Mr. Josiah Golden Obah -VS- Chief Fente T. Abrakassa & Ors - National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: JULY 19, 2019 Suit No: NICN/YEN/51/2015

BETWEEN:

MR. JOSIAH GOLDEN OBAH …………… CLAIMANT

AND

CHIEF FENTE T. ABRAKASSA

FEIMA INVESTMENT LIMITED

REPRESENTATION

Mr. T.R. Warmate Esq for the Claimant.

Mr. L.N. Ndimma Esq for the Defendants.

JUDGMENT

INTRODUCTION AND CLAIMS

The Claimant commenced this action by a Complaint dated and filed on the 16th day of July, 2015. His claims are as set out on the face of his Originating Process, to wit:

A DECLARATION that the employment of the Claimant to the 2nd Defendant is still subsisting.

AN ORDER that the Claimant is entitled to the sum of N4, 200, 000. 00 (Four Million Two Hundred Thousand Naira) only as special damages as remuneration per annum, at N300, 000. 00 (Three Hundred Thousand Naira) per month, from May 2014 till the determination of this suit.

AN ORDER that the Claimant is entitled to the sum of N20, 000, 000. 00 (Twenty Million Naira) only as general damages for wrongful termination of contract.

Accompanying the complaint were the necessary documents required by the rules of this court in proof of the claims which includes Witness Statement on Oath, List of Documents to be Relied Upon in the cause of Trial and other accompanying process.

The Defendants filed their Memorandum of Appearance dated the 20th day of August, 2015 and filed on the 3rd September, 2015. The Defendants also filed Statement of Defence and Counter Claim, Witness Statement on Oath, List of Documents to rely upon in the cause of Trial.

Trial commenced on the 4th day of February, 2018 but had to start de novo on the 18th day of April, 2018. On the 22nd day of May, 2018 the Claimant appeared as the sole witness in the proof of his claim testifying as CW1 and was cross-examined. In proof of his claims, CW1 tendered six (6) Exhibits marked as EXHIBITS CW1 001 – CW1 006.

The Defendants opened their defence on the 10th day of October, 2018 and called one witness – one Mr. David Idahosa the Manager Admin and Operations of the 2nd Defendant who testified as DW1. He was also cross examined on his evidence by the Claimant’s counsel on the same date. In their defence, 2 Exhibits were tendered through DW1 which were admitted into evidence and marked as EXHIBITS DW1 FL 001 and DW1 FL 002 and consequently the Defendants closed their case.

This court thereafter ordered parties to file their Written Addresses, which were filed and same adopted on the 11th day of March, 2019.

CLAIMANT’S CASE IN BRIEF

The case of the Claimant, by his Written Deposition is that he is the Business Development Manager of the Defendant. He averred he was issued a letter of employment and letter of confirmation which set out his total allowances (EXHIBIT CW1 001 and CW1 002). That the 1st Defendant is the Managing Director and Chief Executive Officer of the 2nd Defendant. Claimant averred that the 2nd Defendant being satisfied with carrying out his duties diligently issued him a notice of re-deployment (EXHIBIT CW1 003). The 2nd Defendant did carry out an insurance policy on his behalf with Guardian Trust Insurance Company Limited in the sum of N2, 184, 000.00 (Two Million, One Hundred and Eighty Four Thousand Naira) and still on the pay roll of the 2nd Defendant and was paid for the months of January, February and March 2014 before his salaries was stopped without any query or letter of termination till date. When he noticed his salary was stopped by the Defendants he engaged the services of a Lawyer who wrote to the Defendants demanding for the payment/arrears of his salaries (EXHIBIT CW1 - 005) and the Defendants through their letter replied stating he is not entitled to any amount. The Claimant concluded by stating that by reason of his wrongful termination of employment he has suffered damages.

Upon receipt of the Defendant’s Statement of Defence and 2nd Defendant’s Counter Claim, the Claimant did file and serve a reply to the Statement of Defence dated the 15th day of September, 2015 wherein he stated that he was never given or received any letter of redeployment dated the 8th day of August, 2013 and never aware of the purported internal memorandum dated the 8th day of August, 2013 and the 10th day of April, 2014 as he was no longer granted access to his office by the Defendants. In further denial to the Counter Claim of the 2nd Defendant, the Claimant averred that the 2nd Defendant did not and never paid him the sum of N2, 400, 000.00 (Two Million, Four Hundred Thousand Naira) covering the period of August, 2013 to the month of March 2014 and denied that the Defendants are entitled to any sum of money as contained in the Counter Claim and Statement of Defence.

