IN THE NATIONAL INDU STRIAL COURT OF NIGERIA

IN THE AWKA JUDICIAL DIVISION

HOLDEN AT AWKA

BEFORE HIS LORDSHIP HON. JUSTICE J.I. TARGEMA, PhD

 

DATE: JULY 7, 2021                                                                       

SUIT NO. NICN/AWK/03/2015

 

BETWEEN:

Engr. Sam Elekwachi                                              -                                                           Claimant

AND

Citizen Chemical Ind. (Nig.) Ltd               -                                                           Defendant

REPRESENTATION

L.T. Adeh, with N.O. Ifepe, for the claimant

S.O. Nnabugwu, with E.C. Obi, for the defendant.

 

JUDGMENT

INTRODUCTION

1.     The claimant commenced this action vide a writ of summons filed on 18^th February 2015 together with the accompanying originating processes. To this, the defendant filed her statement defence and counterclaim processes vide order of Court dated 20^th June 2019 extending the time for the defendants to file the said process. In reaction, the claimant filed and served on the defendant a reply to the statement of defence and defence to counterclaim dated 10^th day of April, 2015. By the statement of facts, the claimant is praying for the following reliefs against the defendant.

a)     A DECLARATION that the Claimant's employment with the defendant vide a letter of employment dated 4/5/2011 is still valid and subsisting having regards to the fact that no notice or letter of termination has been given to the claimant.

b)    A DECLARATION that the claimant is not in breach or violation of the express terms and condition of the "Allocation of Car Agreement" to warrant any seizure or forceful recovery of the vehicle from the claimant.

c)     A DECLARATION that the claimant is entitled to his salaries and entitlements from the defendant immediately upon the expiration of his 2 months suspension until termination of the claimant's employment with the defendant.

d)    AN INJUNCTION restraining the defendant from interfering, seizing or otherwise recovering the vehicle allocated to the claimant in furtherance of his employment

e)     ₦1,000,000.00 Million naira, as general damages against the defendant.

f)      Interest on the judgment sum at 20% per annum from the date of judgment until the judgment debt if fully paid.

 

2.     At the trial, the claimant testified on his own behalf as CW and his frontloaded documents were marked as Exhibits CW1 to CW6. The defendant call two witnesses, Okoye Patrick Chike, staff of the defendant company as DW and Lady Ngozie Mbanenu, Legal Practitioner as DW2 and they did not tendered exhibit. At the close of trial, parties filed and served their respective final written addresses. The defendant’s final written address was by order of Court extending the time, filed on 8^th February 2021. The claimant filed his final written address on 2^nd March 2021. The defendant filed its reply on points of law on 16^th March 2021.

 

THE CASE BEFORE THE COURT

3.     The claimant was employed by the defendant on the 1^st day of June, 2011 vide a letter of employment delivered to the claimant through his e-mail address. The clamant worked for the defendant from the period of his employment up to the period he was given two months suspension without payment by the defendant; that the said two months suspension commenced from the 1^st day of December 2014 and elapsed on the 31^st day of January, 2015; that the claimant after the suspension resumed to work only to be denied access in the factory premises by the defendant; that the defendant also handed over the claimant's Department in the factory to some Indian Expatriates and took over the claimant's accommodation; that the defendant was demanding for a return of the car given to the claimant by virture (sic) of the Car Allocation Agreement executed between the parties in furtherance of the claimant's employment; that the defendant since the period of claimant's suspension failed and refused to either pay the claimant his salaries and entitlements till date. 

 

4.     To the defendant, the case of the claimant is that he was employed by the defendant vide a letter dated 4/5/211. That in the year 2013, the defendant allocated to him a Toyota Sienna van which said car was registered in the name of the defendant; that that the claimant's name will be changed immediately the claimant finished the payment of the said car through deductions from the claimant's salary; that the terms of the said car allocation are contained in the document titled Allocation of car agreement which said document was dully executed by both parties. It is the claimant's case that the defendant in December 2014 suspended him for two months without pay and instructed that at the end of the said suspension, the claimant on resuming to work will come with the said car which instruction of the defendant, the claimant did not carry out; that the claimant claimed that his employment with the defendant is still subsisting so long as the defendant did not serve him any sack letter.

 

5.     The defendant filed his statement of defence and counter claimed against the plaintiff as per his counter claim. The defendant in his defense admitted that she employed the claimant as claimed. That she granted the claimant the car allocation as also claimed and that the claimant was suspended for two months without pay as claimed by the claimant and that she actually instructed the claimant to come to work with the car allocated time upon resumption from his suspension; that the defendant stated that she did not stop the claimant from resuming but that the clamant absconded from work simply because he was instructed by the defendant to bring along with him the car allocated to him by the defendant on his resumption from his suspension.

 

6.     The defendant counter claimed against the plaintiff as follows:

a)    A DECLARATION that the counter claimant /defendant to the counter claim absconded from his duty.

b)    A DECLARATION that the claimant/defendant to the counter claim by absconding from his duty has determined his employment with the counter claimant by his conduct, hence not entitled to any notice of termination from the defendant/counter claimant.

 

THE SUBMISSIONS OF THE DEFENDANT

7.     The defendants submitted two issues for determination, namely:

a.      Whether the claimant led evidence sufficient to prove that his employment with the defendant is still subsisting and that he is still entitle to his salaries and other entitlement.

b.      Whether the defendant/counter claimant has not led evidence sufficient enough to prove his counter claim against the claimant.

 

8.     On issue (a), the defendant submitted that the claimant did not lead evidence sufficient to prove that his employment with the defendant is still subsisting and that he is still entitled to his salaries and other entitlements; that  the claimant has in his reliefs (a) and (c) in paragraph 22 of his statement of facts claimed as follows:

a.      A declaration that the claimant's employment with the defendant vide a letter of employment dated 4/5/2011is still valid and subsisting having regards to the facts that no notice or letter of termination has been given to the claimant.

b.      A declaration that the claimant is entitled to his salaries and entitlements from the defendant immediately upon the expiration of his two months suspension until termination of the claimant's employment with the defendant.

It is trite that he who asserts must prove. The onus in civil cases is on the plaintiff to prove his case on the preponderance of evidence. See Akubilo v. Mobil Oil (Nig.) Plc (2012) 14 NWL and Sokwo v. Kpongbo (2008)7 NWLR (part 1086) page 342 at 344 ratio 1. Considering the decision of the Supreme Court and Court of Appeal above reproduced, the pertinent question now is whether the claimant who asserted that his employment with the defendant despite his absence from work for over five years now is still subsisting and whether in the circumstance, the claimant has proved that he is entitled to his salaries and entitlements. An excursion into the claimant's pleadings and evidence before this Court will show that the claimant woefully failed to prove his said assertions with credible and unchallenged evidence; that from the pleadings of both the claimant and the defendant, it is discovered that the crux of the issue between the parties started with the claimant's refusal and/or failure to acknowledge and respond to the internal memo of the defendant served on the claimant on the 30^th October, 2014.

 

9.     To the defendant, the claimant in paragraphs l3 and 14 of his statement of facts pleaded as follows:

"Rather than respond to the memo aforesaid in writing, the claimant decided to seek audience with the managing director of the defendant's company with a view to explaining better his believe that the subject matter of the memo did not reflect the correct state of affairs in his department."

Paragraph 14

"The claimant states that he was yet to meet with the MD when suddenly he received a query from the defendant dated 27/11/2014 on why the claimant failed to acknowledge the memo of 30^th October, 2014..."

That it is discovered from the above paragraphs of the claimant's statement of facts that the claimant did not deny the fact that he refused to acknowledge the said memo and that also he refused to react to same. It is trite that whatever that is admitted needs no further prove (sic); that what is more interesting is the fact the claimant even in his evidence in-chief in paragraphs 12 and 13 of his evidence in-chief filed on the 18^th February, 2011 did not deny that he refused to acknowledge the said memo and did not also deny that he did not react and/or respond to the memo; that the claimant by his own pleadings and evidence in chief averred and testified that he decided to seek audience with the Managing Director instead of acknowledging and reacting to the said memo; that the claimant did not in his pleadings aver whether his flagrant refusal, failure and neglect to acknowledge and respond to the defendant's internal memo and his decision to see the managing director personally was in line with the practice and custom of the company or in line with the standard practice.

 

10.      The defendant went on that the claimant by his own admission waited for 29 good days to have audience with the Managing Director. Within these 29 days, the claimant was coming to work and going back at the end of every day with reckless abandon not bothered about whose ox is gourd (sic), carrying himself as the man above the law which he is; that it is the case of the claimant that he did not do anything with respect to the internal memo until the 27^th November, 2014 when the defendant served him with a query after 29 days of service of the said memo on him and his purported waiting to see the Managing Director. It is trite that an employee's willful disobedience to his employer's lawful order is a breach of the implied terms of contract which indeed is an act of gross misconduct.  One of the implied terms of contract of master and servant on the part of the employee is that the employee undertakes to obey his employer's orders, instructions etc. It is trite that any willful neglect, refusal and/or failure of the employee to obey his   employer's lawful order or instruction is an act of gross misconduct which will justifiably attract the penalty of summary dismissal or termination etc. refers to the Compendium of Employment and Labour in Nigeria under the subtitle of the implied terms: Duties of the employee page 41-42 It is our submission that the claimants willful neglect to acknowledge and respond to the internal memo of the defendant served on him is an act of gross misconduct.

 

11.      The defendant continued that it was as a result of the claimant's act of willful disrespect to the defendant's lawful order that made the defendant to suspend the claimant for two months without pay; that the claimant in paragraph  15 and 16 of his statement of facts pleaded as follows:

“Not being satisfied, the defendant, went on to place the claimant on a two months suspension without pay vide a letter dated 1/12/2014 and further instructed the claimant to return the vehicle given to him at the end of his suspension.”

The claimant in his above reproduced paragraph 15 quoted the defendant's instruction with regards to the car allocated to the claimant as contained in the suspension letter dated 1/12/2014 and admitted in evidence as Exhibit CW5 out of context; that the letter of suspension, Exhibit CW5 in its last paragraph reads thus:-

            “After your suspension, come with the company's car under your custody.”

That the said document speaks for its self (sic). There is no place in the said letter for suspension wherein the defendant requested/instructed the claimant to return the allocated car to the defendant; that the defendant in his defense to the claimant's claim that the defendant ordered him to return the car to the defendant after the claimant's suspension, pleaded in paragraph 32 of his amended statement of defense as follows:-

"In further answer, the defendant avers that she never threatened to use every available means to size or disposes (sic) the claimant of the vehicle. The claimant was merely asked to come to the office after his suspension with the said vehicle because the principal officers of the defendant have not set their eyes on the said vehicle for over one year after it was given to the claimant hence they want to know the   condition of the said vehicle."

To the above averment of the defendant, the claimant did not deny the fact that for over one year, the management of the defendant has (sic) not set their eyes on the vehicle allocated to the claimant since after the said allocation was made to the claimant.

 

12.      The defendant submitted that the claimant having admitted the obvious fact that management of the defendant have not seen the vehicle since after its allocation to him, the question now is, does the defendant has (sic) any right to check on the vehicle to know its condition or not. The answer is yes. The defendant has every right to demand to see the said vehicle which said vehicle by the terms of the Car Allocation Agreement belongs to the defendant and will remain so until the claimant liquidates the purchase sum of the allocated vehicle payment after which change of ownership will be made in the claimant's name. A close look at the car Allocation Agreement which is admitted as Exhibit CW2 will show among other things that:

a)     The ownership of the vehicle is in the defendant's name.

b)    The said ownership will be transferred to the claimant only when the claimant liquidates the purchase price of the vehicle which stands at ₦1,500,000.00 (one million, five hundred thousand) naira.

c)     The original document of the vehicle to be and remain with the defendant until the claimant liquidates the purchase sum of the vehicle.

