IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA
DATE: 20 JUNE 2022
SUIT NO. NICN/ABJ/177/2018
Sadiq Isiaku - Claimant
Arab Contractors (O. A. O.) Nigeria Ltd - Defendant
Abang Odok Ogar, with Miss Hannah Dimgba and Miss Nneka Amadi, for the claimant.
Chief D. A. N. Nwobodo, with Miss Theodora Ezeala, for the defendant.
1. The claimant had filed this on 25 June 2018 vide a complaint. By an amended complaint and amended statement of facts filed on 24 February 2021, the claimant is claiming the following reliefs:
(i) A declaration that the unlawful termination of the Claimant’s employment by the Defendant without any breach of the terms of employment agreement by the Clamant is premature and unlawful.
(ii) A declaration that the injury sustained by the Claimant in the course of his duty has permanently disabled the Claimant from carrying out his duty as a driver and sustaining a means of livelihood.
(iii) An order of Court directing the Defendant to pay to the Claimant in full his arrears of salary from September, 2013 till date.
(iv) An order of Court directing the Defendant to accord the Claimant with his deserved promotion and accruable payment till date.
(v) An award of N100,000,000.00 (One Hundred million Naira Only) against the Defendant as compensation for loss of income as a result of the injury/permanent disability sustained in the course of his duty and for unfair treatment of the Claimant.
(vi) An award of N30,000,000 (Thirty Million Naira Only) against the Defendant as damages for breach of terms of contract between the parties.
(vii) An award of N10,000,000.00 (Ten Million Naira Only) as the cost of institution this action against the Defendants.
(viii) An award of 10% interest in the entire judgment sum from the date of judgment till same is fully liquidated by the Defendant.
2. In opposition to the claimant’s claims, the defendant filed its statement of defence and other defence processes, to which the claimant filed a reply and additional witness statement.
3. The matter proceeded to trial once issues were joined. The claimant testified on his own behalf as CW and spelt his name under examination in chief as “Isiyaka Sadiq”, which is different from the “Sadiq Isiaku” that the suit was filed under. As CW, the claimant tendered Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U and V.
4. Regarding the exhibits tendered by CW the Court noted as follows:
(1) The certified true copies (CTCs) of Exhibits C, E, H, I, J, L, Q, R, S, T and U were sighted in court.
(2) Only the originals of the ticked photograph on Exhibit D was tendered in court. It was marked as Exhibit D.
(3) Exhibit O as frontloaded and referred to in paragraph 18 of the claimant’s deposition of 24 February 2021 is not signed; and has 2 dates. The main date where it should be is not clear/complete. The other, the one on top, appears to have been superimposed. The Exhibit O tendered by CW in open court has an original signature (given the colour of the ink) and an original stamp of Yusuf M. Yunusa (Esq). The second Exhibit O also has two dates, only that both dates are clear/complete.
(4) Exhibit P as frontloaded does not have an original stamp of Yusufu M. Yunusa (Esq). But Exhibit P as tendered in court by the claimant has the said original stamp.
(5) Exhibit R, though the CTC was sighted in court, is not dated. Both the CTC and the one frontloaded and referred to in paragraph 20 of the claimant’s deposition of 24 February 2021 are not dated.
5. For the defendant, Alozie Orji, Head, Administration and Legal Department of the defendant, testified as DW; and indicated that though he referred to eight documents in his deposition (Exhibits D1 to D8), he will only be relying on Exhibits D1, D4, D5, D7 and D8 — thus abandoning Exhibits D2, D3 and D6.
6. At the close of trial, parties filed and served their respective written addresses. The defendant’s was filed on 17 February 2022, and the claimant’s on 11 March 2022. The defendant’s reply on points of law was filed on 5 May 2022. In adopting its written addresses, and in answer to the discrepancy as to the claimant’s name on the originating processes and as spelt by the claimant himself when testifying in chief, the defendant referred the Court to two additional case law authorities: AD v. Fayose  10 NWLR (Pt. 932) at 151 and Iregu v. The State  11 NWLR (Pt. 1367) at 92 — as authorities for the point that where there is a minor discrepancy in a name, the court should see it as a misnomer.
THE CASE BEFORE THE COURT
7. From the claimant’s pleadings, his case is that, as an employee (Senior Chainman) of the defendant (a multinational construction company in Nigeria) in its Abuja office, he worked at Kubwa, Abuja project site though he could be transferred to any other project site. In 2005, in the course of his duty, he had a serious accident, which the defendant acknowledged and took responsibility for by referring him to Gwagwalada Specialist Hospital (now University of Abuja Teaching Hospital). That the medical report from the hospital showed that he had multiple open fractures of the left femur and left tibia/Fibula and internal fixation of the fractures which led to gross shortening of his left leg and would require lengthening only when his wound heals. That he was admitted for sometime in the hospital before he was discharged. And he returned to work after the partial treatment.
8. That in April 2009, further medical report showed that the implant in his left femur was removed successfully but his leg had shortened in the left lower limb, which requires lengthening. That the instrument required for the lengthening was not available at the time. That he went through untold hardship and pains as a result of the partial treatment. And so in 2013, he made a request to the defendant for the lengthening of his left lower limb as earlier recommended by the hospital. That the defendant wrote to the hospital for an update as to the availability of the lengthening instruments. That the defendant did not respond to the medical advice of the University of Abuja. Instead, on 17 September 2013 it took the claimant to see a doctor at Limi Hospital, a less sophisticated hospital.
9. Then without any prior notice, that the defendant issued him a sack letter on 21 September 2013. That he was told that sequel to the termination of his appointment, he would be paid off with a terminal benefit of N97,000.00 only, which he refused to accept till date. He then approached his lawyer who wrote several letters to the defendant but to no avail. His counsel then complained to the Ministry of Labour for possible intervention and redress. That the Ministry invited the parties to a meeting where it was resolved and agreed by the defendant to redress the injustice and complete the treatment i.e. the lengthening of the claimant’s left lower limb. That on 26 January 2015, the Ministry wrote a reminder to the defendant to comply with the said resolution and treat the claimant, which reminder the defendant refused to respond to.
10. To the claimant, given the injury he sustained in the course of his duty, he is permanently disabled from carrying out his duty as a Chainman, and he has also lost his ability to drive which has affected him from sustaining a means of livelihood for himself and his family — hence this suit.
THE SUBMISSIONS OF THE DEFENDANT
11. The defendant submitted two issues for determination, namely:
(1) Whether the claimant has led evidence to show that the defendant was negligent in the circumstances of this case.
(2) Whether the claimant has led evidence entitling him for the reliefs sought in this suit.
12. On issue (1), the defendant submitted that it is necessary to understand what is meant by a party being negligent in his or her conduct and, therefore, in breach of his or her duty of care to a plaintiff. That in the law of tort, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any act that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The plaintiff must be able to articulate a duty of care imposed by law which the defendant had breached. In turn, breaching a duty may subject an individual to liability in tort. The duty of care may be imposed by operation of law by individuals with no current, direct relationship (familial or contractual or otherwise) but eventually becomes related in some manner, as defined by common law.
13. That at common law, duties were formally limited to those with whom one was in privity in one way or another, as exemplified by cases like Winterbottom v. Wright (1842) — the station is not supplied. The leading judicial test for a duty of care in the United Kingdom was found in the judgment of Caparo Industries Plc v. Dickman  2 AC 605 in which the House of Lords set out the following three-part test: harm must be a “reasonably foreseeable” result of the defendant’s conduct; a relationship of proximity between the defendant and the plaintiff; and it must be fair, just and reasonable to impose liability.
14. That in the instant case, the defendant led unchallenged and uncontroverted evidence that it heard the ugly incident of the claimant’s motor bike accident on the evening of Saturday February 5, 2005 in faraway Suleja, Niger State, where the claimant lives, the claimant having closed work at Kubwa-Byazhin road project in Abuja at about 5pm. The defendant in its show of employers’ responsiveness and magnanimity, on hearing the news of the accident that occurred the previous night, came to Suleja and found out that claimant’s relations and bystanders had taken him to a nearby and less equipped hospital in Suleja. The defendant immediately evacuated him and took him to University of Abuja Teaching Hospital, Gwagwalada (which is a more equipped and sophisticated specialist hospital) and took responsibility for all his treatment, medication and hospitalization for nine (9) months (February 6 - November 2005). In this regard, the claimant led evidence that the defendant took the responsibilities of all of the above referred. The University of Abuja Teaching Hospital later wrote to the defendant on the progress of claimant’s improvement and suggested the removal of the implant left femur following which he may resume his routine duty in the survey department, referring to the defendant’s Exhibit A.