When placed under cross examination, the Claimant stood by his written testimony and stated that the 2nd Defendant has never written any letter to him terminating his employment and stated he was denied access to his office. He stated he was never redeployed to the annex office of the 2nd Defendant’s office at Trans Amadi.

THE CASE OF THE DEFENDANTS/2ND DEFENDANT COUNTER CLAIMANT

Dw1, in his Written Deposition on Oath, averred that the Claimant was the former Business Development Manager of the 2nd Defendant. He averred that the 2nd Defendant confirmed the Claimant’s employment via a letter of confirmation dated 15th December, 2008 and assigned him to the position of the P.A/Project Relation Manager. DW1 averred that it is not true that the 2nd Defendant carried out any insurance policy on behalf of the Claimant and it is not true that the Claimant is still in the Pay Roll of the 2nd Defendant who stopped paying his salary since April, 2014.

DW1 further averred that sometime within the month of August, 2013 the 2nd Defendant redeployed the Claimant to the 2nd Defendant’s office annex at No. 40 Total Gospel Road, Trans Amadi via a Notice of Re-deployment (EXHIBIT DW1 FL 001) dated the 8th day of August, 2013 and after giving the said Notice of Re-deployment to the Claimant, the Claimant stopped coming to work without any excuse. DW1 averred that the Claimant through his Lawyer wrote to the 2nd Defendant demanding the payment of arrears of his salaries from April, 2014 to September, 2014 and the 2nd Defendant’s Lawyer replied him stating he is not entitled to any of his claims. It was the Claimant who absconded from his duty post and at the extra ordinary general meeting of the 2nd Defendant held on the 10th day of April, 2014 and a notice of special resolution it was resolved that in view of the abscondment of the Claimant from his duty post without any excuse and the 2nd Defendant/Counter Claimant’s policy of “no work, no pay” the payment of the Claimant should be stopped with immediate effect (EXHIBIT DW1 FL 002). DW1 averred that at the said general meeting it was resolved that the salaries paid to the Claimant since the month of August 2013, when he absconded from his duty post to the month of March, 2014 when the payment of salary to him was stopped, a period of eight months be recovered from the Claimant.

Under cross examination DW1 stated that he does not know that the Claimant has been in the employment of the company for 10 years and when he met the Claimant in the company he has never absconded from his duties, and has been a diligent and committed worker. DW1 maintained that the company operate a “no work, no pay” policy. He contended that sometimes in 2013 it was found out that the Claimant stopped coming to work when he had issues with the M.D of the company, and the Claimant was paid salaries up to 2014 (March). DW1 stated that nobody denied the Claimant access to his office that he was issued a letter of redeployment by the Company’s secretary one Kelechi Bassey but rejected it after reading it. The Claimant stopped coming to work but he continued receiving salary because the account department was not aware. DW1 contended that apart from the notice of special resolution he is not aware of any document to show that the Company held any extra ordinary general meeting because he is not a Board member and does not know if the Claimant was issued with any letter of termination.

THE SUBMISSIONS OF THE DEFENDANTS/COUNTER CLAIMANTS

In their final written address, learned counsel on behalf of the 1st and 2nd Defendants/Counter Claimants formulated two (2) issues for determination to wit:

Whether in view of the state of the pleadings, evidence and the general circumstances of this case, the claimant has proved his case to be entitled to the reliefs sought.

Whether, having regard to the pleadings and evidence before the court, the 2nd Defendant has proved its Counter Claim to be entitled to judgment on same.

