IN THE NATIONAL INDUSTRAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. AGBAKOBA

 

 

DATED: 3RD NOVEMBER, 2022                                      SUIT NO: NICN/ABJ/391/2016

 

 

BETWEEN

NEHANDA NYAKASIKANA          ………………………………….                CLAIMANT

 

AND

1. MR. REMI KILASO

2. MRS. KEHINDE KILASO           …………………………………                 DEFENDANTS

3. GLOWING AGES ACADEMY)

 

REPRESENTATION

GODSWILL IYOKE Esq. for the Claimant

OLADELE GBADEYAN Esq. With LUKMAN ALAWAYE Esq. and RHODA ARANSIOLA Esq. for the Defendants.

 

JUDGEMENT

 

1.      The claimant filed this Complaint on 18th October, 206 and dated 17th October, 2016 with the accompanying frontloaded documents, claiming against the defendants jointly and severally, as follows:

 

1.      That the termination of the claimant’s employment as per the letter of ‘termination of employment’ dated 4th December, 2015 is wrongful.

 

2.      The payment of the sum of N1, 011,250.00 being the unpaid salary due to the Claimant as at December 2015, as follows;

 

a.      The claimant salary for the month of December 2015 and the 13th month salary bonus in the sums of N575, 000.00 and N120, 000.00, respectively.

 

b.      The sum of N316, 250.00 being 5% of the claimant’s salary for the period of January to November, 2015, held in escrow account by the defendants;

 

3.      The sum of N2,875,000.00 being the salary due to the claimant for the months of January, February, March, April and May, 2016, during the period of notice given by the claimant;

 

4.      The sum of N1,520,000.00 being the value of the monetized 12-month employment benefits of the Claimant for the 6 months period of December 2015 to May, 2016, during the period of notice given by the claimant, as follows;

 

a.      Accommodation for 6months, in the sum of N1, 000,000.00 @ N2, 000,000.00 per annum;

b.      Official car for 6 months for N250, 000 @ N500, 000 per annum;

c.      The utilities allowance of N120, 000 for 6months @ N240, 000 per annum;

d.      Furniture allowance of N150, 000 @ N300, 000 per annum;

 

5.      Refund of the sum of £620, spent in respect of the Claimant’s STR, at the current value in Naira; and payment of the sum of N41 1,960.00 owed by the defendants to the Claimant, as follows;

 

a.      The unpaid return ticket for the claimant in the sum of N250, 000.00.

b.      Hotel accommodation expenses paid by the claimant to Ajuji Hotel, the sum of N144, 760;

c.      The cost of plumbing repairs effected by the claimant at the official residence, in the sum of N17, 200.00

6.      Declaration that the claimant is entitled to salaries and benefits for the period of June 2016 to July, 2017, if the defendants had not frustrated the claimant’s employment which would have ended on 31st July, 2017; and consequently order that the claimant be paid the sum of N2, 845,000 (Two Million Eight Hundred and Forty-Five Thousand Naira) made up as follows;

 

a.      The sum of N1,725,000.00 being salary for the 3 months of June, July and August of the 12 months annual salary in the sum of N6,900,000.00;

b.      The sum of N500, 000.00 being ratio of the accommodation allowance of the annual accommodation valued @ N2, 000,000.00;

c.      The sum of N125, 000.00 being the 3 months ratio of the value of the claimant’s annual Car allowance of N500, 000.00.

d.      The sum of N60, 000.00 being the 3 months ratio of the Claimant’s utilities allowance for 1 year, valued @ N240, 000.00;

e.      The sum of N75, 000.00 being the ratio of the furniture allowance for 1 year valued @ N300, 000.00

7.      Costs and General damages of N10, 000,000.

 

 

The Defendants filed a JOINT STATEMENT OF DEFENCE on 19th May, 2022.

 

2.      In response to paragraphs 3 and 4 of the Statement of fact, the Defendants averred that the Claimant was employed on a monthly salary of N600, 000.00 (Six Hundred Thousand Naira); and that by the contract agreement) the 3rd Defendant was to provide the Claimant as head teacher with the following benefits:

 

a.                  furnished accommodation with basic furniture and a branded car;

b.                  pay normal use of all utilities at the head teacher’s residence with periodic service and maintenance of the official car, electricity, water and internet access.

c.                  Round trip economy airfare by least cost routing to home of record once in a year or to desired destination but cost of airfare to other destination shall not exceed cost of travel to home of record.

d.                  entitled to N100, 000.00 (One Hundred Thousand Naira) medical allowance per academic session at the 3rd Defendant’s registered hospital.

e.                  20% tuition for 2 of her children.

