IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

8TH DAY OF SEPTEMBER 2022                                          SUIT NO: NICN/CA/15/2019

BETWEEN                                                                              

VICTOR ANYOGO  ……………………………………………………………………..…….… claimant

AND

1.         THE FILMHOUSE LIMITED                                                                            defendants

2.         CHINWE ONYEKWE                                                           

JUDGMENT

1.      Vide a general form of complaint dated and filed on 25/4/2019, the claimant commenced this suit against the claimant praying for:-

a.      A DECLARATION that the termination of the employment of the Claimant by the 1st Defendant is illegal and wrongful for lack of fair hearing.

b.      An Order setting aside the letter of dismissal dated 30th January, 2017.

c.      An Order directing the 1st Defendant to pay all the salaries and entitlements of the Claimant from 1st Defendant, 2017 to January, 2018.

d.      An Order directing the 1st Defendant to pay to the Claimant N5,000,000.00 (Five Million Naira) damages for wrongful termination of the employment of the Claimant.

e.      A DECLARATION that the indefinite suspension of the Claimant by the 3rd Defendant (being an agent of the 1st Defendant) is illegal and wrongful for lack of fair hearing.

f.        An Order directing the 1st Defendant to pay to the Claimant his entitlement for having worked for 5 years with the 1st Defendant from 12th December, 2012 to 12th December, 2017 as contained in the contract of employment entered between the Claimant and the Defendants.

g.      A DECLARATION that the seizure of the two hard drives belonging to the Claimant by the 3rd Defendant (being an agent of the 1st Defendant) for and on behalf of the 1st Defendant is wrongful and illegal.

h.      An Order directing the Defendants to immediately return the two hard drives belonging to the Claimant.

i.        Special Damages of N5,000,000.00 (Five Million Naira) for loss of earnings from the Claimant’s personal materials such as Claimant’s music albums, Claimant’s well researched and typed final year project which was yet to be printed from one of the hand drives before they were wrongfully seized and the consequential expenditure, trauma and hardship that accompanied having to spend an extra year in school due to inability to submit his project caused by the Defendants.

j.        General damages of N10,000,000.00 (Ten Million Naira) for the psychological trauma, hardship and stigmatization suffered by the Claimant as a result of the illegal and wrongful conduct of the Defendants.

k.      N1,000,000.00 (One Million Naira) cost of litigation.

l.        A well worded letter of apology to the Claimant for falsely accusing him thereby tarnishing his image before right thinking members of the public.

2.      The Defendants, in response, filed a Memorandum of Conditional Appearance dated 18th June 2019, Statement of Defence and other accompanying processes dated 12th November 2019. The claimant did not file any Reply to the Defendants’ Statement of Defence.

3.      On 6/10/2021, the claimant testified in proof of his case as CW1. CW1 after identifying his witness statement on oath adopted same as his evidence in this case. Documents were tendered through CW1, they were admitted in evidence and marked as exhibits C1 to C6.

4.      Under cross examination CW1 testified that he was self-employed before joining the defendant and that his salary is N68,350.00 after deduction. He also stated that his salary was paid to him through electronic transfer to his GT Bank account which was opened for him by the defendant for that purpose. He also stated that he operates 1st Bank and Zenith Bank accounts.CW1 continued his evidence under cross examination that his work was on shift basis 9am – 4pm and 12pm -9pm. He stated that he did not make extra money on selling movies. He is aware certain movies were exclusively produced for cinema and such movies should not be found in the hands of unauthorized persons. He stated that he discharged his duties diligently. That he stated that he was a student but there is no evidence of studentship before the court. There was no disciplinary hearing. He was issued letter of suspension before hearing. That he was not present when his bag was searched. That he is entitled to certain benefits for working with the defendant for five years. The evidence for entitlement is written in his job offer. No any other document except bank statement. CW1 stated that he paid his counsel N1 Million Naira cash as deposit. He solicited the money from family and friends. That he did not respond to exhibit C5.

5.      On 23/2/2022, one Taiwo Fashusi, a Legal Manager of the 1st defendant testified in the defence of the defendants as DW1. DW1 identified his witness statement on oath and adopted same as his evidence in this case. Documents were tendered through DW1 and they were admitted in evidence and marked as exhibits A – E.

6.      DW1 testified under cross examination that the claimant was employee of the 1st defendant. He stated that two hard drives were found connected to the administrative office computer where it was discovered that the drives contained copied movies that are only meant for cinema. The two derives were retrieved from the claimant and were not returned to him because the matter was under investigation and then this suit was instituted. Due to the nature of the incident involving crime, the claimant was informed that the matter will be reported to the police. As at the time of institution of this case there was no investigation report. There has been no report of any act as promised against the claimant to the police or any other law enforcement agency. The witness stated that the entitlement as per exhibit C5 is outstanding salary. The entitlements are yet to be paid as the items are yet to be returned.

THE CASE OF THE CLAIMANT:

7.      The claimant was employed by the 1st defendant on the 12/12/2012 and enjoyed promotions at various times. The claimant was also sent to Lagos for an all-expense paid training by the 1st defendant. Upon return from the training the claimant executes the instructions he received at the training to boost the operations of the 1st defendant. According to the claimant the 2nd defendant did not appreciate the claimant and made efforts to implicate the claimant. Thus, why sometime in 2017 the 2nd defendant issued the claimant a query via electronic mail which he replied.

8.      The claimant stated that sometime in 2017 he left his bag in the office containing two hard drives and other personal effects, by the time he returned his bag had been ransacked by the 2nd defendant for no justifiable reason. The 2nd defendant issued suspension letter to the claimant and asked him to appear for hearing on 12/12/2017. According to the claimant at the hearing he was not allowed to testify or say anything rather he was issued with another letter of suspension dated 12/12/2017. The earlier letter was retrieved by trickery and intimidation. When the claimant realized that the 1st defendant no longer operates at Marina Resort office, his lawyer wrote to 1st defendant demanding payment of his entitlements and his hard drives. In reply the 1st defendant dismissed the claimant without giving him opportunity to be heard.

9.      The hard derives contained the claimant’s final year project, his personal musical albums, scanned copies of very important documents (hard copies) which are missing including his certificate of birth. The refusal to return the hard derives has made claimant to have extension of one year, because he could not submit his project. He also paid heavily to process his new project as well as other important documents in the hard drives.

THE CASE OF THE DEFENDANTS:

10. The claimant was employed by the 1st Defendant at her Marina Resort Branch Office in Calabar, Cross River State on the 12th day of December, 2012 for the position of a Closing Manager. The 2nd Defendant was the Branch Manager of the 1st Defendant’s Marina Resort Branch Office in Calabar, Cross River State, and was saddled with the responsibility of directing all operational aspect of the 1st Defendant including employee management in line with the 1st Defendant’s objectives. While the Claimant was in the employment of the 1st Defendant, he was tardy and lackadaisical in carrying out his duties and was issued several warnings and queries over the years due to his gross inefficiency, misconduct in carrying out his duties and improper handling and management of the 1st Defendant’s facilities which resulted in avoidable loss to the 1st Defendant.

11. Furthermore, the Claimant perpetrated criminal acts of piracy and infringement of copyrights by duplicating and distributing (watermarked) highly classified Nollywood movies meant solely for exhibition in the Cinema which the 1st Defendant and its employees (including the Claimant) were duty bound to protect the intellectual property rights contained therein. The said actions of the Claimant exposed the Defendants to legal action and/or financial loss from the producers of the said movies who trust the 1st Defendant with their means of livelihood.

12. Further to the above, the Claimant was suspended indefinitely by the Defendants vide a letter dated 12th December 2017. Upon conclusion of the 1st Defendant’s internal investigation of the matter, the Claimant was found guilty of gross misconduct and his employment was subsequently terminated vide a letter dated 30th January 2017 (the year on the said letter is a typographical error as it was the year 2018 and same was served on the Claimant in year 2018). The 1st Defendant thereafter enjoined the Claimant to return all company properties in his possession in order to stimulate the processing and payment of all his outstanding entitlements, the Claimant however failed, refused and neglected to comply with the said demand. The 1st Defendant also notified the Claimant vide the same correspondence, of the cessation of the Defendant’s operations at the Marina Resort, Calabar, Cross River State.

THE SUBMISSION OF THE DEFENDANTS:

13. Agba Eimunjeze, Esq; counsel for the defendants in oral adumbration of the final written address of the defendants informed the court that he is relying on the final written address as his argument in this case.

14. In the final written address the defendants formulated a sole issue for determination, to wit:-

“Whether the Claimant is entitled to any of the reliefs sought in this suit, in view of the totality of the evidence and peculiar facts and circumstances of this suit?”