In arguing its issue one, Learned counsel to the Defendants argued that the burden of proof in civil cases is placed on the party who asserts. He referred to the provisions of section 131 (1), 132 of the Evidence Act, 2011, AKINYELE VRS AFRIBANK PLC (2003) 7 NWLR (PT. 955) 504 @ 515. He argued that the person who makes allegation is bound to provide evidence to substantiate them as part of his case. The Claimant has three reliefs against the Defendants and has the statutory burden of proving that he is entitled to the said reliefs. Learned counsel referred the Honourable court to the three reliefs sought by the Claimant in his Complaint. He argued that the 1st relief sought by the Claimant is declaratory and it is trite law that for a declaratory relief to be granted such Claimant must lead cogent evidence in proof of the declaratory relief sought. Such a Claimant must also rely on the strength of his case and not on the weakness of the case of the Defendant. Referred to the case of CHUKWUMAH VRS SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (1993) 4 NWLR (PT. 289) 512. Learned counsel submit that contract of employment, like any other contract, can be terminated by either party to the contract. He relied on the case of ARINZE VRS FIRST BANK OF NIGERIA LIMITED (1999) LPELR 5648 @ P. 45 (2000) 1 NWLR (PT. 639) 78. Learned counsel argued that the Claimant stopped coming to work without any justification which is tantamount to the Claimant terminating his contract of employment with the 2nd Defendant. Under cross examination, the Claimant when asked when last he went to work he answered April, 2, 2014 (because he was not allowed into the premises). He argued that the Claimant abandoned his duty post thus bringing his employment with the 2nd Defendant to an end.

Learned counsel contend that the Claimant did not plead in any paragraph of his Statement of Fact nor did he lead any evidence that the 2nd Defendant wrote him terminating his employment or plead that the 2nd Defendant stopped him from accessing his office. EXHIBIT CW1 005 implies that the said Claimant was, as at the date of the said alleged stoppage of his salary by the 2nd Defendant no longer coming to work and the Claimant did not also state in the said letter that the 2nd Defendant or any of his officers stopped him from accessing his premises. Learned counsel submit that the statement of the Claimant under cross examination that he was stopped from accessing his office was an after thought and not borne out by the pleading of the Claimant.

He argued that the Claimant under cross examination admitted that the management of the 2nd Defendant accused him of compromising the 2nd Defendant’s interest at Kidney Island, Port Harcourt and it was after that incident that the 2nd Defendant redeployed the Claimant to another office where he refused to resume work, thereby determining his employment relationship with the 2nd Defendant. Learned counsel submit that it is trite law termination of a contract of service even if unlawful brings to an end the relationship of master and servant, employer and employee. He referred to CHUKWUMAH VRS SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (SUPRA). He submits that granting the declaration sought by the Claimant will be tantamount to an order for specific performance of a contract of service. It will mean imposing an employee on an employer. He referred to CHUKWUMAH VRS SPDC (SUPRA). The court will not impose an employee on an employer. He refers to WEBB VRS ENGLAND (1860) 29 BEAR 44.

Learned counsel contend that the contract of employment between the Claimant and the 2nd Defendant having willfully been determined by the Claimant himself when he absconded cannot be held to be subsisting. The Claimant cannot benefit from his own wrong-doing and the employment of the Claimant to the 2nd Defendant is not one with statutory flavour but rather one governed by the common law rules. He urged the court to dismiss this head of the Claimant’s claim as same is lacking in merit. The court has to be satisfied, on the evidence led by the Claimant, that he is entitled to the declaratory relief he seeks. He referred to MOTUNWASE VRS SORUNGBE (1988) 5 NWLR (PT. 92) 90.

Learned counsel argued that the Claimant in his relief 2 as contained in his Complaint claimed special damages of the sum of N4, 200,000.00 (Four Million, Two Hundred Thousand Naira) only per annum. It is trite law that the claim for special damages must by rule be pleaded with particularity and strictly proved. He referred to MICHAEL VRS ACCESS BANK OF NIGERIA PLC (2017) LPELR – 41981 (CA), NGILARI VRS MOTHERCAT LTD (1999) LPELR -1988 (SC); (1999) 13 NWLR (PT. 636) 626 at P. 24 – 25. He argued that the Claimant did not plead with particularity his relief for special damages. Referred to paragraphs 8 and 9 of the Claimant’s Statement of Fact. The Claimant did not particularize how he arrived at the sum of N4, 200,000.00 (Four Million, Two Hundred Thousand Naira). It is trite law that it is not the duty of the court to speculate. He argued that the Claimant did not in any paragraph of his Statement of Fact state how he arrived at the sum of N300, 000.00 (Three Hundred Thousand Naira) and also did not state how he arrived at the sum of N4, 200,000.00 (Four Million, Two Hundred Thousand Naira) only being claimed as his remuneration per annum. There is no iota of evidence by the Claimant in proof of this head of claim at all, even in his testimony as the sole witness did not state that fact in his Written Statement on Oath either. He refers to I. H. A. B. U. H. M. B VRS ANYIP (2011) 12 NWLR (PT. 1260) P. 1 @ PP 20 – 21, PARAGRAPHS H – A, ADEKUNLE VRS UNITED BANK FOR AFRICA (2016) LPELR – 41124 (CA) at PP 36 – 38. Learned counsel submit that the second relief sought by the Claimant in his complaint is a claim for special damages which must be pleaded with particularity and strictly proved. He argued that the Claimant has woefully failed to adequately plead and prove this head of his claims. Learned counsel urged this Honourable court to dismiss this head of the Claimant’s claims as same has not been proved by the Claimant.