It is submitted by the defendant, that by the reason of the above, the defendant has every right to request that the said vehicle be brought to her for her to see it and to know its condition; that the claimant both in his pleadings and evidence before the court confirmed that the vehicle was allocated to him by reason of his employment and for the purposes of his said employment. If the said vehicle was allocated to the claimant for the purposes of his employment with the defendant why then will the claimant hide the said vehicle from the defendant? Why was the defendant (sic) afraid to bring the said vehicle for the defendant to see? From the claimant's pleadings and evidence before this Court, it is obvious that the claimant was not comfortable with the defendant's instruction to the claimant requesting that the claimant after his suspension will come back with the vehicle allocated to him by the defendant; that it is not in doubt the claimant disobeyed this lawful instruction of the defendant.

 

13.      That the claimant in paragraph 16 of his statement of facts pleaded thus:

"The claimant resumed work after the suspension but Rather than re-absorb the claimant, the defendant simply asked the claimant to go and come back on another date and insisted that the claimant must surrender the vehicle earlier granted to him even though the claimant had through his salary deductions per month, made substantial payment towards liquidating the vehicles purchase price."

The above is also the claimant's evidence in chief. The claimant did not plead anywhere in his pleadings that he brought the vehicle to the defendant and that the defendant instead of sighting and inspecting the said vehicle, seized the vehicle and ordered and/or pushed him out of the premises of the defendant.  It is submitted that the claimant willfully neglected the lawful instruction of his employer by his refusal to bring the vehicle allocated to him by the defendant for the defendant to sight same and know its condition is a serious breach of the implied term of his employment which is to obey the lawful order/instruction of his employer.

 

14.      To the defendant, the claimant admitted that the purchase sum for the vehicle is #l,500,000.00 stated that he paid only 425,000.00 (four hundred and twenty five thousand) naira out of the #l,500,000.00; that the claimant is now keeping the said vehicle and keeping the balance of 1,75,000.00 even when he absconded the service of the defendant and in the circumstance,  breached the express terms of the car allocation agreement as provided for in clause 9 of the said agreement. It is very glaring from the totality of the pleadings and evidence before this court that this suit is a clear case of the claimant's show of arrogance, neglect and disrespect to the defendant. The defendant in this case exhibited high level of disobedience to the lawful instructions of the defendant. It is trite that he who comes to equity must come with clean hands. It is very glaring that the claimant came to this court with unclean hands; that the claimant by bringing this action only wants to use the hands of this Honourable Court to stamp his illegal actions against the defendant and to perfect all his breaches which we know that this court is so sacred to allow such; that the claimant in this case shows that he valued the vehicle allocated to him more than the job through which he got the vehicle. The claimant simply brought this action to intimidate the defendant in other to keep the allocated vehicle to himself and abandon his job.

 

15.      The defendant submitted that the claimant in paragraph 4 of his reply to statement of defence and defence to counterclaim pleaded thus:

"…the claimant maintain that he resumed work after the two months suspension without pay but was soon ask to go back and bring the vehicle allocated to him without any reason advanced by the defendant and which instructions were contrary to the custom and practice of the company except in a case where termination or dismissal of An employee is being contemplated." “… By insisting that the claimant should return the car to the factory at the end of the suspension was only for it to be impounded by the defendant."

That the claimant in his above reproduced averments stated that the defendants instruction to come back with the vehicle after his suspension without any reason is contrary to the defendant company's custom and practice except in case where termination or dismissal of an employee is being contemplated; that the claimant did not plead the particular custom and practice of the defendant's company he is referring to nor did the claimant plead any circumstance where such instruction was given by the defendant in an anticipation of the termination or dismissal of any of the defendant's employee. It is our submission that the claimant's above reproduced pleadings so vague and evasive that this court cannot act on them.

 

16.      That the claimant in paragraph 7 of his reply pleaded as follows;

"…The claimant aver that the real reasons why he was ask To produce the vehicle was not merely for sighting as alleged by the defendant but for the defendant to immediately seize and/or impound the vehicle having regards to plans already concluded with a view to terminate the claimants employment without due process."

It is pertinent to note that the claimant did not plead how he got the information he averred above to wit:

a)     That the real reason for asking him to come with the vehicle after his suspension was to impound the vehicle and not for sighting as averred by the defendant to enable the management know the condition of the said vehicle.

b)    That plans had already been concluded by the defendant with a view to terminate the claimant's employment without due process.

It is trite that pleadings need to be detailed, specific and very precise. See Council, F.U.T.A v. Ajidahum (2012)14 NWLR (part 1321) 583 at 580 ratio 1.

 

17.      The claimant in paragraph 22 of his statement of facts pleaded as follows:-

"That the defendant has been threatening to use every available means to seize or dispose the vehicle from the claimant and eventual throw the claimant out of the factory premises in defiance to the contract of employment as well as the car allocation agreement unless otherwise restrained by the order of this Honourable Court."

Going through the totality of the claimants pleadings, it will be discovered that this paragraph is the only paragraph wherein the claimant pleaded the issue of threat on him by the defendant; that there is no other paragraph in the claimant's pleadings wherein the claimant pleaded the particulars of such threat including the type of threat the defendant meted out on him; that the claimant did not plead the date or dates of such threat, the time, the place, the circumstance that led to the threat and the people present at the material time. Whether the purported threat was an oral threat or that the defendant used police or some other persons to threaten him is not pleaded. As if the above is not enough, the claimant pleaded in paragraph 8 of his reply as follows:

“The defendant in fact had perfected arrangements to further bring criminal allegations against the claimant to the police in order that the police could be used to humiliate and embarrass the claimant out of the factory without any benefits And entitlement.”

The claimant did not make any attempt to plead how he came about this allegation against the defendant; that the claimant did not plead who told him about the alleged perfected arrangement. To worsen the situation, there is proof of this heavy and weighty allegation against the defendant. It is the law that a Court cannot act on speculation. See Council, F.U.T.A v. Ajidahum supra at part 589 ratio 9.

18.      It is the case of the claimant that his employment with the defendant is still valid and subsisting because he fully resumed with the defendant after his suspension. See page 21 of the claimant statement of facts wherein he pleaded as follows:

Having regards to the claimants letter of suspension Dated 1/12/2014 which was for a definite period of time, it is averred that the claimant fully resumed with the defendant after his suspension and even though specific duties are not been Assigned to the claimant; that the claimant is entitled to the payment of his full service and entitlement as an employee of the defendant until a formal notice of termination is given to the claimant. (Underlining mine for emphasis)

The claimant who in the above paragraph claimed that he fully resumed with the defendant after his suspension is the same claimant who in paragraph 16 of his statement of facts and paragraph 3 of his reply averred that he resumed work after the two months suspension but was soon asked to go back and bring the vehicle allocated to him without any reason advanced by the defendant. One wonders which of the two versions of the claimant's averment that the court will accept as the truth. Is it that the claimant fully resumed with the defendant after his suspension or that the claimant upon resumption was asked to go back and bring the vehicle allocated to him? What a contradiction? This goes to show the extent of lies the claimant fabricated against the defendant.

 

19.      To the defendant, the claimant did not plead the date he resumed as the first February 2015 was a Sunday; that the claimant did not plead the alleged date he was asked to go back and bring the vehicle and the claimant did not plead whether he went back to bring the vehicle or not and whether he eventually brought back the vehicle Assuming but not conceding that the claimant resumed fully with the defendant; that the claimant did not plead how many months or weeks he worked with the defendant before going to Court any (sic) why he went to court. The question now is, which of the facts from the claimants pleadings will the Court base her findings on? It is submitted that the vagueness and the evasiveness of the claimant's pleadings exposed the claimant as a liar.

 

20.      The defendant further submitted that from the pleadings and evidence before the Court, it is not in doubt that the claimant absconded with the allocated vehicle. It is also not in doubt that the claimant after his two months suspension did not resume with the defendant on the assumption that the vehicle will be taken away from him and that explains why the claimant quickly rushed to Court; that the defendant in paragraphs 16, 17, 18 and 19 of her amended statement of defense pleaded that the claimant never resumed work after serving his two months suspension; that the defendant went further to plead that when the management of the defendant waited for two weeks for the claimant work to resume but did not see him, they put calls across to the claimant who promised to return to continue his work but did not return as promised.; that the defendant further averred that the claimant refused to come back to resume work with the defendant and that the next thing defendant saw was the claimant's complaint served on him.

 

21.      The defendant's witnesses, DW1 and DW2 gave unchallenged and un-contradicted evidence in prove (sic) of the defendants averment in his pleadings and his counter claim. It is our submission that the claimant by his pleadings and evidence before this court has not show any cause of action against the defendant; that a holistic look at the claimant's pleadings and evidence before this Court will support our above assertion that the claimant has not disclosed any cause of action against the defendant.

 

22.      The claimant pleaded in paragraph 17 of his statement of facts as follows:

"The claimant aver that the defendant brought Indian expatriates four days after the claimant's suspension, who virtually took over the claimant's duties in the factory but yet the defendant could not terminate the claimant employment till date"

The above reproduced averment of the claimant is so very ridiculous; that the defendant employed Indian Expatriates, not one, two, three etc. as the case maybe to take over the duties of one person; that the claimant did not plead how many expatriates that were employed to take over his duties four days after he proceeded on suspension; that within four days, the defendant concluded arrangements with the Indian Expatriates and they landed in Nigeria within that four days and resumed work with the defendant. This is quite unbelievable and it is to be noted that the claimant went ahead to aver that the defendant after bringing in the India Expatriate to take over virtually the duties of the claimant, did not terminate the claimant's employment with the defendant. So, why is the claimant not working when his employment was not terminated? Looking at the claimant's complaint, one will discover that the complaint was dated the 18^th February, 2015 and filed on the same date. From the claimant's pleadings he was to resume work on the 1^st February 2015; that the 1^st February, 2015 was a Sunday. The claimant did not plead the date he purportedly resumed with the defendant.

 

23.      The claimant in paragraph 4 of his reply pleaded thus:

…the claimant maintained that he resumed work after the two months suspension without pay but was soon asked to go back and bring the vehicle allocated to him.

The claimant in his above reproduced averment said..."but was soon asked to go back and bring the allocated vehicle" From the claimant's above averment, it is discovered as follows:

a.      That the claimant confirmed that there was no coercion on him to bring the allocated vehicle for sighting.

b.      That the claimant did not say the day he resumed work and how soon after from the said day that he was asked to and bring the allocated vehicle. 

c.       Whether the word "soon" meant one week, five days or two weeks, nobody knows. This shows how vague and evasive the claimant's pleadings are.

Assuming but not conceding that the claimant's averment is his above reproduced pleadings is anything to go by, how is it possible that from whatever date the claimant purportedly resumed which ordinarily must be after the 1^st February, 2015 to "the soon therafter (sic)" he was asked to go and bring the vehicle that he had already instituted his this action on the 18^th day of the same February, 2015. If that is possible, it therefore means that immediately he was asked to go and bring the vehicle without more, the claimant instead of obeying the defendant's simple and lawful instruction, he rushed to this Court.