15. In arguing this issue counsel answer the sole issue for determination in the negative to the effect that the Claimant is not in any way whatsoever entitled to any of the reliefs sought in this suit in view of the totality of the evidence and peculiar facts and circumstances of this suit.

16. Counsel submitted that it is trite law that in civil cases, judgments are given on preponderance of evidence, thus, the evidence of the party seeking that judgment be given in his favour must be sufficient to incline a fair and impartial mind to one side of the issue rather than the other. In support of this submission reliance was placed on the case of UBA Plc v. Yahuza (2014) LPELR-23976(CA), Per Abiru, J.C.A @ (P. 28, paras. B-D). Reliance was further placed on the case of Oyinloye v. Esinkin & Ors. (1999) LPELR-2886(SC) Per Ejiwunmi, J.S.C (P. 15, paras. D-E), where the Apex Court confirmed the position of the law as follows:

"It is also settled law that a plaintiff must succeed on the preponderance of evidence he led, and on the strength of his own case, not by the weakness of the defence unless of course he finds in the evidence of the defence facts which strengthen his own case."

17. Counsel also submitted that the law on evaluation of evidence is trite and time honoured as aptly settled in Mogaji V. Odofin (1978) 4 SC (Reprint) 53 @ 65 Per Fatai-Williams JSC, as follows:

“Before a Judge before whom evidence is adduced by parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale, or will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will see which one is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses.”

18. It is the Defendants’ contention that upon a careful perusal of the facts pleaded by the parties in this suit and the evidence tendered at the trial of this suit, the Claimant has failed woefully in proving that he is entitled in any way whatsoever to the claims before this Honourable Court. Counsel urged the court to so hold in dismissing the instant suit.

19. Counsel argued the sole issue for determination as raised by the Defendants herein, under sub-issues as follows:

20. Suspension and subsequent Termination of the Claimant’s employment: In arguing this sub-issue counsel submitted that where an employee complains and/or alleges of unlawful termination of employment by his employer, he has the onus to prove the unlawful termination of the said employment by placing before the Court the terms and conditions of the contract of employment and stating the manner in which the said terms were breached by the employer. This is in consonance with the provision of the Section 131 of the Evidence Act, 2011, which places the burden of proof on the party who asserts a state of affairs. To support this contention reliance was placed on the case of Aji v. C.B.D.A. (2015) 16 NWLR (Pt. 1486) 554 Pp. 571, paras. H, Per Onnoghen, J.S.C. (as he then was now retired CJN), where the Apex Court stated the position of the law as follows:

“Whether one is suing for wrongful dismissal from an employment with statutory flavor 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/dismissal can be considered by the court.”

21. It is further submitted that in the case of Ogumka v. CAC (2010) LPELR-4891(CA) Per Jimi Olukayode Bada, JCA (Pp 17 - 18 Paras F - D), the Court of Appeal stated the position of the law as follows:

"It is trite law, that when an employee complains of unlawful termination of employment by his employer, he has the onus to prove the unlawful termination of the said employment by: (a) Placing before the Court the terms and conditions of the contract of Employment, and (b) Proving in what manner the said terms were breached by the employer. See - Angel Spinning & Dyeing Ltd vs. Ajah (2000) 13 NWLR Part 685 Page 532. In the instant case, the Plaintiff/Appellant is asking for terminal benefit and in my view it is necessary for him to plead the terms and conditions of the contract of service and go further to establish through evidence how the terms and conditions were breached by the Respondent. See - Amodu vs. Amode (1990) 5 NWLR Part 150 Page 356."

22. Counsel posited that the thrust of the Claimant’s case in this suit is that he was a staff of the 1st Defendant at her Marina Resort Branch office in Calabar, Cross River State. The Claimant further alleged that he was issued a Confirmation of Offer of Employment by the 1st Defendant upon his employment. The Claimant further stated that his employment with the 1st Defendant was wrongfully and illegally terminated. There is no Offer of Employment and/or Confirmation of the said Offer of Employment stating terms and conditions of the said employment before this Honourable Court to aid the court in ascertaining whether or not the Claimant’s employment was wrongfully terminated.

23. Counsel while placing reliance to the afore-cited judicial authorities, submitted that the Claimant in the instant suit is under a legal duty to not only prove the terms of the contract of his employment but to further demonstrate to this Honourable Court that his dismissal was in breach of such terms and conditions for him to be entitled to the Judgment of this Honourable Court. The instant case is a master-servant relationship and as such, the Claimant’s employment is governed not only by the letter of employment/offer but also the Employee Handbook known as “The Script” and these two documents which are binding on the parties are germane for the proper determination of this suit. The foregoing documents do not form part of the evidence before this Honourable Court.

24. According to counsel the failure of the Claimant to provide this Honourable Court with his Contract of Employment and Employee Handbook is detrimental to the Claimant’s case as this Honourable Court cannot in the absence of the said contract, determine the purported wrongful nature of the termination/dismissal of the Claimant’s employment. Thus, the Claimant has not in any way whatsoever established that the said employment was wrongfully terminated and the proper order for this Honourable Court to make in the circumstance is one dismissing the instant suit. Counsel urged the court to so hold. Counsel also relied on the case of Idoniboye-Obu v. N.N.P.C. (2003) 2 NWLR (Pt. 805) 589, P. 630, paras. A-B, Per Uwaifo, J.S.C., where the Apex Court affirmed the position of the law as follows:

“A servant who complains that his employment has been brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. It is not the duty of the employer as defendant to prove that the termination was not wrongful: see Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356 at 370; Katto v. Central Bank of Nigeria (1999) 6 NWLR (Pt. 607) 390 at 405; Okomu Oil Palm Co. Ltd. v. Iserhienrhien (supra) at 673-674.”

25. It is the submission of counsel that the law is trite that where the action of an employee is working against the deep interest of the employer, he could be lawfully dismissed summarily without notice and/or wages. On this submission reliance was placed on the cases of Azenabor V. Bayero University, Kano (2009) 17 NWLR (PT. 1169) and Union Bank Ltd V. Chukwuelo Charles Ogboh (1995) 2 NWLR (PT. 380) P.647; (1995) LPELR-3387(SC) Per Anthony Ikechukwu Iguh, JSC (Pp 34 - 34 Paras C - F), affirming the position of the law as follows:

"...where an employee is guilty of gross misconduct, and this has been defined as conduct of a grave and weighty character as to undermine the confidence which should exist between the employee and his employers or working against the deep interest of the employer, he could be lawfully dismissed summarily without notice and without wages. See Boston Deep Sea Fishing Co. v. Ansell (1988) 39 ch.D. 339, Babatunde Ajayi v. Texaco Nigeria Ltd. and others (1987) 3 NWLR (Pt.62) 577, Ridge v. Baldwin (1963) 2 All E.R. 66 at 71 and Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599."

26. Counsel also relied on the case of Eze V. Spring Bank Plc (2011) LPELR-2892(SC) Per Mahmud Mohammed, JSC (Pp 15 - 16 Paras B - A), where the Apex Court stated the position of the law as follows:

"In any case, on the accepted general legal principles, an employee may be summarily dismissed without notice and without wages if he is guilty of gross misconduct. See Boston Deep Sea Fishing Co. v. Ansell (1888) 39 Ch. D339; Babatunde Ajayi v. Texaco Nigeria Ltd. & Ors. (1987) 3 N.W.L.R. (Pt. 62) 577. And gross misconduct has been identified as a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer. So, too, working against the deep interest of the employer amounts to gross misconduct entitling an employer to summarily dismiss of the employee. See Ridge v. Baldwin (1953) 2 All ER 66 at 71 and Olaniyan v. University of Lagos (1985) 2 N.W.L.R. (Pt. 9) 599. To warrant a summary dismissal, it suffices that the conduct of the employee, as in the present case, is of such grave and weighty character as to undermine the relationship of confidence which should exist between the employer and employee as found by the trial Court and affirmed by the Court below. See Teliat Sule v. Nigerian Cotton Board (1985) 2 N.W.L.R. (Pt. 5) 17."

27. According to counsel the Defendants in the instant suit pleaded and tendered credible evidence before this Honourable Court to the effect that the Claimant was tardy and lackadaisical in carrying out his duties while in the employment of the Claimant. The Defendants further pleaded and gave credible evidence that the Claimant was issued several warnings and queries over the years due to his gross inefficiency, misconduct in carrying out his duties and improper handling and management of the 1st Defendant’s facilities. The Defendants further tendered the said queries before this Honourable Court evidencing the several allegations of misconduct and gross inefficiency and same was admitted in evidence as Exhibit C in this suit.