Learned counsel submit that from the third claims of the Claimant he is asking for “An Order that he is entitled to the sum of N20,000,000.00 (Two Million Naira) only as general damages for wrongful termination of contract. He argued that the term general damages refers to the kind of damages which the law presumes to be the consequence of the act complained. He referred to EFCC VRS INUWA (2014) LPELR 23597 (CA) P. 18. The question then is, what is the wrong complained of by the Claimant in this suit?. Learned counsel contend that according to the Claimant, the 2nd Defendant stopped the payment of his salary. He referred to paragraphs 8, 9, 10 of the Statement of Fact, paragraphs 12, 13 and 14 of the Claimant’s Written Statement on Oath, EXHIBIT CW1 005 tendered and admitted. Learned counsel asked how was the Claimant’s employment with the 2nd Defendant terminated? He argued that there was no iota of evidence on the termination of Claimant’s employment by the 2nd Defendant. The Claimant did not in any paragraph of his pleading make any averment or complaint on the termination of his employment by the 2nd Defendant. Learned counsel contend that the 2nd Defendant/Counter Claimant averred that the Claimant abandoned his duty post without any lawful justification and this averment was not denied by the Claimant. The Claimant himself under cross examination admitted that he last went to work on the 2nd day of April, 2014, the Claimant thus personally determined his contract of employment and is not entitled to benefit from his own wrong.

Learned counsel argued that another question to be asked is did the Claimant earn any salary being unjustly or wrongly withheld by the 2nd Defendant? He argued that the answer to this question can be found in the Claimant’s own testimony on the 22nd day of May, 2018 under cross examination when he state he last went to work on the 2nd day of April, 2014. The Claimant did not earn any salary wrongly being withheld by the 2nd Defendant instead it is the Claimant who should refund to the 2nd Defendant/Counter Claimant sums of money paid to him for the period of eight (8) months that he did not work but for which he was erroneously paid. Learned counsel argued that the Claimant who is seeking for a declaration that his employment with the 2nd Defendant is still subsisting is further seeking the sum of N20,000,000.00 (Two Million Naira) as general damages for wrongful termination of contract. Referred o paragraph 13 of his Statement of Fact. He submit that the Claimant has failed to establish any wrong done to him by the 2nd Defendant and he urged this Honourable court to dismiss the Claimant’s claims for being frivolous, gold digging with substantial cost in favour of the Defendants.

In arguing issue two, Learned counsel argued that it is trite law that a Counter Claim is an independent action separate from the main action and the burden of proof of the Counter Claim is on the Counter Claimant who would fail if no evidence is given on either side on the Counter Claim. He referred to the 2nd Defendant/Counter Claimant claims against the Claimant/Defendant. Learned counsel argued that in proof of its Counter Claim the 2nd Defendant/Counter Claimant called one witness. The Claimant/Defendant to the Counter Claim filed his reply to the Statement of Defence and Defence to Counter Claim but the said reply was not accompanied by any deposition neither did he lead any evidence to substantiate his reply to the Statement of Defence and Defence to Counter Claim. It is trite law that where a party fails to lead evidence in support of any averment in that party’s pleading, then the pleading is deemed abandoned by that party. He relied on the case of OJOH VRS KAMALU (2005) 24 NSQR 256, ALAO VRS AKANO (2005) 11 NWLR (PT. 935) AT 180. He argued that the evidence of the 2nd Defendant/Counter Claimant was not challenged nor contradicted and it is the law that where a Defendant fails to lead evidence in defence of a suit, he will be deemed to have admitted the claims or reliefs in the Statement of Claim. He referred to OKOEBOR VRS POLICE COUNCIL (2003) 12 NWLR (PT 834) P. 444 AT PAGE 448. He urged the court to hold that the claims of Defendant/Counter Claimant are deemed admitted by the Claimant/Defendant since it was not challenged by him. He referred to ASAFA FOODS FACTORY VRS ALRAINE (NIG.) LTD (2002) 12 NWLR (PT. 781) P. 353 RATIO 8.