 

24.      It is submitted that the claimants willful negelect (sic) and/or refusal to obey his employers simple and lawful instruct of bringing the allocated vehicle to the clamant for sighting is a breach of the claimants implied term of contract; that from the totality of the claimant's pleadings and his evidence before this Court, it is clear that the claimant has failed to prove any of his claims before this court. It is obvious that the claimant from his pleadings and evidence has not shown any cause of action against the defendant; that the claimant failed to plead and give cogent and unchallenged evidence on his alleged claim of the defendant not allowing him to continue with his work and his alleged claim that his employment with the defendant is still subsisting including his claim for salaries and other entitlement. It is worthy of note that the claimant did not call any witness to corroborate whatever evidence he has given. It is therefore submitted that the claimant has failed woefully to plead and prove through unchallenged and credible evidence his claim; that the effect of the above is that the claimant has no case against the defendant. The defendant urged the Court to resolve issue 1 in favour of the defendant.

 

25.      On issue (b), the defendant/counter claimant counter claimed against the claimant as follows:

a)     A declaration that the claimant/ defendant to counter claim absconded from his duty.

b)    A declaration that the claimant/defendant to counter claim by absconding from duty has determined his employment with the counter claimant by his conduct, hence not entitled to any notice of termination of his employment from the claimant.

c)     A declaration that the defendant/counter claimant is entitled to notice of termination of employment from the defendant to the counter claimant or the sum of ₦210, 000.00 (one month salary) in lieu of notice in line with the general custom and usage obtainable in the industry.

The sum of  ₦l, 175,000.00 (One Million One Hundred and Seventy Five Thousand Naira) being outstanding balance for the purchase price of the vehicle and ₦20,000.00 weekly damages on the said car from the date the claimant absconded from his duty; that ₦15, 000.00  per month from the day the defendant to counter claim absconded from duty till the day he delivers up possession of the flat which was given to him by the counter claimant for residential purposes; that ₦5,000,000.00 being amount spent by the defendant in effecting repairs on the seven machines and replacing of the missing vital parts of the said machines; that against the unsatisfactory, incredible, inconsistent, evasive and vague pleadings and evidence thereto of the claimant is the specific, detailed and precise pleadings of the defendant/counter claimant and the consistent, cogent, satisfactory and credible evidence by the defendant/claimant witnesses in defence of the claimants claims against defendant and in prove of  the defendant/counter claimant  counter claim.

 

26.      The defendant continue that, in his amended statement of defence gave a detailed averment of when the claimant was employed, the car allocation, how the claimant failed to discharge his duties diligently that led to the service on the claimant of the internal memo; that the claimant refused to acknowledge and respond to the said internal memo which lead to the claimants two months suspension without pay; and that the claimant absconded with the vehicle allocated to him; that the claimant did not come to resume his duties after the two months suspension; that the defendant submitted that, both in her evidence in-chief and under cross-examination through her witnesses to wit DW1 and DW2 gave cogent, satisfactory  and credible evident that the defendant through her witnesses led unchallenged and uncontroverted evidence in proof of all her averments in her pleadings and in proof of her counter claim.

 

27.      The defendant submitted that the defendant/counterclaimant gave detailed and unchallenged evidence in proof of her counter-claim. There is no contradiction in the evidence of DW1 and DW2; that DW1 and DW2 gave evidence both in chief and under cross-examination in line with the defendant's pleadings; and that none of the evidence of DW1 and DW2 is outside the defendant's pleadings. DW2 under cross-examination testified thus:

"Presently, the claimant is no longer an employee of the defendant company. The claimant was not dismissed by the defendant company. He absconded. The claimant was suspended for two months and we never saw him again until he served us with notice of this suit".

Still in DW1 evidence under cross examination, DW1 testified thus:

"The claimant was never told to stop work. He only absconded and we never saw him again. I deny the suggestion by counsel that the claimant is still an employee of the defendant company ".

"It is true as suggested by counsel that the company demanded for the production of the car so that the management will look at the condition of the car for examination".

“I personally called the claimant as a colleague to resume.”

DW1 gave unchallenged evidence on how the claimant locked up the apartment given to him by the defendant and he testified under cross examination thus:

“The company did not take over the apartment as suggested by counsel to the claimant. The locked up the 3 bedroom apartment and did not hand over the keys to anybody.”

DW1 in his evidence in chief testified at paragraph 3 as follows:

“In line with clause 6 of the Allocation of Car Agreement that the sum of ₦25, 000.00 per month was deducted from the claimant's salary for only 15 months. The total sum of money deducted so far for the 15 (sic) from the claimant's salary is the sum of ₦375, 000.00. The outstanding balance for the cost of the vehicle is the sum of ₦1, 175,000.00”

DW1 also testified in paragraph 30 of his evidence in chief filed on 11/03/2015 thus:

“under the circumstances, the defendant is entitled to one month salary in lieu of notice from the claimant. The defendant is also entitled to recover from the claimant, either the vehicle or the claimant will pay the defendant the outstanding balance of the purchase price of the vehicle.”

It is on record that the claimant was not cross examined on any of his above evidence in chief; that it is the law that where an adverse party fails to cross examine a witness on his evidence before the Court, the Court will conclude that the adverse party does not dispute the facts. See Cameroun Airline v. Otutuizu (2011) 4NWLR (part 1238) PAGE 512 RATIO 18; Gaji v. Paye (2003) 8NWLR (part 823) page 583 at 591. It is the defendant’s submission that the failure of the claimant to cross examine the DW1 on all these material facts in his evidence in chief is a tacit acceptance of the truth of the evidence of the defendant's witness and we urge the Honourable Court to  hold so.

 

28.      To the defendant, it is evident that the defendant led unchallenged and uncontroverted evidence through her witnesses in proof of all her averments in her amended statement of defence and her counterclaim. Oforlete v The State (2000) 12 NWLR (part 681) page 415 at 436 paras A-B. By the reason of the Supreme Court decision, the defendant enjoin (sic) the Honourable Court to accept the evidence of the defendant's witnesses as being unchallenged and uncontroverted as proof to the defendant's counter claim; that from the totality of the above, it is clear that the plaintiff has failed to prove his case by specific and detailed pleadings and through unchallenged, uncontroverted and reliable evidence; that the defendant on the other hand has through reliable, credible, plausible, unchallenged and uncontroverted evidence proved his averments in his pleadings and proved his counter claim before this Court.

 

29.      The defendant  submitted that once this Court finds the pleadings of the claimant to be vague and evasive and the evidence of the claimant to be inconclusive, to dismiss the entire suit of the claimant; that the result of the evaluation of the entire evidence before the Court on all the issues and all the argument on law conclusively established that the claimant absconded his employment with the vehicle allocated to him by the defendant without any notice or one month salary in lieu of notice; that the claimant seriously breached the implied terms of his employment with the defendant which ordinarily is an act of gross misconduct; the defendant therefore submitted that the defendant/counter claimant has proved his counterclaim before this court through credible evidence and is entitled to judgment.

 

30.      In conclusion, the defendant urge (sic) the Honourable Court to dismiss the case of the claimant in its entirety and enter judgment for the defendant counter claimant as per his counterclaim before the Court.

 

THE CLAIMANT’S SUBMISSIONS

31.      The claimant on his part submitted four issues for determination, namely:

        i.            Whether the claimant's employment with the defendant based on Exhibit A to wit:  “Letter of Employment" is still valid and subsist in in law having regards to the absence of notice of termination of employment till date.

      ii.            Whether the claimant is entitled to his arrears of salaries and other entitlements by the defendant after the period of suspension till date. 

   iii.            Whether the claimant is in breach or violation of the express terms and conditions of employment as contained in Exhibit “B” to wit; "Allocation of Car Agreement" as to warrant seizure, forfeiture or recovery of the vehicle by the defendant.

    iv.            Whether the defendant has successfully proved his counter claim against the claimant as to be entitled to judgment before the court.

  

32.      One issues (i), (ii), and (iii), the claimant submitted that, based on the evidence before the Court, the claimant has successfully proved and established that his employment with the defendant is still valid and subsisting in law having regards to the absence of any notice of termination or dismissal by the defendant; that the defendant through his witnesses admitted to the fact that there is a standard procedure to be followed before an employee can be employed or disengaged from the services of the defendant. It is in evidence that the defendant failed to adhere to the said procedure with regards to the claimant's employment and purported termination consequent upon which the defendant is liable in damages to claimant and payment of his outstanding arrears of salaries; that the nature of the contract of employment between the claimant and the defendant which commenced on the 1^st June, 2011 as contained in Exhibit A is that of a master-servant relationship and same is governed by the extant provisions of the Labour Act, LFN Cap 4, 2011 which requires formal notice of termination as a prerequisite to the termination of employment; that an employment of master-servant such as in the instant case, is governed by the terms under which the parties agreed to be master and servant but where there is no written agreement as to the period of notice of termination, the notice to be given must be reasonable notice.  See the case of U.B.N Plc v. Soares (2012) 11 NWLR p. 550; Chukwumah v. S.P.D.N. Ltd (1993) 4 NWLR (Pt. 288) 512.

 

33.      That in the instant case, there were no express terms of employment executed between the parties save for the fact that the letter of employment was delivered to the claimant via his e-mail address and in the absence of any other written contract, the claimant's employment can only be determined by a reasonable notice as the law implies with payment in lieu of termination. Where there is no contract of service or where the contract of service does not provide for termination, there is an implied term that the contract can only be terminated upon giving reasonable notice. See Shell Petroleum Co. Ltd v. Ifeta (2001) FWLR (Pt. 80) 1614 at 1628. By section 9(7) of the Labour Act, LFN Cap L1 2004, the law provides that:   

(7) A contract shall be terminated

(a) By the expiry of the period for which it was made or

(b) By death of the worker before the expiry of that period or

(c) By notice in accordance with section 11 of this Act or in any other way in which a contract is legally terminated or held to be terminated.

     Section 11 of the Labour Act (ibid) provides as follows:

(1) Either party to a contract of employment may terminate the contract on the expiration of notice given to him by the other party of his intention to do so.

(2) The notice to be given for the purposes of subsection (1) of this section shall be:

a.      One day, where the contract has continued for a period of three months or less;

b.      One week, where the contract had continued for more than three months but less than three years.

c.       Two weeks, where the contract has continued for a period of two years but less than three years.

d.      One month, where the contract had continued for five years or more.

(3) Any notice for a period of one week or more shall be in writing.

Flowing from the above provision of the law and judicial authorities, the law seems to suggest that adequate notice of termination or payment in lieu of notice of termination are the only lawful ways to a valid termination of a contract of service with or without reasons. See University of Maidugiri (sic) Teaching Hospital Management Board & anor v. Dawa (2002) FWLR (Pt. 108) 1402.

 

34.      The claimant continue that in computation of the claimant's duration of employment with the defendant based on Exhibit A, it is in evidence that the claimant resumed work with the defendant on the 1^st June 2011 and worked with the defendant for more than three years; that by the clear provisions of the Act, the claimant is entitled to a reasonable notice of termination of his employment or payment of salary in lieu of termination.; that the defendant pleaded in his statement of defence and also purported in evidence through his witnesses that the claimant's employment was terminated because he absconded from work. In rebuttal, the claimant denied that he absconded from work and further stated that it was rather, the defendant who kept the claimant in abeyance as to the status of his employment when the claimant resumed work after serving out his suspension; that the claimant decided to approach this Court in order to give interpretations as regards the status of his employment with the defendant; that the defendant cannot purport to have terminated the claimant's employment by conduct simply by denying the claimant access into its factory premises and handing over the claimant's job to some Indian expatriate or taking over possession of the claimant's apartment.