28. It is submitted that the Defendants have further pleaded and gave credible evidence of the straw that broke the camel’s back which led to the suspension and termination of the Claimant’s employment was the Claimant’s unauthorized transfer and distribution of movies to customers. Furthermore, a spot check was carried out on the Claimant’s personal hard drive titled “PLAYEXTRA” which he had plugged to the Defendant’s administrative office computer, containing watermarked Nollywood movies which had been sent to the Defendants by film distributors for exhibition within its cinema only. The Defendants further alleged and gave credible evidence that the Claimant had illegally transferred the said movies to his hard drive and the evidence of same was admitted As Exhibit D by the Honourable Court. The said actions of the Claimant exposed the Defendants to legal action and/or financial loss from the producers of the said movies who trust the Defendants with their means of livelihood.

29. According to counsel the defendants have proved that the claimant was guilty of misconduct, gross inefficiency, exposure of the Defendants to legal action and/or financial loss, the suspension and subsequent termination of the Defendant is proper, lawful and valid and the proper order for this Honourable Court to make in the circumstance is one dismissing the instant suit as same lacks merit.

30. It is the submission of counsel that the Claimant did not at any time whatsoever deny the aforementioned allegations contained in the Defendants’ Statement of Defence. The Claimant did not file any Reply whatsoever to the aforementioned new issues raised in the Defendants’ Statement of Defence, thus, the Claimant is deemed to have admitted the said facts. To support this contention counsel refers to the case of S.C.C. (Nig.) Ltd. v. Elemadu (2005) 7 NWLR (Pt. 923) 28 P. 75, paras. A-B, Per Mukhtar, J.C.A. where the Appellate Court affirmed the position of the law that facts not denied are deemed admitted, as follows:

“It is a cardinal principle of law that a pleading that is not denied either expressly or by implication by the opponent is deemed indirectly admitted and facts need not be specifically proved by evidence. See Economides v. Thomopulos Ltd. (1956) 1 FSC 7; (1956) SCNLR 40, and Ajibade v. Mayowa (1978) 9 - 10 SC 1.”

31. It is also submitted that the suspension and subsequent termination of the Claimant’s employment by the Defendants is valid, proper and in accordance to the law as the aforementioned actions of the Defendant amounts to gross misconduct. Counsel urged the court to so hold in dismissing the Claimant’s claim in this suit.

32. Counsel also refers to the case of Imonikhe V. Unity Bank Plc (2011) 12 NWLR (PT 1262) P. 649, Paras A-C, where Rhodes Vivour J.S.C held that:

“As regards irregular practice, the respondent sent queries to the appellant for the appellant to explain; a). His role in irregular practices in respect of a customer’s account. b). How he made his brother claim Benue State instead of Edo State (where he comes from) so that he can be employed by the bank. The appellant answered the queries on the above but the respondent did not find the answers satisfactory and so he was dismissed. Can it be said that the above also has to be proved in court of law. I do not think so. By the conditions of service of any organization properly so called an employer ought to be able to discipline erring employees and that was precisely what the respondent did”.

33. Counsel submitted that it is settled beyond debate that the employer has the right to suspend an employee whenever the need arises so as to enable it investigate the affairs of the said employee as it negatively affects the company and same does not amount to a breach of the employee’s right counsel also rely on the case of Amadiume v. Ibok (2006) 6 NWLR (Pt. 975) 158 Pp. 181-182, paras. F-C, Per Omokri, J.C.A., where the Court of Appeal stated the position of the law as follows:

“It is well settled law that a master can suspend his servant when necessary. An employer can suspend his employees when necessary. That cannot amount to the breach of the servant's or employee's right. See Ayewa v. University of Jos (supra). At page 144 Uwaifo, JSC, had this to say:

"The main issue in this matter is whether a servant who is suspended by his master so as to investigate allegations of impropriety leveled against him can have a recourse to the fundamental rights provision to prevent that suspension from operating. The lower court has decided that such a scenario is not appropriate for asserting a breach of fundamental rights. I endorse that view. This is a matter of master and servant. The law is that a master can suspend his servant when necessary and there can be no issue of breach of fundamental rights."

34. In the instant case, the Defendant pleaded and gave credible evidence before this Honourable Court that the Defendant has been queried several times for gross inefficiency, misconduct, amongst others. Furthermore, a spot check was carried out on the Claimant’s personal hard drive, which he plugged to the Defendant’s administrative office computer. The said hard drive contained watermarked Nollywood movies which had been sent to the 1st Defendant by film distributors for exhibition within the cinema only. The Claimant had illegally transferred the said movies to his hard drive. The pictures of the content of the said hard drive with the relevant dates and time was tendered by the Defendants and admitted as evidence by this Honourable Court to prove the extent of the Claimant’s misconduct and breach of confidentiality owed to the Defendants.

35. Further to the above, the said hard drives were confiscated in order to enable the Defendants carry out extensive internal investigations as the said illegal transfer, duplication and distribution of Nollywood is an infringement of the intellectual property right of the producer of the said movies and same is an offence in direct contravention of the provisions of the Copyright Act Cap C28, LFN 2004. The Claimant was also invited to the hearing and was also present at the date of the hearing of the said matter after which the Defendants, due to the gravity of the allegations, suspended the Claimant indefinitely vide a letter dated 12th December 2017, pending the conclusion of investigations.

36. It is also submitted that the said indefinite suspension of the Claimant by the 1st Defendant is lawful and proper and same does not in any way contravene and/or infringe the Claimant’s constitutional right to fair hearing. Counsel urged the court to so hold.

37. Declaratory Reliefs; in arguing this sub-issue counsel submitted that some of the reliefs are for declarations; the law is settled beyond debate that a party seeking declaratory reliefs must advance sufficient evidence establishing his entitlement to the reliefs sought upon the strength of his own case and not the weakness of the Defendants' case. In support of this contention reliance was placed on the case of Obe v. Mtn Nig. Comms. Ltd. (2021) 18 NWLR (Pt. 1809) 415, P. 447, paras. F-G, Oseji, J.S.C., where the Apex Court stated the position of the law as follows:

“It is also settled in numerous authorities that a declaratory relief being discretionary in nature, the onus of proof lies on the claimant and he must succeed on the strength of his own case and not on the weakness of the defence, except where the case of the defence supports the appellants case. Thus, the burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant, in the event that the plaintiff fails to establish his entitlement to the declaration by his own evidence. See Akande v. Adisa & anor (supra) and Chief &Ikechi Emenike v. PDP & ors. (2012) 12 NWLR (Pt.1315) 556.”

38. Counsel further refers to the case of Adama & Ors V. Kogi State House of Assembly & Ors (2019) LPELR-47424(SC) Per Amina Adamu Augie, JSC, Pp 36 - 37 Paras C - F, where the Apex Court affirmed the position of the law as follows:

"it is basic law that a Plaintiff has the onus of proof to show that in a declaratory action he is entitled as per his claim. To this end, he has to succeed on the strength of his own case, and not on the weakness of the Defendant's case, and where he defaults in discharging this onus, his case will be dismissed. The burden of proof in establishing a declaratory relief is heavy,  see A.G., Rivers State V. A.G., Bayelsa State (2012) LPELR-9336 (SC) and Dumez (Nig.) Ltd. V. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361, wherein this Court per Mohammed, JSC (as he then was) observed - The law on the requirements of the Plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the Defendant is indeed well settled. The burden of proof on the Plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the Defendant where the Plaintiff fails to establish his entitlement to the declaration by his own evidence."

39. Counsel posited that in the instant suit, the claimant sought several declaratory reliefs before this Honourable Court which includes a declaration that the termination of his employment by the 1st Defendant is illegal and wrongful for lacking in fair hearing, a declaration that the indefinite suspension of the Claimant by the Defendants is illegal, wrongful and lacking in fair hearing and a declaration that the seizure of his two hard drives by the Defendant is wrongful and illegal. The Claimant however did not in any way whatsoever provide evidence in proof of the said reliefs sought before this Honourable Court. Instead, the Claimant stated in both his pleadings and evidence led before this Honourable Court that he was issued queries by the Defendants.

40. Furthermore, the Defendants in defence of the instant suit averred and gave credible evidence before this Honourable Court that the Claimant was guilty of misconduct, gross inefficiency, unauthorized transfer and distribution of movies to customers, exposure of the Defendants to legal action and/or financial loss by unlawfully transferring movies which are solely meant for film exhibitions in the 1st Defendant’s Cinema, into his hard drive. The Claimant did not at any time challenge the said evidence before this Honourable Court. It is submitted on the authority of Imonikhe V. Unity Bank Plc supra, that the 1st Defendant was well within its rights to reject and/or find unsatisfactory the response of the Claimant to the queries issued and discipline the Claimant, its erring employee.