15. The claimant on the other hand averred and led the evidence that the incident, which gave rise to subject matter of this suit occurred in course of his duty and in a bid to mislead the Court wrote different names as his name with different spellings and irregular signatures which raise the germane issue of proper party, referring to Green v. Green  3NWLR (Pt. 61) 480 at 463.
16, That the claimant also frontloaded and tendered documents and exhibits that are not only probably manufactured in business centre but are calculated to mislead the Court. For instance, the claimant in his examination-in-chief answered thus:
Claimant counsel: Where are the original letters? E.g. the employment letter?
PW1: It is with Arab Contractors.
To the defendant, it is unthinkable and inconceivable that an employer will give his employee a photocopy of an employment letter i.e. Exhibit A and retain the original.
17. That there is of plethora of invalid, mutilated and misleading documents (CTCs) and exhibits filed and exhibited by the claimant all in a bid to lay false foundation to claim damages from the defendant. That other instances are in abundance: pictures are cut by half and others are unclear (i.e. Exhibit D), there is no CTC of handwritten letter requesting for lengthening of the leg (i.e. Exhibit F), there is no CTC of the letter purportedly written by the defendant to University of Abuja Teaching Hospital, Gwagwalada (i.e. Exhibit G), there are also no CTCs of Exhibits K, M and N.
18. That to worsen the claimant’s plight, Exhibit O as frontloaded and referred in paragraph 18 of the claimant’s amended statement is not signed and it has two different dates. The date on top is superimposed and the main date is incomplete. The second Exhibit O tendered in Court is stamped but still has two different dates. Also Exhibit P that was filed is not signed and stamped when submitted. Even Exhibit E as frontloaded has no original stamp unlike the one tendered in court. Also the CTC of Exhibit I tendered in Court is not dated. Nothing can be more dishonest, misleading and perjurious than these pieces of evidence by the claimant.
19. To the defendant, and unsigned document in the eyes of the law is a worthless document that has no value or legal effect, citing Faro Bottling Co. Ltd v. Osuji  1 NWLR (Pt. 748) 311 at 330 - 331. That the claimant’s conduct that further underscored that he is not a witness of truth before the Court is when he pleaded and admitted in evidence that he has not been paid compensation for the injury he sustained while in reality the claimant duly received his compensation. That he pleaded and tendered in evidence a double-dated letter (Exhibit O) purportedly written by his solicitor to the defendant demanding for the compensation or else he takes legal action at the expiration of 3 weeks. In another development, another letter purportedly emanated from his solicitors (Exhibit P) to the Hon Minister of Labour & Productivity, Abuja complaining of wrongful termination of the claimant’s appointment as a result of the claimant’s union activities. In the same vein, the seventh paragraph of the same letter is protesting the payment of the compensation before the completion of the claimant’s treatment. The 7th paragraph is reproduced thus:
Sir, secondly, how could the Company pay compensation to Our client while he had not completed receiving treatment. Under the Compensation Act Cap 470 of 1990, a staff shall only be compensated after treatment. In this case while Our client was still under treatment, the Company gave him One Hundred and Twenty Thousand Naira (N120,000.00) as Compensation. How could they pay compensation to our client while the lengthening operation is yet to be carried out?
20. The defendant then wondered if the claimant sued under the Workmen’s Compensation Act or tort of negligence. That even the evidence of payment of disability compensation by the defendant’s insurance company is referred to in the defendant’s Exhibit 8.
21. The defendant went on that another fallacy is where the claimant was claiming that he was kept under redundancy because of his union activities. That this is a blatant lie as the claimant had worked with the defendant for four (4) years and got a redundancy letter (defendant's Exhibit D4) when there was a shortage of work in the defendant's company. That it is also on the record that one (1) year redundancy when the construction and other activities improved, the claimant wrote a handwritten application (defendant’s Exhibit D5) and he was reabsorbed and worked for another five (5) years. And that the defendant need not write to individuals separate notices of closure, since that quarry branch is still closed till date — res ipsa loquitur.
22. The defendant continued that evidence at variance or contradictory to the pleadings of a party will be discountenanced by a court as it goes to no issue. That the function of pleadings is to narrow the area of controversy between the parties by isolating what needs to be proved from what has been proved and, therefore, do not need to be proved. That an object of pleading is to settle the issue to be tried, citing Oduka & ors v. Kasunmu & ors  NMLR 28 at 31. That the primary duty of pleadings is, therefore, to delimit with clarity and precision the real matter in controversy between the parties upon which parties can present their respective cases and upon which the court will be called to adjudicate between them, citing Ramonu Atolagbe v. Korede Olayemi Shorun  4 SC (Pt. 1) 250 at 265. That parties are bound by their pleadings and cannot at the trial be allowed by the Court to set up a case different from their pleadings, citing K.A Onumade & anor v. African Continental Bank Ltd  9 NWLR (Pt. 520) 255. Thus, where the evidence led by the party at trial does not bear out the pleadings the court will be left with no other option than to give judgment against such a person.
23. That the material and weighty averments made by the defendant are statements of the defendant as well as borne out by viva voce evidence in court were neither denied nor challenged by the plaintiff. These are, therefore, deemed admitted by the plaintiff. That Order 30 Rule 6(1) of the NIC Rules stipulates that an allegation of facts in a pleading, not being a petition or summon, if not denied specifically in the pleading of the opposing party shall be taken to be admitted. That the plaintiff woefully failed to discharge the evidentiary burden placed on him to show that the defendant’s action was negligent or breached her duty of care to the claimant.
24. That if when all the evidence by whomsoever introduced is in and the party who has the burden of proving or disproving a particular fact has not discharged it, the decision must be against him, citing Jack & ors v. Whyte  SNSCQR 610 at 621 — this Law Report is unknown. That oral evidence is admissible where it will throw more light upon or assist the court in determining the probative value to be attached to a document, citing Jack v. Whyte (supra). That that the claimant neither discharged the burden of proof on them nor did he advance his case through the exhibits tendered by him. On the contrary the witness widened the contradictions between his evidence and his pleadings before the Court.
25. That in ascribing probative value to the testimony of a witness the court takes into consideration whether the testimony is cogent, consistent and in accordance with reason and in relation to other evidence before it, citing Agbi v. Ogbeh (supra) — citation is not supplied here. The defendant then urged the court to hold that the evidence of the claimant is not natural, reasonable and probable in view of the entire circumstances and facts of this case.
26. That if the Court evaluates the evidence led by CW in its entirety, the Court will come to an inescapable conclusion that the claimant woefully failed to prove his case on the preponderance of evidence; therefore, disentitling him to the reliefs sought. That the evidence ted by the claimant lacks weight and ought not to justify a judgment in his favour. The claimant also failed to call expert evidence to prove either that the accident was caused by the defendant nor that the accident occurred in course of duty.
27. The defendant proceeded that the relief sought by the claimant was at variance with his evidence. It proved the case of the defendant. The evidence as well as the pleadings of the claimant instead of proving the claimant’s case exposed the hollowness of the same. They leave the court with no other option than to dismiss the claimant’s case. That parties are bound by their pleadings; and it is not only the parties but also the courts that are bound by the pleadings of the parties. A court, therefore, cannot and ought not to evolve a case for either party or proceed to give judgment thereon contrary to the case of the parties before it, citing African Continental Seaways Ltd Nigerian Dredging Road and General Works Ltd  5 SC 235 at 250. It is, therefore, the defendant’s submission that the claimant did not place before the Court credible evidence upon which the Court could rightly come to the conclusion that the case of the claimant was more believable than that of the defendant, citing Agbi v. Ogbe  7 MJSC 1 at 23.
