IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN ABUJA JUDICIAL DIVISION
HOLDING AT ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATED 10TH MAY, 2022
SUIT NO. NICN/ABJ/258/2018
IMO AKPANENO CLAIMANT
SINOSTAR INTERNATIONAL NIGERIA LIMITED DEFENDANT
Patrick Peter, for the claimant
Sunday Olorumola Ake, for the defendant
1. The claimant on the 9th October, 2018 filed a General Form of Complaint and further amended same on 31st May, 2019 in this Court seeking the following reliefs against the defendant.
(a) A declaration that the Defendant is liable for the breach of the Claimant's fundamental right to dignity of his human person. Section 254 (1)(d) of the constitution of the Federal Republic of Nigeria (as amended).
(b) Arrears of monthly salary in the sum of N60,000 only per month, from the month of January, 2018 until judgment is delivered until the entire judgment sum is fully.
(c) N5,000,000 only, as general aggravated and punitive damages for the breach of the Claimant's fundamental right to dignity of his human person.
(d) N500,000,000 only, as cost of this action and solicitor’s fees.
2. It is the Claimant's claim that he was employed by the defendant as an Accountant on the 16th January, 2017 and was posted to Abuja branch. He averred that on the 23rd January, 2018 his immediate Senior one Mr. Xu Lei, on behalf of the defendant locked his office denying him access therein without any reason with his medications inside the office. He stated that he demanded the answer to the reason why the said Mr. Xu Lei locked the office and his response was that because he did not switch off the light and the said Mr. Xu Lei became angry and ordered him to take all his personal belongings and leave the office as his service was no longer needed. He also averred that he told him that he was properly employed by the defendant and if for any reason his employment would be terminated, he deserved to be given the requisite notice in line with his employment agreement with the defendant. He also stated that nevertheless, he entreated Mr. Xu Lei to unlock the office for him to recover his personal belongings including his drugs due to the fact that he was suffering from several health conditions but to no avail. He noted that he remained stranded in the defendant's premises until 8:30 PM before Mr. Xu Lei sent the defendant's driver to open the office but by that time, the prescribed time for him to take his drug had elapsed. He further averred that he returned to the office the next day despite his health condition but his office was still locked and upon this he made a verbal complain to the Head of Administration, one Mrs. Victoria Ibrahim and she told him to go home and wait for the Deputy Managing Director Finance to return from China to address the issue but upon the DMD's return he was told to go on a compulsory vacation without any reason. He continued that when he returned to the office the following Monday hoping to resume his duties only to find another Chinese man occupying his seat. All his effort to get answers from the defendant on his employment status proved abortive. He pleaded that the defendant has failed/ refused to pay his monthly salary of N60,000 since the month of January till date without any just cause.
3. In response, the defendant filed a further amended statement of defense on 31st January, 2020 where it averred that the claimant without any justifiable cause decided to abandon his job on the 23rd January, 2018 by refusing to turn up duty since 24th January, 2018. It stated that Mr. Xu Lei did not at any time stop or prevented the claimant from picking his personal belongings from the office but only told the claimant, he would be given another office in the defendant's premises by one Mrs. Victoria Ibrahim( Head of Administration) as Mr. Xu Lei could no longer share the same office with him due to his willful and consistent disobedience to the defendant's official policy of turning off light in every office at any time when the occupants of the office have any reason or cause to leave the premises during working hours aimed at preventing fire outbreak in the premises which the claimant always flouted with impunity since he became a staff despite the verbal warnings and admonition given to him on several occasions. It further averred that the claimant returned the same afternoon on the 23rd January, 2018, picked his personal belongings and walked away angrily from the premises and all entreaties by the Head of Administration to go into the new office was rebuffed by the claimant. It also averred that the claimant did not come to office that day with any drug or medication as falsely alleged by him and he never told Mr. Xu Lei or any staff he has any health challenge. It stated that the Head of Administration never advised the claimant to go home and wait for the Deputy Managing Director (Finance) Mr. Wang Fei to return from China before the issues would be addressed. It averred that the Claimant's contract of employment with the defendant is no longer subsisting as he was the one who willfully walked away. It averred that it did not do anything that is tantamount to a violation of the Claimant's fundamental right to dignity of his human person or subjected the claimant to any form of inhuman and degrading treatment as he alleged.