41. It is submitted that the claimant’s claim for declaratory reliefs before this Honourable Court is bound to fail as the Claimant has failed to substantiate the said claims. Counsel urged the court to so hold in dismissing the instant suit.

42. Premature claim; In arguing this sub-issue, it is the submission of counsel that the Claimant’s claims and this entire action is premature.  The law is trite that an action and/or relief sought before the Court is premature where the cause of action has not occurred and/or the condition precedent to the commencement of the said action or seeking the said relief is yet to be fulfilled. To support this contention counsel relied on the case of Gov., Imo State v. Amuzie (2019) 10 NWLR (Pt.1680) 331, Pp. 348-349, paras. H-A, Per M.D. Muhammad, J.S.C., where the Supreme Court stated the position of the law as follows:

“In litigation, the word “premature” abides where the cause of action has either not occurred or the condition precedent to the commencement of the action has not occurred or is unfulfilled. In either situation, the suit so commenced, being incompetent, robs the court of its jurisdiction to determine the dispute it is asked to settle. See Madukolu & ors v. Nkemdilim (1962) 1 ALL NLR (Pt. 4) 587 at 595; (1962) 2 SCNLR 341 and Etsako West Local Government Council v. Isa Oshiobugie Christopher (2014) LPELR - 23023 (SC); (2014) 14 NWLR (Pt.1426) 73.”

43. Counsel also refers to the decision of the Supreme Court in the case of Onuekwusi v. R.T.C.M.Z.C. (2011) 6 NWLR (Pt. 1243) 341 P. 360, paras. E-F, Per Muhammad, J.S.C., where the Apex Court stated the position of the law as follows:

“Each of the factual elements making up the cause of action should have come into being before any proceedings are commenced, otherwise the proceedings will be premature and consequently unsustainable. See: Esin v. Matzen and Timim Nig. Ltd. (1966) 1 All NLR233; (1966) 2 SCNLR 208; Mohammed v. U.B.A. (1976) 2 FNR 21.”

44. According to counsel in the instant suit, the Defendants averred and gave credible evidence before this Honourable Court that upon termination of the Claimant’s employment with the 1st Defendant, the Claimant was requested to return with immediate effect, all the properties of the 1st Defendant in his possession including but not limited to Uniforms, Laptop, mobile phone, confidential documents amongst others, so as to enable the Defendants process and pay all the Claimant’s outstanding entitlements. To buttress the point being made counsel relied on 4th paragraph of Exhibit C5 – The Letter of dismissal dated 30th January 2017.

45. The Claimant however failed, refused and neglected to comply with the above mentioned demand. The Claimant did not at any time whatsoever before this Honourable Court lead any credible evidence whatsoever to state that the said properties of the 1st Defendant in his possession has been returned. Furthermore, the Claimant admitted under cross examination that he did not respond to Exhibit C5.

46. It is the submission of counsel that failure to respond to Exhibit C5, which is a condition precedent to payment of outstanding salaries and emoluments if any, was not fulfilled by the Claimant thereby rendering this suit premature. Counsel urged the court to so hold in dismissing this suit in its entirety.

47. According to counsel the only claim the Claimant may be able entitled to is Claim C, however it is our contention and rightly so that the Claimant cannot be entitled to this claim until he has complied with the demand of his erstwhile employer the first Defendant as contained in Exhibit C5 which is extracted below for ease of reference:

“…Kindly therefore return with immediate effect, all company properties in your possession such as uniforms, laptop, mobile phone, confidential documents, e.t.c. so that all your outstanding entitlements can be processed and paid”.

48. Counsel urged the court to so hold.

49. Payment of entitlement; In arguing in support of this sub-issue, counsel submitted that the law is settled that a court should not decide a case on mere conjecture or speculation. Courts of law are courts of facts and law, thus, they decide issues on facts established before them whilst applying the law. In support of this proposition counsel refers to the cases of Trade Bank Plc. v. Dele Morenikeji (Nig.) Ltd. (2005) 6 NWLR (Pt. 921) 309 P. 328, paras. B-E, Overseas Construction Co. Ltd. v. Creek Enterprises (Nig.) Ltd. (1985) 3 NWLR (Pt. 13) 407 at 414.

50. Counsel submitted that the law is trite that he who asserts must prove. Thus, a party who wants judgment to be given in his favour must produce credible evidence before the Court to substantiate his claim. On this submission reliance was placed on Section 131(1) of the Evidence Act 2011, and the case of Obe v. Mtn Nig. Comms. Ltd. (2021) 18 NWLR (Pt. 1809) 415, . 444-445, paras. F-A, Per Oseji JSC.

51. According to counsel in the instant suit, the Claimant claims before this Honourable Court for an order directing the 1st Defendant to pay the Claimant his entitlement for having worked for five years with the 1st Defendant as contained in the contract of employment entered into by the parties. There is however no contract of employment before this Honourable Court to aid it in determining if indeed the Claimant is indeed entitled to any compensation for working for five years The Claimant also failed to tender any company policy and/or any other relevant document stating that the 1st Defendants shall/must pay entitlement having worked with it for five (5) years. The Claimant did not in any way whatsoever prove through credible evidence before this Honourable Court that the 1st Defendant is bound to pay him any entitlement whatsoever.

52. It is also submitted that the Claimant’s claim for entitlement lacks merit as he has failed woefully to prove the existence of the purported payments. It is submitted that the proper order for this Honourable Court to make in the circumstance is one dismissing the instant suit. Counsel urged the court to so hold.

53. Damages; on claim for damages counsel submitted that the law is settled that damages cannot be awarded in favour of a party who fails to prove his claim before the Court. On this contention reliance was placed on the case of Mujaid v. IBEDC (2021) 12 NWLR (Pt. 1791) 537 P. 564, paras. A-C, Per Saulawa JCA.

54. It is also submitted that the law is settled beyond debate that special damages must be specifically pleaded with relevant particulars thereto. In support of this view counsel relied on the case of N. M. A. v. M. M. A. Inc. (2010) 4 NWLR (Pt. 1185) 613 P. 646, paras. A-C, Per Salami,J.C.A, where the Appellate Court stated the position of the law as follows:

“In the light of the authoritative decision of the Supreme Court, it is settled by a long line of cases that items of loss of profit, loss of earnings as in the instant case claimed as special damages must be specifically pleaded in the statement of claim. Special or specific pleadings means no more than the items of claim being particularized. Not only must the special damages be pleaded specifically it must be proved strictly. To succeed, the plaintiff has to scale the following two hurdles.

Plaintiff must specifically or expressly lead the particulars if his claim for special damages in his statement of claim; and must lead evidence in proving the claim for special damages strictly.”

55. Counsel also refers to the case of MTN Nig. Communications Ltd v. A.C.F.L Ltd (2016) 1 NWLR (Pt. 1493) 362, Per Sankey J.C.A, where the Court of Appeal stated the position of the law as follows;

“Compelling evidence is required to substantiate, authenticate and sustain a claim for special damages. It cannot rest on what the trial court felt reasonable in its own whims, caprices and fancies”.

56. Counsel submitted in the instant case, the Claimant claimed for special damages before this Honourable Court in the sum of N5,000,000.00 (Five Million Naira) for alleged loss of earnings from the Claimant’s personal materials such as Claimant’s purported music albums, Claimant’s purported well researched and typed final year project which is yet to be printed amongst others. The Claimant further stated that he had to pay heavily to process new project as well as other important documents contained in Hard Drives to the extent possible. The Claimant however did not specifically prove the particulars of the said special damages before this Honourable Court. The Claimant also failed woefully in leading credible evidence before this Honourable Court to prove the existence of the said alleged special damages. There is no evidence whatsoever before this Honourable Court that the Claimant has a musical career, existence of a purported album, no evidence whatsoever to prove that the Claimant is even a student and/or the existence of the said project. The Claimant also did not specifically plead and/or prove the purported payment used to process a new project and the other purported documents contained in the said hard drive. Rather, the Claimant during Cross-examination before this Honourable Court further admitted as follows:

“There is no evidence of studentship before the Court”

57. On the issue of cost of litigation, the Claimant testified that he paid his solicitor the sum of N1,000,000.00 as fees for this action. According to counsel this is a very interesting piece of evidence as one struggles to understand how a person who earns about N68,000 per month would pay the sum of one million Naira to recover N68,000. The claim for one month’s salary, claim C, is the major claim in this suit the rest are declaratory reliefs and speculative reliefs such as the claims for damages. It is submitted that this is a clear case of trying to exploit the machinery of this Honourable Court to perpetrate fraud and unlawfully enrich the Claimant and/or his counsel purported to have received the money as fees from an indigent client (Exhibit C6). In view of the foregoing, counsel urged the court to dismiss this head of claim with a stern warning to all persons involved to desist from such acts as same may amount to infamous conduct.