 

35.      That DW1 testified under cross-examination as follows

      Q: I put it to you that the employment of the defendant is still subsisting.

      A: It is not, he absconded.

Q: What you just told this Court, is it part of your company policy that where an employee absconds, his employment is determined.

      A: Yes, it is written.

    Q: Can you produce the document where it is written.

    A: Yes but I cannot remember the name of the document.

That the allegation of abscondment from duty leveled against the claimant by the defendant does not in any manner hold water as the law does not recognize mere absence from duty as constituting termination of employment. On the other hand, the defendant who has no express terms of employment with the claimant cannot turn around and claim that there is in existence a company policy that provides for termination of employment merely on account of abscondment; that the defendant's failure to produce the said company policy in evidence is very fatal her case; that the presumption in law is that no such document exists otherwise it would have been produced and relied upon in evidence by the defendant.

 

36.      The claimant went on that, by section 167 (d) of the Evidence Act 20ll, the law provides that evidence which ought to be produced but is not produced is presumed to be against the interest of the party withholding same. See Odili v State (1997) 4 SCI; Alonge v. IGP (1959) SCNLR 516 and UBA Plc v. Godm Shies Industries (Nig.) (2011) 8 NWLR, (Pt. 1108) 507. The claimant therefore submit that the defendant's claim that the claimant absconded from his employment is false and even if same were to be true, same does not translate into automatic notice of termination as required by law; that the evidence that the claimant absconded and his employment thereby became terminated is speculative and cannot be substantiated by evidence.; that the Honourable Court is therefore not enjoined to act on speculation but hard (sic) evidence before it. See Avraham Modechai Zabusky v. Isreali Aircraft Industries (2008) 2 NWLR (PT.10'70) 109.

37.      That under cross examination, DW1 testified thus:

Question: The claimant in this suit, is he still an employee of the company?

 Answer: He is not presently. 

Question: Was he dismissed by the defendant?

Answer: He absconded

 Question: In other words, the claimant is still under the employment of the c   company?    

    Answer: No    

Question: Are you aware that the claimant was served with his Employment letter via his E mail address?

    Answer: Yes.

It is not in doubt that the claimant was duly served with a Letter of employment  or appointment to wit; Exhibit A vide  E-mail as such, to terminate the claimant's employment the defendant ought to have also communicated the claimant formally either by handing same over to the defendant  or via E-mail which would have been sufficient; that the claimant (sic) simply kept mute and maintained her silence while expecting the claimant to assume that his employment with the defendant had been terminated.

 

38.      To the claimant, the fact that the defendant stated in evidence under cross examination as having not given nor served on the claimant the requisite notice of termination is a tacit, admission that the purported termination of the claimant's employment is unlawful, null and void and of no effect whatsoever which does not require any further proof having regards to section of the Evidence Act, 2011. See Julius Berger (Nig.) Plc v. Ogundehin Dolapo (Mrs.) (2013) All FWLR (Pt. 676) 497 and Ali v. Albishir (2008) 3 NWLR (Pt.1073) the claimant therefore submitted, that having regards to the absence of any notice of termination served on the claimant by the defendant, the claimant's employment with the defendant is deemed as still valid and subsisting till date; that the claimant is therefore entitled to the payment of all arrears of salaries and other entitlements from the defendant till date.

 

39.      That the claimant in his written deposition dated the 10th day of April, 2015, stated as follows:

"6. That I resumed to work after the two months suspension but was asked to go back and bring along the vehicle allocated to me which is strange and contrary to the custom and practice of the defendant except with regards to cases where of termination or dismissal.   There was no reason for the defendant to have asked me to bring along the vehicle because I had earlier told the managing director that the car would be used in Lagos and not Onitsha which the managing director consented to. Consequently, insisting that I returned the car to the factory at the end of my suspension was only for it to be impounded by the defendant.  Moreover, there was no provision in the ACA document mandating me to produce the car at relevant intervals for inspection.

7. That I did not abscond from  work nor stole any vital parts of the defendant's machines as alleged by the defendant rather it was the defendant who purported to terminate my employment without recourse to due process and hurriedly brought in Indian expatriates to take over my position and job responsibilities while on suspension and even when I resumed, no other responsibilities were assigned to me by the defendant to suggest that my services were still needed rather I was simply asked to go home and come back with the vehicle allocated to me in appreciation and commendation of my services to the defendant.

8. That the real reason why I was asked to produce the vehicle was not merely for sighting as alleged but to immediately seize and impound the vehicle and thereafter throw me out of the factory premises using the police. In fact, the defendant had already perfected plans and arrangements to bring criminal allegations against me to the police so that it would be easier to bundle me out of the factory and hand over to the police"

The above piece of evidence was not in any way challenged or controverted by the defendant either under cross-examination or by way of reply to the claimant's defence to counter claim; that the law is trite that evidence which is neither challenged nor controverted under cross-examination ought to accepted by the Court as the truth of what it purports.  See Gaye v. Paye (2003) 8 NWLR (Pt. 823) 583 at 605; Isitor v. Fakarode (2008) 1 NWLR (1069) 601. With regards to the Car Allocation Agreement to wit; Exhibit B, the claimant submit that based on the principle of pacta sunt servanda, which means, the parties are bound by the terms of their agreement and any act deviating from the terms expressed by the agreement is not only unlawful but unacceptable by the Court; that the acts of the defendant in making efforts to forcefully take the vehicle from the claimant are contrary to the terms expressed in Exhibit B. see Nigerian Gas Company Ltd v. Unuavwodo (2003) FWLR (Pt. 169) 1196.

 

40.      In Paragraph 9 of Exhibit B provides as follows:

"without prejudice to paragraph (5 a-b), in the vent the employee resigns or is dismissed from his employment, the employee further expressly undertakes to return the said van to the company in good condition immediately with or without demand from the company otherwise shall be liable for the outstanding balance of the full purchase price of ₦1,500,000.00 (One Million, Five Hundred Thousand Naira) Only, plus ₦20,000 damages weekly, plus all costs incurred by the company in the process of recovering the said van from the employee."

Based on the above excerpts curled from Exhibit B, the car allocated to the claimant can only be returned upon the claimant's resignation or dismissal from his employment or alternatively, the claimant shall pay to the defendant the outstanding sum due on the full purchase price of the car; that the defendant having not validly terminated the claimant's employment is therefore not entitled to the return of the said vehicle having regards to the terms expressed in Exhibit B; that the defendant is at liberty to deduct from the claimant's outstanding arrears of salaries, the agreed sum of ₦25.000 towards the gradual liquidation of the purchase price for the vehicle as contained in exhibit B.

 

41.      The claimant submitted that relief (D) of the defendant's Counter Claim is therefore in contrast with the terms agreed upon by the parties as contained in Exhibit B and granting same will be tantamount to rewriting the agreement between the parties. The 1aw is that in the interpretation of written agreements between parties, the Court must confine itself to the plain words used therein. See Obanye v. U.B.N. Plc (2018) 17 NWLR (Pt. 1648) 375, U.B.N. v. Ozigi (1994) 3 NWLR (Pt. 533) 385.

 

42.      The claimant went on that, in the assessment of damages, we submit that the claimant is entitled to adequate compensation for the acts of the defendant since 2015 till date; that the claimant also maintains that his employment with the defendant is still subsisting and consequently is entitled to his salaries in arrears up till the period the defendant will validly terminate his employment. See Rook v. Bernard (1964) AC 1230; O.M.T Co Ltd v. Imafodon (2012) 4 NWLR P. 332; SPDC (Nig.) Ltd v Tiebo VII (2005) 9 NWLR P. 46 and Garba v. Kur (2003) 11 NWLR (Pt. 831) 280. That measurement of damages is aimed at restoring the injured party back to the original position he would have been but for the breach.  See Texaco Nig. Plc v.Kehide (2002) FWLR (Pt. 941). The claimant humbly urge the court to resolve issues l, II and III in favour of the claimant in holding that the claimant has sufficiently established his case so as to be entitled to judgment in his favour.

 

43.      On issue (iv), by section l33 (1) of the Evidence Act 2011, whoever desires the court to give  judgment as to the existence of any legal right or liability dependent on facts which he asserts must prove that those facts actually exists.  In the instant case, the defendant pleaded that the claimant absconded from his employment and thereby terminated same; that the evidential burden of proof lies on the defendant to lead evidence showing that there was actually an act of abscondment on the part or the claimant and that there is a provision in law or the company policy which regards abscondment as constituting termination of employment as failure to do so is highly detrimental to the defendant's case. See Mr. Cid Maduabum v. Hon. Ben Chuks Nwosu (2010) 13 NWLR (Pt. 1212) 623 at 630; Senator Chris Adighije v. Hon. Nkechi J. Nwaogu (2010) 12 NWLR (Pt. 1209) 419 at 429; Buhari v. INEC (2008) 19 NWLR (Pt. 1120)240; that the defendant in proof of his counter claim, averred in paragraph 24 of the amended statement of defence as follows:

“the defendant denies paragraph 18 of the statement of fact. The claimant is put to the strictest proof of same. In answer, the defendant avers that the claimant was paid all his salaries save for that for November and December, 2014which were period of his suspension which was to be without pay" (underlining mine for emphasis)

 

44.      That the above pleaded fact is in sharp contrast with paragraph B of the suspension letter to with; Exhibit E which provides thus:

"for this reason, you are to proceed on a two months suspension without pay with effect from 01/12/2014"

The defendant in seeking to evade justice has resorted to manufacturing facts in order to mislead the Honourable Court into believing that the claimant suspension ended in December, 2014 and that since then the claimant has refused to resume work up till the institution of this suit. Going by the contents of Exhibit E, the claimant was placed on a two months suspension without pay with effect from the 1^st December, 2014 and set to resume work on the 1^st February 2015. Upon the expiration of the two months suspension, the claimant sought to resume work but was practically locked out and denied entry into the factory premises which singular act of the defendant necessitated this action filed on the 18^th February, 2015; that the defendant in defence of this suit veered off from the main facts in issue as premised on the status of the claimant's employment and resorted to adducing further evidence in her final writte address which in itself is inadmissible in law; that the final address of counsel no matter how brilliant or alluring, cannot take the place or legal proof or evidence. See Ucha v. Elechi (2012) I3 NWLR. 330 The defendant also argued in her final written address and contended that, consequent upon the claimant's act of disobedience for not reacting to the internal memo served on him, the defendant has the right to terminate his employment based on the implied terms as provided by law. We therefore submit that the suspension without pay handed over to the claimant by the defendant who claimed he did  not react to the internal memo served on him was deemed to be his punishment which is not the cause of action herein. On the other hand, the claimant in summary of this suit is praying the court to interpret the status of his employment with the defendant; that the defendant also failed to file a reply to the claimant's defence to counter claim and same is deemed as an admission to all the facts contained in the claimant's defence to counter claim; that a counter claim in all intents and purposes is a separate action on its own and subject to the same rules of Court as pleadings. See Dabup v Kolo (1993) 9 NWLR (Pt. 317) 254 at 270; Makanjuola v. Ajilore (2001) 12 NWLR (Pt. 727) 416 at 436. In the instant case, the defendant having not filed a reply to the claimant's defence to counter claim which is in law also a separate suit on its own is deemed to have admitted to all the facts and evidence contained therein. The claimant urged the Court to resolve issue (iv) in favour of the claimant against the defendant.