Learned counsel argued that the declaratory relief sought by the 2nd Defendant/Counter Claimant is for the assertion of the right of the 2nd Defendant/Counter Claimant in relation to the Claimant/Defendant to the Counter Claim. The fact that the 2nd Defendant has the right to redeploy the Claimant remains uncontroverted as same was admitted by the Claimant under cross examination when he affirmed that the 2nd Defendant/Counter Claimant has the right to redeploy him to any office and CW1 also confirmed in his examination in chief that the 2nd Defendant/Counter Claimant had previously in exercise of this right vide EXHIBIT CW1 003. Learned counsel contends that DW1 led sufficient evidence in proof of his relief. He relied on Paragraph 10 of the Written Statement on Oath of the DW1 filed in this court on 3/9/2015. In proof of the 4th head of the reliefs of the Counter Claimant, DW1 pieces of evidence was not shaken or controverted in cross examination. He urged the court to grant the Counter Claimant’s relief as prayed.

In summary, Learned counsel submit that the Counter Claimant has led cogent and credible evidence in proof of its counter-claim which were not in any way controverted by the Defendant to the Counter Claim who had opportunity to controvert them. He urged the court to accept them as proved and grant the Counter – Claim of the Counter- Claimant in its entirety.

SUBMISSION OF THE CLAIMANT

On his part, the Claimant in his Final Written Address raised three (3) issues for determination by this court:

Whether the Claimant has a reasonable cause of action against the Defendants in the circumstances of this suit.

Whether the Claimant’s employment was wrongfully terminated by the Defendants in the circumstances of this suit.

Whether the Claimant is entitled to reliefs sought before this Honourable court in the circumstances of this suit.

In his argument on the first issue, the Claimant’s counsel answered in the affirmative. He submits that the Claimant’s (CW1) Deposition on Oath entails material facts of what the Defendants did to him. The Claimant stated that he is still an employee of the 2nd Defendant and was never issued any letter of query or termination and tendered EXHIBIT CW1 001 – CW1 006. He argued that under cross examination he stated he was refused access to his office on the 2nd day of April, 2014 and was never re-deployed to No. 40 Total Gospel Road, as no re-deployment letter was issued to him which was corroborated by evidence of DW1. He relied on the cross examination of DW1 on the 10th day of October, 2018. Learned counsel submit that the Statement of Facts filed by the Claimant is the processes singularly recognized for the purpose of determining whether a cause of action is disclosed in a suit. He relied on the case of PAULINUS CHUKWU & ORS VRS MATTHEW AKPELU (2014) 13 NWLR, PT. 1424 PG 359 @ 380 PARAS E – F. Learned counsel urged the court to resolve issue one in the favour of the Claimant.

Learned counsel answered the second issue for determination in the affirmative. He submits that wrong is defined as an act not appropriate or suitable, morally bad, wicked, defective or faulty and a miss causing pain. He referred to chambers 21st Century Dictionary (Revised Edition) @ Page 1641. He argued that the Claimant has served the Defendants without blemish, since his employment with the Defendant on the 12th day of January, 2005 (EXHIBIT CW1 001, CW1 002, CW1 003 and CW1 005).

He submit that this show that the Claimant is a good employee to the Defendant and the allegation that the Claimant refused to report at the Defendant’s new office is cooked, especially when the evidence of DW1 (Mr. David Idahosa) under cross-examination said “the secretary Kelechi Bassey gave the Claimant a re-deployment letter and after reading it, he rejected it. I was not there when this happened is at best hearsay evidence that cannot be relied on. Learned counsel submit that the only reason the Claimant was refused access to his office and his employment wrongfully terminated was because he had issues with the Managing Director as testified by DW1 on the 10th day of October, 2005, the 1st Defendant therefore used his maximum powers to frustrate the Claimant out of his job without resort to due process of employment laws.