58. It is further submitted  that the purported receipt issued for and on behalf of the Claimant’s counsel on record, Leonard Anyogo & Co. Exhibit C6, is a photocopy and no foundation was laid with respect to the whereabouts of the original. Counsel urged the court to expunge same from the records of this Court for failure to lay proper foundation before tendering a photocopy of same. In the unlikely event that the Court is not minded to expunge same then, counsel urged the Court not to attach any weight to the said Exhibit C6.

59. In concluding his submission, counsel submitted that the Courts have held in a plethora of cases that the standard of proof in civil cases is discharged on the balance of probabilities, and that balance of probabilities or preponderance of evidence means that in civil proceedings judgment is given to the party with the greater weight or stronger evidence.

60. In view of the arguments canvased, counsel urged the court to hold that the Claimant has not led any cogent or credible evidence and has not produced convincing and reliable documents in proof of the facts alleged in this suit.  In view of the foregoing, counsel urged the court to hold that the Claimant is not entitled to any of the reliefs and dismiss same in all entirety.

THE SUBMISSION OF THE CLAIMANT:

61. The claimant submitted three issues for determination. They are:-

1.      Whether the Claimant can proceed to file his final written address on failure of the Defendants to file their final address within the stipulated time?

2.      Whether there was in existence an Employer-Employee Relationship between the Claimant and the Defendants?

3.      Whether the Defendants have led credible and compellable evidence in proof of the allegations against the Claimant to warrant grant of any relief from this Honourable Court?

ARGUMENT:

62. Issue one; Whether the Claimant can proceed to file his final written address on failure of the Defendants to file their final address within the stipulated time? In arguing this issue counsel submitted that from the provisions of the rules of this Honourable Court that where a Defendant has failed to file his final written address within the time stipulated by the Court, the Claimant can proceed to file his final written address. In support of this submission the provisions of Order 45 Rules 11, 12 and 13 of National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, were relied on.

63. It is the submission of counsel that the Defendants upon close of their case had 21 days within which to file their final written address but failed to do so and by the provision of this rules, the Claimant upon default of the Defendants, ought to file his final written address, hence this address.

64. Counsel also submitted that the essence of a final written address, was buttressed in the case of Mobil Producing (Nig) Unlimited v. Ayeni & Ors (2019) LCN/13149 (CA), wherein the Court stated thus:

''Final written addresses are designed to assist the Court in readily ascertaining the material and relevant points arising in the case and the applicable law, to the issues in order to enable it arrive at a just decision. Final Addresses are simply to state in brief, concisely and precisely, the relevant facts, the issues, points and applicable principles of law required for the determination of the case, on the merit and in substantial justice by the Court''.

65. Issue two; whether there was in existence an Employer-Employee Relationship between the Claimant and the Defendants? In arguing this issue counsel answers in the affirmative. Counsel submitted that the Claimant was an employee of the 1st Defendant, who also obtained monthly salary from his employment with the Defendants. This fact was admitted by the Defendants in their Statement of Defence, paragraph 2 and 6. For emphasis, the paragraphs are supplied below:

2. The Defendant admits paragraphs 1, 3, 4 and 5 of the Statement of Facts.

Further to the above, the Defendant states that, whilst the Claimant was its employee…”

66. It is submitted that the Claimant obviously was an employee under the employment of the Defendants, thus qualifying the matter as one relating or incidental to employee/employer relationship, within the purview of the section 254C (1) (a) and (k) of the 1999 Constitution, as such, vesting the jurisdiction to hear and determine the matter in the National Industrial Court.

67. Issue three; whether the Defendants have led credible and compellable evidence in proof of the allegations against the Claimant to warrant grant of any relief from this Honourable Court? Counsel in arguing this issue submitted that the Claimant’s employment was wrongfully terminated by the Defendants on the basis that the Claimant had perpetrated criminal acts of piracy and infringement of copyrights, which is in contravention of the Copyright Act C28 LFN 2004.

68. According to counsel the Defendants made the reason for the termination of employment of the Claimant known via paragraphs 6 and 12 (x) of the Statement of Defence, which states thus:

“6 - Further to the above, the Defendant states that, whilst the Claimant was its employee, he perpetrated criminal acts of piracy and infringement of copyrights by duplicating and distributing (watermarked) highly classified Nollywood movies, meant solely for exhibition in the cinema…

12(x) - The Defendant avers that upon this discovery, the hard drives were sent to the Defendant’s support office in order to carry out extensive internal investigations as the illegal transfer, duplication and distribution of the said Nollywood movies is an infringement of the Intellectual Property rights of the producers of same and is an offence in direct contravention of the provisions of the Copyright Act C28 LFN 2004.”

69. Counsel refers to the provisions of sections 14, 15, and 18 of the Copyright Act 2004 and submitted that the Copyright Act 2004 is specific in its description of what infringement entails but our emphasis is on Section 15 which states unequivocally that infringement is actionable in the Federal High Court. Upon the allegation of infringement on the Claimant, no action was taken by the Defendant, and such action can only be pursued at the Federal High Court, where the infringement occurred.

70. Counsel submitted that the law is clear on the fact that he who asserts must prove, as such the Defendant is saddled with the responsibility of proving his case. This position is fortified by judicial authorities inundated in law reports thereby rendering it trite. On this submission counsel relied on section 131 and 132 of the Evidence Act, 2011, as well as the cases of CHUKWU VS. AMADI (2009) ALL FWLR (PT. 472) @ 1189, GYURA VS. ABA (2004) ALL FWLR (PT. 227) @ 490 and FIRST BANK OF NIGERIA PLC VS. EXCEL PLASTIC INDUSTRY LTD (2003) FWLR (PT. 160) @ 1624.

71. Counsel also argued that the Defendants during cross examination of their sole witness, Tayo Fashesin, further informed the Court that even after the allegation of illegal transfer, duplication and distribution of the said Nollywood movies being an infringement of the Intellectual Property rights of the producers of same and an offence in direct contravention of the provisions of the Copyright Act, were led against the Claimant, the alleged criminal act was not reported to the police or any security agency. This was despite the pleading and evidence of the defendants that investigations were done and concluded upon which the Claimant employment was terminated, yet there is nothing placed before the Court that shows the said criminal act was reported to the police or any security agent, the company’s investigation report was not tendered as evidence before the Court, even the confiscated hard drives gotten from the Claimant’s custody were not tendered.

72. According to counsel the matter may appear civil in nature but the allegations are criminal in nature. When criminal allegations are made in a civil matter, the person who asserts it has the onus of proving the allegations beyond reasonable doubt. In support of this submission counsel relied on section 135(1) of the Evidence Act. And the case of OGBOLE V. LAWANI (2003) FWLR (PT. 187) 844 at 859 paras A – D.

73. Counsel continued his submission that there is no evidence generated by the Defendants in support of the very weighty allegations led against the Claimant. Furthermore, it is well settled that the Court with the exclusive jurisdiction to handle matters dealing with infringement of copyright is the Federal High Court. counsel submitted that the ipsi dixit of the Defendants alone is not sufficient to prove the numerous criminal allegations against the Claimant in this matter. The assertions of the Defendants as in this case are barren for dearth of evidence. In support of this submission counsel placed reliance on the case of OGBOLE V. LAWANI supra 859, paras E – G.

74. In concluding his submission counsel on the whole urged this Honourable Court to grant the reliefs sought by the Claimant. This Court has a duty to find in favour of the Claimant going by the state of the evidence adduced. See MOGAJI V. ODOFIN (1978) 4SC 91, OGUNAMEH V. ADEBAYO (2009) ALL FWLR (PT. 467) 188  AT 207 PARAS D – E.

COURT’S DECISION:

75. I have considered the processes filed in this suit, the evidence led and the written and oral submissions of counsel for the parties.