3.      The Defendants in reacting to paragraph 6 of the statement of facts state that the Claimant’s contract letter spells it out expressly that her compensation package is in Naira Currency and the Claimant was never owed any salary or allowances while in the employment of the 3rd Defendant.

 

4.      Replying paragraph 8 of the statement of facts, the Defendants averred that the 3rd Defendant refused to pay the sum of N144,760.OO (One Hundred and Forty Four Thousand Seven Hundred and Sixty Naira) claimed by the Claimant because prior to her incurring the debt, the claimant had already been informed of their stand not to further pay her hotel bills having paid for accommodation of her choice to the tune of N1,455,000.00 comprising of rent of N1,200,000.00, service charge of N75,000.OO, 15% agency and legal fees amounting to N180,000.00. The Defendants in response to paragraphs 10, 11 and 14 of statement of facts, stated that the Claimant was summarily and legitimately dismissed for grievous and egregious infractions, misrepresentation/deceit, fraud and gross misconduct of the Claimant such as, her actions involving moral turpitude, her conduct tending to reflect discredit upon the school and conducts which impaired her usefulness in her capacity as the head teacher made her not to entitled to be given any notice prior to her dismissal.The Defendants responding to paragraph 12 of the Statement of Fact and its sub paragraphs, stated that contrary to the Claimant’s assertion it was upon being informed of the Defendant’s intention to set up a disciplinary panel that made the Claimant to hurriedly send a resignation letter and that the internal memo was pasted about 8.30 am and it was not upon receipt of the Claimant’s resignation letter. And that the Claimant was duly informed of the agenda of the disciplinary meeting but that the disciplinary panel meeting scheduled for 10.00am did not hold until about 11.20am as the Claimant claimed to be busy.

 

5.      The Defendants reacting to paragraph 14 of the statement of facts aver that the Claimant was legitimately, legally and properly dismissed from her 12 months employment with the Defendants for acts of misrepresentation and other acts of gross misconduct, and unprofessional conducts.

 

6.     PARTICULARS OF GROSS MISCONDUCT

(i)               The Claimant frequently engaged in verbal abuses with the teachers and staff.

(ii)            Under the Claimant’s watch, teachers no longer prepare notes for classes which affected the performance of the pupils due to lack of co-ordination and effective communication on the part of the Claimant.

(iii)          Without the authority and instruction of the Defendants, the Claimant was sending e-mails to parents to discredit the 3rd Defendant.

(iv)          The Claimant as Head Teacher for the school authorised and facilitated movement of teachers to teach courses/subjects they were not employed to teach thereby affecting the pupils.

 

7.      The Defendants in response to paragraph 15 of the Statement of Facts stated that due process was observed in the termination of the claimant’s contract and they, through their legal representative wrote to the Comptroller General of Immigration intimating him of the state of affairs regarding the relationship between the Claimant and the Defendants.In further response to paragraph 15, the Defendants averred that the Claimant’s was given options either to vacate the premises or remain on the premises and be personally liable for the rent but she opt not to take up the tenancy and was given time to vacate the premises which the Claimant did at her convenience and voluntarily and was never deceived, manipulated nor compelled to vacate the premises as alleged.The Defendants shall contend before and or during the trial of this suit that the Claimant has not disclosed any reasonable cause of action against the Defendants.

 

8.      WHEREOF the Defendants state that the Claimant is not entitled to the reliefs claimed in the statement of facts, and that accordingly this complaint should be dismissed with substantial costs.

 

9.      The Defendants shall before the trial raise the preliminary points of law:

 

That the court lacks jurisdiction to entertain this suit on the following:

 

a.      The Claimant lacks the locus to institute this action.

 

b.      The 1st and 2nd Defendants are not privy to the contract and are agents of a disclosed principal.

 

 

REPLY TO DEFENDANTS’ FINAL WRITTEN ADDRESS filed on 19th July, 2022.