 

45.      In conclusion, the claimant submitted that the claimant has proved his claim against the defendant and consequently entitled to judgment in his favour, that the defendant's counter claim lacks merit and ought to be dismissed with a punitive cost.

 

DEFENDANT’S REPLY ON POINTS OF LAW

46.      In reply to claimants’ final written address, the defendant contended that on the argument of the claimant counsel that the claimant's contract was terminated by the defendant; that the claimant did not plead such facts in his pleadings both in his statement of claim, reply to Statement of defence and defence to counter claim; that the claimant all through his pleadings and evidence in chief before this court was consistent in saying that his contract of employment with the defendant had not been terminated and is still subsisting; that that is why the claimant claimed in relief "c" as contained in his claim before this court for "A declaration that the claimant is entitled to his salaries and entitlements from the defendant immediately upon expiration  of his two months suspension until termination of the claimants employment with the defendant". The claimant's counsel is clearly hinging his argument on this issue on the claimant's evidence under cross-examination where the claimant testified thus:

"...on 16/2/2015 I went back but security did not allow me in and advised me to call the GM. I did but his two numbers were switched off. The security then ordered me to leave the gate and go away as I was no longer a staff of the company."

It is evident that this piece of evidence is not pleaded anywhere in the claimant's pleadings; that it is the law that evidence on facts no pleaded goes to no issue. See Dike v. Nzeka (1986) 4NWLR Pt. 34 at 144.

 

47.      That going  by  the  above  authorities,  the defendant  submitted  that  evidence  of the claimant going back to the defendant's company and the defendant subsequently locking the claimant out of defendant's premises as stated by the claimant under cross examination as reproduced above cannot form part of the claimant's case; that the claimant wants the above piece of evidence to form part of his case the Supreme Court has held that in such a circumstance, the party has to amend to include such evidence as part of his pleadings. The defendant therefore, urge the Honourable Court to hold that the defendant did not in any way or manner terminate the claimant's employment.

 

48.      The defendant further contended that the claimant raised the 2nd issue in his final written address that his employment with the defendant is still subsisting as he was not served with any form of notice to terminate his employment with the defendant; that the combined reading of the Sections 9 (7) and section 11 of the Labour Act LFN 2004 is to the effect that his contract with the defendant is still subsisting and having not been served with the said necessary notice in accordance with section 11 of the Labour Act, his employment with the defendant cannot be said to have been determined and that the only way his contract could be lawfully determined is with the issue of notice or payment in lieu of one.

 

49.      The defendant submitted that the above view is erroneous as service of notice on the claimant would only have applied where the defendant had terminated the claimant's employment. It is evident that the claimant had by his own conduct terminated his employment and thereby entitled the defendant to treat the said contract of employment as so determined. That section 9 (7) (c) of the Labour Act states that a contract shall be terminated….:c) (sic) by notice in accordance with section 11 of this Act or in any other way in which a contract is legally terminable or held to be terminable (emphasis mine).

 

50.      The defendant submitted that the Labour Act as cited above recognizes a contract of employment as contract simplicita and as such can be determined in any way a normal contract would be determined. See Tsokwa Oil Marketing Co. Ltd v. Bon Ltd (2002) 11NWLR (Pt. 777) 200. It is clear from the above that a contract can be determined by any of the modes above including breach of the said contract.

 

51.      The defendant continued that what constitutes breach of contract was defined in the case of Oceanic Bank Ltd v. Chitex Industries Ltd (2000) 6NWLR (Pt. 661) 464; as failure without legal excuse to perform a promise which forms whole or part of a contract. It is submitted that the defendant (sic) by refusing to resume work despite calls from members of the company's management to do so is a breach of the employee's implied duty to duly report to work for his employer and to be readily available to carry out any legal and lawful assignment given to him by his employer in the schedule of his duties; that the claimant’s failure to resume work at the defendant without any excuse or notice amounts to resignation by absconding and the claimant by so doing has breached an implied term in his contract of employment and also terminated his employment with the defendant without notice.

 

52.      That the claimant further contended in paragraph 2.01 of his final written address that the law does not recognize mere absence from duty as constituting termination of employment. The defendant submitted that the above contention is misconceived and misleading; that it goes without saying that a contract of employment is a contract simplicita; that where a party by his conduct breaches an express or implied term of that contract; for example by being absent without leave for a period to suggest that he no longer wishes to be bound by his contract of employment, he has repudiated the said contract and entitles the other party to treat the contract as been terminated.

 

53.      Section 11 of the Labour Act which provides for issuance of notice in the event of termination of employment states in paragraph 11 (5) thus:        

"Nothing in this section affects any right of either part to a contract to treat the contract as terminable without notice by reason of such conduct by the other party as would enable him so to treat it before the making of this Act".

It is the defendant submission that in the circumstances of this case where the claimant had absconded from his duty, his contention that the defendant should have given him notice of termination of his employment holds no water; that the reason is because the defendant did not terminate and she also had no intention of terminating the claimant's employment; that by the defendant's pleadings and evidence led in support of her case, it showed that it was the claimant who failed and refused to return to work after he had served his two (2) months suspension; that the Claimant did not lead any credible evidence in support of his claims that his employment was terminated by the defendant.

 

54.      That as a matter of fact, the claimant led different versions of his false testimony as to what transpired after the period of his suspension had elapsed that left even his own counsel in a daze as to which testimony to believe which testimonies will even make this Court more confused; that the contradictory pleadings and the contradictory evidence in proof thereof by the claimant left more to be desired. See Auta v. Ibe (2003) 13 NWLR (Part 837) page 247 and Okhuayobo v. Agbe (2002) 9 NWLR part 771 page 29 at 38; that the claimant stated in paragraph 15 of his deposition on oath dated 18/2/2015, that he resumed work after serving his two months suspension but rather than the defendant reabsorbing him, the defendant asked him to go and come back on another date and also asked him to bring back the vehicle under his care. He then stated in Paragraph 7 of his deposition on oath dated 15/4/2015 that when he resumed work, no other responsibilities were assigned to him by the defendant to suggest that his services were still needed rather the claimant (sic) soon asked him to go and come back with the vehicle allocated to him. Even counsel to the claimant in his Final address, Paragraph 2.07 told a different story of how the claimant had sought to resume work after serving his suspension but was practically locked out and denied entry into the factory premises; that one wonders which of these versions of the defendant's story the Court should ultimately believe. It is the law that where there is a conflict in the evidence of a witness, the Court cannot pick and choose which version of the conflicting evidence to believe and act on. See Adam v. Osunde (2003) 16(NWJ.R)part 847 page 643 @ 650, Akanni v Odejide  (2004) All FWLR (Pt. 218) 822 at pp 854-855 paras G-A ratio 2. That based on the above submission, defendant urged the Court to treat the claimant's evidence with disbelief and disregard the said evidence for being contradictory.

 

55.      The defendant further submitted that the Claimant's claims that he resumed work after he had served his suspension but was told to go and come back with the vehicle is not believable as his claims and evidence in support has more holes in it than an anthill; that the claimant did not plead the date on which he resumed work, he did not plead how long he had worked after his suspension to discover that he was no longer assigned duties and was subsequently asked to go and bring back the vehicle, he did not plead whether he reported back to the defendant with the said vehicle, he did not plead whether he reported back at all after he was purportedly sent home to bring the vehicle; that he did not plead the act of the defendant that constituted the purported dismissal; and that he led no credible evidence to show that he even resumed work after his suspension. A careful examination of the claimant's pleadings and testimony reveals that the claimant is a liar and his evidence is not to be believed by this Honourable Court.

 

56.      The defendant went on that, assuming but not conceding that the claimant's pleadings are to be believed, the claimant from his own pleadings stated that he resumed work, was subsequently asked to go and come back with the vehicle allocated to him but he never came back to the defendant but instead rushed to Court in a move that can only be interpreted to mean that the claimant has no desire to account for the condition or the existence of the vehicle or even paying for the vehicle. It is trite that the onus is on the plaintiff to prove his case and a claimant must succeed on his own case, where he fails to prove his case same cannot succeed on any weakness of the defendant's case. See Ukaegbu v. Nwololo (2009) 3 NWLR Pt. 1127 194 SC.  That it is evident that having failed to prove that his employment is still subsisting or even the purported termination of employment by the defendant, the defendant therefore submitted that the claimant's case must fail.

 

57.      The defendant submitted that on her own part was consistent through her pleadings and also DW1 and DW2; that the claimant did not resume work after his suspension and that the defendant in no way terminated the claimant's employment but that the claimant by his own conduct terminated his employment; that apart from the fact that the claimant did not prove his case, the defendant's evidence before the Court via DW1 and DW2 was not controverted. The defendant urge the Honourable Court to believe same as the true and grant the defendants counter claim while dismissing the plaintiff's reliefs.

 

58.      The claimant also contended in paragraph 2.04 of his Final Written Address that the Car Allocation Agreement which is Exhibit B before this Court is the only document this Honorable Court should hold to govern the car allocation transaction between the parties. See Nigerian Gas Co Ltd v. Unuavvwodo (2003) FWLR (Pt. 169) 1196, UBN v Ozigi (1994) 3 NWLR (Pt. 533) 385; that the request of the defendant to sight the vehicle was contrary to the terms expressed in Exhibit B. He persisted with the wild allegations that the reason he was asked to come with the vehicle was so that the vehicle will be impounded by the claimant; that the claimant did not plead how he got the information that the defendant planned to confiscate the vehicle or the particulars of how the defendant planned or threatened to arrest him and throw him in jail, no credible evidence was led in support of the above claims that the defendant planned to confiscate the vehicle and arrest the claimant. It is trite law that where no evidence is led in support of a pleaded fact that fact is deemed to have been abandoned by the party.

 

59.      The defendant however pleaded and gave evidence in paragraph 35 of DW1’s deposition on oath dated 11^th March 2015:

"the defendant never threatened to use every available means to seize or dispose of the vehicle, the claimant was merely asked to come to the office after his suspension with the seized vehicle because the principal officers of the defendant have not set their eyes on the said vehicle for over one year after it was given to the defendant (sic), hence they want to know the condition of the said vehicle.

It is noteworthy that the above testimony of DW1 was neither challenged or controverted as he was never cross examined on same. That on the implication of failure to cross examine a witness see Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 144 ratio 39. The defendant urged the Court to accept the above uncontroverted testimony of the defendant witness as true.

 

60.      The defendant continued that, the Claimant concedes that Exhibit B is the totality of the agreement between the parties with regards to the car loan agreement and the Court is enjoined to interpret the car allocation agreement between the parties according to the letters of Exhibit B. It is our position that Exhibit B gives the defendant the right to call for and inspect the vehicle. Paragraph 7 and 10 of Exhibit B states as follows:

7) "It is obligatory on the employee to personally take good care of the said van and shall ensure that it is kept in good condition, and shall comply at all times with all requirements of the law for its use on public roads.

10) "the company retains the ownership of the said van, and all original documents shall be in possession of the company until the employee liquidates the entire sum in compliance with the terms of this agreement, thereafter, the company shall deliver the original documents and relinquish her ownership of the said van to the employee."

The two paragraphs above obviously show that until the full purchase price of the van is paid by the claimant, the defendant still has proprietary rights over the vehicle. The defendant therefore, submitted that it would be illogical and ultra vires the agreement of the parties to expect the company to turn a blind eye when the value and existence of a property she owns cannot be ascertained.

