folakIN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATE: 5TH MAY, 2022
SUIT NO: NICN/ABJ/363/2020
MR. EDWIN ATTAH - CLAIMANT
SAII ASSOCIATED LTD/GTE - DEFENDANT
(An Associate Company of Chemonics International Inc.)
Enenche Ekoja Esq. with John S. Agbara Esq for the Claimant.
Davidson Oturu Esq. with Christabel Ndeokwelu Esq., Princess Otan Esq. and Mubaraq Popoola Esq. for the Defendant.
1. As gleaned from the originating process in this case, it is clear that this action is an employment matter. It is germane for me to state here that this Court by virtue of Section 254C (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is endowed with exclusive jurisdiction to adjudicate on civil causes and matters relating to or connected with any labor, employment, trade union, industrial relations and matters arising from workplace, the condition of service, including Health, safety, welfare of labour, employee, worker and matters incidental therewith. In other words, this Court has the vires to determine cases relating to employment and other matters relating, or incidental to or arising from workplace. See the case of Omang v. NSA 10 NWLR (Pt 1783)55@85-86,Paras F-A and; Cocacola Nig. Ltd v. Akinsanya 17NWLR (Pt 1593)74@129-130, Paras F-F, 132, Parad D. The action of the claimant in this case is as regards his employment relationship with the defendant and as such within the jurisdiction of this Court. There is equally no doubt from the originating processes filed that the Claimant’s action is declaratory in nature. It is firmly established that in a declaratory action as in the instant case, the claimant must succeed on the strength of his own case and not on the weakness of the defendant’s as declaratory reliefs are not granted as a matter of course or in the absence of evidence on the part of the defence but by the Claimant adducing cogent, compelling and credible evidence in support of his case. See the cases of Adamu v. Nigerian Airforce 5NWLR (Pt 1822)159@177, Paras F-G, 178, Paras E-G, 183-184, Paras H-C and; Emenike v. PDP 12NWLR (Pt 1315)556@589-590, Paras H-B. However, where part of the defendant’s case supports the claimant’s case, he is allowed to rely on part of the defendant’s case that supports his. See the case of Ehinle v. Ikorodu Local Govt 1 NWLR (Pt 1757)279 @ 316-317, Paras G-C; 342, Paras A-B and; Salisu v. Mobolaji  NWLR (Pt 1535) 280-281, Paras H-A. Thus, the Claimant in this case is expected to adduce compelling, cogent and credible evidence to be entitled to the reliefs sought.
2. It is the claimant’s case vide his statement of facts that he was employed by the defendant as a Security Advisor vide a letter dated the 9th May 2018 and his appointment was subsequently confirmed by his satisfactory performance of his job as he continues with his work with the Defendant. He averred that in 2020 he was asked to stop his work via a letter through his email dated 1st October 2020 that he is under investigation for improper vendor assessment report. He made several attempts to get the letter of termination from the Defendant and to know why he was denied access to the office. That no any forum was set up by the Defendant to clarify the issue of his termination or was he given an audience to make his defence and state reasons why he should not be terminated. He averred that he instructed his lawyers to write a letter to the Defendant requesting that he be reinstated and paid his entitlements as there was no legal ground for his disengagement. That he was not sent officially for any vendor assessment and no official report was submitted that warrant investigation for improper vendor assessment.
3. It is against this backdrop that Claimant filed a General Form of Complaint on 4th December, 2020 the Claimants claims against the Defendants as follows:
1. A DECLARATION that the purported termination of the Claimant having been done contrary to Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) is in breach of the claimant’s right to fair Hearing and is therefore unlawful
2. AN ORDER directing the Defendant to pay the claimant the sum of N50, 000,000.00 (Fifty Million Naira) only as general damages for unlawful termination and character assassination.
3. AN ORDER directing the Defendant to pay 10% of the Judgment sum from the date of Judgment till the final liquidation of same.
4. AN ORDER directing the Defendant to reverse its decision and reinstate the Plaintiff with immediate effect.
5. AN ORDER directing the Defendant to produce the details of enquiry and names of the members of the panel of investigation and the proceedings that gave rise to their decision against the Plaintiff.
6. Cost of this action being N1,500,000.00 (One Million Five Hundred Thousand Naira) only
7. AND FOR SUCH further order or orders as this Honourable court may deem fit to make in the circumstances.
4. It is the case of the defendant as contained in its statement of defence that the Claimant was employed as Security Advisor for the Global Health Supply Chain – Procurement and Supply Management Project (GHSC-PSM). That the Claimant sign the employment agreement dated 9th May, 2018. That the Claimant is no longer an employee of the Defendant that his employment was terminated by a letter dated 9th October 2020, with his September/October 2020 payslip was forwarded to him by an email dated 9th October, 2020. The defendant averred further that after claimant returned from his Benue Trip and submitted his Report, concerns were raised over the accuracy of the Vendor Assessment Report and in view of which Claimant was interviewed by the Office of Business Conduct of the defendant over the said concerns that he falsified the three Vendor Assessment Form. Based on the outcome and findings of the Office during the interview with the Claimant, Claimant was placed on an Administrative leave in order to conduct investigation into improper Vendor Assessment after which Claimant’s employment was subsequently terminated upon the recommendation of the Human Resource Department. It admitted that upon the termination of Claimant’s employment, a letter was received from Claimant’s solicitor. It averred also that the termination of Claimant’s employment was not racially motivated.
5. The claimant testified for himself as CW by adopting his witness statement on oath of 4th December, 2020 and tendered documents admitted and marked as exhibits E- E3. He was subsequently cross examined by the defence counsel and closed his case. While one Jiru Bako testified for the defendant. He equally adopted his sworn deposition of 19th July, 2021 and tendered documents admitted and marked as exhibits J-J7. He was also cross examined by the claimant’s counsel and the case of the defendant was closed.
6. On the 26th day of November, 2021 learned counsel on behalf of the defendant filed though belatedly but subsequently regularized his final written address wherein he formulated the following issues for determination on this Court:
1. Whether the Claimant has put forward credible evidence before this Honourable Court to establish that his employment was wrongfully terminated by the Defendant.
2. Whether the Claimant is entitled to any of the reliefs sought against the Defendant in this suit.
7. On issue one, Counsel submitted that the Claimant’s employment with the Defendant was validly terminated. He submitted that by virtue of Section 131 of the Evidence Act 2011, the onus is on claimant to prove that his employment was wrongfully terminated. He relied on the case of Ajuzi v. FBN PLC  LPELR-40459 (C.A). He submitted also that the Claimant has the burden to prove on the balance of probabilities that his employment was wrongfully terminated by the defendant. He submitted also that parties are bound by the terms of their contract and the Court is unlikely to interfere with the clear terms of contract entered into by parties. He relied on the case of FCMB Ltd v. Ogbuefi  10 NWLR (Pt 1783)1 @27, Paras C-F and Mohammed v. Nigerian Army Council 13NWLR (Pt 1793)259@273, Paras E-F. Counsel posited that what the Court ought to consider in determining the claims are the contract of employment dated 9th May 2018 which is Exhibit E1 /J and Chemonics International Inc’s Field Office Policy Manual which was admitted in evidence as Exhibit J3. He submitted further that the law is clear on how contracts are to be interpreted. He referred the Court to the case of Dalek Nig Ltd v. OMPADEC  All FWLR (Pt 364) 236, Paras D-E, and in view of that, the Court has the duty to hold that Exhibits E1 and J3 are the contractual documents in this case and they are binding on the Claimant. Counsel submitted that though it is Claimant’s case that the Defendant breached the terms of the contract of employment, the defendant on its part maintains that that the termination of claimant’s employment was in line with the terms and conditions of contract. Counsel submitted that averred that the Claimant falsified the Vendor Assessment Forms that he submitted in August 2020 from his MP trip to Benue State.
8. Counsel argued that the Claimant action on the Vendor Assessment was false information as dishonest and amounting to gross misconduct on the part of the Claimant. He submitted also that the termination of the employment of an employee is said to be wrongful where the terms of the contract is breached. He relied on the case of Nfor v. Ashaka Cement Co. Ltd 1NWLR (Pt 319) 222 at page 233 para A-D. It was further argued that Claimant’s employment was not wrongfully terminated as same is firmly rooted in the provisions of Exhibits J and J3 which provides for the procedure to follow for termination. He relied on the case of Adams v. L.S.D.P.C. 5NWLR (Pt 656)291@319, Paras A-C. Oturu Esq, submitted that Claimant by virtue of Section 131 of the Evidence Act has the responsibility to provide credible evidence showing that his employment was wrongfully terminated. He further submitted that the Defendant tendered Exhibit J1 evidence that Claimant went to Benue State for MP assignment and that he submitted a Trip Report and in the course of the Claimant’s cross examination the inference drawn from the foregoing that the Claimant admitted that it was his responsibility to conduct Vendor assessment and make recommendation to the Defendant. He submitted that facts admitted needs no further proof. He relied on Section 123 of the Evidence Act and the case of F.M.H. v. C.S.A. Ltd  9 NWLR (Part 1145)214, Paras D-F. He submitted further that the contention of claimant that the termination of his employment was motivated by racial discrimination and personal vendetta was not supported by evidence. He relied on the case of Emmanuel v. Umama & Ors  LPLELR- 40037 at pages 18-19 Para A-E. He went further that the Claimant’s termination is supported by case law as demonstrated by the decision in Co-operative Dev. Bank v. Essien  4 NWLR (Part 704) 479 at page 490-491, Para F-G. Counsel stated that no evidence has been shown apart from the ipse dixit of the Claimant that the Defendant terminated his employment unlawfully. It is his submission that the Claimant having failed to prove his case, liability cannot arise on the part of the defendant. He relied on Orji v. Anyaso  LPLER-571 (CA).