Learned counsel argued that the Claimant has been under the employment of the Defendants for over a period of ten years without any stigma and the Exhibits tendered by the Defendants are EXHIBITS DW1 FL 001 and DW1 FL 002, the Claimant was never issued any letter of query or termination by the Defendant. He argued that a document tendered in court is the best proof of the contents of such document, oral evidence will not be allowed to discredit or contradict the contents, except in cases where fraud is pleaded. He relied on the case of MTN NIGERIA COMMUNICATION VRS MR. GANIYU SADIKU (2014) 17 NWLR (PT. 1436) PG 382, PP 418 – 419.

Learned counsel further submit that the Claimant’s letter of employment is the vital document in an action challenging termination of employment and goes a long way to greatly assist the court in ascertaining the terms and conditions of service binding on the parties. He referred to UNION BANK OF NIGERIA PLC VRS MR. SAMUEL CHINYERE (2010) 10 NWLR (PT. 1203) PG. 453 PARAS C – F. Where a contract of service not being one governed by statute or deemed to be one with statutory flavour, does not provide express terms and conditions of employment, then such terms and conditions under the common law are implied to be the applicable terms. See UBN PLC VRS CHINYERE (SUPRA) P. 472 PARAS G –H. He submit that an employment can be said to be wrongfully terminated, if it was done contrary to the conditions governing the particular contract of service or in a manner not contemplated by the stipulations in the conditions of service. Referred to UBN PLC VRS CHINYERE (SUPRA) P. 472 PARAS F – G.

Learned counsel argued that throughout the proceedings and evidence adduced, all witnesses to the suit agreed that the Claimant was neither issued any letter of query or termination. Facts admitted need no further proof. He relied on the case of SARAKI VRS KOTOYE (1990) 4 NWLR (PT. 143) @ 195 PARA B, SECTION 124 of the Evidence Act 2011 and urged the court to resolve issue 2 in favour of the Claimant as his employment termination was unlawful.

On issue three, Learned counsel answered in the affirmative. He argued that the essence of a declaratory action is essentially to seek an equitable relief in which the Claimant prays to the court for its discretionary jurisdiction to declare in his favour an existing state of affairs in law or as may be discernable from the averment of Statement of Claim/Fact. He referred to A.G CROSS RIVER STATE VRS A.G FEDERATION & ANOR(SUPRA) @ 479 PARAS A – B. Learned counsel submit that the Claimant when refused access to his office by the Defendants and stopped payment of his salary, after paying him for three months without any query and wrongfully termination of his employment, suffered the violation of both his subsisting and future legal rights. Learned counsel argued that the Claimant is entitled to special damages as same has been proved by him unchallenged during the trial. He submit that the obligation to particularize a claim for special damages arises, not because the nature of the loss is necessarily unusual, but because the plaintiff who has the advantage of being able to base his claim on precise calculation must give the Defendants access to the facts which make such calculation possible. Referred to BRITISH AIRWAYS VRS AYOTEBI (SUPRA) P. 287 PARAS A – F. Special damages must be specifically pleaded and proved which the Claimant did in his Statement of Fact. He relied on BRITISH AIRWAYS VRS MR. P.O ATOYEBI (2014) 13 NWLR (PT. 1424) P. 253 PARAS D – F.

Learned counsel argued that the award of special and general damages and the quantum to award is at the discretion of the court; the assessment does not depend on any legal rules. He urged the court to exercise its discretion judicially and judiciously in favour of the Claimant and urged the court to hold that the Claimant is entitled to the reliefs sought before this court in paragraphs 16 (a) (b) (c) and 17 of his Statement of Facts and Witness Deposition.

COURT’S DECISION

I have gracefully looked at all the processes filed by parties as well as pondered on their oral and documentary evidence. I have listened to the witnesses who testified under oath and observed their demeanours and I have judiciously evaluated the exhibits tendered and admitted by this court. I have also read the submissions of learned counsel for the parties on the issues raised in their final addresses. I have decided to adopt all the issues raised by the respective parties but have merged them together to form two issues for determination. The issues are:

Whether in view of the pleadings, evidence and the general circumstances of this case, the Claimant has proved his case to be entitled to the reliefs sought.