 

61.      Furthermore paragraph 7 imposes on the claimant a duty to take personal care of the vehicle and ensure that it is kept in good condition.  It is submitted that it would be impossible for the management of the defendant to ascertain whether paragraph 7 is being complied with, without sighting the vehicle; that all the defendant knows, the claimant could have sold off the vehicle and that is why it has not been seen; that the claimant claimed in his reply to statement of defence and defence to counter claim that he had agreed with the managing director that the vehicle would be used in Lagos. It is obvious that is above claim is nothing a lie and no evidence was adduced to support that claim. In fact, Exhibit B which the claimant tendered and also happily conceded is the only agreement between the parties in relation to the car allocation agreement contradicts the claimants claim above as it contained no such clause or agreement; that the above extrinsic agreement to use the vehicle in Lagos as claimed by the claimant is unfathomable as no employer would allocate a vehicle to his employee in other to help the employee commute to work and then in turn allow the employee to take the vehicle across state lines and stash it somewhere without paying the full purchase price or adducing any compelling reason to justify such; that Exhibit  B speaks for itself and we urge the court to hold that there was no agreement between the parties to use the vehicle in Lagos.

 

62.      The defendant submitted that the claimant contended that the defendant did not file a reply to his defence to counterclaim and that same is deemed admission to all the facts contained in the claimant's defence to counterclaim. The defendant submitted that pleadings are not a matter of semantics and are not filed as a matter of course. The parties joined issues based on the claimant's statement of claim and all the claimant did in his reply and defence to counter claim was to restate all he had said in his statement of claim; that the defendant subsequently amended her statement of defence and counter claim after the claimant had filed her reply and defence to counterclaim, wherein she replied to all the issues raised by the claimant in his defence to counter claim. The claimant on the other hand did not file a consequential amendment to his defence to counter claim; that the claimant also the said reply to statement of defence and defence to counter claim in certain paragraphs contradicts the claimants (sic) statement of claim. For instance paragraph 13 and 14 of the statement of claim states thus:

13. Rather than respond to the said memo aforesaid in writing, the claimant decide to seek audience with the Managing Director of the defendant's company with the view to explaining better his believe that the subject matter of the memo did not reflect the current state of affairs in his department."

14. The claimant states that he was yet to meet with the MD when suddenly he suddenly received a query from the defendant dated 22/11/2014 on why the claimant failed to acknowlege (sic) the said memo of 30/10/2014. The claimant subsequently reacted to the query in writing and explained why he decided to seek audience with the MD rather than respond to the memo in writing. The claimant pleads and shall also found on a copy of the said reply to the defendant's query.

After stating in the paragraphs above and in the said reply to the query which is exhibit ----- (sic) that the decision to seek audience with the MD of the defendant was his decision, the claimant turned around and said paragraph 3 of his defence to counterclaim that:

3) In further answer and reply to paragraphs 6 and 7 of the statement of claim, it is averred that the claimant was never served nor confronted with any internal memo by the defendant which the claimant either failed or refused to acknowledge and/or accept. In fact the claimant accepted and acknowledged the said memo and perhaps wanted react straight away but was dissuaded by the General Manager. Mr. Patrick Okoye who suggested that the claimant should rather seek audience with the Managing Director and explain to him the true state of affair in his department...'

 

63.      That the claimant repeated the above paragraphs in his depositions before this Court; that  aside from the fact that the above averment is ambigious (sic) as evidenced by the use of the word "perhaps" which also means 'maybe', the claimant is also speaking from both sides of the mouth; that the same mouth that averred that he "decided" not  to reply to the memo in writing still stated that he was “dissuaded,” from doing so; that t is obvious that the above averments are contradictory. One wonders which version this Honourable Court ought to believe. It is the law that where a party give contradictory evidence before the Court it is not for the Court to choose which one to believe but for the Court to disbelieve the said evidence and the matter to which it relates to. See Adam v. Osunde (2003) 16 (NWLR) part 847 page 643 at 650.

 

64.      In conclusion, the defendant urged the Honourable Court to dismiss the case of the claimant and enter judgment in favour of the defendant with respect to the reliefs as contained in his counter claim.

 

COURT’S DECISION

65.      I have carefully considered the processes and submissions of the parties.  By relief (a), the claimant seeks for a declaration that the claimant’s employment with the defendant vide a letter of employment dated 4/5/2011 is still valid and subsisting having regards to the fact that no notice or letter of termination has been given to the claimant.  Exhibit CW1 (the defendant’s offer of appointment to the claimant) dated 1^st June 2011 states that:

I hereby write to inform you that the management of the above named company has offered you an appointment as HEAD ELECTRICAL ELECTRONICS Unit in CITIZENS CHEMICAL INDUSTRIES NIGERIA LIMITED. You are, therefore e (sic) expected to resume work effectively on 1^st June, 2011.  Please note that your position is very vital and you shall, in your best ability, discharge your duties efficiently.

     Congratulations.

Exhibit CW1 did not state any notice period given to the claimant.  And no letter of termination of claimant’s appointment, if any, has been tendered in evidence by the parties in this suit.

 

66.      The claimant stated under cross examination that he was offered a letter of employment in May 2011 by the defendant but he resumed in June 2011; that he worked with the defendant for three (3) years; that the last day he worked with the defendant was December 1, 2014. The claimant went on that the defendant gave him a letter of suspension on December 1, 2014 and the period of suspension was two months; that after the two months, he resumed work but defendant refused to take him back. That defendant did not give him any letter of termination; that when he resumed on February 2 (because February 1 was a Sunday), he reported at the office of GM; that the GM said the MD instructed that claimant should come back in two days’ time; that he did come back as advised but he was told to go and return the company vehicle. That on 16/02/2015 he went back but Security did not allow claimant in and advised him to call the GM; that he did so but GM’s numbers were switched off; that the Security then ordered him to leave the gate and go away as he was no longer a staff of the defendant company; that that was the last day he went to the defendant company.

 

67.   By paragraphs 10, 12, 13, 14, 15, 16 and 19 of the claimant’s statement of facts (and paragraphs 9, 11, 12, 13, 14, 15 and 18 of the claimant’s deposition), it was agreed that the claimant shall not commit any misconduct or resign from the defendant’s employment during the subsistence of the Car agreement until the total purchase price of the vehicle is fully paid for; that the defendant issued the claimant with an internal memo dated 30/10/2014 alleging the deplorable state of welding machines in the claimant’s unit; that rather than respond to the memo aforesaid in writing, the claimant decided to seek audience with the MD of the defendant’s (sic) company with a view to explaining better his believe (sic) that the subject matter of the memo did not reflect the correct state of affairs in his department.

 

68.   The claimant went on that he was yet to meet with the MD when he suddenly received a query dated 22/11/2014 on why the claimant failed to acknowledge the memo of 30/10/2014; that the claimant subsequently reacted to the query in writing. That not being satisfied, the defendant placed the claimant on a two (2) months suspension without pay vide a letter dated 1/12/2014 and further instructed the claimant to return the vehicle given to him at end of his suspension; that the claimant resumed work after serving his two months suspension but rather than reabsorb the claimant, the defendant simply asked the claimant to go and come back on another date and insisted that the claimant must surrender the vehicle ealier granted (sic) to him even though the claimant had through his salary deducted per months, made substantial payments towards liquidating the vehicles purchase price.  The claimant maintains that his employment with the defendant based on the letter of employment dated 4/5/2011 is still valid and subsisting and the claimant has not in any way committed any act of misconduct nor resigned from the defendant’s (sic) company in violation of the terms and conditions of the Car Allocation Agreement; that the defendant is consequently not entitled to recover from the claimant the vehicle in his possession which the claimant had substantially paid for.

 

69.   In reaction to the claimant’s averments above, the defendant stated in paragraphs 6, 7, 11, 15 and 16 of her amended statement of defence dated 9^th  October 2015 that despite the fact that the defendant stated categorically in the claimant’s letter of appointment dated 04/05/11 that the position of the claimant is very vital and that the claimant shall discharge his duties effectively in his best ability, the claimant failed to discharge his duties diligently and this led to the breakdown of all the machines under the care of the claimant; that the defendant lost so much money monthly due to the none (sic) performance of the defendant’s welding machine and damages caused by the terrible state of the defendant’s welding machines which were under the watch of the claimant. That the defendant gave the claimant an internal memo on the terrible state of welding machines on 30/10/2014 but the claimant refused to accept the said memo from the GM; that it is part of the general custom and usage of the defendant that any employee served with a memo must receive same and respond accordingly in writing within a period of one week; that that was why the claimant later wrote a letter of apology to the MD of the defendant pleading for forgiveness for the failure to accept and react to the internal memo served on him.

 

70.   The defendant went on that failure of the claimant to accept the memo from the Manager for any reason whatever and respond to same accordingly within a reasonable time amounts to an act of gross misconduct on the part of the claimant; that almost a month of the claimant’s vehement refusal to accept the memo served on him, the claimant not only failed to answer the said memo, the conditions of the defendant’s welding machines which were under the very watch of the claimant degenerated further and this caused untold loss, hardship and damages to the defendant. That save that the claimant was given 2 months suspension without pay vide letter dated 1/12/2014, the defendant never instructed the claimant to return the vehicle given to him; that the claimant was merely instructed to come with the company’s Car under his custody after his suspension.

 

71.      The claimant had stated in paragraph 4 of his statement of facts and written statement on oath that: “Though the claimant’s letter of employment did not expressed (sic) particular terms or conditions of service, however, it was subject to the implied terms and conditions of service under a general contract of employment.  The law however, is that documents themselves are the best evidence.  See NEPA v. El- Fandi (1986) 3 NWLR (pt. 32) 884 and section 125 of the Evidence Act 2011 which provides that “all facts, except the contents of documents, may be proved by oral evidence.” And where a term is permitted to be implied into a contract, the implied term has the same binding effect on the parties. See Afrab Chem Limited v. Pharmacist Owoduenyi (2014) LPELR-23613 (CA); Johnstone v. Blooms-Bury Health Authority (1991) 2 All E R 292 and Iyere v. Bendel Feed & Floor Mill Ltd (2009) All FWLR (Pt. 453) 1217. The claimant however, did not state such terms permitted to be implied in this suit that have binding effect on the parties.

 

72.      On service of a memo on the claimant from the GM, the defendant averred in paragraph 10 of her amended statement of defence “that it is part of the general custom and usage of the defendant that any employee served with a memo must receive same and respond accordingly in writing within a period of one week. The defendant did not tender her terms and conditions of service or Staff Handbook in evidence to validate its averment.  And in James Adekunle Owulade v. Nigeria Agip Oil Company Limited unreported Suit No. NICN/LA/41/2012, the judgment of which was delivered on 12^th July 2016, His Lordship, Hon. Justice Kanyip (as he then was, now PNICN) put the law in these words:

… The rule is that evidence of customary practice (and customary procedure) must come from other than the person asserting its existence. This is the effect of the combined reading of section 18 (1) and (2) and 73 of the Evidence Act 2011. Additionally the ratio of the Supreme Court decisions in Queen v. Chief Ozogula (1962) WNLR 136, Adeyemi & ors v. Alhaji Shitu Bamidele & ors (1968) 1 All NLR 31, Richard Ezeanya & ors v. Gabriel Okeke & ors (1995) LPELR-1199 (SC); (1995) 4 NWLR (Pt. 388) 142 @ 165 and Orlu v. Gogo-Abite (2010) LPELR-2769 (SC); (2010) 8 NWLR (Pt. 1196) 307 SC is to the effect that it is unsafe to accept the testimony of the only person asserting the evidence of custom as conclusive; it is desirable and certainly good law that another witness who is versed in the alleged custom should also testify.