9. It is equally learned Counsel’s submission that the Claimant was given fair hearing. He submitted that the DW in paragraph 14 (i) of the written statement on oath had testified that Claimant was dishonest in answering the questions that was posed to him. He submitted that Exhibit J6 is an ample proof that Claimant was duly interviewed by the defendant’s office of Business Conduct and upon hearing the Claimant, they made their findings. He submitted that neither the contract of employment nor the Manual provided for the procedures to be followed in investigating an employee. He submitted that Claimant while under cross examination admitted that he was asked question by the defendant and when asked if he was invited for an interview he responded in the affirmative and admitted that he was questioned by the Home Office on allegations levied against him. Counsel submitted that after hearing from the Claimant his response on the allegations against him before terminating his employment, the Defendant cannot be held to have violated the Claimant’s right to fair hearing. He relied on the case of Lasisi v. Allied Bank (Nig) Plc  7 NWLR (Pt 767) 542@559-560 Paras H-A. He submitted also that claimant must of necessity rely on the strength of his own case. He relied on Odum v. Uganden & Ors  9 NWLR (Pt 1146) at page 24 Paras C-E. Counsel also submitted that the fact that the Defendant did not believe the response of the Claimant does not connote the absence of fair hearing. He relied on the case of Ansambe v. B.O.N. Ltd  8 NWLR (Part 928) 651 at page 669 Para A-C. He submitted further that where an employee’s employment is terminated in line with the provisions of the contract of employment, the question of fair hearing does not arise. He relied on the case of Strabag Constr. Nig Ltd v. Adeyefa 15NWLR (Pt 735)1@23, Paras C-D.
10. On issue two, it is learned counsel’s submission that Claimant is not entitled to the grant of any of the reliefs sought. He submitted that a legal remedy is only available where a right has been breached and as such where a party has not established a wrong, there would be no remedy. He cited in support the case of Nwaizugbo v. Daewoo (Nig) Ltd LPELR-41241. He submitted further that a party seeking declaratory reliefs has the onus to present compelling evidence which would tilt the pendulum of justice in his favour. He relied on the case of Onovo v. Mba 14 NWLR (Pt 1427)391@437-438, Paras E-A. He submitted that Claimant has failed to show how his employment was wrongfully terminated by placing before the Court the manner in which the contract of employment was breached. He relied on the case of Union Bank v. Salaudeen LPELR-43415(CA). He submitted that the defendant conducted an interview which claimant participated in. He submitted that Claimant is not entitled to the grant of his relief 1.
11. In respect of Claimant’s claim to damages. Learned counsel submitted that it has long been settled that except breach flows from damages contemplated by parties at the time of entering the contract, no other damages should be awarded. According to him there can be no room for claims which are speculative or sentimental unless these claims are provided for by the terms of the contract. He submitted that general damages are not awarded in actions premised on breach of contract. He relied on the case of Wilbros Nig Ltd & Anor v. Macaulay LPELR-8507. He submitted that the measure of damages awardable for breach of contract has been clarified by the apex Court in the case of Obanye v. U.B.N Plc 17NWLR (Pt 1648)375@390-393, Paras C-F, 391, Paras G-H and 393-394, Paras A-B, G-B. Learned counsel also submitted that Claimant is not entitled to the relief on reinstatement. He cited in support the cases of Registered Trustees, The Planned Parenthood Federation of Nigeria & Anor v. Shogbola LPELR-7300 and; I.H.A.B.U.HMB v. Anyip 11NWLR (Pt 1260)1@18, Para H. It is equally learned Counsel’s submission that Claimant is not entitled to the relief of claimant seeking an order directing the defendant to produce details of enquiry and names of members of panel of investigation and the proceedings that gave rise to the defendant’s decision. He submitted that the claimant has admitted that the officials interviewed him in respect of the allegation and facts admitted needs no further proof. He relied on Symit Motors Ltd v. UBA Plc LPELR-52457(SC)28-29, Paras D-F. He submitted that nonetheless a scrutiny of the Email and Interview Questions clearly showed that Daniel T. Hartman and Ryan Wismer conducted the interview. He equally submitted that the Claimant is not entitled to the relief on cost of action as he has not pleaded any document to show the sum he expended because costs are not awarded arbitrarily. He relied on Hadejia Jama’are River Basin Development Authority v. Chimande (Nig) Ltd LPELR-40202; U.T.B. (Nig) v. Ozoemena 3NWLR (Pt 1022)448@492, Paras C-D and Afribank Nig. Plc v. A.I. Invest. Ltd 7NWLR (Pt 765)40@71-72. He urged the Court to dismiss Claimant the case of the Claimant.
12. On the 13th day of December, 2021, learned counsel on behalf of Claimant filed his final written address in this case and adopted same vide a letter filed on the 17th day of February, 2022. Learned counsel in the address formulated two issues for determination thus;
1. Whether the termination of the Claimant’s appointment with the defendant is unlawful.
2. Whether the Claimant is entitled to his claims from the evidence provided in this Court.
13. On issue one, learned counsel submitted that the case of the Claimant has not been challenged by any means by the defendant as the only witness statement of Jiru Bako admitted by the witness was shown to have been sworn in the office of his lawyer in contravention of Section 112 of the Evidence, Act, 2011 and thus not admissible. As such, Claimant’s evidence is unchallenged. Ekoja Esq, submitted further that an employer who terminates the employment of its employee must show how the allegation was disclosed to the employee and that he was given fair hearing. He relied on the following cases; Mr Olusola Lupo v. Royal Exchange Assurance Nigeria Plc; Royal Exchange Finance and Investment Ltd 54NWLR (Pt 183)338; Nteino v. University of Calabar Teaching Hospital & Anor LPELR-20332, pg 386, Paras E-G. He posited that the only administrative way of bringing an allegation to the notice of an employee is by the issuance of query. He argued that DW in this case testified that there was no time within his knowledge that claimant was issued query. He submitted that Claimant’s employment was thus unlawfully terminated. He stressed that going by the testimony of DW, he admitted in Court that he personally signed the letter of termination but the letter of termination before the Court was actually the one signed by one Adanna Ukachi, the deputy country Director Operations of the defendant and it goes to show that the DW who is the rightful person to sign the letter of termination did not sign same and as such claimant is still in the employment of the defendant. It is also learned counsel’s submission that the provisions of the Manual frontloaded by the defendant clearly shows that the procedure for termination for cause was not followed. Hence, the termination is unlawful. He relied on the case of Michael Chinedu Nwankwo v. Independent National Electoral Commission 63, NLLR pg 285.
14. On issue two, it is learned counsel’s submission that the three Exhibits tendered by the Claimant established Claimant’s employment without doubt. He submitted that from the analysis of the oral evidence of the DW and the analysis of the pieces of evidence before the Court, Claimant has been able to prove his case on the standard required in civil cases and therefore entitled to the reliefs sought. He concluded that the termination of claimant’s employment has been done in contravention of Section 36 of Constitution. He also maintained that the procedure contained in Chemonics Policy Manual for termination without cause was not followed. He urged the Court to grant the reliefs of the Claimant.
15. Learned Counsel on behalf of the defendant in response on the 4th day of February filed his Reply on points of law to the final written address of the Claimant and same was adopted vide letter filed on 15th day of February, 2022. He submitted that contrary to the assertion of Claimant’s Counsel, the statement on oath of DW is not defective and same is valid and credible. He submitted that the acceptance of the written statement on oath of DW by the Court Registrar is an indication that same is not defective. He relied on Order 2 Rule 4 of the National Industrial Court (Civil Procedure) Rules, 2017. He also submitted that assuming but without conceding that DW even failed to sign the statement on oath before the Commission for Oath, the subsequent adoption of the written statement on oath in the open Court cures whatever defect in the statement on oath. He relied on the cases of Udeagha & Anor v. Omegara & Ors LPELR-3856(CA)11-13, Paras D-A; Uduma Arunsi 7 NWLR (Pt 1298)97-98, Paras G-A; Obanigba v. Abibu 3NWLR 1762)109, Paras B-F. He submitted also that failure of the claimant to raise an objection before it was adopted bars him from subsequent objection. He submitted also that the Court has since moved away from the clime of doing technical justice to doing substantial justice. He relied on Akibu v. State 11NWLR (Pt 1684)454-455, Paras H-D; Osareren v. F.R.N. 10NWLR (Pt 1627)233, Paras C-D. He submitted that Claimant’s claims were rightly challenged by the written deposition of DW.
16. Learned counsel also submitted that the arguments of learned counsel for claimant that claimant was not given fair hearing is at variance with Exhibit J6 and the law is trite that address of counsel cannot take the place of adducing cogent evidence. He relied on Oduneye v. FRN 13NWLR (Pt 1425)545@584, Paras E-F. Learned counsel reiterates his submission that the binding contractual documents that govern the relationship is the contract of employment and the Field Office Policy Manual and which provision of the Manual did not provide for issuance of query. He submitted that parties are bound by the terms of the contract entered into. He relied on the case of Oforishe v. Nigera Gas Co. Ltd  LPELR-42766(SC). He submitted that the duty of the Court in such instance is to give effect to the terms of the contract by strictly interpreting same. He relied on the case of Delmas v. Sunny Ositez Int’l Ltd 9NWLR (Pt 1677)320, Paras B-C. He submitted also that the contention of learned counsel for claimant that the letter of termination was not signed by the person who is authorized to sign same was not pleaded and as such cannot be raised for the first time in the address and same should be discountenanced. He relied on Dodo v. Solanke 9NWLsR (Pt 986)471, Paras B-C and Trade Bank Plc v. Chami 13NWLR (Pt 836)198, Paras E-F.
17. After a careful perusal of the originating process along with the other accompanying processes and documents, the statement of defence along with its accompanying processes and documents, the Exhibits tendered and the final written addresses of parties in this case, I am of the respectful view that the germane issue for determination is; “Whether claimant has on the preponderance of evidence proven his case to be entitled to the reliefs sought.”