4. During trial, claimant testified for himself as CW, he adopted his written statement on Oath dated 8th January, 2020 as his written statement on Oath dated 8th January, 2020 as his evidence in this case. He equally tendered documents which were admitted and marked as exhibits A-A4. He was cross examined by the defendant. Similarly, the defendant called a sole witness one Mrs. Victoria Ibrahim the Head of Administration of the defendant. She adopted her written statement on Oath dated 31st January, 2020 as her evidence in this case, and was cross examined by the claimant.
5. Consequent upon which the Court ordered parties to file their respective final written addresses with the defendant's counsel filing on behalf of the defendant on 23/09/2021, he formulated three issues for the Court's determination thus:
(I)Whether having regard to the entire facts, as pleaded and proved by the parties in this suit, can it be said that the Claimant's fundamental right to the dignity of his person, as provided for, under section 34(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended: was actually violated by the defendant?
(II) Whether in view of the facts, by the parties in this suit, can it be said that, the claimant's contract of employment with the defendant is still subsisting, after 23rd of January, 2018 and therefore entitled to the monthly salary being claimed by him against the defendant?
(III) Whether having regard to the peculiar facts of this case as pleaded and proved by the parties, can it be said that that, the claimant has made out any case for entitlement to general, aggravated and punitive damages, cost and solicitors fees?
6. Arguing on issue one, Learned Counsel submitted that it is trite that the burden of proof in a civil suit is on the claimant to prove his entitlement to the reliefs being claimed which can only succeed on the strength of its own case and not on the weakness of the case of the defendant. He relied on Section 131(1) of the Evidence Act, 2011, Odukwe v Ogunbiyi  8 NWLR (pt. 561) 339 @ 382, para E; University Press Ltd v. I.K Martins Nig Ltd  4 NWLR (pt. 654) 584 at 600, para C. He stated that it is the law, that where the claimant has failed to make out a case, there is no duty on defendant to prove anything and the claimant's claim must fail on that account as a party who seeks a declaratory relief must adduced credible and admissible evidence, to establish his entitlement to the declaration. He also relied on the case Anyaru v. Mandilas Ltd  10 NWLR (PT. 1043) 462 at 477, para H;
7. He submitted that the totality of the evidence adduced by the claimant in support of his allegations relating to the purported violation of his fundamental right to the dignity of his human person by the defendant is grossly unreliable, which evidence cannot legally justify the grant of the said declaratory relief. He noted that even if the entire facts as pleaded by the claimant in this respect were true, which the defendant has denied cannot in anyway amount to violation of the Claimant's fundamental right to the dignity of his person under Section 34(1) supra. He further submitted that the claimant's allegations is not that he was tortured by the defendant but that he suffered inhuman and degrading treatment of his person by the conduct of the defendant's agent which he failed to specifically prove. He stated that the entire fact pleaded by the defendant are completely uncontroverted and unchallenged and as such are deemed or taken to have been admitted by the claimant, he relied on Order 30 Rule 6 of the National Industrial Court of Nigeria (Civil Procedure Rules )2017, he therefore urged the Court to act upon the uncontroverted and unchallenged evidence before the Court.
8. One Issue two, Learned Counsel submitted that it is a well-established principle of law that parties are bound by their pleadings and has no power to violate the pleadings of the parties and cited a case of Baliol Nigeria Ltd v Navcon Nig Ltd  FWLR (pt. 532) 1672 @ 168, paras A-B; Fagbenro v Arobadi  ALL FWLR (pt. 310) 1574 @ 1596 paras D-F. He further submitted that it is clear that it was the claimant who unilaterally terminated or repudiated his contract of employment by abandoning his job with the intention of blackmailing the defendant.