 

73.   In the instant case, the evidence of the DW1 as to the general custom and usage of the defendant that any employee served with a memo must receive same and respond accordingly in writing within a period of one week, was not collaborated even by DW2, a legal practitioner who had worked with the defendant company for over ten (10) years. It is thus unsafe for me to accept just his (DW1) testimony in that regard. I so hold.

 

74.   In paragraphs 17, 18 and 19 of the defendant’s amended statement of defence, the defendant stated that the GM waited in vain for the claimant to come and resume work; that the GM even called the claimant in his personal capacity to know why the claimant failed to come; that claimant replied by sending a text message to GM on 12/02/15 via his mobile phone number 08097955270 that he (claimant) was making efforts to return… That the claimant did not come as he said in his text message to the GM.

 

75.   His Lordship, the learned author, Alaba Omolaye-Ajileye, in the book, Electronic Evidence, Revised Edition, 2019 discussed the ambit of the law relating to admissibility of short messages services (sms) and instant messages (im). For instance, the learned author stated at pages 314, 315 and 16 thus:

The easiest way to authenticate a text message is to have the opposing party admit that he sent it. This is on the basis of the principle that what is admitted need no proof. Like emails, text messages have certain seemingly self-authenticating features. For instance, a text message is marked with the sender’s cell phone number. Nevertheless, given the possibility of a third party intervention by which such a message could be generated under the guise of the named sender, Courts have been weary in attributing a text message exclusively to the person to whom the phone number is assigned. Indeed the underlying reason for authentication requirement is the possibility that a third party could have used the cell phone to send a text message. Therefore, a text message may not have originated from the person who appears to have sent it. See Commonwealth V. Koch. No. 1669 – MDA- 2010, 2011 Pa. Super Lexis 2716 (September 16 2011) See: http://caselaw.findlaw.com/pa-superior-court/1580343.html.21/04/2018... That emails and text messages are documents and subject to the same requirement for authenticity as non-electronic documents generally… The Court ruled further that the defendant’s ownership of the phone was not enough to prove that she had sent the message in question. The Court declared that parties seeking to introduce electronic materials, such as cell phone text messages and email, must be prepared to substantiate their claim of authorship with “circumstantial evidence” that collaborates the sender’s identity. That evidence may come in the form of testimony from the sender or recipient, testimony of witnesses to the creation of the correspondence, or even “contextual clues” in the messages itself.

 

76.   The critical nature of the conditions of service can be seen in the Supreme Court decision in Bukar Modu Aji v. Chad Basin Development Authority & anor (2015) LPELR-24562 (SC), where it was held that waving the flag of a breach of the constitutional right to fair hearing does not provide any saving grace once the conditions of service are not pleaded and brought before the Court by a claimant who is complaining of wrongful termination of or dismissal from employment. In other words, the claimant must first plead and prove his conditions of service before any talk of breach of fair hearing can even be entertained. The condition of service is accordingly a sine qua non in any claim for wrongful dismissal or termination; for only the conditions of service can be used to determine the wrongfulness or otherwise of the dismissal or termination.

 

77.      It is a long standing principle of judicial determination that a claim for a declaratory order is not granted wholly or solely in admissions in the pleadings or in default of defence and that a party claiming to be entitled to a declaration must satisfy the Court by credible evidence, and not by a default in filing pleadings that he is entitled to such a declaration. Apart from the fact that the Court has a discretion whether or not the grant a declaration, the success of the claimant in the such an action depends entirely on the strength of his own case and not on the weakness of the defence. See Nigerian Institute of Transport Technology & ors v. Bashir Shittu (2015) LPELR- 25926 (CA); Bello v. Eweka (1981) 1 SC 101; Fabunmi v. Agbe (1985) 1 NWLR (Pt. 2) 299; Motunwase v. Sorungbe (1988) 4 NWLR (Pt. 92) 90; Osuyi v. Ekeocha (2009) 16 NWLR (Pt. 1166) 18 and Shasi v. Smith (2009) 18 NWLR (Pt. 1173) 330.

 

78.      Having considered the law as established and the arguments of both parties, I am not satisfied that the claimant has shown by credible evidence that his employment is still valid and subsisting. I so hold. In the circumstance, relief (a), in my view, cannot be sustained. It is incompetent and accordingly dismissed.

 

79.      In relief (b), the Claimant seeks the Court’s declaration that he is not in breach or violation of the express terms and conditions of the “Allocation of Car Agreement” to warrant any seizure or forceful recovery of the vehicle from the claimant.

 

80.      Exhibit CW2 which is the Allocation of Car Agreement between the defendant and the claimant is dated 22^nd July 2013. In it, both parties agree as follows:

 

1.      The employee who is a staff of the company applied to the company for allocation of van through his letter dated 22/07/2013.

2.      The company has agreed with the employee to allocate USED TOYOTA SIENNA VAN, 1.150 KGS, with Registration No. APP 420 BH, Engine No. 82190351MZ, Chassis No. 4T3ZF13C82U425319, upon the terms and conditions set out below.

3.      The purchase price of the said Toyota Sienna Van is ₦1,500,000.00 (One Million, Five Hundred Thousand Naira Only).

4.      The costs of insurance and registration of the said van under reference was waived.

5.      The company has agreed with the employee to be paying ₦25,000.00 monthly but subject to the following terms and conditions.

a)     That the employee shall devote his attention and skill to the business and interests of the company in a competent and efficient manner.

b)    The employee expressly undertakes NOT TO RESIGN from his employment NOR commit any misconduct during the period of payment of N25,000.00 monthly until he liquidates the full purchase price(₦1, 500, 000.00), for a period of sixty months with effect from July 2013.

6.      The company agreed with the employee that the employee shall pay the value of the said van totaling the sum of ₦1, 500, 000.00 (One Million, Five Hundred Thousand Naira) Only through deduction of ₦25, 000.00 monthly from employee's salary with effect from July 2013.

7.      It is obligatory on the employee to personally take good care of the said van and shall ensure that it is kept in a good condition, and shall comply at all times with all requirements of law for its use on public roads.

8.      The employee shall observe all the provisions of insurance policy relating to the said van from time to time and the company shall be at liberty to examine employee's driving license, van insurance policy, and current certificate of insurance.

9.      Without prejudice to paragraph (5a-b), in the event the employee resigns or is dismissed from his employment, the employee further expressly undertakes to return the said van to the company in good condition immediately with or without demand from the company otherwise SHALL be liable for the outstanding  balance of the full purchase price of ₦1,500, 000.00 (One Million, Five Hundred Thousand Naira) Only, plus ₦20,000.00 damages weekly, plus all costs incurred by the company in the process of recovering the said van from the employee.

10. The company retains the ownership of the said van, and all the original documents shall be in possession of the company until the employee liquidates the entire sum in compliance with the terms of the agreement, thereafter, the company shall deliver the original documents and relinquishes her ownership of the said van to the employee.

 

81.      In paragraph 7, 8, 9 and 10 of his statement of facts, the Claimant stated that 7. The terms and conditions under which the vehicle was given to the Claimant were contained in a written document tagged “Allocation of Car Agreement” prepared by the Defendant and executed between the parties in furtherance to the claimant’s contract of employment

8.The claimant states that he was not in a position to either bargain or negotiates (sic) the terms and conditions  contained in the allocation of car agreement which document is hereby pleaded and shall be founded upon at the trail.

9.By the terms and conditions of the agreement aforesaid, the sum of N25,000.00 shall be deducted monthly from the Claimants salary with effect from July 2013 towards liquidation of the purchase  price of the vehicle which was said to be N1.5 million.

10.It was further agreed that the Claimant shall not commit any misconduct or resign from the defendant’s employment during the subsistence of the said Car agreement until the total purchase price of the vehicle is fully paid for.

 

82.      The Claimant stated further in paragraph 16 of his statement of facts that he resumed work after serving his two months suspension but rather than re-absorb the claimant, the defendant simply asked the Claimant to go and come back on another date and insisted that the claimant must surrender the vehicle earlier granted to him even though the Claimant had through his salary deduction per months, made substantial payments towards liquidating the vehicle purchase price.

 

83.      In Exhibit CW6 (Two Months Suspension Without Pay), the Management of the defendant company ordered the Claimant to handover the company’s property under his care to the sectional head at metal can, Chika Ewelukwa; and after his suspension, to come with the company’s car under Claimant’s custody. The claimant’s contention in relief (b) however, is that he is not in breach or violation of the express terms and condition of the “Allocation of Car Agreement” to warrant any seizure or forceful recovery of the vehicle from the Claimant. Clause 5 (a) and (b) of Exhibit CW2 states that: “…the employee shall devote his attention and skill to the business and interests of the company in a competent and efficient manner; that the employee expressly undertakes NOT TO RESIGN from his employment NOR commit any misconduct during the period of payment of N25, 000.00 or monthly until he liquidates the full purchase price (N1, 500,000.00) for a period of sixty months with effect from July 2013. Clause 9 states further that without prejudice to paragraph 5 (a) and (b), in the event the employee resigns or dismissed from his employment, the employee, further expressly  undertakes to return the said van to the company in good condition immediately without demand from the company otherwise SHALL be liable for the outstanding balance of the full purchase price of N1.5million plus N20,000 damages weekly plus all costs incurred by the company in the process of recovering the said van from the employee.

 

84.      By the pleadings and evidence adduced by both parties, the issue of misconduct pervaded the relationship between the defendant and the claimant. To the defendant, the failure of the claimant to accept the memo from the Manager for any reason  whatsoever and respond to same accordingly within a reasonable time amounts to an act of gross misconduct on the part of the claimant; that after almost a month of the claimant’s vehement refusal to accept the memo by any means whatsoever, the conditions of the defendants welding machine which were under the very watch for the claimant degenerated (see paragraph 12 and 13 of defendant’s amended statement of claim and evidence of DW1). Notwithstanding the claimant’s traverse of same, the claimant would subsequently be queried, he would respond to same, proceed on a 2 months suspension and tender a letter of apology to the defendant (see CW3, CW4, CW5 and CW6).

 

85.      By Harka Air Services (Nig) Limited v. Emeka Keazor, Esq. (2011) LPELR- 1353(SC) to be guilty of willful misconduct, the person concerned must appreciate that he is acting wrongfully, or is wrongfully omitting to act and yet persists in so acting or omitting to act regardless of the consequences or acts or omits to act with reckless indifference as to what the result may be, all the problems must be evidence in the light of that definition”. See the case of Herabin v. BOAC (1952) 2 All ER (1006). In Anaja v. Union Bank For Africa PLC (2010) LPELR – 3769 (CA) the Court held that “misconduct is viewed seriously and punished harshly”.  In UBA v. Ogboh (1995) 2 NWLR (pt. 380) 647 at 669, it was held that “gross misconduct has been defined as conduct of a grave and weighty character as to undermine the confidence which should exist between the employee and the employer or working against the deep interest of the employer”. See also Araka v. Ejeagwu (2000) LPELR – 533 (SC) and British Airways v. Atoyegbi (2014) LPELR – 23120 (SC).