28. That if or when all the evidence by whosoever introduced, is in, and the party who has the burden of proving or disproving a particular fact has not discharged it, the decision must be against him, citing Jack & ors v. Whyte  5 NSCQR 610 at 621. That oral evidence is admissible where it will throw light upon or assist the court in determining the probative value to be attached to a document (Jack v Whyte, supra). Accordingly, that the claimant neither discharged the burden of proof on him nor did he advance his case through the exhibits he tendered. On the contrary, as a witness, he widened the contradictions in the evidence he gave and the pleadings before the Court.
29. That in ascribing probative value to the testimony of a witness, the court takes into consideration whether the testimony is cogent, consistent and in accordance with reason and in relation to other evidence before it, citing Agbi v. Ogbe (supra). The defendant then urged the Court to hold that the claimant woefully failed to prove his case in line with his pleadings; and to hold that the evidence of the plaintiff is not natural, reasonable and probable in view of the entire circumstance and facts of this case. That if the court evaluates the evidence led by the plaintiff in its entirety, the Court will come to the inescapable conclusion that the claimant woefully failed to prove his case on the preponderance of evidence, thereby disentitling him to the reliefs sought. That the requirement of the law regarding the onus placed on a party claiming a declaratory relief as claimed by the claimant in the present case is trite. A claim for a relief of declaration, whether of title to land or not, is not established by an admission by the defendant to lead evidence, because the plaintiff must satisfy the court by cogent and credible evidence called by him to prove that as a claimant, he is entitled to the declaratory relief, citing David Fabunmi v. Abigail Ade Agbe  1 NWLR (Pt. 21) 299 at 318, Kodilinye v. Odu  2 WACA 336 and Woluchem v. Gudi  SC 291. That the credibility of the claimant’s witness has been called to question by his inability to establish the claims before the Court. That where the issues turns on the credibility of witnesses, the opinion of the trial court which has seen and observed the witnesses must be preferred to that of any higher court, citing Sagay v. Sajere  6 NWLR (Pt. 661) 360. and Nnorom v. Ezeani  5 NWLR (Pt. 706) 203. The defendant then urged the Court to resolve this issue in favour of the defendant.
30. Issue (2) is whether the claimant led evidence entitling him to the reliefs he seeks. To the defendant, according to Fidelis Nwadialo in his book, Civil Procedure in Nigeria:
There must be a cause of action before an intending litigant can seriously think of initiating proceedings in court. In other words a cause of action must have accrued. This is an indispensable prerequisite. A suit is aimed at vindication of some legal rights; such a right can only arise if certain material facts exist.
31. That the term cause of action denotes every fact (though not every piece of evidence) which it would be necessary for the plaintiff to prove if traversed to support his right in the judgment of the court, citing Fadare v. AG, Oyo State  4 SC 1 at 6 - 7. The term has also been defined as simply the existence of a factual situation the existence of which entitles one person to obtain from the court a remedy against another person, citing Leland v. Cooper  1 QB 222 at 242. The phrase, therefore, comprises of every fact which is material to be proved to enable the plaintiff to succeed. This in effect is the combination of facts, which give rise to a right to sue. From the foregoing it is then clear that cause of action consists of two elements: the wrongful acts of the defendant which give the plaintiff his cause of complaint and the consequent damage, referring to Ibrahim v. Osim  3 NWLR (Pt. 82) 271 - 272. That the failure of the claim before this Court to disclose a reasonable cause of action, clearly robs the Court of jurisdiction to hear this matter.
32. It is the defendant’s submission that the defendant has placed before this Court credible evidence upon which the Court can rightly come to the conclusion that the case of the defendant is more believable than that of the claimant, citing Agbi v. Ogbe (supra). And that the claimant failed to prove his case; for which the court should dismiss this action as it is merely intended to put the judicial process as well as annoy and waste the time of the defendant. That the Court is also urged to strongly deprecate the conduct and action of the claimant who is perjuring himself.
33. The claimant also sought an order of the Court directing the defendant to pay for an award of (N10,000,000) Ten Million Naira only as the cost of instituting this action. That there is absence of specific and particular proof in the claimant’s claim. And the court usually frowns at such claims by the litigants, citing Guinness (Nig) Plc v. Emmanuel Nwoke  LPER-6845(CA) , which held as follows: “…it is also unethical and an affront to public policy to pass on the burden of solicitor’s fees to the other party, in this case the cross-respondent…”
34. In conclusion, the defendant submitted that on the strength of the settled principles of law, the claimant has failed woefully to make out a case before this Court to entitle him to the reliefs he seeks in this honourable court.
THE SUBMISSIONS OF THE CLAIMANT
35. The claimant first submitted that all the exhibits he tendered are relevant, admissible, their contents were not impugned by the defendant and so the Court should rely on same and attach weight to them. Thereafter, the claimant submitted a sole issue for determination, to wit: whether the claimant is entitled to the reliefs sought. The claimant, however, argued this sole issue under the following points:
(a) What is the onus of proof on Plaintiff claiming unlawful termination of employment and whether the Claimant herein has discharged same?
(b) What are the conditions precedent to termination of a contract of employment on the ground of redundancy and whether the Defendant herein has complied with same?
(c) Whether the Claimant herein is entitled to damages for the unlawful termination of his contract of employment.
(d) Whether the injury sustained by the Claimant herein was during the course of his employment.
(e) Whether the Claimant herein is entitled to damages for injury sustained during the course of employment.
36. On point (a), the claimant submitted that he is claiming unlawful termination of his employment and he has discharged the onus on him to prove same. He referred to Aji v. CBDA  16 NWLR (Pt. 1486) 554 at 571 where the Supreme Court held as follows:
Whether an employee is suing for wrongful dismissal from an employment with statutory flavour or under the common law principles of master and servant, the fact of the employment and the terms and conditions of same must not only be pleaded but must be proved by evidence before a determination of the wrongful nature of his termination or dismissal can be considered by the court.
37. That in the instant matter, the fact of the employment was placed before the Court. The claimant also placed before the Court the claimant’s Exhibit A showing that he was employed by the defendant. That the defendant contested the claimant’s Exhibit A on the following grounds:
(a) That it was not a certified true copy.
(b) The claimant tendered a copy of the employment letter and stated that the original is with the defendant. The defendant concluded that it is unthinkable and inconceivable that an employer will give his employee a photocopy of an employment letter (i.e. Exhibit A) and retain the original.
38. The claimant then urged the Court to discountenance the defendant’s objections on the claimant’s Exhibit A on the grounds that:
(a) Exhibit A is not a public document and needs no certification, referring to sections 102 - 105 of the Evidence Act.
(b) That it is unthinkable that the employer will give his employee a photocopy of an employment letter and retain the original is mere speculation. The Court does not act on speculations. The defendant never led any evidence to show that the said original copy is not with them.
(c) The defendant did not contest the content of Exhibit A. The defendant actually maintained that the claimant’s employment was terminated on the ground of redundancy.
39. To the claimant, a look at Exhibit A will show that there is no provision in the contract of employment that the employment can be terminated on the ground of redundancy. It also does not stipulate the notice to be given in the event of termination. Having admitted that the claimant’s employment was terminated, the defendant cannot turn around and resile from that position. That recourse must be made to the provisions of the law on how to terminate an employment on the grounds of redundancy. That the claimant has placed before this Court the fact of the employment and the terms and conditions of same and, therefore, this Court can proceed to determine whether the termination of the contract of employment was lawful.
40. Regarding point (b), which relates to the conditions precedent to termination of a contract of employment on the ground of redundancy and whether the defendant has complied with same, the claimant submitted that the defendant maintained that the service of the claimant was terminated on the grounds of redundancy, referring to Exhibits N and D4, and paragraph 15 of the defendant’s witness statement on oath. That the law has stated the manner and procedure for declaring an employee redundant. The onus is on the defendant to prove that the defendant has complied with the laid down procedure before declaring the plaintiff herein redundant, citing PHMB v. Ejitagha  11 NWLR (Pt. 677) 154 at 160, where the Supreme Court held as follows:
When an employer relies on one of the following reasons, that is: ill-health or redundancy or reorganisation or retrenchment or unproductivity etc. or even upon contractual or regulatory powers conferred on and exercised by the employer, to compulsorily retire a public officer, the burden is on the employer to satisfy the court on the reason, and not on the employee as the employer would be expected to have facts or law in support of his action.
41. That section 20(1) of the Labour Act provides that the employer shall inform the trade union or workers’ representative concerned reasons for and the extent of the anticipated redundancy. That section 20(1) of the Labour Act clearly shows that the defendant herein must make representations to the trade union on the reasons for declaring the plaintiff herein redundant. The principle of Last in first out which is also required under section 20 of the Labour Act was also not complied with before rendering the claimant redundant, referring to Exhibit P tendered by the claimant. Also referred to is Mato v. Hember  5 NWLR (Pt. 1612) 258 at 295, which, relying on Nwabueze v. Okoye  4 NWLR (Pt. 91) 664 and Ezeobi v. Nzeka  1 NWLR (Pt. 98) 478, held that where a statute provides for a means of doing a thing, no other means or manner shall be permitted.
42. That in the instant case, the Labour Act made it mandatory that the trade union must be informed of the extent of the redundancy, and the principles of last in first out must be observed. That there is no indication that the defendant herein complied with the provisions of the Labour Act in declaring the claimant herein redundant. That there is enough evidence that the employees of the defendant belong to a trade union. In fact, that the claimant led evidence to show that he was dismissed because of his activities with the trade union. That even though they denied that the claimant was dismissed based on his union activities it is evident that there is a trade union. That the failure of the defendant to comply with the provisions of section 20 of the Labour Act made the entire redundancy exercise unlawful, null and void, urging the Court to so hold.
43. For point (c) i.e. whether the claimant is entitled to damages for the unlawful termination of his contract of employment, then claimant answered in the affirmative. He referred to Osumah v. EBS  17 NWLR (Pt. 902) 332 at 352, WR & PC Ltd v. Onwo  12 NWLR (Pt. 630) 312 at 328, Imoloame v. WAEC  9 NWLR (Pt. 265) 303 and Olaniyan v. University of Lagos  2 NWLR (Pt. 9) 599 as authorities for the proposition that damages is the remedy for wrongful or unlawful termination. To the claimant, therefore, he is entitled to damages for the unlawful termination of his employment, urging the Court to grant same.
44. The claimant then discussed points (d) and (e) together. Point (d) is whether the injury sustained by the claimant was during the course of his employment; and point (e) is whether the claimant is entitled to damages for injury sustained during the course of employment. To the claimant, he claims damages for the injury sustained during the course of employment. That it is clear even from the exhibits (Exhibit D2, D8) tendered by the defendant that the injury sustained by the claimant was during the course of his employment with the defendant. That Exhibit D2 reads as follows: “the above named patient was involved in a Road traffic accident while on duty”. And Exhibit D8 (an exhibit that was produced by the defendant itself) reads as follows: “approval is hereby given to pay Mr. Sadiq Ishaku who was involved in an accident at the project site”.
45. On the documents tendered by the defendant, the claimant submitted that it is obvious that the injury he suffered was during the course of duty. He, therefore, urged the Court to proceed to the determination of whether the defendant is entitled to damages for injury suffered. The claimant referred to Afrab Chem Ltd v. Owoduenyi  LPELR-23613(CA), which held thus:
It is settled law that it is not every injury suffered by an employee during the period of his work for the employer that entitles the employee to damages or compensation. It is only the injury suffered out of and in the course of his employment that the employer will be liable for. The phrases “out of” and "in the course of employment” are used conjunctively in the sense that the accident or injury must have occurred not only during the employment but must have occurred ‘out of’ and in ‘the course of’ the employment. In effect the employment must be the cause of the injury and the injury must have occurred in relation to that employment or incidental to the employment. See St. Helens Colliary Co. Ltd v. Hawitson (1924) AC 59. There must be some Causal relationship between the injury sustained and the employment, thus an injury must arise out of and in the course of employment. Any injury sustained by an employee which occurs by a mere-co-incidence to the currency of the employment cannot be an injury arising out of and in the course of employment. An injury suffered by an employee for which the employer would be liable may include any harm to the health of an employee either by accident or by disease which arises in the course of and out of employment and incapacitates in whole or in part. The occurrence of disability or impairment includes aggravation of a pre-existing injury. See Black's Law Dictionary 6th Edition page 786. This definition of injury as provided by the Black’s Law Dictionary answers the contention of the learned appellant's counsel that the ailment of stroke suffered by the respondent is different from the injury contemplated in the case of UAC (Nig.) Ltd v. Joseph Orekyen (supra) relied upon by the respondent's counsel.
46. The claimant went on that it is noteworthy that from the above decision that even in cases of accident that occur during the course of the employment the employer would be liable to pay damages to the employer. That Exhibit D8 is clear as to the fact that the injury sustained by the claimant was an accident and that it occurred during the course of employment, urging the Court to hold that the claimant is entitled to damages for injury suffered during the course of the employment with the defendant.
47. That interestingly the defendant did not entirely deny that the claimant was entitled to damages for the personal injury suffered by the claimant but maintained that the claimant had been compensated for the personal injury. That assuming but not conceding that the defendant did pay compensation to the claimant, the Court should determine whether such compensation can be sufficient considering the circumstances of this case. That there are clear indications that the alleged compensation was paid during the treatment of the claimant, referring to page 8, paragraph 5.10 of the defendant’s final written address, Exhibit P tendered by the claimant, and Exhibit D8. That there are other indications that the treatment was not even completed. Exhibit D8 shows that the alleged compensation to the claimant for the injury was made in October 2008; referring also to paragraph 22 of the defendant’s written statement on oath. That the dates on the following exhibits show that treatment of the claimant herein was still on-going after the alleged compensation in 2008:
(a) Exhibit E (dated the 20th day of May 2009).
(b) Exhibit H (dated the 10th day of April 2014).
(c) Exhibit J (dated the 3rd day of June 2014).
(d) Exhibit I (dated the 4th day of June 2014).
(e) Exhibit L (dated the 17th day of December 2014). The CTC of same was tendered in Court, urging the Court to discountenance the objections of the defendant on Exhibit L.
(f) Exhibit U (dated the 26th day of January 2015).
(g) Exhibit D1 dated the 12th day of March 2009.
(h) Exhibit D3 dated the 31st day of July 2013.
(i) Exhibit D7 dated the 28th day of November 2013.
48. Going by the assessment of damages for personal injury suffered, the Court will find that it is impossible to adequately compensate a victim for personal injury where treatment has not been completed and that is the situation herein, citing Eseigbe v. Agholor  9 NWLR (Pt. 316) 128 at 143, which held thus:
In personal injury cases, once there is evidence of injury, pain, discomfort and permanent scarring, even though these are not quantified in monetary terms, the plaintiff is entitled to reasonable general damages. In such cases, although it is impossible to standardise amount of general damages, justice of the award of damages must be based on certain circumstances and the court in considering particular cases will find relevant such things as:
(a) bodily pain — whether the pain will be permanent so that the plaintiff will live with it for life
(b) status of the injured person, his office or calling
(c) whether the injury is permanent or transient
(d) loss of earnings caused by the disability
(e) length of time spent in the hospital receiving treatment
(f) loss amenities of life
(g) age and expectation of life
In the instant case, the plaintiff:
(i) was the only female chief in her town;
(ii) lost the use of her right hand;
(iii) had to live with the pain for the rest of her life as she died before her appeal before the Court of Appeal
In the circumstances the award of N10,000.00 as general damages were low. She is entitled to N50,000.00…
49. The claimant then submitted that in the instant case:
(a) The above assessment shown above can only be applied to any case where the injury status of a claimant is ascertainable and not at the height of treatment of a claimant. Exhibit E even shows that even the implant on the claimant had not been removed as at 2009, how can it then be said that the defendant had paid compensation as at 2008 as shown in Exhibit D8?
(b) The claimant is still living with a shortened leg, referring to Exhibits E, H, J, I, L, U, D1, D3 and Exhibit D7.
(c) Exhibit C shows that the claimant suffers 45% disability.
(d) The claimant has permanently been disabled from carrying out his duty as a chain man and also has lost his ability to drive which has affected him from sustaining a means of livelihood for himself and his family, referring to paragraph 24 of the claimant’s additional statement on oath.
(e) The defendant did not deny the said paragraph 24.
50. To the claimant, in the circumstances, the sum of N120,000.00 (One Hundred and Twenty Thousand Naira) only allegedly paid by the defendant as compensation for the injury suffered cannot be adequate compensation. Accordingly, that the claimant is entitled to the damages sought for the disability suffered.
51. In conclusion, that based on the foregoing the claimant have been able to establish that he is entitled to damages for unlawful dismissal and for injury suffered, urging the Court to so hold.
THE DEFENDANT’S REPLY ON POINTS OF LAW
52. To the defendant, the claimant raised some issues that are germane and legal that ought to be responded to for the sake of clarity and proper understanding. They are as follows:
(a) Whether the plethora of documents/exhibits tendered by the claimant are admissible in law.
(b) Whether the claimant’s employment has statutory or constitutional flavor to entitle the claimant of all the reliefs sought.
(c) Whether the claimant has the legal right to obtain reliefs sought through Workmen’s Compensation Act and Tort of Negligence.
53. On issue (a), the defendant submitted that the claimant’s Exhibit A is purported to be a letter of contract of engagement. That according to the claimant, he was issued with a photocopy while the original is retained by his employer, the defendant. That this is strange and never the practice in any standardized organization of the defendant’s status. That assuming without conceding that the defendant agrees with claimant, the foundation of tendering the photocopied document in this instance, the employment letter, was not laid in pursuance to section 84(4) of the Evidence Act 2011. The section provides for the conditions precedent of tendering computer or machine generated documents.
54. That also of legal negative effect is the issue of other exhibits and documents tendered before the Court that are neither signed, pleaded/frontloaded nor dated or stamped. Even those that are signed or stamped have two different dates superimposed to each other. That these so called exhibits tendered by the claimant are not admissible in law, citing Okonji & ors v. Njokanma  12 SCNJ 259 at 273, which enunciated three (3) admissibility principles as the conditions or components of evidence: the document must be pleaded; it must be relevant; and it must be admissible in accordance with the provision of the law. That the court further maintained that these three (3) conditions or components must be treated conjunctively and not disjunctively. In other words, there are like conjoined or Siamese triplets.
55. That in the instant case, the documents/exhibits of the claimant above referred are not admissible and they all fall like pack of cards. The Court should accordingly not attach any weight to the ones already admitted.
56. For issue (b), the defendant submitted that the claimant’s counsel in his interpretation of section 20 of the Labour Act as it appertains to “redundancy” and “last in, first out”, failed to interpret the whole provision in its entireties. That section 20(1)(b)(c) further provides thus:
the principle of ‘last in, first out’ shall be adopted in the discharge of the particular category of workers affected, subject to all factors of relative merit, including skill, ability and reliability.
(c) the employer shall use his best endeavours to negotiate redundancy payments to any discharged workers who are not protected by regulations mode under subsection (2) of this section.
57. To the defendant, it used the factors of relative merit, skill, ability and reliability as provided in section 20 (1)(b) in the application of the principle of “last in, first out” and also used its best endeavours to negotiate the claimant’s redundancy payment. That PHMB v. Ejitagha  11 NWLR (Pt. 677) and other authorities that are on all fours with PHMB, are inapplicable as they are peculiar and relevant to the employers and employees in public service, which usually have statutory or constitutional flavour.
58. Regarding issue (c), the defendant submitted that the claimant sued the defendant under the tort of negligence. But that one wonders why the claimant is blowing hot and cold at the same time. That the claimant’s counsel in his final submission at page 7 made references to the defendant’s documents evidencing payment of compensation for injuries and loss of earnings and indirectly admitted that compensation was paid but it is not adequate. That which road does the claimant want us to follow to get to our destination. That the claimant denied receiving compensation during the cross-examination but his solicitor’s letter (Exhibit 7) made reference to the impropriety of paying the compensation before the completion of his treatment. That if it is admitted that compensation was paid, the claimant has no basis in law to raise the issue of adequacy. That the court’s should note the relevant provision of the law regarding the proceedings and requirements as to notice of accident and application for compensation provided in section 13 of the Workmen’s Compensation Act.
59. In conclusion, the defendant urged the Court to discountenance the claims and reliefs of the claimant and evaluate the evidence together with the plethora of statutory authorities the defendant adumbrated.
60. I carefully considered the processes and submissions of the parties. I start off with the admissibility or otherwise of the documents tendered by the parties. The claimant as I indicated earlier tendered Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U and V. Of these exhibits, the certified true copies (CTCs) of Exhibits C, E, H, I, J, L, Q, R, S, T and U were sighted in court. And only the original of the ticked photograph on Exhibit D was tendered in court. It was marked as Exhibit D. This means that Exhibits A, B, F, G, K, M, N, O, P, V and all but one of the pictures making up Exhibit D are not originals or have issues as to their originality.
61. Exhibit A, dated “07-04-04” (7 April 2004) and headed “Daily-Rated Employment Agreement”, is what the claimant said is his contract of employment consisting of the terms of his employment, which employment under the exhibit is said to start from “22-03-04” (22 March 2004). In addition to the heading, clause 1 of the agreement states that the employment is “on daily rate basis”. Exhibit A is a photocopy. The claimant said the original is with the defendant. The defendant said this cannot be. I agree that it is illogical, and it just does not add up, for the original of a contract of employment to be with the employer.
62. A look at Exhibit A will show that the claimant’s name is entered as “Isiaku Sadiku”. It is not “Sadiq Isiaku” used in filing this suit or “Isiyaka Sadiq” said by the claimant to be the actual spelling of his name. As it is, there are now three different names ascribed to the claimant.
63. Aside from the three different names ascribed to the claimant, a look at Exhibit A will show the “Signature of Employee”; and it was so signed. But the signature of the employee on Exhibit A, supposedly that of the claimant, is different from the two signatures of the claimant on his two depositions (of 24 February 2021 and 10 February 2021, the latter in reply to the statement of defence). In fact a look at the signatures of the claimant on his two depositions are themselves different. So once again, we have three different signatures of the claimant. Aside from three names, we now have three signatures.
64. Exhibit O as frontloaded and referred to in paragraph 18 of the claimant’s deposition of 24 February 2021 is not signed; and has 2 dates. The main date where it should be is not clear/complete. The other, the one on top, appears to have been superimposed. The Exhibit O tendered by CW in open court has an original signature (given the colour of the ink) and an original stamp of Yusuf M. Yunusa (Esq). This second Exhibit O also has two dates, only that both dates are clear/complete. My take is that the Exhibit O that was tendered (the second Exhibit O) was generated in order to cure the defects that the frontloaded Exhibit O had. This automatically waters down the weight, cogency and probative value of Exhibit as a whole. I so hold.
65. Exhibit P as frontloaded does not have an original stamp of Yusufu M. Yunusa (Esq). But Exhibit P as tendered in court by the claimant has the said original stamp. This fact waters down its weight, cogency and probative value. I so hold.
66. Exhibit R, though the CTC was sighted in court, is not dated. Both the CTC and the one frontloaded and referred to in paragraph 20 of the claimant’s deposition of 24 February 2021 are not dated. The law is that an undated document has no evidential value. See Global Soaps & Detergent Ind. Ltd v. NAFDAC  All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors  LPELR-22684(CA). Exhibit R accordingly has no evidential value. I so hold.
67. I indicated at the start of this judgment that the defendant abandoned Exhibits D2, D3 and D6. This means that Exhibits D2 and D3 are not before the Court. So, for the claimant to rely on Exhibits D2 and D3 and make submissions in paragraphs 4.27, 4.28, 4.30 and 4.41(b) of his written address based on them is uncalled for. Arguments based on Exhibits D2 and D3 are hereby discountenanced.
68. I am not unmindful of section 12 of the National Industrial Court (NIC) Act 2006 under which this Court is enjoined to apply the Evidence Act but may depart from it in the interest of justice, a provision generally misunderstood but has just been, very rightly to my mind, affirmed by the Court of Appeal in the recent decision of Mr Victor Adegboye v United Bank for Africa unreported Appeal No. CA/IL/20/2021, the judgment of which was delivered on 14 April 2022 by the Ilorin Division of the Court of Appeal (His Lordship Amadi, JCA delivering the leading judgment). I shall in this judgment be so guided as the interest of justice so demands. Accordingly, I shall disregard the objection as to some of the exhibits being photocopies as, aside from that fact, no issue of authenticity was raised to question their validity.
69. I now turn to the merit of the claimant’s case. But first, it must be understood what his case actually is. The defendant’s issue (1) is whether the claimant has led evidence to show that the defendant was negligent in the circumstances of this case. Is the claimant’s case one of negligence as indicated by the defendant? If it is, is it negligence in terms of what conduct of the defendant?
70. In determining what the case of a claimant is, we have been advised by the Supreme Court in Gabriel Ativie v. Kabelmetal (Nig.) Ltd  LPELR-591(SC);  10 NWLR (Pt. 1095) 399;  5 - 6 SC (Pt. II) 47 as follows:
A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may, at the end of the day obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed.
The reliefs of the claimant accordingly determine his case.
71. The claimant’s reliefs before the Court are eight (8). A look at them will show that the claimant is complaining of the following:
(a) That his employment was unlawfully terminated by the defendant, for which he is asking for N30 Million as damages for breach of terms of contract between he and the defendant — reliefs (i) and (vi).
(b) That he sustained injury in the course of his duty, which permanently disabled him for which he can no longer drive as to sustain a means of livelihood. He then seeks N100 Million compensation for loss of income as a result of the injury/permanent disability sustained in the course of his duty and for his unfair treatment — reliefs (ii) and (v).
(c) That his arrears of salary from September 2013 to date be paid; and his deserved promotion and accruable payment to date be made — reliefs (iii) and (iv).
72. I shall accordingly treat the claimant’s case along these lines. So, is the termination of the claimant’s employment unlawful? The Supreme Court decision in Bukar Modu Aji v. Chad Basin Development Authority & anor  LPELR-24562(SC) held that waving the flag of a breach of the constitutional right to fair hearing does not provide any saving grace once the conditions of service are not pleaded and brought before the Court by a claimant who is complaining of wrongful termination of or dismissal from employment. In other words, the claimant must first plead and prove his conditions of service before any talk of breach of fair hearing can even be entertained. That the conditions of service is accordingly a sine qua non in any claim for wrongful dismissal or termination; for only the conditions of service can be used to determine the wrongfulness or otherwise of the dismissal or termination.
73. The claimant presented Exhibit A, the Daily-Rated Employment Agreement, as his conditions of service. In paragraph 4, Exhibit A stipulates that the claimant’s emolument shall be automatically terminated in the following cases:
(i) Expiry of the duration.
(ii) Completion or suspension of work in the project for any reason.
(iii) If the employee engages in any action that is capable of disrupting the work on the project site or if his conduct is not satisfactory to the employer.
74. Now, Exhibit N dated 21 September 2013 and titled, “Redundancy”, is the letter through which the claimant’s employment was brought to an end. It stated that due to the on-going re-organization, the claimant’s service with company as Senior Chain boy will no longer be required. The date the termination is to take effect from is not clear as to the year. What comes out clear as to the date is “20 September 201…” So, Exhibit N is not clear as to the effective date of the termination.
75. The duty on the claimant complaining of wrongful or unlawful termination is to present his conditions of service and state how the conditions of service was flouted in the said termination. The argument of the claimant accordingly is that Exhibit N gave redundancy as the reason for terminating his employment. And the law is that once an employer gives reason for terminating the employment of an employee, the burden of proof is on the employer to justify the said reason. See Angel Shipping & Dyeing Ltd v. Ajah  13 NWLR (Pt. 685) 551 CA. In Institute of Health ABU Hospital Management Board v. Mrs Jummai R. I. Anyip  LPELR-1517(SC), the Supreme Court held that “although it is trite that an employer is not obliged to give any reason for firing his servant all the same it is settled law that where he has preferred any reason at all it is obliged to satisfactorily prove the same as the onus is on him in that regard, otherwise the termination/dismissal may constitute a wrongful dismissal without more”. See also George Abomeli v. Nigerian Railway Corporation  1 NWLR (Pt. 372) 451, Ogunsanmi v. C. F. Furniture (W.A.) Co. Ltd  1 All NLR 224 and Mr. Kunle Osisanya v. Afribank Nigeria Plc  All FWLR (Pt. 360) 1480 SC at 1491;  1 – 2 SC 317.
76. In Exhibit N, the defendant gave redundancy as a result of re-organization as the reason for the said termination. No where in this case did the defendant offer any justification as to the existence of any re-organization for which the claimant was declared redundant. The closest to an explanation is the evidence of DW under cross-examination:
The claimant’s branch was shut down.
We do not have in Court any document showing that the claimant’s branch was shut down.
The claimant was placed on redundancy based on no work, not the issue of the lengthening of his leg.
This evidence coming under cross-examination is an afterthought; reinforced by the very evidence that there is no document before the Court showing that the claimant’s branch was shut down. The reference to Exhibit D4 by the defendant is irrelevant to this case as it relates to the claimant’s employment prior to the employment given to the claimant under Exhibit A. Proof of the existence of re-organization must be real, not superficial. See Eme Ekanem Ukpong v. Akwa Ibom State Government & 2 ors unreported Suit No. NICN/CA/87/2013, the judgment of which was delivered on 30 September 2014 per Obaseki-Osaghae, J.
77. The argument of the claimant that the defendant did not satisfy the requirements of section 20 of the Labour Act in terminating his employment is actually misplaced. To the claimant, the defendant ought to have informed the trade union or workers representative concerned of the reasons for and the extent of the anticipated redundancy, or make representations to these bodies on the reasons for declaring the claimant redundant. As logical as this may seem, the problem is that there is nothing in the claimant’s pleadings to show that he actually belongs to a trade union; nor who the workers’ representative is that the defendant ought to have informed the reasons for declaring him redundant. As a daily-rated employee, it is uncertain that the claimant is a member of a trade union. And the exact name of the trade union was not given by the claimant. In the absence of specific averments as to his trade union membership or the existence of a workers’ representative covering him, the claimant cannot raise arguments such as the one he presently makes regarding section 20 of the Labour Act.
78. The argument of the claimant in paragraph 4.18 of his written address to the effect that he “led evidence to show that he was dismissed because of his activities with the trade union” is even completely at variance with his evidence on record. In paragraph 13 of his additional witness statement on oath, of 10 February 2021 the claimant averred thus: “…I never canvassed that I was sacked as a result of my participation in the union activities but rather I submitted that the termination of my employment/being given a letter of redundancy by the Defendant was pre-empted and intended to victimize me because the Defendant realised that I was making frantic efforts to get the Defendant to lengthen my leg, a responsibility the Defendant was shelving”.
79. The further argument of the claimant in paragraph 4.18 of his written address that there is enough evidence that the employees of the defendant belong to a trade union aside from being conjecture and not supported by direct pleadings and direct evidence (once again the name of the trade union is not even supplied), cannot translate to proof of the claimant being a member of ‘the trade union’. The claimant would go on to submit in paragraph 4.19 of same written address thus: “Even though they denied that the Claimant was dismissed based on his union activities it is evident that there is a trade union”. How can the defendant deny that the claimant was dismissed based on the claimant’s union activities when the claimant’s evidence is that he did not say that he was dismissed because of union activities?
80. These off the mark submissions aside, the point remains that as the defendant did not justify the fact of redundancy being a product of re-organisation, the reason for which the claimant’s employment was terminated as per Exhibit N, the termination of the claimant’s employment by the defendant was wrong. To this extent, relief (i) is grantable. I so hold.
81. What then is the remedy for wrongful termination? Without more, it is damages; and the damages cannot be at large. See Emego Vincent Ikemba v. Pyrammidt Co. Nig. Ltd  LPELR-56145(CA), which held thus:
Where termination of employment is deemed wrongful, the only remedy open to the aggrieved employee is the payment of damages and such damages is not at large. The measure of such damages is the salary for the length of time for which notice of termination ought to have been given in accordance with the terms of the contract of employment or agreement between the parties and other entitlements due to him.