Whether having regards to the pleadings and evidence before the court, the 2nd Defendant has proved its counter claim to be entitled to judgment on same.

On the first issue of whether in view of the pleadings, evidence adduced and general circumstances of this case, whether the claimant has proved his case to be entitled to the reliefs sought. I must first of all state here that parties are in agreement that by EXHIBIT CW 001 and EXHIBIT CW 002 (letter of employment and confirmation of appointment) there exist a master/servant relationship between the Claimant and the Defendants. Also parties were unanimous that the defendants stopped paying the claimant his salary from April 2014 to date. To me, what is in dispute between the parties revolves on whether its proper for the defendants to terminate the appointment of the claimant without any notice. The claimant contends that his appointment was terminated by the defendants without any query or letter of termination from the Defendants. On their part the defendants contends that it was the conduct exhibited by the claimant for his refusal to report to his new place of assignment based on his redeployment to the 2nd Defendant’s annex office at No. 40, Total Gospel Road, Trans Amadi Industrial Layout, Port Harcourt as exhibited in Exhibit DW1FL 001, but the claimant refused to resume to his new place of assignment and it was consequent upon that the 2nd Defendant now passed a special resolution on the 10th day of April, 2014 (Exhibit DW1FL 002) and stopped paying the Claimant his salary based on the company’s policy of “no work no pay.” Based on this, the 2nd Defendant now filed a counter claim against the Claimant to pay the 2nd Defendant the sum of N2,400,000.00 (Two Million, Four Hundred Thousand Naira only) as the salary wrongly paid to the claimant for the period of August, 2013 to March, 2014 when the claimant absconded from his duty post.

Let me state here that by exhibit CW1 001 which is the letter of appointment dated 12th January, 2005 one can see that the claimant was employed as a business Development Manager. And the said appointment was confirmed on the 15th December, 2008 (see Exhibit CW1 002). And its trite that under a contract of employment the court and the parties have their duties, rights and obligations in the determination of such contract whether it is an employment with statutory flavour or under the common law. And the court is not entitled to look outside the contract of service as to the terms and conditions. Courts have no jurisdiction to interpret or construe contractual documents outside the terms and conditions provided in the documents. The parties are bound by the four walls of the contract and the only duty of the court is to strictly interpret the document that gives right to the contractual relationship in the interest of justice. See DAUDU VRS U.B.A PLC (2004) 9 NWLR (PT. 878) 726 CA; D.A (NIG) AIEP LTD VRS OLUWADARA (2007) 7 NWLR (PT. 1033) 336.

That said, looking at the contract of employment one can see that the contract of employment between the Claimant and the Defendants is that of master/servant relationship. And by community reading of EXHIBIT CW1001 and CW1002 there is no any provision that will guide the parties with regards to termination of employment. In the absence of that the court has to revert to the common law principle.

It is of legal importance to note that the master has the right to hire and fire for good or bad reason or for no reason at all and the court can not compel the employer to continue keeping an employee he does not want. See NIGERIAN GAS CO. LTD VRS DUDUSOLA (2005) 18 NWLR (PT. 957) 292; N.G.C. LTD VRS OFORISHE (2002) 17 NWLR (PT. 797) 657. The defendants by EXHIBIT DW1FL001 and EXT DW1FL002 contends that the claimant refused to resumed at his new place of work where he was redeployed, and despite that the defendants continued to pay him his salary from August, 2013 when he was redeployed to March, 2014. And that a decision to stop paying the Claimant was reached on 10th day of April, 2014. And by that conduct this court can infer that the appointment of the Claimant was terminated on that day. This is because dismissal of an employee or termination of his employment may be expressed in clear terms or be capable of being inferred from the conduct of the employer. See HONIKA SAWMILL (NIG.) LTD. VRS HOFF (1992) 4 NWLR (PT. 238) PG 673. The contention by the Claimant that he is still an employee of the Defendant can not stand. Likewise the claims of payment of salary from May, 2014 till when this suit is determined can not stand. This is because the court can not make an order to pay an employee for work which he has not done.