9. He noted that despite the weighty and highly reprehensible nature of the defendant's averments and sworn evidence against the claimant, the claimant did not deem it necessary, to either deny or challenge same. He submitted that the conduct of the claimant in willfully violating the above quoted portion of his employment Agreement with the defendant is tantamount to gross misconduct which ought to have led to his dismissal. He relied on the case of Westac v Sokoto State Government  1 WRN 113 @ 125, para 5. He urged the Court to discountenance the Claimant's assertion that he was told by the defendant's Head of Administration to go home and wait for the arrival of the Deputy Managing Director (Finance) from China before his issues would be addressed. He further submitted that even if it was the defendant that directed the claimant not to go to work again, with effect from 23rd January, 2018 which was not the case, his appointment still stands terminated from that day since, the claimant ceased rendering his services to the defendant from that day. Learned counsel submitted that the claimant can only sue the defendant for wrongful termination of his appointment on the ground that he was not given the requisite one month notice, and if his claim succeeds only then would he be entitled to damages in the agreed notice and nothing more as such a wrongful termination, if proved cannot be declared null and void by the Court, nor can the Court insist that the defendant must take the claimant back to his office as the general rule is that, the Court cannot impose an employee on an unwilling employer. He relied on the case of Gboboh v. British Airways Plc  ALL FWLR (pt. 908) 191@ 1913-1932, paras D-H, 1933-1934, paras G-B; W.A.E.C v Obisesan  ALL FWLR (PT 484) 1619 @ 1631, paras F-H. He therefore urged the Court to hold that the Claimant's contract of employment is not still subsisting after 23rd of January, 2018 and therefore not entitle to monthly salary claimed by him against the defendant.
10. On issue three, Counsel submitted that the claimant has not pleaded nor proved the relevant fact that would warrant the Court granting his reliefs (c) and (d) for N5,000,000 only for the breach of his right to dignity of his human person N500,000 as cost. He further submitted that even if the claimant could not, and still expect the Court to award three different damages in his favor for the said violation, he contended that the grant of such unproved triple damages would amount to double compensation. He stated that Section 35(6) of the 1999 Constitution which makes provisions for the payment of monetary compensation to the victim of a fundamental right violation is applicable to this case as the provisions are only meant for the benefit of any person who alleges that he is unlawfully arrested or detained and not otherwise as it is trite that the cost follows event and which is normally awarded at the Court’s discretion to the successful party.
11. He submitted that the issue of solicitor's fees falls within the realm of special damages which the law requires must be specifically pleaded and strictly proved before same can be awarded to the claimant which he is claiming as solicitor’s fee nor has he adduced any evidence in proof thereof. He relied on the case of Ibrahim v. Obaje  ALL FWLR (pt 937) 1682 @ 1707- 1710, paras G-G
12. In response to the defendant's final written address, Counsel on behalf of the claimant filed his final written address where he formulated three issues for determination thus:
(I) Whether the Honorable Court can hold that the claimant is still in the service of the defendant in view of absence of any evidence of termination of the Claimant's appointment either in accordance with the Employment Agreement relied upon by both parties or otherwise, and express admission of the subsistence of the said employment by the defendant.
(II) Whether in view of the subsistence of the Claimant's appointment and/ or employment with the defendant the claimant is entitled to all the arrears of salary and other reliefs sought by him.
(III) Whether in view of the uncontroverted pleadings and evidence in support of the alleged violation of the Claimant's fundamental right to dignity of his human person, the Honorable Court can award damages in favor of the claimant.
13. Arguing on issue one, Learned Counsel submitted that the claimant is still in the service of the defendant in view of the absence of any evidence of termination of the Claimant's appointment either in accordance with the employment Agreement relied upon by both parties or otherwise and the Express admission of the subsistence of the said employment by the defendant and as such the employment agreement remains valid and binding on both parties. He noted that the defendant expressly admitted the status of the claimant's appointment letter and also averred in paragraph 3(b) of the further amended statement of defense that it did not terminate the claimant's appointment. Counsel relied on the case of Augustine F.I. Ibama v Shell Petroleum Development Company of Nigeria Limited  LPELR- 6377 (CA); Al-Bishak V National Productivity Centre & Anor  LPELR-24659 (CA).