 

10. On the issue of the joinder of the defendant as parties, it is the position of the Claimant that the 1st and 2nd defendants are the proprietors of the 3rd defendant, in which name or contraption they carried on business. And that is the duty of the defendants who assert that the 1st and 2nd defendants are directors in the 3rd defendant as an incorporated entity to show proof. Shipcare vs. Fortunato (2011) 45 NSCQR 673.Claimant Counsel argued further that non-joinder or misjoinder does not defeat the suit or the claims. Anyanwoko vs. Okoye (2010) 41 NSCQR 46. The Claimant Counsel contended that the defendants, who in paragraph 3 of the joint statement of defence averred that the 1st and 2nd defendants are directors in the 3rd defendant as a limited liability company, failed to substantiate same, either by certificate of incorporation or particulars of directors. He urged the court to hold that the defendants are withholding the said evidence because it is against their interest. Ogudu vs. State 48 NSCQR 377.

 

11. In response to the defendants’ submission that the termination of the Claimant’s employment as per Exhibit C16, was lawful, valid and without any legal impediment, Counsel submitted that the grounds in the said exhibit C16 are not part of the conditions contained in Clause 5 of Exhibit C4. Arguing that Parties are bound by the terms of their contract as contained in an agreement without any subtraction or addition; and that the Court has no power to rewrite the contract. Afrotech vs. MIA & Sons Limited (2000) 12SC (Part II) 1 @ 15; Dantata vs. Dantata (2002) 4 NWLR (Part 756) 144 CA. The Claimant Counsel noted that by the submission of the defendants as per paragraphs 6.11, 6.12, 6.13, 6.14, 6.15 and 6.16 of the final written address of the defendants, they seek to contradict the express contents of exhibits C4 and C16 by averments and testimony of witness, submitting that the defendants cannot resort to mere averments and mere evidence of Witness to contradict the contents of documents. Baliol Nigeria Ltd vs. NAVCON (2010) 42 NSCQR 1067.In response to the submission of the defendants as to the inadmissibility of Exhibit C4, Counsel submitted that same is misconceived, having regard to the following established principles;

i)                  the said document was pleaded;

ii)                the document is relevant to the subject matter of dispute as the defendants relied upon it as per paragraph 5:03 of the Final written address, amongst others;

iii)             the document is admissible and was duly admitted. Okoye vs. Obiano 41.2 NSCQR 958 @ page 996, per O. O.Adekeye, JSC.

 

12.Further to the foregoing submission, on the issue of admissibility, Counsel submitted that Exhibit C4 is part of Exhibit C3, signed by the 2nd defendant on behalf of the 3rd defendant, of which terms the parties were meant to be bound. Ayuya vs. Yonrin 46 NSCQR 471 @ page 497-498, (paras A-C).It is also the submission of the defendants that the claimant misrepresented her qualification, for which DW2 was subpoenaed to tender Exhibits D9, D1O, D11, D12 and D13. These documents, Counsel submitted, are inadmissible, on the following grounds;

 

i)                  Exhibits D9, D10 and D11, which emanated from the defendants were not frontloaded as mandated in Order 32 Rule 1 of the National Industrial Court Rules, 2017, which provides thus; “The statement of defence shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and their written statements on Oath in accordance with these Rules”

 

ii)                Exhibits Dl1 and differs from a similar document that was frontloaded and filed by the defendants along with their original joint statement of defence and without evidence, by way of official stamp that they are part of the official records of the Ministry of Interior.

 

iii)             Exhibit D12 is undated and without evidence, by way of official stamp of the Ministry of Interior that it is part of the official records of the ministry. Similarly, there is no evidence that the undated Exhibit D13 is part of the official records of the Ministry of Interior.

 

13. Claimant Counsel submitted that the facts in the above documents, are not supported by the Witness’s Statement on Oath as mandated by Order 32 RuIe 1 of the National Industrial Court Rules, 2017, thereby that the defendants failed to adduce evidence in proof of the content of the subject documents. Sa’eed vs. Yakowa (2012) 49 NSCQR 452.Counsel to the Claimant, further submitted that even if the said documents are admissible, they are lacking in probative value. Ayuya vs. Yonrin (supra).