76. Having regard to the entire facts of this case, I am of the view that the sole issue formulated by the counsel for the defendants will dispose of all the issues raised in this suit. The issue is similar to the third issue formulated by the claimant; the only difference is in the way they were couched. I choose to be guided by the sole issue formulated by the counsel for the defendants due to its elegance and all-encompassing nature. It is also to be noted that with the grant of extension of time to the defendants to file their final written address out of time, issue one as formulated by counsel for the claimant has been over taken by even and become otiose. The second issue of the claimant is as well of no moment as there is no dispute regarding claimant been employed by the 1st defendant. The issue adopted as formulated by the defendants is:-

“Whether the Claimant is entitled to any of the reliefs sought in this suit, in view of the totality of the evidence and peculiar facts and circumstances of this suit?”

77. The position taken by the defendants is that the claimant has failed woefully to discharge the burden of proof imposed on him by the law, as he has not pleaded the terms and conditions of his employment and how the terms were breached by the defendant. The defendants are also of the view that they have adduced credible evidence that the claimant has committed unauthorized transfer and distribution of movies to customers and guests, which was discovered as a result of spot check on claimant’s hard drive connected to the office administration computer. The claimant was also accused of copying the (watermarked) Nollywood movies sent to the 1st defendant meant for cinema exhibition. According to the defendant the evidence adduced before the court has established that the claimant was guilty of misconduct, gross inefficiency, exposed of the defendant to legal action and/or financial loss. This has made claimant’s suspension and termination proper. It is further submitted by the defendants that the claimant’s failure to deny or file reply to the defendants’ statement of defence means the claimant is deemed to have admitted the facts contained in the statement of defence.

78. For the claimant he insisted that he has established his claim by preponderance of evidence and is entitled to the reliefs being sought. The termination of his employment was wrongful on the basis that the claimant perpetrated criminal act of piracy and infringement of copyrights. Counsel refers to section 15 of Copyrights Act and submitted that the only court having jurisdiction on copyrights is Federal High Court and there was no report of the criminal act to the Police.

79. By virtue of sections 131, 132 and 133 of the Evidence Act 2011, a party owes the legal duty and evidential burden of proving the assertions he makes. He who asserts must prove. In the instant case, the claimant owed the legal duty of proving the assertions he made against the defendants in his claim on the basis of which he sought that judgment be given in his favour. See Mogaji v. Odofin (1978) 4 SC 91; Dibiamaka v Osakwe (1989) 3 NWLR (Pt. 107) 101; Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; Jiaza v. Bamgbose (1999) 7 NWLR (Pt. 610) 182; Egharevba v. Osagie (2009) 18 NWLR (Pt. 1173) 299. It is clear from the provisions of the evidence Act 2011 and the case law that the burden of proving claim falls squarely on the claimant and not the defendant. The claimant must first adduce credible evidence in proof of his claim before the burden shift to the defendants.

80. The guiding principles in determining a case presented before the court has been stated by the Supreme Court in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 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.

81. The implication of the above dictum of the Supreme Court to the case of the claimant is that the reliefs being sought by the claimant will accordingly determine his case.

82. There are twelve reliefs being sought by the claimant before the court. The reliefs have been reproduced in the earlier part of this judgment. I shall consider the reliefs in the order of their listing.

83. Relief ‘a’ is praying for declaration that the termination of claimant’s employment by the 1st defendant is illegal and wrongful for lack of fair hearing. The question to be resolved regarding this relief is ‘whether the claimant’s termination of employment by the 1st defendant is illegal and wrongful due to alleged lack of fair hearing; in attempting to answer the question posed the defendant has argued that the claimant has failed woefully to prove his case due to absence of terms and conditions of service governing his employment with the 1st defendant. While the claimant insists that he has proved that he is entitled to the reliefs being sought.

84. The Supreme Court decision in the case of Bukar Modu Aji v. Chad Basin Development Authority & anor [2015] LPELR-24562(SC), has 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 it is only the conditions of service that the court is allowed to consider in determining the wrongfulness or otherwise of the dismissal or termination of employment.

85. From the state of pleadings more especially the 'statement of facts’ which represented the pleading of the claimant, it is clear that the issue of termination of claimant’s appointment was pleaded. However, there is nowhere the claimant pleaded the 'terms of the contract of service' between him and the 1st defendant. This is very necessary so to do as, the ‘terms and conditions of service’ is the bedrock of the relationship between the claimant and the 1st defendant, indeed, it is what governed the entire relationship. It is mainly through the 'contract of service' or terms and 'condition of service' when pleaded, that it will be shown or established to the court, the nature and duration of the contract of service and the method to be adopted by either of the contracting parties when he/it chooses to opt out of same or the time at which notice to determine the contract may be given. All these important issues are nowhere pleaded in the statement of claim and an important source to get them were also not tendered in evidence. It is trite law, that when an employee complains of wrongful termination of employment by his employer, he has the onus to prove the wrongful termination of the said employment by (a) placing before the court the terms and conditions of the contract of employment; and (b) proving in what manner the said terms were breached by the employer. It is not the duty of employer as a defendant in an action brought by the employee to prove any of these facts. See Katto V CBN (1999) 5 SC (Pt.ii) 21, Amodu V Amode (1990) 9-10 SC 61, Angel Spinning & Dyeing Ltd. v. Ajah (2000) 13 NWLR (Pt. 685) 532.

86. It is clear from the case law, where there is absence of pleading of terms and conditions of service and proof of same the court will be left empty handed without anything that can assist in determining the rights and obligations of the parties. If there is any breach such cannot be determined without the terms and conditions of the contract between the parties. This is because the Supreme Court in Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356 has held that 'terms of contract of service are the bedrock of any case where the issue of wrongful termination of employment calls for determination.' In the instant case such terms and condition of the contract of service and how the said terms and conditions were breached by the 1st defendant were not pleaded nor were they brought or placed before the court. This failure or neglect on part of the claimant is fatal to his case. See Rector Kwara State Polytechnic V Adefila (2006) ALL FWLR (Pt.431) 914 2 962-963 CA, Okomu Oil Palm Co. V Iserhienrhien (2001) 3 SC 140.

87. It is to be reiterated that the failure of the claimant in this case to plead and put in evidence the terms and conditions of the contract of service between the parties has completely knocks off the bottom of his case, thereby depriving the court of the power to consider the wrongfulness or otherwise of the termination of the claimant’s employment. This is notwithstanding the issue of fair hearing or lack of it, as fair hearing cannot exist or considered in the absence of foundation for the acts being complained of. This means the claimant’s reliefs seeking for declaring termination of his employment illegal and wrongful due to lack of far hearing failed as the condition precedent for consideration of the relief has not been fulfilled. See Aji V Chad Basin Dev. Authority & Anor (2015) 3-4 SC (Pt.ii) 1 @ 23/24.

88. It should also be noted that relief ‘a’ is for declaration, which means claimant must establish his entitlement to the relief of declaration upon the strength of his own case and not on the weakness or admission of the defendant. See Gbadamosi V Dairo (2007) 1 SC (Pt.ii) 151, Dada V Dosunmu (2006) 9 SC 1. Therefore, in the case at hand the claimant has failed to establish entitlement to relief ‘a’. In Yusuf v. Dornier Aviation (Nig.) Ltd. [2004] 10 NWLR (Pt.880) 1, it was stated that a party that failed to prove terms of employment is not entitled to declaration that termination was wrongful. Failure to adduce evidence of terms and conditions of service will disentitled a claimant from grant of declaration that termination of his employment was wrongful. See also Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Pt. 145) 506.

89.  The defendants have submitted that the claimant’s failure to file reply to the statement of defence, the claimant is deemed to have admitted the facts pleaded in the statement of defence.

90. The law has long been well settled in a long line of judicial authorities replete in our law reports that evidence that is unchallenged or un-contradicted by the adverse party is good to be acted upon by the Court unless it is either irrelevant or palpably false or worthless by itself. Therefore, the mere fact that evidence is unchallenged is not tantamount to proof as such an unchallenged evidence must also be credible and relevant in relation to the facts it seeks to establish See Cameroon Airlines V. Mike Otutuizu (2005) 9 NWLR (Pt. 929) 202; Ishola Lawson V. Afani Continental Co Nig Ltd (2002) 2 NWLR (Pt. 752) 585; Omoregbe V. Lawan (1981) 3 SC 108; Oduola V. Coker (1981) 5 SC 197.

91. Relating the above decisions, to the facts averred in the defendants statement of defence can it be said that the claimant’s failure to file reply amount to admission of the averments in the statement of defence. The answer to this poser will be revealed upon interrogation of the averments. The defendants relied on paragraph 12 of the statement of defence and corresponding evidence in paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 19 and 20 of the witness statement on oath of DW1 which was adopted before the court as evidence of the defendants in proof of the defence put forward by the defendants. They also rely on exhibit D.

92. A careful perusal of the evidence of the defendants through their witness DW1 is hearsay. DW1, was at no material time to this case present at Calabar where the incident that led to this suit occurred. DW1 from his own evidence he is a staff in the Legal Department of the 1st defendant at its Head office in Lagos. Though, the law does not compel any party to call a particular witness to testify, however, any witness to testify must be one that has personal knowledge of the facts on which evidence is being given. DW1 not involved in the alleged discovery of plugging or connection of claimant’s hard drive to office administration computer is not appropriate officer of the 1st defendant to testify on in respect of the evidence. The appropriate officer to give such evidence is the 2nd defendant but she was not called to testify though her name was listed as witness in this case, she never appeared to testify. In the circumstances I reject the evidence of DW1 as hearsay which does not in law command any evidential value. My finding find support in the case of Jallco Ltd V Owoniboys Technical Services Ltd(1995) 4 NWLR (Pt.391)534, where the Supreme Court held that where conduct and affairs of a particular officer in a specific transaction is in dispute, it is that officer that should be called to explain and not officer who never had anything to do with the transaction.

93. The defendant has also pleaded to rely on query of 11/12/2017 and the answer given by the claimant those documents were never tendered in evidence by the defendant. Therefore, all the averment on which the defendant relied on those documents has not been proved the implication is that they have been abandoned. The failure of the defendants to tender the seized hard drives which are at the centre of the controversy is fatal to the defendants’ case and exhibit D cannot cure that defect.

94. In view of the foregoing appraisal of the defendants pleading and evidence, it will not be right to say that the claimant’s failure to file reply is deemed to be admission, when the purported evidence adduced in proof of the pleaded facts has no any evidential value in the eyes of the law.

95. Relief ‘b’ is for an order setting aside letter of dismissal dated 30th January 2017. This relief is defendant on grant of relief ‘a’ having refused to grant declaration relief ‘b’ being an ancillary claim must fail. Furthermore from exhibit C5, the claimant’s appointment with the 1st defendant was terminated and not dismissal. This means relief ‘b’ is at variance with the facts of this case as there was no dismissal of claimant’s appointment by the 1st defendant.

96.  Relief ‘c’ is for an order directing the 1st defendant to pay all the salaries and entitlement of the claimant from 1st December 2017 to January 2018. A careful perusal of relief ‘c’ will show that it is claim that is vague and imprecise. It lacks certainty, therefore, by the authority of the Supreme Court decision in the case of University of Jos V Dr. Ikegwuoha (2013) 8 NWLR (Pt.1360) 478, is no claim at all. The vagueness of the relief is revealed in the absence of the precise amount being claimed for salary for the period of 1st December 2017 to January 2018.

97. Relief ‘d’ is an order directing 1st defendant to pay the claimant N5,000,000.00 (Five Million Naira) damages for wrongful termination of employment of the claimant. This is an ancillary claim to relief ‘a’ therefore, failure of relief ‘a’ means failure of relief ‘d’. Even if the termination of employment of the claimant to be wrongful, which I did not find, the claimant will still not have succeeded in respect of this relief. The reason being that in employment cases the damages recoverable for wrongful termination of employment is prima facie that amount that the claimant would have earned for period of notice. See Western Nigeria Development Corporation V Jimoh Abimbola (1966) NMLR381, Nigeria Produce Marketing Board V Adewunmi (1972) 1 ALL NLR (Pt.2) 433, African Newspapers Ltd V Akano (2014) 4 ACELR 60, Akinfosile V Mobil (1969) NCLR 253; Inter Drill Company  (Nig.) Ltd V Ajijala (1976) 2 SC 115; Imolome V WAEC (1992) 12 SC (Pt.1) 82; Chukwumah V Shell Petroleum (1993) 4 NWLR (pt.289) 512, Isievwore V NEPA (2002) 7 SC (Pt.ii) 125.  

98. Relief ‘e’ seeks for declaration that the indefinite suspension of the claimant by the 2nd defendant as agent of the 1st defendant is illegal and wrongful due to lack of fair hearing. According to the claimant sometime in 2017 he was issues with a query via e-mail and he answered the query. Exhibit C shows that on 25/8/2017, the claimant was issued with a query by the 2nd defendant and he answered the said query, the answer to the query is as shown in exhibit C, but the query was not tendered in evidence by any of the parties. Another query was issued to the claimant as per exhibit C1, but there is no response to the said query tendered and the claimant has not stated in his pleading that he answered the said query in exhibit C1. The claimant has stated that on 12/12/2017, the day he appeared for hearing he was issued with exhibit C2, the letter of indefinite suspension from duty. He also stated that the suspension was slammed on him without giving him fair hearing.

99. The law is trite that the court will not grant declaratory relief unless such relief has been proven by evidence by the party seeking such relief, regardless of whether or not the party on the other side filed evidence or not. The claimant seeking for declaratory reliefs must prove his case on the strength of his evidence, not on the admission or weakness of the defence of the defendant. See Okereke v. Umahi & ors [2016] LPELR-40035(SC), Nyesom v. Peterside & ors [2016] LPELR-40036(SC), (Nig.) Plc v. Monye [2021] 12 NWLR (Pt.1789) 1, Dumez Nig Ltd v. Nwakhaba & 3 ors [2008] 2 SC (Pt. III) 142 at 152 paras 10 to 25, Bello v. Eweka [1981] 1 SC 101 and Motunwase v. Sorungbe [1988] 12 SC 1, all these authorities insist that the claimant praying for a declaratory relief must proves his case on his own evidence and not on the evidence of the defendant.

100.                     With the state of the pleading and evidence of the claimant, can it be said that the claimant is entitled to grant of declaration that his indefinite suspension is illegal and wrongful due to lack of fair hearing. The word "suspension" has been defined in several decided cases to means a temporary privation or deprivation, cessation or stoppage of or from the privileges and rights of a person. It carries or conveys a temporary or transient disciplinary procedure which keeps away the victim or the person disciplined from his regular occupation or calling either for a fixed or terminal period or indefinitely. The disciplinary procedure gives the initiator of the discipline a period to make up his mind as to what should be done to the person facing the discipline. In other words, suspension is usually a prelude to dismissal from an employment. It is neither a termination of the contract of an employee nor a dismissal of the employee. It merely operates to suspend the contract rather than terminate the contractual obligation of the parties to each other. See University of Calabar v. Esiaga (1997) 5 NWLR (Pt. 502) 719; Longe v. F.B.N. Plc (2010) 6 NWLR (Pt. 1189) 1,  Nweke v. Unizik Awka (2017) 18 NWLR (Pt. 1598) 454 S.C.

101.                     The claimant in this case was suspended vide exhibit C2, which pegged the suspension to be pending further fact finding investigation on act of movie piracy and several inconsistencies observed by audit report on claimant’s Topos sales report. Exhibit C2 further stated that the police will be involved to assist with the investigation.

102.                     It is clear to me that suspension is a weapon put in the hand of an employer for purposes of curtailing excesses of employee and ensuring maintenance of discipline in work place. Exhibit C1 clearly in unequivocal terms stated that the suspension of claimant is for investigation of movie piracy and inconsistencies revealed by audit report on claimant’s Topos sale report. There is no doubt when there is allegation of serious misconduct more particularly bordering on commission of crime, employer will no doubt have power to suspend an employee of whatever status to allow room for discreet investigation of the allegations. From the reason preferred for suspension of the claimant, the suspension of claimant is justified. This is so, as the claimant has not referred the court to any policy or terms and conditions of service that prohibited taking such action by the defendants.

103.                     It is to be noted that in law suspension of an employee is not an unusual procedure taken in order to facilitate an investigation. Thus, an employee affected by suspension can hardly complain of not having been given a hearing; nor can he demand that the rules of natural justice should apply. The interest of the business of the employer becomes paramount and the employee is made to keep off the premises thereof until later. See Shell Pet. Dev. Co. v. Lawson-Jack (1998) 4 NWLR (Pt. 545) 249: C.A.

104.                     The case of the claimant was made worse by issuance of exhibit C5, letter terminating claimant’s appointment with the 1st defendant. Therefore, the claimant has not proved entitlement to declaration that his suspension from work was illegal and wrongful.

105.                     The next relief ‘f’ is praying for an order directing the 1st Defendant to pay to the Claimant his entitlement for having worked for 5 years with the 1st Defendant from 12th Defendant, 2012 to 12th December, 2017 as contained in the contract of employment entered between the Claimant and the 1st defendant. This claim is predicated on the contract of employment entered into between the claimant and the 1st defendant. But, no such contract has been placed before the court for the court to be able to find whether there was such entitlement.