18. On the preliminary, it is germane for me to address the way and manner the defendant herein entered appearance in this case. Learned Counsel on behalf of the defendant Davidson Oturu Esq on the 24th day of February, 2021 filed a memorandum of conditional appearance which though filed belatedly was regularized. It is well settled in law that when a defendant enters a conditional appearance by filing a memorandum of conditional appearance, he intends to object to the jurisdiction of the Court. See cases of C.G.G. (Nig.) Ltd v. Eronini 14 NWLR (Pt 1692)219@232, Paras C-D; Enterprise Bank Ltd v. Aroso 3NWLR (Pt 1394)256@295, Paras F-H; C.G.G. (Nig.) Ltd v. Aminu 7NWLR (Pt 1459)577@592, Para E, 593, Paras F-G. Contrary to the above position of the law, it is observed that the learned counsel to the defendant herein after entering conditional appearance did not object to the jurisdiction of this Court as expected by his conditional appearance and the proceedings proceeded till trial was completed. In the Supreme Court case of U.B.N. Plc v. Awmar Properties Ltd.  10 NWLR (Pt.1626) 64@75-76, Para H, conditional appearance was entered, but without objection to the jurisdiction of the Court, the Apex Court held per Rhodes-Vivour, J.S.C., (Rtd) thus; “…The above shows that the entry of conditional appearance was moonshine. The defendant entered conditional appearance. This is an appearance under protest and usually means an appearance to object to the Court’s jurisdiction to hear the case. After the entry of conditional appearance, learned counsel for the defendant at no time objected to the Court's jurisdiction. Proceedings proceeded. The appearance of the defendant to the proceedings in the High Court was thus unconditional. The above explains why the entry of conditional appearances was worthless.”[Emphasis mine]. See also the case of Akhigbe v. Paulosa (Nig) Ltd 12 NWLR (Pt 994)373@383, Paras C-D. It is in line with the above case law authorities, that I find that the appearance of the defendant in this suit is an unconditional one. Thus, the defendant is deemed to have submitted fully to the jurisdiction of this Court. I so find and hold.
19. Also, let me address the way and manner learned counsel for the claimant Eneche Ekoja Esq cited an authority in his final written address. Learned counsel in paragraph 4.1.4 cited a case thus; “(1) MR OLUSOLA LUPO V. ROYAL EXCHANGE ASSURANCE NIGERIA PLC (2) ROYAL EXCHANGE FINANCE AND INVESTMENT LTD 54NWLR PART 183 PG. 338”. Learned counsel failed to give the citation of the first case whether reported or unreported. He equally did not clearly state the names of the other party in the second case. The Apex Court in the case of Chidoka & Anor v. First City Finance Ltd  LPELR-9343(SC)1@13-14, Para D had this to say in respect of the duties of counsel when citing cases to the Court; “A counsel who wants the Court to make use of the authorities cited must provide and cite the cases with clarity, i.e. the name of the parties, the year the case was delivered, if it is unreported a certified true copy, where the case has been reported, the name of the law report, the year, volume and the page. To dump authorities on the Court without clear reference, that would not be accepted by this Court... Cases are decided on the facts presented in Court and form the basis of the Court's decision. Where the facts of the case are not known, the Court would not be in the right position to know how the decisions were reached…” [underline is mine]. See also the decision of the Supreme Court Oni & Ors v. Gov of Ekiti State & Anor  LPELR-46413(SC). It was wrong of learned counsel to just dump the authorities on the Court without clear reference or citation and such move will not be accepted by this Court.
20. It is expedient for me at this stage to address the contention of learned counsel for the Claimant as contained in paragraph 4.1.2 of his final written address in this case to the written statement on oath of DW Jiru Bako. According to Counsel, the said written statement on oath is not admissible having been shown by the witness to have been signed in his lawyer’s office. While it is true that DW while under cross examination on the 1st day of November, 2021 answered that he signed the written statement on oath in his lawyer’s office, it is not true that such defect will affect the validity of the oath. I will now proceed to state why. The apex Court in the recent case of Adejugbe v. Aduloju 3 NWLR (Pt. 1816)131@ 158-159, Paras B-B,168, Paras E-G held that Section 4(2) of the Oaths Act provides that no irregularity in the form an oath or affirmation is administered shall render inadmissible evidence in or in respect of which an irregularity took place in any proceedings. The Court went further that while by Section 4 (3) of the oath Act, the failure to take an oath or make an affirmation and any irregularity as to the form of an oath or affirmation shall in no case be construed to affect the liability of a witness to state the truth. According to the Court in that case, even if the 1st Respondent’s written statement was not made on oath or sworn at all, it would still be valid as the witness written statement on oath in the proceeding and nothing precludes the witness from adopting it as his testimony when testifying on oath in examination in chief in open Court. See also the cases of Uduma v. Arunsi, supra; Udeagha & Anor v.Omeagara& Ors, supra; Solola v. State 11NWLR (Pt 937)460 and Anatogu v. Iweka II 8 NWLR (Pt 415)547. The import of this decision of the Supreme Court is that any irregularity in the swearing of oath which in this instance is the signing of the statement on oath in the Office of the learned defence Counsel as against before the Commissioner for Oath which signifies that the statement was not sworn before the person authorized will not vitiate the statement on oath once the DW has entered the witness box and has adopted the statement on oath as his oral evidence in his evidence in chief. DW in this case Jiru Bako in his evidence-in-chief on the 1st day of November swore on Holy Bible to speak the truth and adopted the written statement on oath as his oral evidence. Thus, whatever defect in the previous swearing of the oath pertaining to signing the statement on oath in the law office of the defence counsel instead of before the Commissioner for Oath has been cured by the subsequent adoption of the statement as oral evidence by DW in his evidence in chief as argued by Oturu Esq. Thus, the said statement on oath of the DW in support of the amended statement of defence is valid and the evidence therein not affected. I so find and hold.
21. Again, as submitted by learned counsel for the defendant, in his Reply on points of law filed on the 4th day of February, 2022 and adopted vide letter dated 14th February, 2022 and filed 15th February, 2022, it is too late in the day for learned counsel for claimant to start raising the issue of the inadmissibility of the evidence in the statement on oath in the written address. Objections to proceedings or evidence are to be taken at the earliest opportunity and not later in the proceedings after time has passed. In fact, learned counsel if he wanted to object to same should have objected to the said written statement on oath immediately during cross examination when DW revealed he signed same in his counsel’s office. Instead learned counsel did not raise any objection at that stage and he concluded his cross examination. On the authority of Obanigba v. Abibu, supra which was relied on by learned defence counsel in his Reply brief, once a statement on oath has been adopted without objection, it is not open to objection again. Having not raised any objection then after the revelation during trial is deemed to mean that he does not have any issue with the statement on oath being signed in the office of the Counsel. He is thus, estopped from raising it now in his address. Thus, it is too late in the day for learned Counsel to now raise same in his final written address.
22. Now to the merits of the case at hand, as stated supra, this action is based on employment which is well within the jurisdiction of this Court. There is no doubt from the facts and circumstances of this case that the employment relationship between parties is that of a master-servant. The breach of the terms of this type of employment would amount to wrongful termination and not unlawful termination.
23. The Claimant herein is alleging wrongful termination of his employment. The law has remained the same that in cases for claims based on alleged wrongful termination of employment, the burden is on the claimant to satisfactorily prove that: - (a) He was an employee of the defendant; (b) The terms and conditions of the employment and; (c) That the employer in fact breached the terms and conditions of the employment and the manner in which the breach occurred in the termination of the employment. See the following cases; Oak Pensions Ltd & Ors v. Olayinka LPELR-43207(CA)1@19, Para C ; Ogumka v. CACLPELR-4891(CA)1@17-18, Para F. In fact the Court in the case of University of Calabar v. Essien  LPELR- 3416 (SC)1@56-57, Para F, held that in an action whereby the claimant seeks declaration that the termination of employment was wrongful as in the instant case, the most fundamental issue to put before the Court is the condition of service which governs the employment. Such an aggrieved party must aver it as a cardinal issue in the pleadings and also lead evidence in the Court of non-compliance with the terms and condition of service. Put differently, Claimant in the instant case has the onus to plead the terms and conditions governing the employment and plead in what way the conditions have been breached by the employer who is the defendant herein. The claimant pleaded in his statement of facts that he was employed by the defendant vide his letter of employment dated 9th May, 2018 as a security advisor which offer was accepted and his employment was subsequently confirmed after a six months period of probation. This fact was equally admitted by the defendant vide paragraph 3 of its amended statement of defence. Ordinarily, there is no onus to prove what has been admitted. See the cases of Dangote Cement v. Anyafu  LPLER- 52601(CA); Komolafe v. FRN  LPELR-44496(SC)1@12, Para A and; Akinnawo v. Ayodele  LPELR-20318(CA)1@51, Para C. However, it must be borne in mind that this is a declaratory action wherein as reasoned supra the Claimant is to rely on the strength of his own case and which would ordinarily not succeed on an admission by the adverse party as a declaratory action is an exception to the rule of admissions. See the following cases of Achir & Anor v. Chabo & Ors  LPELR-48763 (CA)26-28, Para A; Oyetola v. Adeleke & Ors  LPELR-47545. Thus, the Claimant still has the onus to prove the fact of his employment with the defendant. In support of this assertion, Claimant tendered Exhibits E, E1 and E2. It is clear from a perusal of the said Exhibits and the defendant concede to the fact that Claimant was an employee of the defendant. I so find and hold.
24. The next hurdle is for the Claimant to prove the terms and conditions of the employment. It is not unusual to find the terms and conditions of employment in several documents, in such instance, the documents must all be read together as a whole. In the case of Wulangs v. C.B.N, supra @267, Paras D-F, the Court held that where a contract (which includes contract of employment) involves several documents, the trial Court can only determine the issues before it, on the basis of the documents including letters relating to the contract and the conduct of the parties. The Court went further that where a contract is in writing, any agreement which seeks to vary the original agreement must itself be in writing and in the interpretation of a contract involving several documents, the documents must be read together. See also the following cases; S.I.H. Ltd v. Nitel Trustees Ltd 16 NWLR (Pt 1486)454@469, Paras B-D; FGN v. Interstella Comms Ltd 9NWLR (Pt 1463)1@41, Paras D-E; C.B.N. v. Igwillo 14 NWLR (Pt 1054)393@433, Paras A-B, Paras D-E; Udeagu v. Benue Cement Co Plc 2NWLR (Pt 965)600@623, Paras A-F, 627-628, Paras F-B.