82. In relief (vi) the claimant is asking for an award of N30 Million against the defendant as damages for breach of terms of contract between the parties. And in relief (iii), he is asking for an order directing the defendant to pay to him in full his arrears of salary from September 2013 till date. The claim of these two reliefs is impossible if Keystone Bank Ltd v. Mr Joseph Onoriotakpo Clarke  LPELR-49732(CA) is anything to go by. Keystone held thus:
…where the employment is wrongfully terminated, the employee is entitled to salary and entitlements over the period of notice, in this case one month. It is certain that once an employer takes step to terminate a contract wrongfully, the contract still remains terminated, the Court cannot find otherwise…It is contradictory for the Respondent to assert he is still in the employment of the Appellant and still claim the reliefs he did before the trial Court…
In fact Keystone intuits that once an employer evinces the intention to terminate an employment and takes steps in that direction, the termination becomes effective, albeit wrongful. The words of Keystone: “It is trite that wrongful termination remains a termination even from the date the wrong step was taken”.
83. Relief (iii) which seeks for arrears of salary from September 2013 to date, aside from being a claim for special damages, which by UTC Nig. Plc v. Samuel Peters  LPELR-57289(SC) , relying on Luke N. Onyiorah v. Benedict C. Onyiorah & anor  LPELR-49096(SC) and Okafor & ors v. Obiwo & anor  LPELR-2413 (SC), must not only be specifically pleaded, but must be strictly proved by credible evidence, is a relief that is tantamount to asking for reinstatement. The claim for special damages in labour relations must meet the twin requirements of proof as to entitlement and how the quantum of the sums claimed was arrived at. See Mr Suraju Rufai v. Bureau of Public Enterprises & ors unreported Suit No. NICN/LA/18/2013, the judgment of which was delivered on 4 June 2018 and Mr Mohammed Dungus & ors v. ENL Consortium Ltd  60 NLLR (Pt. 208) 39). There is little or no attempt by the claimant to meet these twin requirements in both his pleadings and depositions.
84. Even when in paragraphs 16 of both his amended statement of fact and deposition of 24 February 2021 the claimant averred that he was told by the defendant that sequel to the termination of his appointment he would be paid off with a terminal benefit of N97,000.00, which amount he refused to accept, aside from this being hearsay, and the said N97,000.00 is not even reflected in the reliefs claimed by the claimant [a court can only grant a relief claimed —Gabriel Ativie v. Kabelmetal (Nig.) Ltd, supra], it cannot on its own be sufficient proof of any entitlement to the said N97,000.00. This is because the oral testimony of the claimant is not convincing proof for a claim for special damages except if corroborated by some other credible evidence. In fact, Mr Joseph Akinola & ors v. Lafarge Cement WAPCO Nigeria Plc  LPELR-24630(CA) specifically cautions against the reliance on an oral contract as proof of such entitlement.
85. Additionally, by Keystone, the claimant cannot even claim relief (iii) as his termination took effect from the moment of Exhibit N, even if wrongful. And so the measure of his damages for wrongful termination, according to Emego Vincent Ikemba v. Pyrammidt Co. Nig. Ltd (supra), is “the salary for the length of time for which notice of termination ought to have been given in accordance with the terms of the contract of employment”. Exhibit N did not stipulate the notice period for termination. By section 11(1) and (2)(d) of the Labour Act Cap L1 LFN 2004, the notice period is one month where the contract of employment had continued for five years or more. By Exhibit A, the claimant’s employment started from 22 March 2004 and was terminated vide Exhibit N on 21 September 2013. This means that the employment contract of the claimant continued for more than five years. So, the measure of damages is one month’s salary, which certainly is not the N30 Million that the claimant is claiming as per relief (vi).
86. The claimant did not plead his salary. But Exhibit A, which he pleaded in paragraph 4 of the amended statement of fact states that his monthly wage is N5,280.94 calculated on the basis of N240.04 per day as he is a daily-rated employee. His monthly allowances were put as N2,112.37 + N2,400 + N880 + N300 + N750, the total of which comes to N6,442.37. If this is added to the N5,280.94 monthly wage, what we have as grand total is N11,723.31. Going by the authorities cited earlier, including Oak Pensions Ltd v. Olayinka  LPELR-43207(CA), this (N11,723.31) is the sum that the claimant is entitled to as the measure of damages for the wrongful termination of his employment.
87. But is this not grossly inequitable and unjust? Especially that the defendant could have given proper/appropriate notice, but refused to. Or could have paid contemporaneously salary in lieu of notice but refused to. The very progressive lead decision of His Lordship Ogakwu, JCA in Sahara Energy Resources Ltd v. Mrs Olawunmi Oyebola  LPELR-51806(CA) provides sufficient signposts for reconsidering the common law orthodoxy of the measure of damages in termination or dismissal cases being salary for the length of time for which notice of termination ought to have been given. In the words of His Lordship:
…we now segue to consider the quantum of damages awarded by the lower Court which the Appellant argues was wrong.
…in employment relationships without statutory flavour, where there has been wrongful/unlawful termination or dismissal, the measure of damages is payment of what the employee would have earned over the period of notice. The Appellant has referred to some of the authorities in this regard. But as ensconced as the legal position may have become, has it become like the Rock of Gibraltar which cannot be moved? While the doctrine of stare decisis or binding judicial precedent enjoins the Courts to follow the decisions of superior Courts, it has to be remembered that what the earlier decisions establish is only a principle, not a rule. Rules operate in an all or nothing dimension. Principles do not. Principles merely incline decisions one way or the other. They form a principium or a starting point. Where one ultimately lands from that starting point will largely depend on the peculiar facts and circumstances of the case in hand…It is in this wise that it becomes necessary to interrogate whether, in the light of the Third Alteration to the 1999 Constitution, wherein the National Industrial Court was fully structured into the Nigerian Judiciary as a superior Court of record and a new labour jurisprudence emanated; the principle established in the cases prior to the said Third Alteration on the measure or quantum of damages to be awarded in cases of wrongful/unlawful termination or dismissal still remains the regnant law in the diacritical circumstances, or whether indeed a new legal regime that demands a departure from the principle as it existed has been introduced in our corpus juris in employment and labour related litigations. Put differently, whether the principle on the quantum or measure of damages would have been the same, if the circumstances of the law at the time was such as introduced by the stipulations of Section 254C(1)(f) of the 1999 Constitution…and Section 7(6) of the National Industrial Court Act.
The above provisions enjoin the National Industrial Court in the exercise of its jurisdiction, to have due regard to good or international best practices in labour or industrial relations. The importance of this novel provision, in my deferential view, is that the National Industrial Court, in considering the measure or quantum of damages is to do so in accordance with good or international best practices in labour or industrial relations, which shall be a question of fact. It will be stating the obvious to say that prior to the Third Alteration, when employment and labour matters were handled by the High Courts, there was no obligation to apply and follow good or international best practices. It is an innovative provision which seems to be directed at enthroning an entirely new employment and labour jurisprudence. It will be disregarding this innovation if we continue to deal with the measure of damages in total disregard of the changes wrought to the law by legislation…
In considering and applying international best practices as a question of fact, it is the facts of the given matter that would form the base from which to consider how the law has been applied in line with international best practices in other jurisdictions…
It has to be remembered that the National Industrial Court is a specialized Court exclusively established primarily for labour and employment-related matters. In that regard, except where patently and manifestly wrong, there has to be some deference to the decisions of that Court in that area of the core competence and specialisation of the Court. This has been recognized internationally…
Decent work and protection of the worker would necessarily connote that in circumstances where the employee is unlawfully dismissed, it should attract substantial damages, where claimed, in line with international best practices and not based on the hitherto existing principles that pre-date the advent of the innovative provisions of the Third Alteration to the 1999 Constitution. International best practices in labour or industrial relations are almost always mirrored in the light of the conduct of the employer; the actions (or inaction) of the employee are seldom the subject of consideration since it is the action of the employer which has been found to be wrongful/unlawful that has been brought to light for the necessary salve to be afforded the employee.
…the innovative provisions [as to application of international best practices] necessarily demand a rethink of the principle in the light of changed circumstances in law. Accordingly, I will be deferential to the general damages awarded by the lower Court in exercise of its jurisdiction to apply international best practices.