It is imperative to state here that where a length of notice for termination of a contract of service was not determined by the parties thereto, the common law rule applies. See S.S. CO. LTD VRS AFROPAK (NIG.) LTD. (2008) 18 NWLR (PT. 1118) 77 SC. And by section 11 (1) of the Labour Act the notice to be given by either party in terminating a contract where the contract has continued for five years or more is one month notice. Therefore, the Defendants ought to have given the Claimant a month notice before terminating the contract of employment. The Defendants having failed to give the Claimant a one month notice, and its trite that the measure of damages recoverable in cases of wrongful termination of an employee is determined by what the employee would have earned over the period of notice required to properly determine his contract of employment. Therefore, the claimant is entitled to the payment of his one month salary. See AFRIBANK (NIG.) PLC VRS OSISANYA (2000) 1 NWLR (PT. 642) 592. Therefore the claimant is not entitled to general and special damages as claimed.

In view of the reasons enumerated ab-initio I partly resolved the first issue for determination in favour of the Claimant but on the fact that the claimant is only entitled to the payment of his one month salary in lieu of notice. I so hold.

On the second issue of whether having regards to the pleadings and evidence before the court, the 2nd defendant has proved its counter claim to be entitled to judgment on same. It is worthy to note that a counter claim is an independent action, separate and distinct from the original action as a result of which the plaintiff in the original action must file a defence to the counter–claim if he intends to defend same. See AGBAOSI VRS IMEVBORE (2014) 1 NWLR (PT. 1389) 556; DAUDA VRS WILLIAMS (2013) 2 NWLR (PT. 1338) PG 260.

The defendants in this case (2nd defendant) filed a counter-claim against the claimant seeking a declaration that the 2nd Defendant/Counter Claimant has the right in law and contract to deploy the Claimant/Defendant to the counter-claim to any of its offices and or location while the said Claimant/Defendant to Counter Claimant is in the service of the 2nd Defendant/Counter Claimant. And that the refusal of the Claimant to resume duty at the annex office of the 2nd Defendant after his redeployment and his subsequent abscondment amounts to the termination of contract of employment between the Claimant and the 2nd Defendant and as such the Claimant is not entitled to receive his renumeration. And that the Claimant is liable to refund to the 2nd Defendant all the salaries he received from the 2nd Defendant from the month of August 2013 up to March, 2014 which stands at N2, 400, 000.00 ( Two Million, Four Hundred Thousand Naira). The claimant did not file any defence to the said counter claim. But failure of the Claimant/Defendant to Counter Claim to file a defence does not ipso facto give the Defendant/Counter Claimant an easy ride to judgment. The Defendant/Counter Claimant must still prove his case based on preponderance of evidence or balance of probabilities. See EGESIMPA VRS ONUZURIKE (2002) 15 NWLR (PT. 791) PG 466 AT 497 – 498, PARA H – A. PER AYOOLA J.S.C.

The Second Defendant/Counter Claimant contends that the Claimant was posted to its new annex office at No. 40, Total Gospel Road, Trans Amadi Industrial Layout, Phase 2, Port Harcourt with effect from 12th August, 2013 as a Contract Analyst. See EXHIBIT DW1FL 001, but the 2nd Defendant/Counter Claimant failed to provide to this court any evidence to show that the Claimant was indeed served with this letter of redeployment, and its also the assertion of the 2nd Defendant/Counter Claimant that the Claimant refused to report to his new place of assignment and absconded. And that it continued to pay the Claimant his salary despite his abscondment from August 2013 up to April, 2014 when on the 10th April, 2014 a special resolution was passed for the stoppage of the Claimant’s salary. And the Counter Claimant wants this court to order the Claimant to repay same. Its trite that where an employer inadvertently pays salaries into the account of an employee not so entitled, the amounts so mistakenly paid is recoverable.

See OBO VRS COMM. OF EDUCATION BENDEL STATE (2001) 2 NWLR (PT. 698) 625 SC. But I must state here that 2nd Defendant/Counter Claimant has not placed any document or led any evidence to show that the Claimant’s salary from August, 2013 to March, 2014 was indeed paid to the Claimant. The Counter Claim fails and same is hereby dismissed.

Finally, for the avoidance of doubt and for all the reasons as contained in this judgment, the claims of the claimant succeeds in part. This court hereby orders the Defendants to pay to the Claimant one month salary in lieu of notice only within 30 days from today.

The counter claim is dismissed for lack of proof by credible, cogent and admissible evidence. I so hold.

Judgment is hereby entered accordingly.

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HON. JUSTICE BASHAR A. ALKALI

Presiding Judge