 

14.In response to the submission of the defendants in proof of their counter-claim, Counsel submitted that the defendants have neither proved that the Claimant’s employment nor the payments of her salary and other employment benefits, were conditional upon her possession of a Masters’ Degree, thus that the counter-claim is not justifiable. Ashabi vs. Olapade (2011) 46 NSCQR 292.

 

15. On the claims for refund by the defendants, as per paragraph 7.13 of the defendants’ final written address, Learned Counsel submitted that it is misconceived having regard to Section 15 of the Labour Act by which the claimant is entitled to be paid for services rendered, whilst in the defendants’ employment, as a as a matter of right by virtue of her employment. Longe vs. FBN 42 NSCQR 618, per Oguntade, JSC @ page 650 (para C-E).

 

CLAIMANT’S FINAL WITTEN ADDRESS filed on 22nd April, 2022.

 

ISSUES

 

1.     Having regard to the terms and condition of the contract of employment the manner the employment of the Claimant was terminated is wrongful;

 

2.     Whether the Claimant is entitled to damages made up of her salaries and benefits during the subsistence of her employment contract with the defendant.

 

ON ISSUE 1

 

Termination of the Employment Contract

16. Learned Counsel submitted that the employment of the Claimant and the terms thereof, as contained in exhibits C3 and C4, has been established; and that parties are bound by the terms of their contractual relationship as contained in exhibits C3 and C4. Adusei vs. Adebayo (2012) NSCQR 1492, per J.A Fabiyi, JSC @ page 1516; A.G Rivers vs. A.G AkwaIbom (Part II) 45 NSCQR 1041 @ 1077-1078. Counsel submitted that the Court is obligated to respect and honour the agreed terms and conditions of the contract, as contained in this document. Babatunde vs. Bank of the North (2011) 48 NSCQR 640, per O.O Adekeye, JSC @ 666.

 

17.Counsel contending that the defendants sought to justify the termination of the Claimant’s employment as per exhibit C16 on the allegation of breach of clause 5 of exhibit C4, defined as grievous and egregious wrongdoing in paragraph 5.5(b) of the exhibit C4, submitted that having adduced reason for the summary termination of the Claimant’s employment, the defendants are bound to prove the wrongdoings, as alleged. Institute of Health vs. Anyip (2011) 45 NSCQR 691, per CM Eneh @ 708; Eze vs. Spring Bank 48 NSCQR 124.It is Counsel’s submission that where there is departure from the prescribed procedure or a violation of the elementary rules of natural justice, then the dismissal is unlawful”, per R.B Rhodes-Vivour, JSC, @156.Counsel argued that the defendants did not prove any of the above acts against the -Claimant and that the feeble efforts at doing this, in paragraph 38 of the Witness statement on Oath is unacceptable, as it is Hearsay. Doma vs. I.N.E.C (2012) 13 NWLR (Part 1317) 297, @ 328-329.He submitted further that it is also the law that a piece of evidence is hearsay if it is evidence of the contents made by a witness who himself is not called to testify. Nnanyelugo v. Nnanyelugo (2008) All FWLR (Pt. 401) 897 at pp. 914 – 915. And that the best evidence in the circumstances, is the direct evidence of 2nd defendant. Adusei vs. Adebayo (2012) NSCQR 1492A.G Rivers vs. A.G AkwaIbom (Part II) 45 NSCQR 1041Babatunde vs. Bank of the North (2011) 48 NSCQR 640Institute of Health vs. Anyip (2011) 45 NSCQR 691Eze vs. Spring Bank 48 NSCQR 124Doma vs. I.N.E.C (2012) 13 NWLR (Part 1317) 297Nnanyelugo v. Nnanyelugo (2008) All FWLR (Pt. 401) 897Purification Technique (Nig) Ltd vs. Jubril (2012) 18 NWLR (Part 1331) 109.

 

ON ISSUE 2

 

ENTITLEMENT TO SALARY AND EMPLOYMENT BENEFITS

 

18. Counsel submitted that in resolving this issue, this honorable court has to consider; whether from the totality of evidence proffered by the plaintiff, it has made out a case of wrongdoing against the defendant, by the breach of the terms of the employment contract. Omega Bank vs. O.B.C Limited 21 NSCQR 771; Nigerian Ports Authority vs. Beecham Pharmaceuticals (2012) 18 NWLR (Part 1333) 454.

 

19. Learned Counsel submitted that the Claimant has established that the defendants breached the employment contract with the claimant, by despising her due Notice of resignation and summarily terminated her appointment. And that until the employment contract is duly determined the Claimant is entitled to continue to earn, be paid salary and to enjoy other benefits of her contract. Section 15 of the Labour Act, CAP L1, Laws of the Federation.

 

20.Furthermore, that the Claimant is entitled to be compensated in damages for the denial of her employment right and benefit. Omega Bank vs. O.B.C Limited (supra), particularly @ page 794.It is Counsel’s contention that the Claimant is entitled to the sum of N1,520,000.00, which entitlement is provided for and secured in Clause 2.2.1a of exhibit C4 , and that this is admitted by the defendants in paragraph 5 of the Joint Statement of defence and paragraph 10 of the 1st defendant’s Witness Deposition. Thus, having so admitted these claims, they require no further proof. Adusei vs. Adebayo (supra) as per J.A Fabiyi, JSC @ page 1516; Section 124(1)(b) of evidence Act; Section 124(1)(b) of evidence Act; Nwora vs. Nwabunze 48 NSCQR 256 @ 278 paras. C-D.  Counsel argued that while providing details of the cost and expenses incurred, the defendants failed to provide material information, such as tenancy agreement, receipts of payment of rent and legal/agency fees to prove the period the accommodation was availed the Claimant, urging the Court to hold that these pieces of evidence are prejudicial to the defendants. Odogwu vs. The State (Supra), particularly @ page 115, paras. B-D. He argued that as per clause 10 of exhibit C4, the Claimant’s employment was for an initial period of 2 years, but for the wrongful determination, the claimant’s employment was to subsist till January 2017, when it was to terminate by effluxion of time.  Clause 10 of exhibit C4.

 

21. Counsel posited that the Claimant also claims General damages of N10, 000,000.00 for the wrongful premature termination of her employment, urging the Court to uphold the doctrine of ubi jus ibiremedium. RasakOsayande vs. Joyce Amadin (2001) 1 CLR 458; Okonkwo vs. Ogbogu (1996) 7NWLR 580.Counsel submitted that Damages are the means by which wrongs are remedied and the victims of wrongful acts compensated. Ighreriniovo vs. SCC Nig. Ltd. 54.3 NSCQR 1547, @ page 1562, paragraph F-G, per Fabiyi, JSC.

 

DEFENDANTS/COUNTER CLAIMANTS’ FINAL WRITTEN ADDRESS IN OPPOSITION TO THE CLAIMANT’S SUIT AND IN SUPPORT OF THE COUNTER –CLAIM filed on 22nd April, 2022.

 

ISSUES

1.     Whether the termination of the Claimant’s employment on the 4th December, 2015 is wrongful.

 

2.     Whether the Claimant is entitled to the claims sought, having regard to the totality of the evidence led.

 

3.     Whether the Defendants/Counter-Claimants have proved their case to entitle them to the reliefs sought in the counter-claim.

 

ON ISSUE 1

 

Whether the termination of the Claimant’s employment on the 4th December, 2015 is wrongful.

 

22.It is Counsel’s submission is to state that what existed between the Claimant and the 3rd Defendant is a contract of employment as evidenced by the letter of employment and the Contract of Employment which were duly tendered in evidence by the Claimant and marked as Exhibit “C3” & “C4” respectively; therefore, that the Parties are ad idem on this and as such same needs no further prove. NICON .V. POWER AND INDUSTRIAL ENG.CO.LTD. (1986) 1NWLR (PT.14) P.266, PARAS C-D.Counsel submitted that in a suit based on a contract of employment, the agreed terms and conditions of the employment upon which the claims are made are central in the proof required by law. ABAYOMI .v. SAAP-TECH (NIG) LTD (2020) 1 N.W.L.R (PT 1706) 453 at 493 PARAS B – C; AFRIBANK NIGERIA PLC .v. OSISANYA (2000) 1 N.W.L.R (PT 642) 598.

 

23. It is Defendant’s Counsel’s contention that the repudiation of the contract of employment between the Parties hereto in the instance amounts to a dismissal; and that Oxford Dictionary defines “dismissal” to mean a discharge from service or office. C.I. Olaniyan & Ors .v. University of Lagos &Anor (1985) 2 N.W.L.R (pt. 9) 599 @620, Per Oputa, JSC. Counsel submitted that Clause 5.1 of the Employment Contract. Exhibit C4, gives the 1st and 2nd Defendants (the Proprietors of the 3rd Defendant) the discretionary power to determine the basis for discharge (termination) of Claimant’s employment for any of the grounds listed thereafter. And that where words used in a statute or document are plain and unambiguous, the Court ought to give same their ordinary meaning without more. BFI GROUP CORP .v. BPE (2012) 18 N. W. L. R (PT 1332) 209 at 234 – 235 PARAS H – A, at pages 238 – 239 paras H – B; 246 paras E – F; AJAGBE .V. IDOWU (2011) 17NWLR (PT 1276) 422; UNION BANK OF NIGERIA .V. SAX (NIG) LTD (1994) 8NWLR (PT 361) 150.

 

24. He submitted that the distinguished learned author and renowned authority on labour law and related matters, Prof. Akintunde Emiola in his book, Nigerian Labour Law, Fourth Edition at page 161 under “Summary Dismissal”, elucidated on the issue thus:

“As already stated, an employer may terminate the service of his employee by paying the latter a sum equivalent to what the worker would have earned had he been given proper notice. Even where the contract is intended to last until retirement, the courts would still compute the worker’s loss in monetary terms where it is impracticable to reinstate the affected person to his former post. The Courts would do so if the relationship between the parties have reached a state where it would not be in the interest of the worker himself to have him reinstated to his post. Similarly, the Court would do so if the relationship between the parties have reached a state where it would not be in the interest of the worker himself to have him reinstated to his post. Similarly, the Court would do so where the post had already been filled. This is to be distinguished from a situation where a worker is dismissed summarily without notice on grounds which the employer might perceive as ‘misconduct’. In the later case, no payment is made in lieu of notice or is ever expected”.

 

25. The Defence Counsel posited that the Claimant, on whom lies the burden to proof her entitlement to the declaration sought, failed woefully and abysmally to establish same and that it is a settled position of law that a party seeking a declaratory reliefs before the Court, is under legal obligation to prove his entitlement to the said reliefs with cogent and credible evidence.DUMEZ NIGERIA LTD .V. NWAKHOBA (2008) 18NWLR (PT. 1119) P.361, NWOKIDU V OKANU (2010) 3NWLR (PT. 1181) P. 362, DANTATA .V. MOHAMMED (2000) 7NWLR (PT.664) P. 176.He argued further that the Claimant cannot rely on the weakness of the Defendants’ case, (which is not the case in the present suit), as the Claimant must swim or sink with her case. IMAM .V. SHERIFF (2005) 4NWLR (PT.914) 80; ELIAS .V. OMO-BARE (1982) 2SC 25; AGBI .V. OGBEH (2006) 11 NWLR (PT. 990) 65.

 

ON ISSUE 2

 

WHETHER THE CLAIMANT IS ENTITLED TO ANY OF THE RELIEFS SOUGHT IN HER COMPLAINT?

 

26.The Defendants adopting and relying on the arguments canvassed on issue 1 above in urging the Court to hold that the Claimant is not entitled to any of the sums claimed, submitted that reliefs 2(a), (b), 3, 4(a), (b), (c) & (d), 5(a), (b), (c), 6(a), (b), (c), (d) & (e) are  in the nature of special damages for which the Claimants is required by case law to prove her entitlement to. ONYIORAH .V. ONYIORAH (2019) 15NWLR (pt. 1695) 227 @ 246-247 paras G-D, at page 240 paras D-F (Supra); B.A.L Co LTD .v. LANDMARK UNIVERSITY (2020) 15 N.W.L.R (Pt. 1748) 465 at 502 – 503 Paras B – D.Counsel argued that in the present case, although the Claimant pleaded and particularized the alleged facts predicating the damages, she failed to prove that the termination of her employment was wrongful and also that the contract of employment contemplated monetization of the benefits/perquisites of her position as the head teacher.Furthermore, that the purported Contract of Employment tendered in evidence by the Claimant is unsigned by any of the parties thereto and that the position of the law with respect to the status of an unsigned document is trite to the effect that such document has no probative value. OMEGA BANK PLC .V. OBS LTD (2005) 8NWLR (PT 928) 547 @ 581; A.G. KWARA STATE .V. ALAO (2000) 9NWLR (PT 671) 89 @ 104, OKAFOR .V. NWEKE (2007) 10NWLR (PT 1043) 531.Counsel contended that there is no admissible evidence placed before the Court to establish the terms of the purported Contract of Employment as the purported Contract of Employment tendered as Exhibit C4 is unsigned. Hence, that the Court cannot infer terms of the purported contract not expressed or contemplated by the parties, as the Court is under a duty to act only on admissible evidence in arriving at this decision. ENWEREM .V. ABUBAKAR & ANOR (2016) LPELR-40369(CA).He submitted that words in a contract/document, where clear and unambiguous, must be given their ordinary meaning. ATTORNEY GENERAL OF THE FEDERATION V. THE GUARDIAN NEWSPAPER LTD. (1999) 9 NWLR (PT. 618) PAGE 264, per IGUH, JSC.

 

ON ISSUE 3

 

Whether the 3rd Defendant/Counter-Claimant has proven her case to entitle the grant of the reliefs sought in her Counter-Claim.

 

27.It is Counsel’s submission that in an action such as the present, the onus of proof lies on the party alleging, as it lies on the party on whom judgment may be given against if no evidence is led in support of the facts alleged. SECTION 131 (1) & (2) OF THE EVIDENCE ACT.Counsel contended that the burden thus lie on the Claimant to tender not just any CV as she did, but one that will clearly show that it was forwarded to the Defendants’ email address. Put in another manner, that the Claimant, who alleges that her Curriculum Vitae was sent via email to the Defendants/Counter-Claimants, must tender a copy of same which must indicate the sender’s email address and when same was sent. EGHAREVBA .v. OSAGIE (2009) 18 N.W.L.R (pt.) 1173) 299 @ 315 PARAS B – C.Counsel submitted that the Defendants/Counter-Claimants have discharged the burden of proof placed on them, which is proof on a balance of probability and that when the evidence led by the parties are placed on an imaginary scale, that of the Defendants/Counter-Claimants preponderates and the scale tilts in favour of the Defendants/Counter-Claimants. MOGAJI V. ODOFIN (1975) 1LRLR THE EVIDENCE ACT 2011.

 

28. On the 20th July 2022 parties adopted and adumbrated their respective processes and this matter was adjourned for judgement.

 

Court’s Decision

 

29. I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issues for determination in this suit to my mind are the issues formulated by the defendants in their Final Written Address In Opposition To The Claimant’s Suit And In Support Of The Counter –Claimfiled to wit;

 

ISSUES

1.      Whether the termination of the Claimant’s employment on the 4th December, 2015 is wrongful.

 

2.      Whether the Claimant is entitled to the claims sought, having regard to the totality of the evidence led.

 

3.      Whether the Defendants/Counter-Claimants have proved their case to entitle them to the reliefs sought in the counter-claim.

 

30. Bearing in mind that the Supreme Court in the case of LONGE Vs. FBN LTD [2010] LPELR 1793 SC held that “…. there are three categories of employment

a)     Purely Master and Servant relationship

b)    Servants who hold their office at the pleasure of the employer

c)     Employment with statutory flavour….”

 

31. It is necessary to make a determination as to which one the Claimant/Defendant employment relationship belongs.  Case law lays credence to the letter of appointment in this situation and in the instant case recouse has to be made to the letter of employment. FEDERAL MEDICAL CENTRE IDO EKITI & ORS. Vs. OMIDIORA KOLAWOLE O. [2011] LPELR 4149 CA page 15 para B. Also in SULIEMAN ADAMU Vs, MOLAMMMAD SANI TAKORI & ORS [2009] LPELR 3593 CAAfter a careful perusal of Exhibit C3, it contents and the other accompanying documents tendered by the Claimant I am satisfied that the employment relationship between the parties in this suit is indeed one of Employer/ Employee commonly referred to as a Master Servant relationship. I find.

 

32. The court is at this stage, havingdetermined the nature of the Claimants appointment the next thing would be to determine whether the reliefs sought can be granted particularly reliefs. However before looking in to the detail of the reliefs and their supporting evidence I noted that in the course of this trial the evidence before the court is that the claimant tendered exhibit C5 as a document she served on the Defendants before she was given her Letter of Termination. To the claimant the Defendants despising her due Notice of resignation and summarily terminated her appointment. Whereas the defendants contended that it was upon being informed of the Defendant’s intention to set up a disciplinary panel that made the Claimant to hurriedly send a resignation letter and that the internal memo was pasted about 8.30 am and it was not upon receipt of the Claimant’s resignation letter.

 

33. The basic law, with regard to resignation by YESUFU V. GOV. EDO STATE [2001] 13 NWLR (PT. 731) 517 SC, is that a notice of resignation of an appointment becomes effective and valid the moment it is received by the person or authority to whom it is addressed. This is because there is absolute power to resign and no discretion to refuse to accept; and it is not necessary for the person to whom the notice of resignation is addressed to reply that the resignation is accepted.

And by NNPC V. IDONIBOYE-OBU [1996] 1 NWLR (PT. 427) 655 CA and NEPA V. ISIEREORE [1997] 7 NWLR (PT. 511) 135 CA, where a contract of service gives a party a right of termination of the contract by either giving a particular length of notice or payment of salary in lieu of the length of notice and the latter course is chosen, the party seeking to end the contract must pay to the other party the salary in lieu of notice at the time of termination of the contract. It is not even enough that in the letter of termination he offers to pay salary in lieu of notice. See unreported Suit No. NICN/LA/293/2013 ABAYOMI ADESUNBO ADETORO V. ACCESS BANK PLCthe judgment of which was delivered on 23rd February 2016 where these principles of law were applied.

 

34. The rule to note here is that tendering of a letter of resignation by an employee carries with it the right to leave the service automatically without any benefit subject to the employee paying any of his indebtedness to his employer. Resignation with immediate effect by an employee carries with three legal effects: the right to leave service automatically; the employee’s forfeiture of any benefit; and the employee paying any indebtedness to his employer. SUIT NO. NIC/LA/140/2011  MR. BELOVED PATRICK ANOKWURU VS. OMATEK VENTURES PLC &ANORdelivered 17th March 2016. In the instant case the claimant indicated a willingness to serve out her notice but this was truncated by the Defendants.

Once the resignation became effective, there was no employment that existed in respect of which the defendant can say it is rejecting its resignation. In ABAYOMI ADESUNBO ADETORO V. ACCESS BANK PLCunreported Suit No.NICN/LA/293/2013the judgment of which was delivered on 23rd February 2016, the refusal of the defendant to accept the claimant’s resignation was held to be null and void and of no effect whatsoever; as such the claimant cannot be said to have still been in the employment of the defendant. And in JOMBO V. PEFMB [2005] 14 NWLR (PT. 945) 443 SC, the Supreme Court held that an employee cannot be dismissed from an employment that ceased to exist; for a dismissal coming after the termination of appointment would be a futile exercise.

I find that the subsequent action of the defendants in terminating the claimant. setting up and conducting disciplinary committee /panel all amount to nothing because the contract of employment had already been determined, and something cannot be put on nothing, to paraphrase a popular authority UAC VS. MCFOY 1960 AC 1. Relief 1 therefore succeeds in part. I find that the termination of the claimant’s employment as per the letter of ‘termination of employment’ dated 4thDecember, 2015 is of no import and a nullity.

 

35. Now back to the Claimants claims. The rule is that an employee making a claim in an employment or labour case has the burden of proving his entitlement to the claim and the quantum of his claim in terms of how he came by the said claim. See Mr Charles Ughele v. Access Bank Plc unreported Suit No. NICN/LA/287/2014 the judgment of which was delivered on 10th February 2017. To prove an entitlement, the employee must refer the Court to the exact provisions of the law, instrument or document that conferred the entitlement. See Otunba Gabriel Oladipo Abijo v. Promasidor (Nig.) Ltd unreported Suit No. NICN/LA/602/2014 the ruling of which was delivered on 17th January 2017 and Mr. Mohammed Dungus&ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39. And to prove the quantum of the sums claimed, the rule regarding proof of special damages must be adhered to. This is because, the claim for “entitlements and/or benefits” as in the instant case, being monetary sums is a claim for special damages. See Kelvin Nwaigwe v. