant is not a proper party to be joined or proceeded against, citing Amadiume vs. Ibok (2006) ALL FWLR (Pt. 321) 1247 @ 1260, Paras. F-H. He then urged the court to hold in favour of the defendants on this issue.
Regarding issue No. 2, counsel pointed out here that the 2nd defendant in this case, as an agent of a disclosed principal (1st defendant) cannot be proceeded against in this action. That the 1st defendant is not denying actions taken on its behalf by the 2nd defendant against the claimant regarding the termination of claimant’s employment; proceeding against the 2nd defendant therefore, is merely an academic exercise, urging the court to strike out the name of the 2nd defendant from this suit and resolve this issue in its favour, referring the court to the case of Amadiume vs. Ibok (Supra).
As to the alternative reliefs as claimed by the claimant, which is issue No. 3, the defendants’ counsel here submitted that this court has no jurisdiction to entertain claims or reliefs for the Tort of malicious prosecution as in the instant case, by Section 254C (1) (a) of the Constitution of Nigeria 1999, as amended; which spells out matters upon which this court can assume jurisdiction. To counsel, it is not permissible in law for a court to expand its jurisdiction, but can only expound same, citing African Newspapers of Nigeria Ltd & 2 Ors vs. F.R.N. (1985) 4 S.C. (Pt. 1) 76 @ Pages. 122 – 123 & 131. Counsel went on to submit that the claim for aggravated and exemplary damages does not equally fall within the ambit of jurisdiction of this court. More so, when the claimant’s action is hinged on an alleged breach of contract of employment; as it is not shown in Exhibits CW1E, DWA and CWQ respectively which constitute the bedrock of the contract to the effect that its breach by either party attracts the sum of N50, 000, 000.00 in general and exemplary damages. He relied on Kabel Metal Nigeria Ltd vs. Ativie (2001) FWLR (Pt. 66) 662 @ Pg. 679 – 680; Spring Bank, Plc vs. Adekunle (2011) ALL FWLR (Pt. 601) 1457 @ Pg. 1472 Para. A; Mr. Keghen Joseph Tilley vs. Mr. Chigbo Okoli, Pg. 8 (Unreported) Suit No. NICN/MKD/12/2014 delivered on the 30th day of June, 2015. Counsel relied on the above authorities and further submitted that the claimant is not entitled to the alternative reliefs as claimed in paragraph 23 b, c, d and e of the claimant’s claim, he then urged the court to strike out the claims and resolve in favour of the defendants on this issue.
Issue No. 4, is whether Exhibit CW1R (Benue Cement Company, Plc Annual Report & Accounts 2009) and Exhibit CW1S 1-3 (Proposed merger between Dangote Cement, Plc and Benue Cement Company, Plc) are of any evidential value in the circumstances of this case. To counsel, Exhibit CW1R (Benue Cement Company, Plc Annual Report & Accounts 2009) tendered in evidence by the claimant cannot be used by him since he is not the maker of the document, and this amounts to hearsay. That the claimant did admit under his cross-examination that he was not the maker of the document, and it is evident from the records of the court that the makers of Exhibit CW1R who were named by CW1 as Mr. Ukpi (Company Secretary) and Aliko Dangote were not called as witnesses in this case. He relied on Flash Fixed Odds vs. Atakuba (2001) FWLR (Pt. 76) 709 @ Pg. 730, Paras. B – E. That Exhibit CW1S 1-3 (Proposed merger between Dangote Cement, Plc and Benue Cement Company, Plc) is unsigned, as admitted by CW1 in his evidence under cross examination. The implication of this is that such a document in law is worthless. He continued that it can be concluded that what is contained in Exhibit CW1S 1-3 is merely a proposal, and there is nothing to show that it was accepted. He relied on the cases of Omoyola vs. Enterprise Bank Ltd (2013) ALL FWLR (Pt. 698) 911 @ Pg. 926, Paras. B-H and Attorney General, Abia State vs. Agarranya (1999) 6 NWLR (Pt. 607) 362, in support of his argument, and urged the court to resolve issue No. 4, also in favour of the defendants.
On issue No.5, is whether the purported written statement on oath of Mr. John Jen filed on the 21st October, 2013 and the purported additional written deposition on oath of claimant – John Jen filed on the 17th November, 2014 are valid in law. Counsel here submitted that the two purported written statements on oath of Mr. Jen are without oath, and not in compliance with the form as set out in Section 13 and 1st Schedule to the Oaths Act, Laws of the Federation of Nigeria, 2004 which reads thus:
“I do solemnly and sincerely declare that I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act.”
He went on that the claimant in paragraphs 20 and 29 of his purported written statements on oath concluded by stating thus:
“This is my true statement on oath.”
To counsel, the guideline was well laid down in the case of Nkeiruka vs. Joseph & Ors (2009) 5 NWLR (Pt. 1135) 505 – 527, Bage JCA; to the effect that a valid oath must be in the form of the Oaths Act, as found in the 1st Schedule, and by that any written statement which does not take the form as set out in the Act cannot be said to be a written statement on oath; as the verification of the truth and identity of the maker become unascertainable. He continued that the court concluded in the above case and held that thus-
“On the whole therefore, those written statements of witnesses of the appellant having not complied with the provision of section 13 of the Oaths Act are not written statements on oath....................”
Counsel then submitted that going by the position of the law as settled in the above case, the claimant’s purported written statements on oath respectively filed 17th November 2014, and 21st October 2014 are both liable to be expunged or struck out for the non compliance with the provisions of the Oaths Act. The overall implication is that the suit now has no foundation since there is no longer evidence supporting the claimant’s pleadings. He then urged the court to resolve this issue in favour of the defendants.
Regarding issue No. 6, counsel submitted that the reliefs as claimed by the claimant in this case will be determined by the nature of the employment relationship that existed between the parties. It is obvious in this case, and undisputed that the 1st defendant which is a limited liability company, registered under the Company and Allied Matters Act is not a creation of statute; thus the claimant’s employment is not statutory but one of master/servant. That the relationship between the parties is governed by the terms as provided in Exhibits CW1E, DWA and CW1Q (letter of appointment and Dangote Cement, Plc Handbook), which contains the conditions of service. Counsel then urged the court to hold that the present case is one of master and servant relationship under the common law.
On issues 7, 8, 9 & 10 argued jointly, counsel submitted that all the court needs to look at in such an employment as in the instant case is the contract of service as well as the conditions of service, which forms the bedrock and foundation upon which any employee whose employment has been terminated or dismissed must found his case. And where such a termination is found not to be wrongful, the claimant is then left with a bare action, citing Osoh & Ors vs. Unity Bank, Plc (2013) ALL FWLR (Pt. 690) 1245 @ Pg. 1276, Para. G. The position of the law in a master/servant relationship is that the master has such right to determine the contract of employment at anytime, with or without any reason for his action; and for good or bad reason See Olanrewaju vs. Afribank Nigeria, Plc (2001) FWLR (Pt. 72) 2008 @ Pg. 2018, Para.B, Katsina-Alu, JSC (as he then was), where the Supreme Court held thus –
“What this means is this: in this class of cases, an officer’s appointment can lawfully be terminated without first telling him what is alleged against him and hearing his defence or explanation. Similarly, an officer in this class can lawfully be dismissed without observing the principles of natural justice.”
Counsel still on the above issue further relied on a recent case of Dudusola vs. Nigeria Gas Company Ltd (2014) ALL FWLR (Pt. 713) 1902 @ Pg. 1912, Paras. D – F. He continued that the contention of the claimant to the effect that the termination of his employment was premised on falsehood and malicious allegations leading to public scorn and disgrace, as contained in his pleadings and evidence cannot suffice, since the defendant gave no reason for determining the claimant’s employment. That the claimant was employed merely as a casual or adhoc staff, and held his office at the pleasure of the 1st defendant. To the defendant the claimant’s employment was not wrongfully terminated; as a result he is not entitled to any of the reliefs as claimed in this suit. Assuming (without conceding) that the dismissal in this case is wrongful and assuming (without conceding) also, that Exhibits CW1Q and DWA (The staff handbook of Dangote Cement, Plc) are applicable to the claimant in the instant case; then in such circumstance, the claimant would only be entitled to a month’s salary and no more. That under his cross examination, CW1 testified that his salary prior to his exit from defendant’s employment was N42, 100.00, and at the time he was eased out of work, the 1st defendant was not indebted to the claimant of any benefits, allowances or entitlement. He cited Idufueko vs. Pfizer Products Ltd. (2014) 12 NWLR (Pt. 1420) 96 @ Pg. 117, Paras. F – H; Mr. Keghen Joseph Tilley vs. Mr. Chigbo Okoli, Pg. 8 (Unreported) Suit No. NICN/MKD/12/2014, delivered on 30th June 2015.
The defendant continued that by paragraph 7.1.1 (b), Page 68 of Exhibit DWA, the claimant was entitled to be given one month notice or paid one month basic salary in lieu of notice upon termination of his employment; and the claimant cannot be heard to contend that his employment is still subsisting, simply because no termination or dismissal letter was served on him, citing Maliki vs. Michael Imodu Institute of Labour Studies (2009) ALL FWLR (Pt. 491) 979 @ Pg. 1015, Para. F, where the court held that –
“It is usual that specific performance is not ordered in the case of master and servant relationship: Balogun vs. University of Abuja (2002) 13 NWLR (Pt. 783) 42. The appellant can only be given the usual statutory one month’s salary in lieu of notice since the so-called letter through which the respondent purportedly terminated his appointment has been found not to exist as same cannot be said to have come to the notice of the appellant as to constitute the required notice of termination.”
Counsel went on to further rely on NDIC vs. Obende (2007) FWLR (Pt. 116) @ Pg. 956, Paras. D – H, where the court on same point above, held thus –
“It is therefore manifest that the alternative claim for all the amount of salary and other benefits/entitlements which the respondent would have earned had his employment lasted till pension time is gold digging and not one that is entitled to under the law……………………………………….The contract between the parties is a purely master and servant relationship, and not a contract of employment with statutory flavour. All the respondent was entitled to get is a month’s salary in lieu of notice, with any other entitlements due to him at the time his contract of service was brought to an end.”
According to counsel, the claimant in the present case is not entitled to wages and salaries for the period which he did not work, and cannot also, be reinstated, as the court will not grant specific performance of contract of service, as held in Kabel Metal Nigeria Ltd vs. Ativie (Supra). He then submitted that based on the position of the law as succinctly put in the above cases, the claimant in the present case is not entitled to the reliefs as claimed in paragraph 23 (a) and (b) of the claim, which would amount to seeking an order of specific performance and reinstatement; and in addition also, foisting a willing employee on an unwilling employer. He therefore urged the court to refuse the reliefs.
Furthermore, the ancillary reliefs of 10% per annum as post judgement interest on the judgment sum, as well as the order of injunction as claimed cannot be granted. That the position of the law on this point is that once the principal relief sought in an action is dismissed, no relief incidental thereto can be granted, citing Uba vs. Etiaba (2010) ALL FWLR (Pt. 548) 805 @ Pg. 836, Para. G; Sani vs. Agara (2012) ALL FWLR (Pt. 612) 1816) @ Pages 1818 & 1821. Counsel then urged the court to resolve issues 7, 8, 9 and 10 in favour of the defendants and dismiss the claimant’s claims and suit in their entirety with costs, as same is lacking in merit.
In reaction, the claimant framed a lone issue for the determination of this court; and further adopted all the issues as nominated and argued by the defendants in their final address, to wit –
“Whether from the totality of the evidence adduced by the claimant in court, he has successfully made out a case against the defendants as to be entitled to judgement based on the reliefs sought. To the claimant, his employment dates back to 1992 with BCC Plc and served from 1999-2003, when he was disengaged and retired due to the dwindling fortunes of the company. The claimant was reabsorbed by 1st defendant (Dangote Cement Plc) in 2005 and confirmed as a staff. He was given a fresh letter of appointment by the 1st defendant as his new employer. That following the acquisition of BCC the 1st defendant did not have its name automatically changed but was done gradually as seen in Exhibit CW1R (Annual Report and Account 2009), where 1st defendant’s name and logo were found on the document, as admitted also under cross examination of DW1 that any logo found on any of the documents of the 1st defendant was for Dangote Group and not Dangote Cement, which is in confirmation of averments of claimants in paragraphs 7 & 8 of his amended reply to the joint statement of defence. That by Exhibits CW1L, CW1O and CW1P, the 1st defendant was still using the name of the acquired company (BCC) to further support the argument of the claimant that acquisition process was a gradual one; and his fresh appointment letter and company handbook still had the name BCC. That this evidence was corroborated by DW1 when he identified the said documents as that of the 1st defendant, as documents emanating from the 1st defendant as at time of removal of the claimant. That the contention of the defendants is that the claimant was not is staff but rather a casual staff whose employment was not regulated by any conditions of service, citing paragraphs 3a – h and 4a – e of the joint statement of defence, which argument cannot be sustained. To the claimants, Exhibits CW1L, CW1O and CW1P identified by DW1 was against the interest of the defendants and needs no further proof, citing section 123 of the Evidence Act 2011, Bunge vs. Governor of Rivers State (2006) 12 NWLR (Pt. 995) 573@ 599 – 600. To the claimant, his appointment has not been validly terminated and it is still subsisting in law; as he was only asked to hand over upon his being handed over to the police, and after his discharge, he was refused access to the company premises of the defendant, which was not denied by the defendants, referring to paragraphs 10a – f of the consequential amended joint statement of defence. That the defendant have failed to present before this court any purported termination letter respecting the claimant as alleged by DW1 to have been served on the claimant, and that the claimant refused same. He went on that the burden is on the defendants to prove that they served the claimant with termination letter, failure of which is fatal to their case; since they have the burden to prove having asserted, citing Gbafe vs. Gbafe (1996) 6 NWLR (Pt. 455) Pg. 417.
Regarding issue no. 1, argued by the defendants, claimant submitted that by the order of court made on 21st December 2014 regarding the amendment of the claimant’s writ of summons and originating processes to reflect the correct names and status of the 1st defendant in the suit,. Based on the joint statement of defence of the defendant, the defendant as “Dangote Cement PLC”, as it appears presently in the suit, is a juristic person capable of suing and being sued. He relied on Order 3 Rule 3 of the National Industrial Court Rules 2007, which permits amendment of claim and processes before the court, citing Agbahomvo vs. Edayegbe (1999) 3 NWLR (Pt. 594) @ 190. To the claimant, by the concept of merger and acquisition under the CAMA, the 1st defendant here takes over the properties, assets and liabilities of the transferor company (BCC), citing sections 590 and 593 of the CAMA 1990. He went on that these facts are not unknown to the defendants, having admitted same in their pleadings and statement on oath regarding the acquisition exercise. He therefore submitted that the argument of the defendants in this regard is futile, and geared towards technicalities and not justice, urging the court to resolve issue no. 1, in favour of the claimant.
Arguing issue no. 2, claimant contended that the relationship between the parties cannot be likened to that of Agency, which operates where there is a 3rd party relations and not between parties or employees of the same principal, citing Niger Progress Limited vs. N.E.L. Corporation (1988) 3 NWLR (Pt. 107) 68. That the claimant and the 2nd defendant in this action are both employees of the 1st defendant and cannot come within the meaning of agency relationship, which is only created where a third party who is not an employee of the principal is involved, referring UTC (Nig.) Plc vs. Phillips (202) 6 NWLR (Pt. 136), Ronbar vs. Orbrada (2014) 2 NWLR (Pt. 857). That the 2nd defendant who is a party in this action has not been made a witness, so as to afford the claimant the opportunity to cross examine 2nd defendant for purposes of disproving the facts stated by the claimant. That the failure of the defendant to have the 2nd defendant as a witness in this proceedings is fatal to their case, which leaves the claimant’s case against the defendants undefended. To the claimant the court is called upon here to act on this uncontroverted evidence, and hold that the claimant has proved his case. He relied on International Nigerbuild Construction Coy Ltd & Abor vs. Giwa (2002) FWLR (Pt. 107) 1312 @ 1354. The claimant then urged the court to resolve issue no. 2, in favour of the claimant.
Regarding issue no. 3, claimant reproduced sections 7 (1) (a) (i) (ii) and 14 of the National Industrial Court Act 2006, to the effect that the Act makes provisions for the grant of the claimant’s alternative reliefs as sought in paragraph 23 of the claimant’s amended statement of facts. That section 7 & 14 confers jurisdiction upon the court to deal with matters that are incidental to the main claims or reliefs of parties, so that matters would be completely and finally dealt with, to avoid multiplicity of actions; while section 14 gives the court the power to make declaratory reliefs. To claimant, the circumstances giving rise to his action is suggestive that his employment is still subsisting and valid, which has not been challenged; that the humiliation and trauma for which the claimant was subjected to, warrants the award of special and exemplary damages against the defendants. He went on that since the court has the jurisdiction over this matter by section 254C of the Constitution of the Federal Republic of Nigeria 1999, it equally has the unlimited power to grant the reliefs based on the claims brought before it, citing Olorunoba Oju vs. Dopamu (2008) 7 NWLR (Pt. 1085) 1. He then urged the court to resolve issue no. 3 in favour of the claimant.
On issue no. 4, claimant submitted here that Exhibit CW1R, which is titled Benue Cement Company annual report and account 2009, is very vital and relevant to the claimant’s case. That the document further supports the facts as pleaded by the claimant regarding his employment by BCC Plc and when the 1st defendant also bought over the company, the claimant was issued with a fresh appointment letter and absorbed into the new company which was later known as Dangote Cement Plc and issued with a fresh appointment letter. He continued that the argument of the defendant to the effect that the claimant is not the maker of Exhibit CW1R is of no moment; that what needs to be established is whether or not the document is relevant to the present suit. He continued that Exhibit CW1R emanates from the 1st defendant, who has not denied knowledge of its existence, and same is equally relevant to the claimant’s case to prove that there was an acquisition exercise whereby the 1st defendant bought over BCC, and that the process was gradual; to the effect that both Dangote Cement Plc and BCC at some time had both names used in official correspondences and documents. That the evidence of DW1 in this regard ought to be discredited, having stated earlier on in his evidence of being competent to give evidence regarding the 1st defendant but later changed his position to deny knowledge of the 1st defendant’s acquisition of BCC Plc. The claimant then urged the court to only attach little or no weight to his entire evidence before this court.
He further submitted that it is the probative value ascribed to a document which determines its relevancy and admissibility, which ought to be admitted and relied upon, citing Haruna vs. AG Federation (2012) 9 NWLR (Pt. 419), Section 6 Evidence Act, 2011.
The claimant continued that Exhibit CW1R was tendered in order to establish the truth of its content regarding the acquisition exercise and use of 1st defendant’s name and BCC Plc on official documents.
On Exhibits CW1S1 – 3 (document of proposed merger between Dangote Cement Plc and BCC Plc), the defendant admitted under his cross examination as to the existence of this document; and since they have failed to present same in court or any other document to challenge Exhibit CW1R; then the defendant cannot contend that the document is documentary hearsay; it then stands admissible in law.
Arguing issue no. 5, claimant submitted that the written depositions on oath of Mr. John Jen filed on 21st October 2013 and that of 17th November 2014 is valid in law, having being adopted on oath in the presence of the court and without any objection to same. The court is therefore bound to act on same. That the Rules of this court has made no provision for written deposition of witnesses on oath, to the effect that such must be filed along with the complaint, as obtainable in the High Court Civil Procedure rules in the States and the Federal High Court. That the complainant is not bound to comply with the form and standard under the Oath Act, citing Lonestar Drilling Nig Ltd vs. Triveni Engineering & Industries & 9 Ors (1999) 1 NWLR (Pt. 588) Pg. 622, where the court held thus –
“Where there is a substantial compliance with the provisions of the Oaths Act, an affidavit will not be declared incompetent merely because the exact words specified in the Oath Act were not used.”
Relying also on Order 5 Rules 1 & 2 of the National Industrial Court Rules 2007, claimant submitted that the defendants in this case having taken steps by participating fully in the proceedings without raising any objection are estopped from further complaining. The claimant then urged the court to also resolve issue no. 5 in his favour.
Claimant submitted in reaction to defendants’ issue no.6, that his employment is still valid and subsisting since same was not formally terminated, neither was he informed that his services were no longer required, which has necessitated this action in court against the defendants. He referred the court to his averments in paragraphs 3 – 23 of his statement of facts and 7, 19, 20, 21 and 23 of his amended statement of claim.
On issues 7, 8, 9 and 10 of the defendants’ issues for determination, the clamant contended contrary to the assertion of the defendants that his cause of action was bothered on wrongful termination of employment. According to the claimant, he sought redress from the court in order to determine the status of his employment, particularly after he was denied access to the factory premises of the defendants, and only asked to conclude his criminal trial at the court. That he is further seeking alternative reliefs before the court, where the defendants’ acts amount to valid termination of his employment (which he is assuming without conceding); the defendants would still not have complied with the terms and conditions of service as per the claimant’s letter of employment dated 1/2/2005 (Exhibit CW1E 1-2), citing University of Maiduguri Teaching Hospital Management Board & Anor vs. Dawa (2002) FWLR (Pt. 108) 1402 @ 1419. To counsel, he is entitled to general or special damages for the unwarranted termination of his employment, citing Sampson Babatunde Olarewaju vs. Afribank Plc (2001) 7 SC (Pt. 111) @ 20. He went on that general damages is awarded in consequence of the wrongful act of the defendant complained of as held by the court in Taylor vs. Oghenevo (2012) 13 NWLR Pg. 46, that: - “general damages are losses which flow naturally from the defendants’ act, its quantum therefore need not be pleaded or proved as it is generally presumed by law.”
To claimant, his employment with the 1st defendant was left in abeyance since 2010 till date, thereby putting him under untold hardship; that he is ordinarily and as it is equally reasonable, entitled to damages and compensation. He reiterated that it is obvious from his statement of facts that he is not seeking an order for reinstatement, but for the court to determine the status of his employment; that his claim for wrongful termination is an alternative relief where the court finds out that his employment has been so terminated. He continued that since he was not assigned any job by the 1st defendant since 2010, then his employment in the circumstance, according to law is still subsisting and valid. As a result, he is therefore entitled to be paid his salaries, allowances and benefits accruing to him as a staff.
In conclusion he urged the court to resolve issues 7, 8, 9 and 10 framed by the defendants in favour of the claimant and enter judgment for the claimant as per his reliefs before the court.
The defendants’ reply on points of law is dated 23rd November 2015 and filed 25th November 2015. It is the submission of counsel to the defendants that the claimant had ceased to be in the employment of the defendants from when he was denied access to the 1st defendant’s premises since 2001, and cannot therefore claim that his employment is still subsisting and valid. He continued that the claimant’s employment is not statutorily flavoured but one under the common law of master and servant, for which the employment relationship could be terminated at any time. He relied on Ifeta vs. S.P.D.C. of Nig. Ltd (2006) ALL FWLR (Pt. 314) 305 @ Pg. 334, Paras. G – H, 335 – 336, Paras. H – A, where the court held thus –
“……………………………….it does not matter whether appellant was given notice in writing or orally (notice is notice). What is important is whether the respondent had demonstrated clearly by action that the services of the appellant are no longer required by the respondent. This fact is very clear from the evidence in that respondent retrieved the identity card of the appellant without which, appellant can neither enter the premises of the respondent nor work for it. His salaries and other entitlements were stopped after being told that his appointment had been terminated…………………….in the instant case, appellant knew and in fact accepted the fact that his appointment with the respondent was terminated on 17/5/1991 whether made orally or in writing.”
Counsel then referred the court to the defendants’ statement of defence and testimony of DW1; to the effect that the defendants never admitted the claimant’s claims/reliefs, contrary to the assertion of the claimant. That the claimant’s reliefs as per paragraph 23 of his statement of facts are declaratory in nature, which ought to be proved by the claimant by credible oral evidence adduced in support thereof. He went on that the claimant cannot here, rely on the weakness of the defence in proving his case, but has the onus to prove that he is entitled to the declaratory reliefs as claimed, citing Gundiri vs. Nyako (2014) 2 NWLR (Pt. 1391) 211 @ Pg. 252 Paras. D – E, Ogolo vs. Ogolo (2006) ALL FWLR (Pt. 313) 1 @ Pg. 4, 13 – 14. Counsel then urged the court based on these authorities cited to discountenance the submissions of the claimant as per paragraph 5.1 and 5.3 in his final written address as being misconceived and erroneous.
Arguing further counsel submitted that it is obvious that by Exhibit DWB, the 1st defendant is a juristic personality, I.e. “Dangote Cement Plc (owners of Benue Cement Company Plc)”. That the issue of jurisdiction raised by the defendants on this issue goes to the competence of this action against the defendants, and the claimant cannot therefore equate jurisdiction with technicality by relying on Order 3 Rule 3 of the National Industrial Court Rules 2007. Furthermore, that the claimant cannot use his address as an avenue of adducing evidence on issue of merger and acquisition under the Companies and Allied Matters Act, 1990. To counsel, no materials are placed before the court to support argument of the claimant on this point, to allow the court apply the provisions of the CAMA, 1990 (now CAMA Cap. C20 LFN, 2004). More so, by virtue of Section 251 (1) (e) of the Constitution of the Federal Republic of Nigeria (as amended), it is the Federal High Court that has the exclusive jurisdiction to determine matters relating to the Companies and Allied Matters Act. He continued also, that the claimant’s submissions in paragraphs 7.0 – 7.3 of his address is in total misunderstanding of the issues canvassed by the defendants in their paragraphs 7 – 12 of their written address. He referred the court to Ifeta vs. S.P.D.C. (Supra).
Regarding the claimant’s submissions in paragraphs 8.1 – 8.8, in relation to Exhibits CW1R and CW1S1-3, counsel to defendants submitted that since the claimant admitted that the documents were not signed and that he was also not the maker, then such documents are of no evidential value in law, and the court cannot therefore attach any weight to them even though they were admitted in evidence, referring to Section 83 (1) (a) (i) (ii) (b) of the Evidence Act 2011. He went on that the claimant was not able to bring Exhibits CW1R and CW1S1-3 within the exceptions of Section 83 (1) (b) of the Evidence Act, and has therefore failed to prove his case in that regard. In addition, on the competency of the written statements on oath of Mr. John Jen dated 21st October 2013, and the additional deposition of 17th November 2014, the defendants’ counsel argued here that the claimant’s submissions regarding this point in paragraphs 9.1 – 9.7 are erroneous in law, and the case of Lonestar Drilling Nig Ltd vs. Triveni Engineering & Industries & Ors (Supra) relied upon by the claimant is inapplicable to his case; that going by the doctrine of stare decisis , the case of Nkeiruka vs. Joseph & Ors (Supra) is still good law and binding on this court, in the sense that a written deposition which does not bear the First Schedule to section 13 of the Oath Act, cannot be said to represent a written statement on oath, since the verification as to the truthfulness of the statement remains in doubt and unascertainable. That the claimant cannot therefore rely on Orders 3 Rule 4, and 5 Rules 1 and 2 of the National Industrial Court Rules 2007, on the belief that the issue is one of irregularity. To the defendants’ counsel, it is rather an issue of competency of fundamental defect and bothers also on the issue of jurisdiction, citing Madukolu vs. Nkemdilim & Ors (1962) 1 ALL NLR (Pt. IV) 587.
In conclusion, counsel submitted that the submissions of the claimant in paragraphs 11.1 and 11.6 of his final written address are grossly misconceived and erroneous in law and should be disregarded by the court. He went on that assuming (without conceding) that the claimant’s employment was wrongfully terminated, the claimant in such a circumstance will be entitled only to a month’s salary in lieu of notice of termination and no more; which is the sum of N42, 100.00, citing Maliki vs. Michael Imodu Institute for Labour Studies (2009) ALL FWLR (Pt. 491) 979. He however, urged the court to discountenance the submissions of the claimant in his final written address, as they are misconceived and cannot avail the claimant. He further urged the court to dismiss the suit with substantial costs for lacking in merit.
In considering the merit of the case, the issue of the nature of the claimant’s employment needs to be settled. It is obvious from the totality of evidence adduced in this case that the employment of the claimant is not regulated by any statute by which the manner of the employment and termination is specifically provided for in the statute creating the employment. See N.I.I.A vs. Anyafalu (2006) ALL FWLR (Pt. 325) 141 @ 162; CBN vs. Jidda (2001) FWLR (Pt. 47) 1065 @ 1082. The claimant’s employment in the instant case cannot be categorized as one regulated by statute but one under the ordinary common law of master and servant, as maintained by the defendants’ counsel in his submissions, which I have no cause to doubt. See G.O.Dudusola vs. Nigeria Gas Company Ltd (2013) 10 NWLR (Pt. 1363) 423, Central Bank of Nigeria vs. Maurice Eso Archibong (2001) 10 NWLR (Pt. 712) 492, Imoloame vs. W.A.E.C (1992) 9 NWLR (Pt. 265) 303. The 1st defendant here who is the master has an unfettered right to terminate or even dismiss the claimant, who is his servant at anytime with or without any reason. The motive in exercising the right does not render the exercise of the right in effective. The case of the claimant here is that his employment was wrongfully terminated; as such it is still subsisting and valid in law. That even where his employment is found to have been validly terminated, which he is not conceding, he is entitled to the award of aggravated and exemplary damages for false and malicious allegations against him. To the defendants on the other hand asserts that the claimant has never been its staff as he was merely a casual staff or an adhoc staff, who held his office merely at the pleasure of the 1st defendant. That the claimant’s employment was not wrongfully terminated, as such he is not entitled to any of the reliefs as claimed in this action. By Exhibits CW1O (Complaint of case of criminal breach of trust against a staff; John Jen) addressed to the Commissioner of Police, Benue State Police Command, Makurdi, dated 22nd November 2010, the defendants 1st defendant wrote this letter referring to the claimant in the instant case as its staff. See paragraph 1 of Exhibit CW1O reproduced thus:
“The above named staff was until the 15th October, 2010 the cashier of the company since the present dispensation.”
Furthermore, Exhibit CW1P, a memo to the MD/CEO, from GM (F), dated 11/11/2010 is directed to John Jen (Claimant in this case), as the Company Cashier. In addition, Exhibit CW1L is a memo from the GM (F), dated October 21, 2010 directing the immediate handover and taking over of the position of cashier of the company from Yahaya Usman Ichaba to John Jen (claimant) in this case. By these documents, the defendants cannot assert that the claimant was never its staff. More so, DW admitted under his cross examination that the claimant was once a staff of the 1st defendant and they with (DW) both worked for the 1st defendant. The fact still remains that the claimant was a staff of the 1st defendant whether ad-hoc or casual. There is convincing evidence adduced by the claimant that he was a staff of the defendant, which has not been challenged by the defendant. The position of the law is that evidence that is neither challenged nor debunked by any other admissible evidence, remains good and credible evidence which should be relied upon by the trial judge; as the onus of proof here is satisfied on minimal proof, since there is nothing on the other side of the scale. See Ebeinwe vs. State (2011) 7 NWLR (Pt. 1246) 402 @ 416, Para. D, Mobil Oil (Nigeria) Ltd vs. National Oil & Chemical Marketing Co. Ltd (2000) 9 NWLR (Pt. 671) Page 44 @ Page 52, Paras. H. The argument of the defendants in this regard is therefore disregarded.
I need to make some preliminary remarks on some issues raised by the defendants’ counsel, before going into the merit of the case. The defendants’ counsel made heavy submissions regarding section 13 of the Oaths Act, to the effect that written statement which does not bear the First Schedule to section 13 of the Oath cannot be said to be a written statement. The defendants are challenging the format of the claimant’s depositions dated 21/10/2013 and 17/11/2014, as distinct from that prescribed in the schedule to the Oath Act; that it is a fundamental defect which goes to the foundation of the case. It is necessary to distinguish here a statement made without oath and that one made on an irregular oath which on the authority in the case of Ibrahim vs. INEC (2007) 3 EPR 50 AT 66, Per Salami, JCA (as he then was) held thus:
“ In my very firm view, once the written statements or depositions are adopted by a witness after swearing or making an affirmation before a tribunal, their admissibility in evidence cannot properly be challenged on the ground of non-compliance with the provisions of Section 13 of the oath Act.”
See also on same issue the cases of Hon. Barrister Joseph Effiong Etene vs. Hon. Saviour Okon Nyong & Ors (2012) LPELR – 8031 CA, Udeagha & Anor. vs. Omegara & Ors. (2010) 11 NWLR (Pt.1204) 168 at 195.
The defendants in this case have not shown that the written depositions of the claimant in the present case are calculated to either deceive or that they were themselves deceived thereby in any way. From the foregoing judicial authorities, interpretation given to the rule is to the effect that mere failure to comply in exact terms of format in schedules to an enactment does not necessarily always invalidate the thing done, if it is established that the thing is done in a manner substantially in compliance with the forms. In addition, by Section 113 of the Evidence Act, 2011 (as amended), the court may permit an affidavit to be used, notwithstanding that it is defective in form, if the court is satisfied that it has been sworn before a person duly authorized. The claimant’s written depositions in this case were duly commissioned by an authorized officer of the court assigned to administer oath in the circumstance, and all properly filed. See NAL Merchant Bank Plc vs. Odeghe & Associates Ltd (2000) FWLR (Pt. 28) 2186 CA.
The position as held by the court in Udeagha & Anor. vs. Omegara & Ors. (Supra) is that the subsequent affirmation/oath of the witnesses in open Court before they adopted the said statements would serve to cure the irregularity if any. In other words, the irregularity or defect as in the instant case cannot operate to jettison the said statements on oath, as I hold, that the written statements of the claimant in this case respectively dated 21/10/2013 and 17/11/2014, are all discountenanced.
Regarding the issue of juristic personality of the 1st defendant, the argument of the defendant counsel is that the claimant had sued the 1st defendant under the wrong name “Dangote Cement Plc (owners of Benue Cement Company)”, instead of the name “Dangote Cement Company Plc (Owners of Benue Cement, Plc)”. To the defendants’ counsel amendment done by the claimant in pursuance of Order 3 Rule 3 of the National Industrial Court Rules (NICR), 2007 to reflect the correct name will not avail the claimants, since it is an issue of jurisdiction which cannot be equated with technicality. The claimant in this case filed a motion dated 14th November2014 and filed 17th November 2014 for leave to amend his writ and statement of facts to now read “Dangote Cement Plc (owners of Benue Cement Company)”, instead of the name “Dangote Cement Company Plc (Owners of Benue Cement, Plc)”; which was granted by the court on 2nd December 2014, without objection from the defendants. The defendants equally filed their consequential amendment, vide the motion dated 6th February 2015 and filed 10th February 2015; and prayers were accordingly granted by the court on 12th February 2015. The claimant’s amendment is in order and permissible by Order 3 Rule 3 NICR 2007. The defendants’ argument on this point is not only futile but misplaced.
The duty of the court in all civil litigations is to aim at, and to do substantial justice and allow formal amendments as are necessary for the ultimate achievement of justice and end of litigation. Justice here should not be a fencing game in which parties engage each other in a whirling of technicalities. The law is that where a party has been sued under a wrong name, the writ could be amended by joining that party in his correct name. See Emespo J. Continental Ltd vs. Corona Shifah- Rtsgesellaschaft (2006) 11 NWLR (Pt. 991) 365 @ 377, Paras E – F, Adewumi vs. A.G.Ekiti State (2002) 2 NWLR (Pt. 751) 474 @ 507, Paras. F-H.
Furthermore, on Exhibits CW1R and CW1S1-3, DW admitted under his cross examination that BCC was bought over by Dangote Group, and that he was working with the 1st defendant in Gboko before the 1st defendant acquired BCC which process according to DW spanned over a period of time, and that the Dangote Group logo was used in some documents at time of acquisition of BCC, which is confirmed by Exhibits CWL (hand over letter to claimant as cashier) and Exhibit CWP (memo on alleged fraud against the claimant). In my firm view, Exhibits CW1R and CW1S1-3 tendered by the claimant, is to establish that there was actually the acquisition of BCC by 1st defendant, whether as Dangote Cement Company Plc or Dangote Group. I find Exhibits CW1R and CW1S1-3 relevant to the present case. It is settled law that the test to be applied, both in civil and criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how it was obtained. See Aregbesola vs. Oyinlola (2011) 9 NWLR (Pt. 1253) Page 458 @ 572 Paras B-D.
In addition, the argument of the defendants’ counsel, to the effect that Exhibit CW1R could not be tendered by the claimant since he is not the maker is unsustainable. It is trite that documentary evidence is the best form of Evidence, and as a matter of law, it can be admitted in the absence of the maker. Relevance is thus the key to admissibility. It is not mandatory that a document must be tendered through its maker. The court may admit a document in evidence even if the maker is available and not called as a witness. It is the discretionary power of the court to either admit or refuse a document where a maker of a document has not been called, the only criteria to guide the court is whether such document is relevant; and once the document is not challenged or impugned as unauthentic, the reason for calling of their makers does not arise. See Aregbesola vs. Oyinlola (Supra), Obembe vs. Ekele (2001) 10 NWLR (Pt. 722) 677 @ 693-694, Paras H-A.
Next issue is whether it is proper to have sued the 2nd defendant here where a disclosed principal has been sued. The defendants answered in the negative; that the 1st defendant is not unaware of the actions taken by the 2nd defendant against the claimant, which was approved by 1st defendant. The grouse of the claimant against the 2nd defendant is that it was the 2nd defendant who denied him access into the premises of the 1st defendant, and also generated Exhibit CW1L which stopped him from performing his duties as a cashier. There is thus a cause of action against the 2nd defendant, which has necessitated his being joined as a co- defendant in this action, and as shown in paragraphs 5, 9, 10, 11, 12, 13, 16, 17 and 19 of the averments in the statement of facts of the claimant. It is settled law that if a complaint is made against a person in an action and the questions or issues involved in the complaint cannot be effectually and completely determined or settled in the absence of the person, such a person is a necessary party and ought to be joined in the suit. See Uku vs. Okumagba (1974) 3 SC 35, Osunrinde vs. Ajamogun (1992) 6 NWLR (Pt.246) 156. The purpose of joining a particular person as a party is to ensure that that person is bound by the result of the action. That is the only way in which the fundamental questions in the action can be effectually and completely settled or determined. It is a rule that persons against whom complaints are made in an action must be made parties to the suit. It cannot be over emphasized therefore, that it is very important to the claimant in the present case to have the necessary parties included as parties for the successful conclusion of his action. See Mobil Oil Plc v. D.E.N.R (2004) 1 NWLR page 853. The 2nd defendant in this case, is thus a necessary part in this action, and I so hold.
I now turn to the merit of the case. I had earlier on in this judgement held that the claimant’s employment is one of master and servant, and where the appointment has been terminated as in the present case, the question of restoring an employee does not arise. This is because no servant can be imposed by the court on an unwilling master, even where the master’s behaviour or motive for getting rid of the employee is wrongful, unjustifiable, unfounded or repulsive. Furthermore, the claimant in the present case cannot maintain that his employment is still valid and subsisting in law. The reason being that his employment with the 1st defendant ceases from the time he was refused access into the factory. The conduct of the defendants at that point evinces the employment relationship had been determined; whether orally or in writing is no longer relevant.
The claimant under his cross examination stated his 2nd appointment was confirmed and was paid monthly basic salary, of N42, 100.00 which was the last salary paid in July 2010. He admitted he was disengaged vide Exhibit CW1C by the defunct Benue Cement Company (BCC) Plc, but was reabsorbed by the 1st defendant upon its acquisition of BCC Plc. That as a confirmed staff he was entitled to 30 days notice before his termination or one month’s salary in lieu of notice of termination, as stipulated in the terms and conditions of his employment. It is obvious from the claimant’s oral and documentary evidence before this court that the 1st defendant actually engaged him as a cashier in 2005 after the acquisition of BCC by 1st defendant. See Exhibit CW1E1-2 dated 1st February 2005(offer of employment) and Exhibit CW1D dated 18th November 2005 (confirmation of appointment). It is my firm view that since the claimant was reabsorbed by the 1st defendant who had acquired BCC Plc, then what should be applicable to the claimant should be the Staff Handbook of Dangote Cement Plc (1st defendant), i.e. Exhibit DW1A and not BCC Plc staff handbook (Exhibit CW1Q). By Exhibit CW1A, in the case of a confirmed staff, as the claimant in the present case, either party could terminate the employment by giving one month notice or salary in lieu of notice, as shown also in the staff handbook (Exhibit DW1A), Section VII, 7.1, 7.1.1 (b), which is reproduced below:
Section VII; 7.1:- “An employee may disengage from the services of the organisation following Resignation, Retirement, Death, Redundancy, Termination or Dismissal.”
“Similarly, when the service of an employee is terminated by the organisation, it shall:
(b)If his or her services have been confirmed, give one month notice to the employee or pay one month Basic Pay/Salary in lieu of notice, unless a different period is stipulated in the employee’s letter of appointment.”
From the foregoing therefore, the claimant in this case is entitled to one month salary in lieu of notice of termination. The defendants are therefore, in breach of the above terms and conditions of employment for the failure to give the one month notice or one month salary in lieu of notice. In the circumstance, I hold that the claimant’s employment in this case was wrongfully terminated. All that the court could do in such a situation would be to award appropriate damages for the breach if there is the need to do so. What then is the position of the law relating to the damages due to an employee whose appointment is wrongly terminated in breach of his contract of employment?
It has been settled in a long line of authorities that in cases of ordinary contract of employment where the terms provide for a specific period of notice before termination or salary in lieu thereof, as in this case, the only remedy available to an employee who is wrongfully terminated is the award of salary for the period of the notice and other legitimate entitlements due to him at the time the employment was brought to an end. He gets no more. See kato v C.B.N. (1999) 6 NWLR (part 607) 890 at 406; Western Nigeria Development Corporation vs. Abimbola (1966) 4 NSCC 172; Nigeria Produce Marketing Board vs. Adewunmi (1972) 7 NSCC 662. In such cases the award of general damages is inappropriate, nor is the wronged employee entitled to a decree of reinstatement; the rationale being that no servant can be imposed by the court on an unwilling master or employer. See Nze vs. N.P.A (1997) 11 NWLR (Pt. 526), Shell Petroleum Dev. Co. Ltd vs. Olarewaju (2008) 12 S.C. (Pt. III) 27, Ativie vs. Kabel Metal (Nig.) Ltd (2008) 10 NWLR (Pt. 1095) 399, Union Beverages Ltd v Owolabi (1988) 1 NWLR (part 68), Union Bank of Nigeria v Ogboh (1995) 2 NWLR (part 380) 647 at 664, Araromi Rubber Estates Ltd vs. Orogun (1999) 1 NWLR (Pt. 586) 302, Ajayi vs. Texaco Nig. Ltd (1987) 3 NWLR (Pt. 62) 577.
Flowing from the above judicial decisions, the claimant in this case is not entitled to the main reliefs claimed as per paragraph 23 (a) – (f) of the claimant’s statement of facts. The reliefs are all accordingly dismissed in their entirety. As to the alternative reliefs, this court having held that the claimant’s employment was wrongfully terminated, the claimant succeeds only partially in his relief (a) under the alternative relief and nothing more; to the effect that his employment was terminated in breach of the terms and conditions of employment of the 1st defendant. The claimant is thus entitled only to his one month salary of N42, 100.00 as admitted by the claimant under his cross examination, which was his last pay in July 2005, and nothing more. This award is without prejudice to any other legitimate entitlement that may be due to him if any.
Regarding reliefs (b), (c) and (e); these reliefs bothers on the tort of malicious prosecution, which is not within the ambit of the jurisdiction of this court as provided under Section 254C of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010. The reliefs are therefore refused and wholly dismissed.
On reliefs (e) and (f), i.e. for aggravated and exemplary damages of N50, 000, 000.00 against the 1st defendant for wrongful termination, and interest of 10% thereof claimed on judgement sum; the position of the law, and as applicable in this case is that the principles governing the grant of general damages in torts cannot be interchangeable with the principle governing the grant of damages in an action for breach of contract, which is restitution in integrum as applied by the court. See Adekunle vs. Rock view Hotel (2004) 1 NWLR (Pt. 853) Pg. 161, Kwara Investment Co. Ltd vs. Garuba (2000) 10 NWLR (Pt. 674) Pg. 25. The claimant’s relief (f) regarding interest on judgement sum is not grantable in the circumstance. Reliefs (e) and (f) are all accordingly refused and dismissed.
For avoidance of doubt, the claimant is partially successful in his claim only in respect of relief (a) in his alternative relief as per paragraph 23 of his statement of facts. It is therefore, declared and ordered as follows –
1. The claimant’s employment was wrongfully terminated by the 1st defendant in breach of Section VII 7.1.1. (b) of the terms and conditions of employment of the 1st defendant (Dangote Cement Plc), Exhibit DW1A in this case.
2. The 1st defendant shall pay to the claimant within 30 days of this judgement the sum of N42, 100.00 only being his one month salary in lieu of notice of termination and any other entitlements that may be due to him if any.
Judgement is entered accordingly. I make no order as to cost.
Hon. Justice R.B.Haastrup