14. He stated that the parameter for determining whether the claimant is still in the service and/or employment of the defendant is the employment Agreement which should be relied upon by both parties which happens to be the only document in the record and evidence of this case defining the claimant's employment and/or service with the defendant and also stating categorically how the said service and/or employment can come to an end. He relied on section 123 Evidence Act, 2011, NTUKS V NPA  13 NWLR (PT. 1051) S.C
15. Counsel also noted that the defendant alluded to the requirement of one month notice or the forfeiture of one month salary in lieu of notice. He stated that both parties are ad idem on the date of the occurrence which gave rise to the cause of action, he also noted that it is in evidence that the defendant paid the sum of N60,000 as January, 2018 salary to the claimant but did not state which month's salary was forfeited by the claimant as there was no forfeiture of any one month’s salary by either party nor was there any one month notice served on either party.
16. Learned Counsel argued on issue two, that the claimant is entitled to all the arrears of salaries and other reliefs in view of the subsistence of his appointment with the defendant as provided in Section 15 of the labor Act, chapter L1 laws of the Federation of Nigeria, 2004, and Section 254 C (1) (d) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). He submitted that the defendant is liable for breach of the Claimant's fundamental right to dignity of his human person under Section 34(1) (a) of the 1999 Constitution for refusal of the defendant's staff/agent to grant him access to his medication, he stated that such conduct shows that the defendant has no regard for his wellbeing, he relied on the case of Col. Mohammed Sambo Dasuki v Director General Staff Security & Ors  LPELR-48113(CA). He urged the Court to award the amount sought so as to adequately compensate the claimant.
17. On issue three, learned Counsel submitted that the defendant is liable for breach of the Claimant’s fundamental rights to dignity of his human person by the refusal to grant him access to his medication. He noted that all the oral as well as documentary evidence led by the claimant in respect of the above stand unchallenged and/or uncontroverted. He stated that the conduct of the defendant has no respect or regard for the wellbeing and even dignity of the Claimant's human person as required by Section 34(1) of the 1999 constitution of the Federal Republic of Nigeria (as amended). He relied on the case of Col. Mohammed Sambo Dasuki v Director General State Security &Ors  LPELR -48-113 (CA).
18. Having carefully considered the processes filed by both parties in this suit, the documents tendered in evidence before this Court, the testimonies of witnesses and the written submissions of both counsel on the divide in support of their case, it is in my calm view that the issue that will best determine this suit is whether or not the claimant has proven his claims to be entitled to reliefs sought.
19. The Claimant's first relief, is for a declaration that the defendant is liable for breach of his fundamental right to dignity of his human person in line with the provisions of Section 254 C(1) (d) of the Constitution. The claimant averred in paragraphs 16, 17 and 18 of his further amended pleadings that he informed Mr. Xu Lei of his health conditions and the need for him to take his medications due to the fact that his office was locked with the said medications inside and as such, he could not take his medications until 8:30pm before his office was opened for him to recover his medications before taking the prescribed afternoon medication had already elapsed. Learned Counsel on behalf of the claimant contended further in paragraph 3.2 of the final written address that the defendant is liable for breach of the Claimant's fundamental right to dignity of his human person by the refusal of the defendant's staff/agent to grant him access to his medication and all the oral as well as documentary evidence led by the claimant in respect of the refusal stands unchallenged and uncontroverted and the said defendant's agent was never called as a witness or has any written statement on Oath in the record of this case. Defendant on the other hand averred in paragraphs e-f of its further amended statement of defense that the said defendant's agent who share the same office with the claimant had asked him to move into a new office due to his constant disobedient act but he angrily left the office without a word to the said Mr. Xu Lei or any other officer of the defendant, and upon the Claimant's return later in the afternoon, he collected all his personal belongings from the said office and walked away from the office premises and never reported to duty since 23rd of January, 2018. Defendant contended further that the claimant did not come to the office on that day with any drug or medication nor was he prevented from taking any of such drugs and more importantly he never told anybody in the office that he was sick or having any health challenge.