106.                     Furthermore, the way and manner the claimant couched relief ‘f’ it is vague imprecise. The court cannot grant this kind of claim as the court is not allowed to speculate for any relief to succeed it must be precise with no ambiguity. The claimant has not stated the exact amount he is claiming and has not also adduced any evidence from the terms and conditions of service that grant him such claim. This means the clamant has failed in his duty of proof and is not entitled to this claim. In support of my finding I refer to the case of University of Jos V Dr. Ikegwuoha (2013) 8 NWLR (Pt.1360) 478, Pp. 498, paras. C-G; 505, paras. G-H; 506, A-B, the Supreme Court stated as follows:-

‘’A claim that is vague and lacks certainty is no claim at all. In the instant case, in paragraph 13(b) of the respondent’s statement of claim, he sought an order directing the appellant to confirm him as a lecturer in the Department of Political Science of the University of Jos with effect from 27th January 1995 “with all my promotions, allowances and entitlements”. The respondent did not state with certainty what his allowances and entitlements were and how he earned his promotion from one grade to another grade and for which period. These vital facts were not backed by any evidence. All the reliefs regarding promotions, allowances and entitlements were vague, uncertain, unascertainable and lacking in particulars and proof by evidence. All the reliefs pertaining to promotions, allowances and entitlements being reliefs that were vague, uncertain and lacking in particulars and proof by evidence must fail.’’

107.                     In the above case the apex court further stated that for a party to be awarded any relief by a court of law, that party must not only plead with particularity but also prove by credible and convincing evidence that he is indeed entitled to the relief he seeks. A court of law has no jurisdiction to grant to a party that which he has not asked for. Courts ought not to play the role of Father Christmas which can go round granting to parties reliefs which they have not asked for. See Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350; Okoko v. Dakolo (2006) 14 NWLR (Pt. 1000) 401; Ayanboye v. Balogun (1990) 5 NWLR (Pt. 151) 392; Ige v. Olunloyo (1984) 1 SCNLR 158; Atser v. Gachi (1997) 6 NWLR (Pt. 570) 609; Ladoke v. Olobayo (1992) 8 NWLR (Pt. 261) 605; Awosile v. Sotunbo (1992) 5 NWLR (Pt. 243) 514.

108.                     The claimant has also failed to prove entitlement to this relief, same is hereby refused.

109.                     Reliefs g, h and I, are reliefs bordering on declaration that the seizure of the two hard drives belonging to the Claimant by the 2nd Defendant (being an agent of the 1st Defendant) for and on behalf of the 1st Defendant is wrongful and illegal. He is also seeking for immediate returns of the two drives and payment of N5,000,000.00 (Five Million Naira) damages for loss of earning.

110.                     The claimant has stated that sometime in 2017, he left his bag containing his two hard drives and other personal effect in his office at Marina Resort branch as he had been doing in the past but by the time he came back his bag had been ransacked by the 2nd defendant for no justifiable reason and the 2nd defendant did not tell him the reason for breaching his privacy in ransacking his bag in his absence. According to the claimant the 2nd defendant did not tell him anything about pirated movie but proceeded to issue suspension letter to him and invited him to appear for hearing. However, when the claimant realised that the 1st defendant is no longer operating at Marina Resort office he engaged the services of a lawyer to write the 1st defendant demanding for payment of his entitlement and release of his two hard drives. See exhibit C3.  The 1st defendant instead of paying claimant his entitlement and releasing his two hard drives, it wrote to the claimant attaching letter of termination of claimant’s employment with effect from 30th January 2017. See exhibits C4 and C5

111.                     The defendants on their part have stated that the claimant in contravention of the 1st defendant policy transferred (watermarked) highly classified Nollywood movies, which were sent to the defendant by film distributors for exhibition exclusively within its cinema to his personal hard drive and regularly shared the said movies with customers and guests for monetary compensation. According to the defendants the finding came to light upon on the spot check of claimant’s personal hard drive connected on to the defendant’s administrative computer. The 2nd defendant discovered the claimant’s second hard drive in the office safe. The two hard drives were sent to defendant’s support service office for extensive investigation.

112.                     The claimant under cross examination maintained that the 2nd defendant searched his bag and confiscated his two hard drives containing his personal effects. The defendants’ evidence that the claimant’s hard drive was connected to the administration office computer has not been proved, because the person who allegedly discovered the hard drive connected to the administration computer though listed as witness was never called to testify before the court. Though the defendants are free to call any witness to testify in their defence, the witness to be called must be a witness that was involved in the act, on which evidence is being given. See the case of Jallco Ltd V Owoniboys Technical Services Ltd(1995) 4 NWLR (Pt.391)534, where the Supreme Court held that where conduct and affairs of a particular officer in a specific transaction is in dispute, it is that officer that should be called to explain and not officer who never had anything to do with the transaction. In view of this finding, I found the story told by the claimant under cross examination to the effect that the 2nd defendant searched his bag and confiscated his two drives as true. With the evidence before the court the claimant is entitled to declaration that the search of his bag and confiscation of his two hard drives by the 2nd defendant on behalf of the 1st defendant is illegal and wrongful.

113.                     Relief ‘h’ is for an order directing the defendants to return to the claimant the two hard drives seized by the defendants. Having found the confiscation of claimant’s hard drives to be wrongful, common sense dictates making of order for the return of the two hard drives to their owner i.e the claimant in this suit. This order is more plausible having regards to the fact that the defendants are yet to report the alleged act of piracy against the claimant to any law enforcement agency. The defendants have no right to continue to hold claimant’s hard drives more particularly when they had completed their internal investigation. If there is any other criminal investigation it should be by the appropriate law enforcement agency responsible for prosecution of copyright violation.

114.                     What remain to be determined on the issue of two hard drives is the claim of N5,000,000.00 (Five Million Naira) special damages for the loss of earning. This claim being claim for special damages, the law requires the claimant to specifically and specially plead it. He is also required to particularise and strictly proved entitlement to the claim. Claim for special damages must be capable of substantially exact calculation; as the law does not infer from the nature of the act complained of. They do not follow in the ordinary course, they are exceptional in their character and they must therefore be claimed specially and proved strictly. See Julius Berger (Nig.) Plc. v. Nwagwu (2006) NWLR (Pt.995) 518.

115.                     In the case at hand the claim of special damages are for loss of earning is in respect of personal materials such as alleged music albums, researched and typed final year project which is yet to be printed amongst others. The Claimant further stated that he had to pay heavily to process new project as well as other important documents contained in the Hard Drives. The Claimant has however failed to strictly prove the exact loss on these personal materials which the claimant allegedly lost earning on them. A part from ipse dexit of the claimant there is no any other evidence to prove the alleged lost. There is no evidence to establish that the claimant was a student in any University. There is also no evidence to prove that the claimant is into music and had actually produced any album. On the alleged new project the claimant had not tendered copy of the new project nor tendered any receipt showing the heavy money which the claimant alleged to have spent in producing the new project. The court was also not told how much money was lost for each of the items of loss. Therefore, the claimant has woefully failed to establish entitlement to the claim for N5,000,000.00 (Five Million Naira) special damages in relief ‘h’.

116.                     The next relief being sought by the claimant is relief ‘j’ which is on Ten Million Naira for general damages. The law is settled that claim for general damages are distinct from special damages. They are such as the law will presume to be the direct, natural or probable consequence of the act complained of. See Odulaja v. Haddad (1973) 11 SC 357, the grant of general damages is at the discretion of the court after considering the entire case presented to the court.

117.                     Another item of claim is as contained in relief ‘k’ which is a claim of N1,000,000.00 (One Million Naira) cost of litigation. Like general damages cost of litigation is at the discretion of the court after appraising the case put forward by the claimant.

118.                     The last relief ‘I’ which is for Letter of apology, the claimant having not established entitlement to grant of declaration that the termination of his employment is illegal and wrongful is not grantable.

119.                     From all I have been saying above the claimant succeeds in part only in respect of the seizure of his two hard derives is hereby declared wrongful since there has been no intention on part of the defendant to report the alleged piracy to any law enforcement agency. The claimant is entitled to have his two hard derives returned to him. The defendants are hereby ordered to immediately return to the claimant his two hard derives seized by the 2nd defendant on behalf of the 1st defendant.

120.                     I award the sum of N500,000.00 (Five Hundred Thousand Naira) as cost in favour of the claimant against the defendants. The defendants are hereby ordered to pay to the claimant the sum of N500,000.00 (Five Hundred Thousand Naira) cost to the claimant with immediate effect.

121.                     Judgment is entered accordingly.

 

 

Sanusi Kado,

Judge.

REPRESNTATION:

Agba Eimunjeze, Esq; for the defendants