 

86.      The position of the law in the transaction between the defendant and the claimant in Exhibit CW2 (Allocation of Car Agreement) is that the parties must be judged not by what is in their minds, but by what they have said and/or written or done. In each case, the substance of the transaction or the agreement must be looked at. See Oluwole Kolawole v. Lanre Adebodun Olorioko Nigeria Limited & anor (2015) LPELR – 25005, (CA). The claimant’s averment in paragraph 1 of his reply to the defendant’s statement of defence and defence to counterclaim that it was in commendation and appreciation of his abilities and turnaround efforts the claimant’s department which positively impacted on the company’s fortune that the defendant rewarded the Claimant by purchasing and allocating a vehicle to the claimant, in my candid view, is untenable and smacks of an insensate approach to the tenor and his obligations in Exhibit CW2. I also hold. Where parties have embodied the term of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from, or contradict the terms of the written instrument. Awala v. NITEL PLC (2019) 15 NWLR (Pt. 1695) 372 at 395-396. See also Union Bank of Nigeria Ltd. V. Ozigi (1994) 3 NWLR (pt. 333) 385 at 400. Anyanwu & Ors v. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445; Attorney General Bendel State & Ors V. UBA Ltd (1986)4 NWLR (Pt. 37)547; Idufueko V. Pfizer Producs Ltd. (2014) 12 NWLR (Pt. 1420) 96; Olanlege v. Afro Continental (Nig) Ltd (1996) 7 NWLR (Pt. 458) 29.

 

87.      By the law as stated and having regard to my findings on this issue, I hold that the Claimant has failed to prove that he is not in breach and violation of the express terms and conditions of Exhibit CW2. Relief (b) is accordingly dismissed.

 

88.      Claimant’s relief (c) seeks the Court’s declaration that the claimant is entitled to his salaries and entitlements from the defendant immediately upon the expiration of his 2 months suspension until termination of the claimant’s employment with the defendant. Relief (c) on salaries and allowances, is a claim for special damages which must be claimed specially and proved strictly. See NNPC v. Clifco Nigeria Ltd (2011) LPELR-2022 (SC). The claimant has not disclosed the instrument entitling him to the salary and allowances and the quantum of same. Relief (c) accordingly must fail. It is accordingly dismissed. Having held that the claimant’s reliefs (a) and (b) and (c) are incompetent and accordingly dismissed, it is my humble view that proceeding with the consideration of reliefs (d), (e) and (f) would tantamount to an unmeritorious academic exercise.

 

89.      I now turn to the counterclaim of the defendant against the claimant which is as follow:

1.      A declaration that the claimant/defendant to counterclaim absconded from his duty.

2.      A declaration that the claimant/defendant to counterclaim by absconding from duty has determined his employment with the counterclaimant by his conduct, hence not entitled to any notice of termination of his employment from the claimant.

3.      A declaration that the defendant/counterclaim is entitled to notice of termination of employment from the defendant to counterclaim or the sum ₦210, 000.00 (month salary) in lieu of notice in line with the general custom and usage obtainable in the industry.

4.      The sum of ₦1,175,000.00 (One Million, One Hundred and Seventy Five Thousand Naira) being outstanding balance for the purchase price of the vehicle.

5.      ₦15,000.00 per month from the day the defendant to counterclaim absconded from duty till the day he delivers up possession of the flat which was given to him by the counterclaimant for residential purposes.

6.      ₦5,000,000.00 general damages.

 

90.      In proof of her counterclaims, the defendant as the counterclaimant repeated all the averments contained in paragraphs 1-35 of her statement of defence.

 

91.      In reply to the statement of defence and counterclaim, the claimant maintained that he was not afforded any opportunity to study or negotiate the terms of the allocation of car agreement and consequently did not make any consultations whatsoever before signing the document; that he resumed work after two months suspension without pay but was soon asked to go back and bring the vehicle allocated to him without any reasons advanced by the defendant and which instructions were contrary to the custom and practice of the company except in cases where termination or dismissal of an employee is being contemplated; that there is no provision in the Exhibit CW2 mandating the claimant to produce the car at relevant intervals for inspection by the defendant. That he did not at any time abscond from work as alleged rather it was the defendant who purported to terminate the claimant’s employment without recourse to due process; that he did not abscond from work or duty but was simply asked to leave the company.

 

92.    The defendant had stated that the defendant (sic) never resumed work after serving his two month suspension; that when the Management waited for the  claimant for two weeks to resume work, the MD called Barr. Ade Bayo who introduced the claimant to the company on phone to find out why he has refused to resume work, the said Barr. Ade Bayo told the MD that he will get back to him which he never did; that after the GM waited in vain for the claimant to come and resume work, the GM decided to call the claimant in his personal capacity to know why the claimant failed to come.  That claimant replied by sending a text message to the GM on 12/02/15 via his mobile phone number: 08097955270 that: “Am making effort to return tomorrow or next so that I can be in the factory by Monday.  Please tell Oga not to be angry.  Am just trying to get some money for my up keep.  Thanks.”  That the defendant (sic) did not come as he said in his text message to the GM; that the defendant (sic) on his own absconded from his duty thereby determined his employment by his conduct. I had ealier stated in paragraph 75 of this judgment that electronic evidence of this nature requires authentication. That has not been shown by the DW1. I so hold.

 

93.     Under cross-examination, DW1 stated on 17/11/2019 that presently the claimant is no longer an employee of defendant company; that claimant was not dismissed; that he absconded; and that the claimant is no longer in the employment of the defendant company; that claimant was suspended for two months and they never saw him again until he served defendant with notice of this suit. That claimant was not served notice to stop work; that claimant was not locked out and denied access into the defendant company. That the company demanded for the production of the car allocated to the claimant so that Management will look at the condition of the car; that it was claimant, and not defendant Management, that locked up claimant’s apartment; that claimant texted DW1 that he will be coming back after his suspension period; that he never did. That it is written that if you abscond, you determine your fate in the company; that DW1 did not come with any of the documents; that he (DW1) cannot recall the document in which it is so written. DW1 said he is not aware that the defendant company sent the claimant’s letter of employment to him via electronic mail. The evidence of DW2 under cross examination substantially validated the testimony of DW1.

 

94.   This Court recognizes the concept of constructive dismissal, which in a nutshell means the attempt to have the employee resign, rather than outright firing the employee. This signifies that the employer is trying to create a constructive discharge or constructive dismissal. See Mr. David A. Fadipe v. Cedarcrest Hospitals Limited unreported Suit No. NICN/ABS/147/2018, the judgment of which was delivered on July 8, 2020 and Mrs. Vivien Folayemi Asana v. First Bank of Nigeria Ltd unreported Suit No. NICN/LA/184/2016, the judgment of which was delivered on 19^th October 2018. By Western Excavations v. Sharp (1978) All ER 713, proof of constructive dismissal requires the claimant to show that there is a repudiatory breach (actual or anticipatory) on the part of the employer which must be sufficiently serious to justify the employee resigning; the employee must resign in response to the breach, and the employee must not delay too long in acting on the breach….The defendant’s demand in Exhibit CW5- Letter of Suspension – that claimant should handover the company’s property under his care to the sectional head at metal can and to come with the company’s car under claimant’s custody after his suspension; coupled with the claimant being turned back at the defendant’s entrance gate; denied access to the MD is, in my view, reminiscent of constructive dismissal. That may be so as the claimant stated under cross-examination that; “if the company did not send me away there will be no reason for me to come to Court to seek reinstatement back to my job” at page 37 of the Court’s file. On reference to Court’s File, see Ukaobasi v. Nwabueze (2017) LPELR-42420 (CA). Chambers 21^st Century Dictionary, Revised Edition, at page 1176 defines ‘reinstate’ to mean ‘to instate someone again; to restore someone or something to, or reestablish them in a position, status or rank which they formerly held but resigned or were dismissed from for some misdemeanor.’ As such, the defendant/counterclaimant’s reliefs (1), (2) and (3) must fail. They are accordingly dismissed.

 

95.   Reliefs (4) and (5) are claims for special damages which must be claimed specially and proved strictly. See NNPC v. Clifco Nigeria Ltd (2011) LPELR-2022 (SC) and 7UP Bottling Company Plc v. Augustus (2012) LPELR-20873(CA). In Mr. Mohammed Dungus & ors v. ENL Consortium Ltd (2015) 60 NLLR (Pt. 208) 39, this Court held that the rule is that it is the clamant who claims that must prove; and in labour relations, an employee can only claim if an entitlement is shown. An entitlement is shown by reference to the law that gives it, the collective agreement from which the entitlement was agreed on between the contracting parties or the conditions of service governing the relationship of the employee and his/her employer. Secondly, the employee who claims must show how he came by the quantum of the sums claimed. This Court also cautioned that it may be fatal if, in proving an entitlement, and even if the instrument is referred to the employee does not indicate the clause, section, article or paragraph that grants the entitlement claimed given that the employee should not expect that it is the Court that will shop for the relevant article that substantiates the claim prayed for. This is the context within which the claimant can succeed in the present case.

 

96.      The defendant/counterclaimant’s claim in relief (4) is for the sum of ₦1,175,000.00 (One Million, One Hundred and Seventy Five Thousand Naira) being outstanding balance for the purchase price of the vehicle. In paragraph 28 of her amended statement of defence, the defendant/counterclaimant stated that in line with clause 6 of Exhibit CW2 Allocation of Car Agreement that the sum of ₦25, 000.00 (Twenty Five Thousand Naira) per month was deducted from the claimant’s salary for only 15 months; that the total sum of money deducted so far for these 15 months from the salary of the claimant is the sum of ₦375, 000.00 (Three Hundred and Seventy Five Thousand Naira). The outstanding balance for the cost of the vehicle is the sum of ₦1,175,000.00 (One Million One Hundred and Seventy Five    Thousand Naira). The claimant/defendant to counterclaim’s contention in his reply to statement of defence and defence to counterclaim that he was not afforded any opportunity to study or negotiate the terms of the Allocation of Car Agreement and consequently did not make any consultations whatsoever before signing the document is untenable. There is nothing to indicate that he was compelled, forced or tricked into signing. The claimant cannot approbate and reprobate on Exhibit CW2. A claimant cannot in the name of a reply to the statement of defence introduce new facts since thereby the defendant would have no right of reaction. Relief (4), in my considered view, is grantable. I so hold.

 

97.      In relief (5), the defendant/counterclaimant has not disclosed how she came by the quantum of the sum claimed and her entitlement to same especially having regard to the constructive dismissal of the claimant/defendant to counterclaim. See NNPC v. Clifco Nigeria Ltd (2011) LPELR-2022 (SC). Relief (5) accordingly fails and is dismissed.

 

98.      Relief (6) being ₦5,000,000.00 general damages cannot be granted for that will amount to double compensation. See CCB (Nig) Ltd v. Okonkwo (2001) 15 NWLR (Pt. 735) 114 CA, Kabelmetal Nig. Ltd v. Ativie (2002) 10 NWLR (Pt.775) 250 CA and Onalaja v. African Petroleum Ltd (1991) 7 NWLR (Pt. 206) 691 (CA). Relief (6) accordingly fails and is hereby dismissed.

 

99.      In all, the defendant/counterclaim’s case succeed in part, and only in term of the following order:

1.      It is order that the claimant/defendant to counterclaim shall pay the outstanding balance of ₦1,175,000.00 being the balance for the purchase price of the vehicle allocated to the claimant/defendant to counterclaim by the defendant/counterclaimant.

 

100. On the whole, I see no merit in the claimant’s case. It fails and so is hereby

     dismissed.

 

 

101. Judgment is entered accordingly. I make no order as to costs.

 

 

Hon. Justice J.I. Targema, PhD.