20. The important question that comes to my mind is whether the defendant's action contravenes the provision of Section 34(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The above Section provides thus:
Every individual is entitled to respect for the dignity of his person,
(a) no person shall be subject to torture or to inhuman or degrading treatment;
(b) no person shall be held in slavery or servitude and
(c) no person shall be required to perform forced or compulsory labor"
21. Now, to the crux of this suit, which lies in the fact that the claimant is contending that the defendant breached his fundamental right to dignity of his human person, Section 34(1) of the Constitution captured supra, breaks down what constitutes such breach, I have equally perused the exhibits before this Court and I find no evidence or connection between the defendant's action and the said Section 34(1) supra. The law is notorious that the proof lies on the claimant who assert a fact to discharge that burden to satisfy the Court by leading cogent, credible and substantial evidence with a view of establishing his case. See the cases of Arigbabu v. Oyegunuga  LPELR -47381 CA; Inua v FBN Plc  2NWLR (pt. 1495) 89 CA; It is the Claimant's position that by the time he was able to recover his medications from the office, the prescribed time to take his medication had elapsed but he failed to prove how the defendant's action affected his dignity. Claimant averred at paragraph 11 of his sworn deposition that the said Mr. Xu Lei urged him to pack all his things from his Office, but he did not pack his things rather he demanded to know why since he was not the one that employed him. One would have expected the claimant to as a matter of urgency pick up his medication if any in the Office having been commanded by his superior to pack his things from the Office. It behoves on the claimant to canvass cogent and credible evidence to substantiate his claim. Exhibit A tendered by the claimant is a letter written by Special care Hospital wherein the claimant was said to have typhoid and severe malaria. That he was hospitalized and treatment commenced on the 21st January. He was advised to proceed on sick leave to enable him complete his treatment. There is no evidence on record to evince that he sought for and obtained sick leave from the defendant as suggested by his doctor. There is equally no iota of evidence to show how the locking of his Office which he is a co occupant has adversely affected his health. He failed to also show that he was under any form of imprisonment neither was he tortured in any way, or how the said action affected him mentally, physically or psychologically. It is obvious from the facts of this case that the claimant has failed to substantiate his relief one with any credible, cogent or verifiable evidence. It is in the light of this that I find and hold that claimant’s relief (a) fails.
22.The claimant's relief ‘b’ is for payment of Arrears of monthly salary in the sum of N60,000 only per month from the month of January, 2018 until judgment is delivered and until the entire judgment sum is fully liquidated. It is the claimant's argument vide paragraphs 22 and 23 of his pleadings that he was asked by Deputy Managing Director of Finance to go on a "compulsory vacation", he equally pleaded that upon his return to the office the following week on 29th January, 2018, hoping to resume without any obstacle, he found another Chinese man occupying his seat in the office. The defendant on the other hand averred in paragraph K and L of it further amended statement of defense that at no particular time did the said DMD of Finance asked him to proceed on a voluntary vacation. It equally stated further that it is not in any way liable to pay any monthly salary to the claimant with effect from January 2018 since he willfully abandoned his job on the 23rd January, 2018 without giving the requisite one month notice to that effect. It is the law that in the determination of the rights and duties of parties in an employment relationship, recourse should be had to the contract regulating the employment. In most cases, two documents usually regulate the said relationship, I.e. the letter of employment and the defendant's staff handbook, where these two documents or either of the two exist, the Court is estopped from looking outside the terms of contract. See the case of Daodu v UBA Plc  9 NWLR( pt. 878). What parties to a contract of employment had agreed upon as their terms and same reduced into writing must be given necessary effect. See the case of Ladipo v Chevron Nig Ltd 1 NWLR, (pt. 907) @ 277. The claimant tendered before the Court his contract of employment with the defendant marked as exhibit A4.