25. Allied to the above principle is that just like other contracts, contract of employment’s creation and termination are subject to the general principle of contract. As such where the terms of contract are in writing, parties are bound by the express terms of their contract. The duty of Court in such instance is to interpret the terms of contract of the parties and give effect to same. This the Court does by giving the words used their plain and ordinary meaning and interpretation See the cases of Adewuyi v. MRS. Oil (Nig) Plc 8NWLR (Pt 1727)551; Enilolobo v. N.P.D.C. Ltd 18NWLR (Pt 1703)168; Esset Petroleum Ent. (Nig) Ltd v. Petroleum Equalization Fund (Mgt) Board & Anor  LPELR-47355 (CA)1@25-27, Para E; and; Agbareh v. Mimra 2NWLR (Pt 1071)378@414-415, Paras H-H. This is because the common law recognizes the sanctity of contract as portrayed by the latin maxim pacta sunt servanda.
26. Be that as it may, Claimant in this case vide paragraph 9 of his statement of facts pleaded that the termination of his employment was not done in accordance with the Chemonics Company Policy Manual. I also do not lose sight of the contents of Exhibit E which is the contract of employment entered into by parties. It is a settled principle of our law that document legally speaking speaks for itself. See the cases of Eze v. APGA  3 NWLR (Pt 1712) 413 (SC) and Ikemefuna &Ors v. Ilondior& Ors  LPELR-44840 (CA) 18, Para D. It is clear from the contents of Clause ‘3 Performance of duties’ that the said policy manual of Chemonics was incorporated to the contract between parties. The Supreme Court in the case of Compt. Comm. Ind. Ltd v. O.G.S.W.C. 9NWLR (Pt 773)629@656-657, Paras G-A held that when a contract is reduced to the form of a document into which has been incorporated other documents, the documents so incorporated cease to be extrinsic to the main document but ought to be construed as part of it and therefore becomes admissible. There is therefore no doubt that the said Manual having been incorporated in the employment agreement in Exhibit E (also Exhibit J) and thus part of the employment agreement is very well part of the documents that regulates the employment relationship between parties.
27. I am mindful of the submission of learned defence Counsel Davidson Oturu Esq. vide paragraph 4.10 of his final written address that the binding documents which govern the employment are the Contract of employment dated 9th May 2018 (Exhibit E1/Exhibit J) and the Policy Manual. Let me first point out that while the contract of employment is equally marked Exhibit J (that is the copy tendered by the defendant), the one tendered by the Claimant is not marked Exhibit E1 as learned Counsel posited in his address. The said contract which is the same as Exhibit J tendered by the defendant was admitted in evidence through Claimant and marked Exhibit E. Thus, the correct description of the said contract is Exhibit E/J and not Exhibit E1/J as posited by Counsel. Although I agree with learned counsel for the defendant that the Manual is part of the documents that is to be interpreted as binding on the Claimant, I however do not agree with the position of counsel in paragraph 4.10 of the final written address that the only binding documents to be interpreted are the Contract of Employment (Exhibit E/J) and the Manual alone. Following the decisions in the cases of S.I.H. Ltd v. Nitel Trustees Ltd, supra; FGN v. Interstella Comms Ltd, supra; C.B.N. v. Igwillo, supra; Udeagu v. Benue Cement Co Plc, supra and; Ladipo v. Chevron (Nig) Ltd, supra, Exhibit E which is the employment agreement and Exhibit E1 which is the amendment to the said document must be read along with the Manual which has been incorporated into the agreement together with the letter of offer of employment as contained in Exhibit E2 in order to identify the terms and real intentions of the parties. Thus, the Court is under a duty to consider the whole of Exhibit E, E1 and E2 and the Manual as they are the relevant documents that bind the relationship. I am of the firm view that the documents that govern the employment relationship that is the terms and conditions of employment are as contained in Exhibits E, E1, E2 and the Manual referred to earlier. I so find and hold.
28. It is however surprising that the Claimant who has pleaded that the termination of his employment was not done in accordance with the said manual as stated supra and who has the onus to prove in what manner the conditions of service was breached failed to tender same in evidence. In the case of Oguebie v. FBN  4 NWLR (Pt 1715)531@ 550, Paras C-E, the Court held inter alia that it is the duty of a party relying on documents in proof of his case to present at least secondary evidence of the contents of the document. In the same vein, the Supreme Court in the case of Ziregbe v. Eyekpimi 9NWLR (Pt 1729)327@351-352, Paras F-A, held that the failure of a party to produce any document that is pleaded precludes the Court from relying on it. The Manual as reasoned supra is part of the documents containing the terms and conditions of employment between the parties. The Claimant ought to tender at least secondary evidence of the content of the said Chemonics Manual in proof his case and how that the termination was not done in accordance with the said Manual. The Claimant who would want this Court to hold that the termination of his employment was not done in line with the Manual and thus wrongful failed to tender the said Manual in evidence. The failure of the Claimant to tender a copy of the Manual which he is relying on and plead in what manner the Manual was breached in the termination of his employment is fatal to his case. Thus, there is nothing which he has placed before the Court in support of his averment in paragraph 9 of the statement of facts that the termination of his employment was done in contravention of the Manual. Neither has he been able to show how the said termination was done in contravention of the Manual. In the absence of these, the Court cannot find for Claimant that his termination was done in contravention of the provisions of the Manual. I so find and hold.
29. I equally do not lose sight of claimant’s contention in the same paragraph 9 of the statement of facts that his termination was racially motivated. This fact was equally reiterated in paragraph 11 of the written statement on oath. It is the duty of he who asserts to prove. The Claimant throughout this case has not led any convincing and compelling evidence in respect of his assertion that the termination of his employment had racial colorations. In fact, in my view claimant’s assertions as regards racial motivation of the termination of his employment are nothing more than just speculations which have not been proven before this Court. Thus, the Court disbelieves same. I so find and hold.
30. It is equally claimant’s claim vide paragraph 6 of his statement of facts that he has not been able to get the letter terminating his employment from the defendant. The defendant on its own part maintained that claimant is no longer its employee having had his employment terminated vide a letter dated 9th October, 2020 and that the said letter alongside his September/October 2020 payslip were forwarded to him by an email dated 9th October, 2020 following the defendant’s failed attempts to deliver a hard copy of the letter to the Claimant. See paragraphs 5 and 6 of the amended statement of defence. The Claimant in response vide paragraphs 5 and 6 of the Reply to the statement of defence denies the assertions and stated that due process was not followed in the termination of his employment and as such there was no valid termination and that the calls for strict proof of allegations made in paragraph 6 of the statement of defence (amended). I do not lose sight of the fact that the Reply was not supported by an additional written statement on oath. The Claimant merely filed a reply and attached some documents to the Reply. It must be borne in mind that pleadings do not constitute evidence. The averments contained in the Reply which is part of the pleadings must have evidence to rest upon which is usually the additional written statement on oath. The frontloaded deposition on oath of a witness in support of his pleadings constitutes his evidence in chief in the proceedings. See the case of MTN (Nig.) Comm Ltd v. Corporate Communication Investment Ltd 9 NWLR (Pt 1678)427. In essence pleadings no matter how brilliantly written cannot take the place of oral evidence in a matter which is contentious and contested. This is because the pleadings are moribund or dead without oral/written evidence to speak to it which is what the written statement on oath does. Thus, pleadings without evidence in support is dead and of no evidential value. See the case of Sokoto v. INEC 3NWLR (Pt 1818)577@600-601, Paras G-B; Ojo v. Gharoro 10NWLR (Pt. 987)173 and; Ojoh v. Kamalu 18NWLR (Pt 958)523. Thus, the facts pleaded in the Reply must be supported by the evidence of a witness which is what the additional statement on oath is supposed to do in this case. It is the additional witness statement on oath that will bring and speak to the documents that were attached to the Reply. Without the additional witness statement on oath which is supposed to bring in the documents erroneously attached to the Reply, the documents cannot qualify as evidence. In essence, pleading which is not supported by evidence is deemed abandoned and must be discountenanced. Thus, where a party to an action fails to testify in support of his pleadings, they are deemed abandoned. See Sokoto v. INEC, supra @600, Paras E-F and NPC v. C.T.P.M Ltd 16NWLR (Pt 1645)289@299-300, Paras G-B. Thus, the whole of the Reply is discountenanced notwithstanding that some documents were attached to it as they have nothing to stand on without the additional witness statement on oath. I so find and hold.
31. Noteworthy is the fact that Claimant while under cross examination on the 24th June, 2021 answered as follows;
Q: Why was your employment terminated by the defendant?
A: My employment was not terminated. The HR Directors called me on phone on Friday at about 4pm that they were calling to tell me that my appointment has been terminated and that if I have any question, I should write to the Director Operations and Compliance, one Adanna Ukachi. I wrote an E-mail to her rejecting the termination.
Q: Read Exhibit E3, will I be correct to say that you were actually informed of your termination?
A: An E-mail was sent to me. I received a letter of suspension.
It is clear from the above line of questioning and answer that Claimant admitted that an Email was sent to him but he is only contending what he received was letter of suspension. It is equally clear from Exhibit E3 which is the letter written by Claimant’s counsel at Claimant’s instance which he tendered in evidence and which is the same Exhibit he was confronted with during cross-examination as captured above, particularly in the fifth paragraph that Claimant actually received a letter via his E-mail terminating his employment for gross misconduct and dishonesty. The facts relating to the said Email and the letter of termination forwarded therewith were pleaded vide paragraph 6 of the amended statement of defence of the defendant. These facts were equally reiterated in paragraph 9 of the written statement on oath of DW which has been adopted as his oral evidence in this case. The said Email of 9th October, 2020 and the letter forwarded therewith were tendered by the defendant and marked as part of Exhibit J3. It is trite that documentary evidence is a hanger on which to assess oral evidence. See the following cases; Odutola v. Mabogunje 7NWLR (Pt 1354)522@552, Paras C-D; Eya v. Olopade 11 NWLR (Pt 1259)505@533, Paras D-G and; Jinadu v. Esurombi-Aro 9NWLR (Pt 1145)55@81, Para D. I have perused the Email and the letter forwarded therewith. As reasoned supra documents legally speaking speak for themselves and cannot speak through the testimony of any witness including the Claimant. The documents are clear in their contents. It is clear on the face of the E-mail printout that the mail to which the letter was attached was sent to Claimant’s mail; that the letter forwarded to the Claimant was a letter terminating his employment and not letter of suspension as he posited under cross examination. It is trite that oral evidence will not be allowed to discredit or contradict clear contents of a document. See the cases of Ashakacem Plc v. Asaratul Mubashshurun Invetsment Ltd  LPELR-46541(SC)1@14-16, Paras D-D and; Ogbe v. Kogi State Govt & Ors  LPELR-44796(CA)1@46-47, Para B. Thus, the evidence of Claimant under cross examination that what he received was letter of suspension is discountenanced in view of the clear contents of the said Email and letter dated 9th October, 2020. I so find and hold. In view of the foregoing and all stated hereinbefore, this Court finds that contrary to the assertion of Claimant, he actually received the letter terminating his employment and this Court disbelieves his assertions in paragraph 6 of the statement of facts that he has made attempts to get the letter of termination from the defendant to no avail.
32. I am mindful of the submission of learned counsel for claimant in his final written address that the letter of termination contrary to the assertion of DW in the open Court was signed by Adanna Ukachi and as such it could be said that the defendant has not issued any letter of termination on Claimant and as such the Claimant is still in employment. It is a well settled principle of law that parties including their counsel are bound by their pleadings. See the case of Ozomgbachi v. Amadi  LPELR-45152 (SC); Osoh v. Unity Bank Plc 9 NWLR (Pt 1358)1@34, Para B and PDP v. Sylva 13 NWLR (Pt 1316)85@127, Paras F-G. I agree with the position of learned defence counsel in his Reply brief that Claimant having not raised the issue in his pleadings, he cannot be heard to do same in his final address as party cannot set up a case different from the one in his pleadings. Claimant having not raised the issue of the signature on the letter of termination in his pleadings cannot be heard now in his final written address. It should also be borne in mind that address of Counsel no matter how beautiful cannot take the place of pleadings or evidence where there is none. See the case of Oyeyemi v. Owoeye 12 NWLR (Pt 1580)364@403, Paras E-F, 404, Paras A-B, 417, Paras D-E and; Agbaruka v. F.B.N Ltd 3NWLR (Pt 1182)465@485, Para G. Hence, the apex Court in the case of Passco Intl Ltd v. Unity Bank Plc 7NWLR (Pt 1775)224@252, Paras C-D, F-G held that an issue of fact cannot be rightly raised in a counsel’s final address or brief as the case may be. The reason is that in a trial Court where pleadings are filed and exchanged, an issue or question of fact can only be raised upon the pleadings of the respective parties. In the instant case, the issue of the validity of the letter of termination due to the signature on it is a question of fact which can only rightly be raised in the pleadings. In view of the foregoing, learned Claimant’s counsel contention above as contained in the final written address is hereby discountenanced.
33. It is equally the contention of the claimant that no forum was set up by the Defendant to clarify the issue of his termination and perhaps give him an audience to make his defence and state reasons why his employment should not be terminated. See paragraph 7 of the statement of facts. The defendant in its own account refuted claimant’s claim that he was not given an opportunity to defend himself and stated that Claimant was actually interviewed as regards the discrepancy in the Vendor Assessment Report and he was confronted with the evidence that the assessment reports he submitted were in fact submitted by him. See paragraph 11(f)-(m) of the amended statement of defence. These facts were reiterated in paragraph 14 (f)-(m) of the written statement on oath of the DW which has already been admitted as his oral evidence as stated earlier in this judgment. It is worthy of note that what transpired during the said interview was recorded in Exhibit J4. Since the proceedings were recorded in writing, oral evidence of what transpired during the said interview cannot be given because same does not fall within the category of documents in which secondary evidence may be given of its content under Section 89 of the Evidence Act, 2011. See the cases of Sahara Energy v. Oyebola  LPELR-51806(CA); Gudusu v. Abubakar  LPELR-43007(CA)1@15-16, Para E; and; Olawoye v. Bello  LPELR-24475(CA) 1@27, Para D. Thus, the evidence of DW as contained in paragraph 14 (f)-(m) of the written statement on oath is of no evidential value.
34. I am mindful of the submissions of learned counsel for the defendant in paragraphs 4.45- 4.47 of the final written address that Exhibit J6 is an ample proof showing that claimant was duly interviewed by the defendant on the allegations against him and after which Daniel T. Hartman and Ryan Wismer made their findings as contained in Exhibit J6 and that Claimant answered in the affirmative when asked under cross examination if he was interviewed by the defendant on the allegations against him. Let me first start by pointing out that the documentary evidence containing the interview questions as tendered by the defendant is not admitted and marked Exhibit J6 as learned counsel posited in his address. The said Email print out which forwarded the interview document as stated supra is marked Exhibit J4 and not J6. Also, learned counsel gave an untrue account of the answer given by Claimant under cross examination when asked if he was invited for an interview by the defendant on 30/9/2020. From the records of the Court, Claimant while under cross examination denied being invited for any interview by the defendant. He only answered that he was called by a person supposedly calling from the Home Office abroad asking him questions about the assessment but the network was bad. Hereunder are the relevant questions and answers given by the Claimant as regard the said interview;
Q: Were you invited for any interview on 30/9/2020 by the defendant?
A: I was not, but I received a call from the USA asking me a question. I don’t know him or his name. He said he was calling from the home Office. He was asking me questions but I could not hear him and network was bad.
Q: What was the question about?
A: He said it was improper assessment and I did not carry out any assessment for the defendant.
It is clear from the above line of questioning that Claimant denied being invited for any interview but stated that he was only called by someone supposedly calling from the Home Office who asked him some questions on the Vendor Assessment process but the network was bad and he could not hear him.
35. I do not lose sight of the answers given by the DW under cross examination by learned counsel on behalf of claimant on the 1st day of November, 2021. The question and answer are as follows;
Q: Was there any panel set up in Nigeria to investigate the Claimant?
Q: Was there any time the Claimant was queried in the course of his duties?
A: I wouldn’t know
Now, if there was no Panel set up in Nigeria to investigate the Claimant and there was no certainty that Claimant was given query by the defendant, it means that whatever interview that was alleged to have been conducted in Exhibit J4 was truly conducted on the phone by the defendant as posited by Claimant in the answer given under cross examination above. Also, the Email print out in Exhibit J4 lends credence to the fact that the said interviewer was not in Nigeria but in the UK as he alluded to that fact when he stated in the E-mail that he could not assess a recording he made of the interview at the moment because of the issues with multi-factor authentication while over there in the UK. It is clear from the answers given above by DW while under cross examination that claimant was neither queried nor tried by any panel set up in Nigeria. It then means that the supposed interview was conducted over the phone as stated by the Claimant. It is a well settled principle of our law of evidence that evidence elicited from a party’s witness under cross examination which goes to support the case of the party cross examining constitutes evidence in support of the case or defence of the party. In fact, such evidence is as good as evidence elicited during evidence in chief and the trial Court is entitled to rely on it. See the following cases; Faloyo v. Faloyo 3NWLR (Pt 1762)114@135, Paras A-C; Makon Engr. & Tech Services Ltd v. Nwokedinkor 5NWLR (Pt 1716)165@ and; Akomolafe v. Guardian Press Ltd 3NWLR (Pt 1181)338. In view of this, I find that the answer elicited from DW under cross examination stating that no panel was set up for Claimant in Nigeria and that he would not know if claimant was ever issued any query in the course of his duty which goes on to support the case of the Claimant that he was never given any query or confronted with any allegation, hence was not given fair hearing.
36. The defendant’s contention is that the said interview which I have found to be one conducted on phone as reasoned supra satisfies the requirement of fair hearing before termination of claimant’s employment. I have gone through the whole of Exhibit J4 particularly the Interview Questions attached to the E-mail. From a perusal of the said Exhibit J4, the interviewer claimed to have compared Claimant’s assessment report with the one claimant sent and found out it was not doctored. The question that agitates the mind of the Court at this stage is if the interview was done on phone what opportunity, then did the interviewer have to confront the Claimant with these documents since the said interview was not physically done but on phone. Was the Claimant given copies of these documents at all? A perusal of the said interview document clearly shows that the interviewer severally pointed that a subsequent follow-up assessment was done which shows claimant’s claims as regards the assessment in respect of the transport companies were false. For example, for Musa Ndasuko Transport Ltd, interviewer claimed a follow-up assessment shows that there is no office at the location and Musa is located in a different state. Again, in respect of Posh Connect Ltd, interviewer stated that address given by claimant stated that the office is located in Nasarawa State but follow-up showed this to be inaccurate. There is no record to show that claimant was ever confronted with or given a copy of the follow up assessment which showed all his claims were false and which was what the interviewer was working with. It is an integral part of the rule of natural justice that where documents are to be used against a person, he should be afforded a copy of those documents to be used against him. This was clearly not done in the case of the claimant from the evidence on record. I wonder why the defendant chose to conduct an interview about allegation leveled against the claimant vide phone when his appointment agreement was executed in Nigeria. Does that mean that the defendant has no qualified Officers who can query and investigate the claimant in Nigeria?
37. In fact, the line of questioning used in respect of each transport Company which Claimant’s assessment had been alleged to have been incorrect as captured on the 2nd and 3rd pages of the Interview recording is faulty. I say so in view of the fact that while the line of questioning and the questions sought to be asked Claimant in respect of each of these transport companies were recorded, Claimant’s answer given to the said questions were not recorded. I find it unclear from the said recordings on the second and third pages of the document if claimant was actually asked those questions. The line of questions in my humble view is anticipatory. Hereunder captured are the relevant part of the document being referred to above.
Musa Ndasuko Transport Ltd:
· Address matches the Porsche assessment. Is that accurate? They are located at the same place?(Follow-up assessment determined that there is no office at this location: that Musa is located in a different state)
· Date is on 27th and so is Porsche assessment yet you MP trip report agenda indicates that you were have been conduct assessments of priority LGA stores with state delegates. How do you reconcile this? (if he claims he did both, ask how he could have physically check all required car features, training regime, etc for two companies as well as do the MP tasks).
· Who is the contact, Musa Ndasuko? How did you identify the company or this contact? Do you know him previously/had any other business dealing with him?(kickback?)
Porche Trans Ltd, Makurdi:
· Again, the address is the same as previous submission (Musa). Our follow up assessment determined that there is no physical office located at the address. Rather that it is a taxi rank. How did you do an assessment of this company, if there is no physical office here? (if he claims he would find their cars there-or something like this answer-shift to importance of meeting with the management and that the assessment would call for information that could only be obtained from an business office location-does he agree?).
· E-mail address appears to be for Posh Transit. Just an error? Are the Companies linked?
· Contact is listed as Michael Ogbe. Who is he? How did you identify him and/or this company? Do you know him personally/had any other business dealing with him? (kickback?)
· If we contacted Michael Ogbe, would he be able to confirm that you came to assess his business on the 27th ?(if he answers “yes”, reveal that we already did contact him and he denied ever meeting with him: said he had not been in contact with anyone for assessments, he currently lives in Abuja, and has not been in Benue State for 3years.
Posh Connect, LTD:
· Address says the company is located in Nassarawa State. Follow up determined this to be inaccurate. Does have cars at taxi rank, but no physical office at the location either.
· Looking at all three assessments, the vendor data is largely exactly the same. How is that possible?
· Further, Musa Ibrahim Ibrahim is also listed as the contact for Posh. How do you explain this?
· In the assessments you put, “Checked by Operations logistics rep. Satisfactory” into all required physical checks (oil level, brake fluid, seatbelts, emergency equipment, etc). I understand you told Mike that this was an error. How do you explain that the data in these assessments are mostly inaccurate. Did you do these assessments?
The above captured questions are more or less anticipatory questions and claimant’s answers or reactions to the said questions were not captured. It is clear on the face of the said document which forms part of Exhibit J4 that while Claimant’s answers to the above questions were not captured, Claimant’s answers to other questions which answers were written in red in the document were captured. The assessment of the Claimant as regards those transport companies is clearly the crux of the allegations against Claimant and the defendant should have shown that Claimant was in fact asked these questions and he responded to same. I find that the record of what supposedly transpired during the interview is a sham and a mockery of the requirement of fair hearing before the termination of employment or dismissal of an employee.
38. I bear in mind the submissions of learned counsel on behalf of the defendant that the Manual (Exhibit J3) did not make any provisions for a disciplinary hearing for an employee to give reasons why his employment should not be terminated and that once the procedure for termination of employment is shown to have been followed, the question of fair hearing will not arise. Let me also use this opportunity to correct the description of the copy of the Manual tendered by the defendant by learned counsel for the defendant. The said Manual is not admitted and marked Exhibit J3 as learned counsel posited in paragraph 4.46 of his final written address but as Exhibit J6. Secondly, I do not agree with the position of learned counsel for the defendant that the Manual, Exhibit J6 did not provide for disciplinary hearing for an employee to give reasons why his employment should not be terminated. I will proceed to explain the reason for this stance. It is trite that in the construction of document, the document must be read holistically looking at what is before it and after it not just to single out the particular sentence or provision. In the case of Mbani v. Bosi & Ors  LPELR- 1853(SC) 21 Para. C, the Apex Court per Onnoghen JSC (Retired) held thus; “It is settled law that in interpreting a document or judgment, the document or judgment must be read as a whole and interpreted in that light with effort being made to achieve harmony among the parts. See Akaighe v. Idama (1964) All NLR (reprint) 317 at 322.” [Underline is mine]. See also the case of Salaudeen v. Okunloye  8 NWLR (Pt 1727) 455@ 475, Paras D-F and; Ajaokuta Steel Company Board of Trustees of Staff Pension Scheme v. Role & Ors  LPELR-7884(CA) 42-43, Para C. I have gone through the provisions of the Manual with a finery of a tooth comb and I must say learned counsel misconstrued and failed to read the provisions of the Manual as a whole to be able to appreciate its content. The said Manual Exhibit J6 stipulates that Termination may occur for variety of reasons and may be initiated by the employer or employee. See Item K, page 51 of the said Exhibit J6. The Manual also stipulates that termination may be for cause that is for a reason as is the case in the instant. It stipulates as follows in Section VI, paragraph ‘M’ specifically on pages 54 and 55:
“M. Termination for Cause
Termination for cause is initiated by the employer for variety of reasons including, but not limited to gross misconduct as detailed in the summary dismissal list (Section K Summary Dismissal without Notice) or actions that are damaging to the interests of the company and/ or the project. Chemonics/ SAII’s general policy is not to take such terminations lightly. Therefore, before a termination for cause is determined, Chemonics is committed to conducting a thorough investigation process. Global HR is consulted in terminations for cause.
An employee may be placed on a suspension to preserve the integrity of the investigation process. He/she may be suspended without notice for up to five (5) business days to permit Chemonics project leadership to review or investigate actions, or any other conduct that warrants removing the employee from the worksite. Some situations may require a longer suspension duration.
The suspension will be confirmed in writing, stating the reason and the expected duration. Upon the conclusion of the investigation, the employee will be informed in writing of the actual dates and pay status of the suspension. Pay will be administered in accordance with local labour law.”
39. The provisions of the Manual as regards termination for cause above is clear and easy to comprehend as a result of which no aid is required to understand it. The said provisions clearly provide that before a termination for cause is determined, the defendant is committed to conducting thorough investigation. Section III, paragraph D3 of the Manual provides for Investigation/ Internal review process and standards. The procedure to be followed for investigation is clearly provided in Section III, paragraph D3 at page 23 of the Manual. It therefore means that in carrying out the thorough investigation which the defendant is committed to doing, the procedure laid down in Section III, Paragraph D3 at page 23 would be followed. Hereunder captured is the relevant portion of the Manual;
D3. Investigations/internal Review Process and Standards
In keeping with Chemonic/SAIII’s commitment to integrity and ethical business practices, each report of business misconduct is fully reviewed by the Office of Business Conduct, as detailed in the Corporate Issue Resolution Procedure and the Office of Business Conduct Issue Review and Resolution Work Instructions. All reports will be handled confidentially when possible, depending on the particular circumstances of the matter and consistent with statutory and regulatory requirements, as well as the requirements for conducting effective internal investigation. If substantiated, the Office of Business Conduct will work with relevant parties to address the issue and take appropriate actions, which may include corrective action, additional training, termination of employment or contract/grant termination. All Chemonics/SAII employees are expected to cooperate fully with any internal review or investigation
The above provisions of the said Section III, paragraph D3 which provides for Investigation/ Internal review process and standards, is clear in that all reports received by the relevant offices of the defendant will be handled confidentially when possible and depending on the circumstances of the matter and consistent with statutory and regulatory requirements for conducting an effective internal review or investigation. Clause 13 of exhibit J, id est the claimant’s employment agreement specifically states that claimant’s employment is governed both the Chemonics field Office Policy manual and local labour laws, which means all applicable labour laws in Nigeria. It then means that investigations that would be carried out must be consistent with statutory or regulatory requirements for effective internal investigation of an employee accused of misconduct. The right to fair hearing is a statutory requirement under the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in any proceedings or inquiry whether judicial or quasi-judicial for effective decision/investigation. An integral part of the right to fair hearing is the need to hear both sides including the accused person (employee) which is usually expressed as “audi alterem patem” So invariably, there is no how an investigation would be conducted as provided by the Manual to be in line with the statutory requirement without the affected employee being called upon to state his own side of the story whether orally or in writing which is to the end that his employment should not be terminated. Thus, it is not true as posited by Counsel that there is no provision in the manual for disciplinary hearing and/or for an employee to give reasons why his employment should not be terminated.
40. Thirdly, in response to learned counsel’s submission above, while an employer has to follow the procedure for termination as laid down in the contract of employment, the Court must also be watchful to find out that in following the said procedure for termination, the rule of natural justice was not breached. As regard this, the apex Court in the case of Shell Petroleum Co. Ltd v. Chief Victor Sunday Olanrewaju 18 NWLR (Pt. 1118) 1 @19- 20, Paras A-B, Tabai JSC (Retired) had this to say; “….And in a case such as this, the Court must be watchful to ensure that in the investigations or proceedings of the domestic panel culminating in the employee's dismissal, the rules of natural justice were not breached.” In essence even where the procedure for termination is followed, the Court must be watchful to ensure that rules of natural justice and fair hearing were not breached. Thus, if the rules of natural justice were breached even where the procedure for termination in the contract was followed, the Court will not close its eye to such because the constitution which is the grundnorm makes the right to fair hearing the basic right of every person faced with allegations and accusation of misconduct in this clime.
41. In the case of Arobieke v. N.E.L.M.C 5NWLR (Pt 1613)383@ 403-404, Paras G-C, the apex Court held that under the common law, before an employer can dispense with the services of his employee, he needs to afford the employee an opportunity of being heard before exercising his power, even where the allegation for which the employee is being dismissed involves accusation of crime. See also Ziideh v. RSCSC 3NWLR (Pt 1022)554 and; Simon Asambe v. Bank of the North Ltd 8NWLR (Pt 928)650. It is not compulsory for the employee to be required to make physical defence or representation. It is enough if it is in writing. Fair hearing is all about an opportunity to be heard and judicial authorities are all in agreement that once an employee is shown to have been given an opportunity to be heard, whether by way of query and response to the query or by physical or oral defence, he cannot complain of the denial of fair hearing. See Imonikhe v. Unity Bank Plc 12 NWLR (Pt 1262)624; Isong Udofia v. Industrial Training Governing Council 4NWLR (Pt 703)281 and; New Nigeria Bank Ltd v. Oniovosa 9NWLR (Pt 419)327. In the instant case, as reasoned supra, there is no evidence on record that the Claimant was given any opportunity to explain or defend himself as regards the allegations against him whether by way of a query and response or by way of a physical representation. In view of this, I am in agreement with the Claimant that he was not given fair hearing or an opportunity to defend himself as regards the allegations made against him. The ipse dixit of the defendant’s case that the claimant committed the allegations made against him will not exculpate the defendant from the consequences of non-compliance the principle of natural justice. I so find and hold.
42. Also, judicial authorities have clearly stated that an employer is not bound to give reasons for terminating the employment of its employee. See Oforishe v. N.G.C. Ltd 2NWLR (Pt 1602)35@61, Para F and; Oniga v. Government of Cross River State & Anor  LPELR-40112(CA). However, judicial authorities are equally clear that even though an employer especially in a master-servant employment as in this instant is not bound to give reasons for terminating the employment of its employee, where it gives a reason or cause for termination of employment, same must be proven to the satisfaction of the Court. This is no doubt well rooted in the long-standing principle of our law that it is the duty of he who asserts to prove. The Supreme Court was quite emphatic with this principle in the case of Shell Petroleum Co. Ltd v. Chief Victor Sunday Olanrewaju supra; where Tabai JSC (Retired) held inter alia thus: “The guiding principle which has been articulated and applied in many cases including Olatunbosun V. N.I.S.E.R. Council (1988) I NSCC (1025); (1988) 3 NWLR (Pt. 80) 25 is that an employer is not bound to give reasons for terminating the appointment of his employee. But where as in the case he gives a reason or cause for terminating the appointment, the law imposes on him a duty to establish the reason to the satisfaction of the Court. In the case, the appellant, having given gross misconduct as its reasons for respondent's dismissal, has the onus to establish that the respondent was indeed guilty of the alleged misconduct to warrant his dismissal...” [Emphasis mine]. See the also the cases of Union Bank v. Salaudeen, supra @ 39-40, Para C and; I.H.A.B.U.H.M.B. v. Anyip, supra@19, Paras E-F. It is deducible from the pleadings of the defendant as contained in its statement of defence particularly paragraphs 17-19 that the reason given for termination of the employment of claimant was the issuance of improper Vendor Assessment Reports which the defendant sees as gross misconduct and an act of dishonesty. It is the duty of the defendant in this case to justify the reason it proffered for termination of claimant’s employment to the satisfaction of the Court that the Vendor Assessment Report submitted by claimant was improper. While it is true as submitted by learned Counsel for the defendant that the scope and duties of Claimant’s work in Benue State is as contained in the Security Team Scope of Work herein as Exhibit J2, there is however no evidence before the Court to show that the Claimant did not carry out the assessment as required. I say so in view of the fact that the defendant according to the Exhibits tendered before this Court particularly Exhibit J4 (interview questions) shows that a follow-up assessment which showed Claimant’s assessment of the transport companies were inaccurate and false was conducted. I have combed through all the Exhibits before this Court. I cannot find where defendant tendered the said subsequent/follow up assessment report which negate that of the Claimant. The defendant in order to be able to convince the Court that Claimant’s assessment Report was actually false and inaccurate had a duty to tender the subsequent follow up assessment which was carried out and which incriminates claimant. In fact, apart from Claimant’s Trip Report (Exhibit J5) and Assessment Report which was tendered as part of Exhibit J3, there is no other report in respect of the Benue trip and assessment which is the basis of the allegations against claimant before this Court. The failure of the defendant to tender the evidence particularly the follow-up assessment which raised the perceived concerns against Claimant’s Assessment Report is fatal to its case. I am not convinced by either documentary or oral evidence that Claimant is culpable of submitting improper Vendor Assessment Report in the absence of any cogent evidence. I find from the foregoing that the defendant has failed to substantiate to the satisfaction of this Court, the reason given for the termination of Claimant’s employment. I so hold. In view of the foregoing and all reasoned supra, I find that the Claimant’s relief 1 succeeds.
43. The Claimant in his relief 2 claims for the sum of N50,000,000.00 as general damages. It is the submission of learned defence counsel in paragraphs 5.12-513 of his final written address that general damages is not awardable for cases of breach of contract. He relied on the decision of Galadima JCA in the case of Wilbros Nig Ltd & Anor v. Macaulay, supra that general damages is not awardable in cases of wrongful or unlawful termination as such general damages belong to the real claims in tort. In addressing the submissions of learned counsel, let me first state that the said case is clearly distinguishable from the case at hand in that the said case was decided pre third Alteration Act, 2010 which ushered in Section 254C of the Constitution and which gives this Court the power to apply international best practices in labour and international labour standards. Also, that the provisions of Section 19(d) of the National Industrial Court Act, 2006 (hereafter referred to as NICA) which gives this Court power to award compensatory damages in deserving cases was not considered by the appellate Court in that case. In the current regime of labour jurisprudence in Nigeria which is in line with international labour standards and international best practices, it is no longer fashionable to say that general damages cannot be awarded in deserving cases to employees where termination of employment is found to be wrongful. I am equally mindful of the submission of learned counsel while relying on the case of Obanye v. U.B.N Plc, supra where the Supreme Court addressed the issue of damages awardable for wrongful termination of employment. While I note that by the doctrine of judicial precedent, a lower Court is bound by the decision of a higher Court especially that of the Supreme Court, I must also point out that such precedents will apply when the case is on all fours with the case at hand. Cases are better appreciated when the facts and circumstances of the case is read. The case of Obanye v. U.B.N Plc, supra relied upon by learned counsel is instructive in that the trial Court in that case was not even the National Industrial Court which the Constitution post third-Alteration Act gives powers to apply international best practices and international labour standards making it not to be bound by the whims and caprices of the common law orthodoxy on the quantum of damages awardable in cases of wrongful termination of employment. The institution of that case predates the establishment of the National Industrial Court by the NICA which explains why the trial Court in that case was the High Court of Anambra State, Onitsha Judicial Division. See Obanye v. UBN Plc, supra @page 9. As such, the powers of the NIC to award compensatory damages in deserving cases as provided for by Section 19(d) of the NICA was not even an issue in that case. Neither was the provisions of Section 254C of the Constitution which gives this Court the power to apply international labour standards and International best practice an issue before the Supreme Court in that case. In essence, the situation in that case and the case at hand are clearly distinguishable in that the jurisdiction of the NIC which is the trial Court in this instant to apply international labour standards and international best practices have been expressly provided for by the Constitution. In my respectful view the case that is more apposite to this case as regard the issue of damages awardable by the National Industrial Court is the case of Sahara Energy Ltd v. Oyebola, supra where Ogakwu JCA after considering and deciding on the jurisdiction of this Court to depart from the common law orthodoxy by applying the international best practice affirmed the sum of N2,000,000 awarded in that case as general damages.
44. The Claimant in the instant case was alleged to have committed gross misconduct and dishonesty by submitting an improper vendor assessment. The defendant in this case has not been able to satisfy this Court that the vendor assessment report submitted by Claimant was inaccurate or false. This is because according to its claims, a follow-up assessment shows the reports were false which raised concerns. However, as reasoned earlier in this judgment the said follow up assessment which shows that the Claimant’s Vendor Assessment Report were false or inaccurate and for the purpose of collection of kickbacks were not tendered before this Court. Accordingly, as held supra, the Court finds that the defendant has not successfully justified the allegation against the Claimant. Particularly paragraph two of the letter of termination (part of Exhibit J3) reads; “You were placed on paid administrative leave since October 2, 2020 to review allegations of gross misconduct and dishonesty. The information gathered during investigations was substantiated. This is ground for termination without notice per Chemonic’s policy manual, Section M and M.1, Termination for Cause and Summary Dismissal respectively”. There is no doubt that the reason for termination of claimant’s employment carries with it some stigma on the person and character of the Claimant and which allegation the defendant has not been able to prove before this Court. In line with the decision of the appellate Court in the case of Sahara Energy Ltd v. Oyebola, supra, I am inclined towards granting the Claimant’s claim for damages. The payslip of the Claimant for the month of September/October, 2020 which is part of Exhibit J3 tendered by the defendant shows that Claimant’s basic monthly salary is N227,638.07. In exercise of the powers granted this Court by Section 19 (d) of NICA and in line with the appellate Court decision in the case of Sahara Energy Ltd v. Oyebola, supra and the earlier case of British Airways v. Makanjuola 8 NWLR (Pt.311) 276. I find that the claimant is entitled to damages and thus award the Claimant two years’ salary in the sum of N5,463,313.68 as damages. I so find and hold.
45. Claimant by his relief 3 claims post judgment interest at the rate of 10%. The law has become ensconced that post judgment interest may be awarded even where it was not pleaded because it is statutory and is at the discretion of the Court. See the cases of GTB Plc v. Obosi Microfinance Bank  4NWLR (Pt. 1821)455@523,Paras D-E, 524, Paras B-C; Rematon Services Ltd v. NEM Ins. Plc 14NWLR (Pt 1744)281@304-305, Paras F-C and Ifemesia v. Ecobank  LPELR-46589 (CA)1@60-61, Para A-A. The Rules of Court regulates the discretion of the Court by setting the rate or percentage at which such post judgment interest may be awarded. In the case of Bolanle v. Access Bank  LPELR-40994(CA)26-28, Para B, the Court of Appeal while considering the power of the National Industrial Court as the trial Court in that case to award post judgment interest held that the power of a court to grant post judgment interest is statutory as it derives its root from the Rules of Court and the National Industrial Court as the trial Court in that case derives such power from the National Industrial Court Rules. This Court is empowered by the provisions of Order 47 Rule 7 of the Rules of this Court to grant post judgment interest at a rate not less than 10% per annum. In the case of African Prudential Registrars Plc v. Macaulay 18NWLR (Pt 1755)1@31, Paras A-B, the Court held that for there to be a post judgment interest, there must at first be a monetary judgment sum on which the order for interest would be made until final liquidation. Claimant in this case has sought monetary claims which had been granted, in exercise of my discretion under Order 47 Rule 7 of the Rules of this Court, I award post judgment interest at the rate of 10%. Relief 3 thus succeeds.
46. The claimant in his fourth relief seeks an order of Court for reinstatement. As reasoned supra, the claimant’s employment is that of master-servant. It is a well settled position of law that the Court has no jurisdiction to impose a servant on an unwilling master unless the employment is one that enjoys statutory protection. In essence, there is no right of reinstatement of an employee where it is found that his appointment has no statutory flavour. See the decision of the Supreme Court in the case of I.H.A.B.U.H.M.B v. Anyip, supra. This is because a willing employee cannot be foisted on an unwilling employer no matter how useful the employee is or how much of no justification there was for the termination in the first place. See the following cases; Agwu v. Julius Berger Nig Plc 11NWLR (Pt 1682)165@186, Paras F-G; Obaje v. Nigerian Airspace Management Agency LPELR-19958(SC)1@26, Para C and; Emenite Ltd v. Oleka LPELR-(CA)1@9,Para E. Equally the Court cannot interfere with the right of a master in an ordinary master-servant relationship to relieve its employee from its employment. It is in the light of this that this Court finds that the claimant’s relief on reinstatement cannot succeed. Relief ‘4’ fails.
47. Claimant by his relief 5 seeks an order of this Court directing the defendant to produce the details of enquiry and names of members of the panel of investigation and the proceedings that gave rise to their decision against Claimant. It must be noted it is within the lawful province of an employer to exercise disciplinary control over an employee and the Court would normally not interfere with the power of an employer to discipline it employee except in instances where it is shown that the rules of natural justice were not followed in the discipline of such an employee. See the case of Shell Petroleum Development Co (Nig) Ltd v. Omu 9NWLR (Pt 567)672. In the same vein, the Court would also not pry into the internal affairs of an employer especially in a master-servant employment as in this instant. Accordingly, it is outside the jurisdiction of the Court to compel or pry into the internal affairs of an employer especially as it relates to the discipline of its employee except where it pertains to the breach of the rules of natural justice. The only concern of the Court is for the observance of the rule of natural justice. The defendant in this case has tendered Exhibit J4 which contains the purported recording of the interview session with the Claimant. It is not part of the duties of this Court to compel the defendant to produce any other document which the defendant used in reaching its decision against the Claimant or that the defendant must publish the names of those that made up the interview panel that investigated Claimant. In fact, it is worthy of note that Claimant vide paragraph 12 of the statement of facts had given the defendant notice to produce all original copies in their possession and report of their findings in the investigation they relied on to take action in terminating Claimant’s employment. It is trite that the service of a notice to produce on the adverse party pursuant to Section 91 of the Evidence Act, does not compel the party served to produce same, it only entitles the party serving to tender secondary evidence of the document. In fact, it is irrelevant to serve notice to produce on an adverse party where the party serving does not have the secondary copy in his possession. See the case of Eweje v. O.M. Oil Ind. Ltd 4NWLR (Pt 1765)117@138-139, Paras H-B and; Buhari v. Obasanjo 13NWLR (Pt 941)1. Thus, the service of notice to produce does not compel the party served to produce the said document. The defendant cannot be compelled by this Court to produce the said documents (if any) even by the service of the notice to produce. I find no reason why relief 5 should be granted. Accordingly, relief 5 fails.
48. Claimant in his relief six claims for cost of suit assessed at N1,500,000. Learned Counsel on behalf of the defendant in his final written address took the view that such relief is in the realm of special damages which should be specifically pleaded and strictly proved while relying on the case of Hadejia Jama’are River Basin Development Authority v. Chimande, supra. Let me first say that this position is not true of cost of action going by recent judicial authorities. Judicial authorities especially by the Supreme Court have restated the position that a successful party is entitled to cost which he should not be denied except for good reasons. See the following cases; Cappa and Dalberto (Nig) Plc v. NDIC 9 NWLR (Pt. 1780)1@ 14. The apex Court per Odili, J.S.C in the case of Mekwunye v. Emirates Airlines, supra;  LPELR-46553(SC) Pp. 67-73, Para E was quite emphatic when it took the view that cost including cost of action is statutory and not based on pleading of the parties or strict proof before the Court to determine whether or not to grant same and that the Court of Appeal in that case was wrong to have held that the award of cost by the trial Court amounted to granting special damages not proved. The apex Court in that case held that by the provisions of Order 25 Rules 2 and 7 of the Federal High Court (Civil Procedure) Rule 2009, the power of the Federal High Court to grant cost is discretionary and which discretion cannot be interfered with by the appellate Court except and unless the award is manifestly excessive or too low. This Court has similar copious provisions as that of the Federal High Court relied upon by the Supreme Court in Mekwunye’s case. The Rules of this Court, particularly Order 55 empowers the Court to grant costs of action at its own discretion. Now, in view of the number of appearances of the claimant and his counsel in this case and the volume of processes filed by the claimant who is successful in most part of his claim, I therefore, in exercise of my discretion award the sum of N 200,000 as cost of action in this case in favour of the Claimant.
49. I cannot end this judgment without addressing the manner in which learned counsel for Claimant Enenche Ekoja Esq. prepared the process titled “PLAINTIFF’S REPLY TO THE DEFENDANT’S STATEMENT OF DEFENCE filed on the 22nd day of October, 2021. First, it is worthy of note that pleadings have initially closed in this case and Claimant has opened his case by testifying for himself after which his case was closed. The defendant before opening its case brought an application for amendment of the statement of defence which application was granted. The Reply was filed after the Court granted the defendant’s application to amend the statement of defence together with an order deeming the amended statement of defence as properly filed and served and consequential order that the Claimant is at liberty to file a reply. The reply which was filed after the Court order and is supposedly a reply to the amended statement of defence was titled ‘PLAINTIFF’S REPLY TO THE DEFENDANT’S STATEMENT OF DEFENCE” instead of Reply to amended statement of defence which the process purports to be. In the case of Fayemi v. Oni 8NWLR (Pt 1726)222@248, Paras A-C, the apex Court held inter alia that where a document is amended it ceases to be valid and a lawyer in his Professional capacity before a Court shall not with knowledge of invalidity of a document, cite or make reference to that document by virtue of Rule 32 (3) (g) of the Rules of Professional Conduct for Legal Practitioner, 2007. Learned Counsel having knowledge of the amendment of the statement of defence and which the said Reply was to respond to ought not to refer to the statement of defence again because same has ceased to be valid and has been replaced by the amended statement of defence. Thus, constant reference in the Reply to the statement of defence which is no longer valid is irregular and wrong.
50. Again, upon a perusal of the said Reply process, learned Counsel in franking the process erroneously signed and included his name and address as the address for service as against the address of the defence counsel who should be served the process. In the Bakari v. Ogundipe 5NWLR (Pt 1768)1@41, Paras A-C, The Supreme Court held that Court processes filed in Court are to be signed in the following manner; signature of counsel, which may be any (a) contraption (b) name of counsel clearly written (c) who counsel represents and; (d) name and address of legal firm. See also the case of SLB Consortium Ltd v. NNPC 9NWLR (Pt 1252)317@337-338, Paras F-A. Contrary to the above decision, the process which was prepared by learned Claimant’s counsel himself was signed and immediately after the signature is as follows;
FOR SERVICE ON:
C/O HIS COUNSEL,
ENENCHE EKOJA, ESQ,
AMEH G. AMEH, ESQ,
JOHN S. AGBARA, ESQ
Pure Logistic Office,
Transcorp Hilton Hotel,
I wonder why learned counsel would sign the process as he did above when he is the one who prepared the process. This goes on to show that learned Counsel did not put in due diligence in the preparation of the said process. Counsel must remember that they owe it a duty to show utmost professionalism and diligence in the preparation of legal documents for filing in Court. The apex Court in the case of Elabanjo v. Dawodu 15 NWLR (Pt 1001)76@135, Paras E-F held that it behoves on all counsel filing briefs or any other documents at the Supreme Court to read and scrutinize the same before filing the brief or document. The same rule applies in this Court as a Superior Court of record, counsel should endeavor to read and correct all errors in his processes before bringing same to the Court for filing. See also the case of Babalola v. State 4NWLR (Pt 115)264@278, Para G; where the apex Court held it is the duty of counsel to check the typographical errors of his clerk as well as the grammatical blunders whether of his own or of his clerk before filing a brief in Court. If learned Claimant Counsel had taken a second look at the said process, he would have discovered the errors before filing the Reply in Court.
51. For the avoidance of doubt and for the reasons earlier given, I declare and order as follows;
1. That the termination of Claimant’s employment was done in breach of his right to fair hearing and thus wrongful.
2. That Claimant is entitled to the sum of N5, 463,313.68 as damages for wrongful termination.
3. That Claimant is entitled to the sum of N200,000.00(Two Hundred Thousand Naira) Only as cost of action.
4. That the judgment sum is to be complied with within 14 days of the delivery of this judgment, failure of which it shall attract 10% post judgment interest.
52. Judgment is entered accordingly
Hon Justice Oyebiola O. Oyewumi