The lower Court in exercise of discretion on the quantum of general damages to award for the unlawful dismissal awarded the equivalent of two years salary in line with international best practices. The issue of award of general damages in any given case is a matter based on the discretion of the trial Court…
Howbeit, the fact that the quantum of general damages is at the discretion of the Court does not mean that there are no circumstances when an appellate Court would interfere with the award of damages. An appellate Court will interfere with the award of general damages by a trial Court in situations which include:
a) Where the Court acted under wrong principles of law;
b) Where the Court acted in disregard of applicable principles of law;
c) Where the Court acted in misapprehension of facts;
d) Where the Court took into consideration irrelevant matters and disregarded relevant matters while considering its award;
e) Where injustice will result if the appellate Court does not act;
f) Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages…
The award of general damages by the lower Court ticks all the correct legal and judicial boxes. There is no reason for an appellate Court to interfere. I therefore uphold the award by the lower Court of the equivalent of two years salary as general damages for the unlawful dismissal of the Respondent…
88. By section 14 of the National Industrial Court (NIC) Act 2006, “The Court shall, in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court…” And by section 19(d) of the NIC Act, this Court where necessary may make “an award of compensation or damages in any circumstance contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear”.
89. I indicated earlier that relief (vi) is a claim for N30 Million for breach of contract. I also held that the defendant in the instant case did not justify the reason of redundancy given as the basis for terminating the employment of the claimant. This accordingly made the termination of the claimant’s employment wrongful. Sahara Energy Resources Ltd v. Mrs Olawunmi Oyebola acknowledged and did grant two years salary as adequate compensation for wrongful dismissal. I borrow from this in also awarding two years’ salary to the claimant against the defendant for wrongful termination of the claimant’s employment. I indicated that the monthly salary of the claimant was N11,723.31. If this sum is multiplied by 24 months (2 years), what we get is N281,359.44. Accordingly, I award to the claimant against the defendant the sum of N281,359.44 as compensation for wrongful termination, and hence breach, of contract of the claimant’s employment in satisfaction of relief (vi). I so order.
90. The claimant also complains that he sustained injury in the course of his duty, which permanently disabled him for which he can no longer drive as to sustain a means of livelihood. This complaint is embedded in relief (ii). He then seeks N100 Million compensation for loss of income as a result of the injury/permanent disability sustained in the course of his duty and for his unfair treatment — relief (v). It is for these claims that the defendant framed its issue (1) as one which seeks to answer the question whether the claimant has led evidence to show that the defendant was negligent in the circumstances of this case. Although the defendant wondered if the claimant sued under the Workmen’s Compensation Act or tort of negligence, it proceeded to consider the first of the trilogy of duty, breach and resultant damage, arguing that the claimant did not even establish the existence of a duty of care as the evidence of the claimant was generally at variance with his pleadings.
91. The assumption of the defendant the claimant’s case is one in negligence is unsupported by the reliefs of the claimant. A claim is circumscribed by the reliefs claimed — Gabriel Ativie v. Kabelmetal (Nig.) Ltd, supra. A look at the pleadings will show that the claimant’s case is not that the defendant caused his accident, but that the defendant should complete his treatment i.e. the lengthening of the claimant’s left lower limb. The claimant feels that the defendant is duty bound to complete his treatment because the injury he suffered was in the course of his duty. The evidence before the Court is that the defendant actually treated the claimant, only that the treatment is yet to be completed.
92. The question that thus calls for determination is whether the defendant is so duty bound to complete the said treatment of the claimant. Exhibit D8 dated 16 October 2008 is an internal memo of the defendant from “C.C.C” to “ACCC (F) ABUJA”, the subject of which is “Accident Involving Mr. Sadiq Ishaku”. In it:
Approval is hereby given for you to pay Mr. Sadiq Ishaku who was involved in an accident at the project site in the sum of N142,995.83…being full and final settlement of the above claim. Please debit CDA 01020303 workmen compensation account No. 151.
93. Exhibit D8 is a confirmation that the claimant’s accident occurred at the project site and so as the claimant argued, it occurred in the course of his duty. Exhibit D8 also confirms that payment from the workmen compensation account was approved. This intuits that the defendant treated the issue as a Workmen’s Compensation Act issue. But is the claimant treating it as such too? I do not think so. The instant case is not being fought by the claimant as a Workmen’s Compensation Act issue.
94. Relief (v) prays for an award of N100 Million against the defendant as compensation for loss of income as a result of the injury/permanent disability sustained in the course of his duty and for unfair treatment of the claimant. Under what law or instrument is the claimant making this claim? This Court is not told by the claimant. The claimant for N100 Million for loss of income is claim for special damages. As I pointed out earlier, the claimant must prove his entitlement to this sum and how he arrived at the quantum of N100 Million. All of this, the claimant did not do in both his pleadings and depositions.
95. Relief (ii), upon which relief (v) is based, is for a declaration that the injury sustained by the claimant in the course of his duty has permanently disabled the claimant from carrying out his duty as a driver and sustaining a means of livelihood. The defendant did not employ the claimant as a driver. The evidence (Exhibit A) is that he was employed as a Chainman. The claimant himself acknowledged this under cross-examination. His job description a Chainman is not even supplied, either in the pleadings or the evidence — except the evidence of the claimant under cross-examination: “A Senior Chainman is a position of a man who leads a group of other Chainmen. The Chainman works under a survey or to measure road in respect of road projects”. So to complain against the defendant of permanent disability that prevents him from carrying out his duty as a driver is one that is misplaced, and not supported in this case. Relief (ii) accordingly cannot even be considered, talk more of being granted. I so hold.
96. I am of course not unmindful that relief (ii) is one for a declaratory relief; and the law is that a declaratory relief must be proved on the strength of the claimant’s evidence, not on the weakness of the defence. See Okereke v. Umahi & ors  LPELR-40035(SC), Nyesom v. Peterside & ors  LPELR-40036(SC) and Mrs Catherine Udeogu & 11 ors v. Federal Airports Authority of Nigeria (FAAN) unreported Suit No. NICN/LA/326/2017, the judgment of which was delivered on 16 February 2018. Dmez Nig Ltd v. Nwakhaba & 3 ors  2 SC (Pt. III) 142 at 152 paras 10 to 25, relying on Bello v. Eweka  1 SC 101 and Motunwase v. Sorungbe  12 SC 1, throws more light in insisting that the claimant praying for a declaratory relief proves his case on his own evidence and not the evidence of the defendant.
97. Relief (iv) is a prayer for an order of Court directing the defendant to accord the claimant with his deserved promotion and accruable payment till date. The problem with this claim is that except where an employee is vindictive or acts mala fide — Mrs Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor  35 NLLR (Pt. 103) 40 NIC] — promotion is not a right but a privilege. See The Shell Petroleum Development & 5 ors v. E. N. Nwawka & anor  10 NWLR Pt. 720 64 at 84, Abenga v. Benue State Judicial Service Commission  14 NWLR (Pt. 1000) 610 and Mr Emmanuel A. Idonije v.Nigerian Maritime Administration and Safety Agency unreported Suit No. NICN/LA/303/2014, the judgment of which was delivered on 10 July 2017. The claimant made no attempt to show his entitlement to promotion (if at all there is even one), made no attempt to show this Court that he met the requirements needed for him to be promoted since relief (iv) talks of “deserved promotion”, made no attempt to show this Court that he was denied promotion because the defendant was vindictive or acted mala fide towards him in the matter, etc. Relief (iv) is thus not grantable, it having not been proved. I so hold.
98. The prayers for cost and post-judgment interest — reliefs (vii) and (viii) — are incidental prayers, grantable at the discretion of the Court and where the claimant’s suit succeeds. See respectively NNPC v. Clifco Nig. Ltd  LPELR-2022(SC) and Bronwen Energy Trading Ltd v. Oan Overseas Agency Nig Ltd & ors  LPELR-57306(SC).
99. On the whole, the claimant’s case succeeds in terms of reliefs (i) and (vi). Save as would presently be indicated, all other reliefs fail and so are dismissed. Accordingly, it is declared and ordered as follows:
(1) The termination of the claimant’s employment by the defendant vide Exhibit N is wrongful.
(2) Accordingly, the defendant shall pay to the claimant within 30 days of this judgment the sum of Two Hundred and Eighty-One Thousand, Three Hundred and Fifty-Nine Naira, Forty-Four Kobo (N281,359.44) only as compensation for wrongful termination, and hence breach, of contract of the claimant’s employment.
(3) Failure to pay the N281,359.44 as ordered shall attract 10% simple interest on the sum per annum until fully paid.
100. Judgment is entered accordingly. I make no order as to cost.
Hon. Justice B. B. Kanyip, PhD