23. Now the pertinent question to ask from the circumstance surrounding this suit is about the status of the claimant with regards to his employment relationship with the defendant? Whether he is still a staff of the defendant or not. Going by the facts and circumstances of this case, I find no evidence to show that claimant’s employment was determined by the defendant. The claimant assertion is that he was disallowed entry into his office while the defendant asserts that claimant abandoned his duty. One thing that is obvious on record is that the claimant’s last date at work was on the 23rd January, 2018, that was the date he averred that Mr. XU Lei orally terminated his employment. The only terms of contract of employment between the parties before the Court is a document titled Employment Agreement, i.e exhibit A4. Clause 6 on termination provides that one month notice in writing or one month salary in lieu of notice is required to terminate the employment. There is obviously no such written notice of termination of claimant’s employment by the defendant. The purported oral termination of the claimant employment is in clear breach of the contract of employment. The law is trite that an employment can be said to have been wrongfully determined if it was done in contravention of the terms and conditions regulating the contract of service. See the cases of Union Bank Plc v Salaudeen LPELR- 43415 CA; Union Bank of Nigeria Plc V Chinyere  2 NLLR, P 41@ 62. It is also apparent that the defendant no longer wants the services of the claimant. It is the law that the Court cannot force an employee on an unwilling employer. See the cases of Osakwe v Nig. Paper Mill Ltd.  10 NWLR (pt. 568) 1 SC; Imoh V I.T.G.C  NWLR (pt 703) 281 CA. The law is trite that in this clime an employee can treat his employment as constructively terminated if an employer acts contrary to the contract of employment. See Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd  47 NLLR (Pt. 154)531; Mrs Issey Celestina Akinlolu-Olo v. United Bank for Africa Plc Unreported Suit No NICN/LA/497/2012 which judgment was delivered on the 1st day of February, 2016. See also the case of Ilodibia v. Nigeria Cement Co Ltd  LPELR-1494(SC)18-20, Para C where the Supreme Court affirmed the decision of the trial Court that the indefinite suspension of the claimant amounted to constructive dismissal. It is in consequent upon this that I find that the defendant has constructively terminated the Claimant's employment, consequently upon this, the claimant is entitled to damages for wrongful termination of claimant’s employment in payment of one month salary in lieu of notice. I so hold.
24. Claimant by his relief b is seeking for payment of arrears of his salary from January, 2018 till today. The law is trite that an employee cannot be paid for work or labor not done. By Nwafor v. Anambra State Education Commission & Ors  LPELR- 42026CA; no employer is under any obligation to pay salaries/wages/allowances to an employee who has not worked for the period of his employment. See also the cases of Atulomah v. Nigerian College of Aviation Tech  LPELR-25733CA; Olatunbosun v. NISER  1 NSCC Vol.19 pt 1 , Page 1025 @ 1047. Claimant has not proffered any evidence to show that she has worked for the defendant since the 23rd of January 2018 till date. The claimant has failed to canvass evidence in prove of his claim (b). It is in the light of this, that I find that claimant’s relief ‘b’ fails.
25. Claimant equally claims the sum of N5,000,000 as general, aggravated and punitive damages for breach of the Claimant's fundamental right to dignity of his human person. The law is trite that where a breach is being established, general damages will follow without need to specifically plead or prove the damages. See the cases of SPDC Ltd v Afinotun & Ors  LPELR-22982 (CA) pg 52. The converse of which is that where the Court finds otherwise, the party is not thus entitle to any damages. This Court have held earlier in this judgment that the defendant did not breach the Claimant's right to dignity of his human person under section 34((1) supra, he is therefore, not entitled to any damages in that regard. Accordingly, claimant’s relief (c) fails.
26. The claim for N500,000 as cost of this action, the award of cost is always at the discretion of court exercised reasonably, it is however well settled that a successful party is entitled to cost unless there is any disenabling circumstance to deprive him that entitlement. See the case of Okafor v Lemna Construction Co. Ltd & Anor  LPELR 46001 CA. The claimant having failed in almost all claims is not entitled to award of cost. I so find and hold.
27. I therefore declare and order as follows.
(I) That the defendant did not breach claimant’s fundamental right of dignity to his person under Section 34 of the 1999 Constitution.
2. That the claimant’s employment is constructively terminated by the defendant.
3. That the claimant is not entitled to arrears of his salaries but one month salary in lieu of notice which is N60,000.00.
4. That the claims for general aggravated and punitive damages fails.
5. That the claim for cost also fails
28. Judgment is entered accordingly
Hon. Justice O.O. Oyewumi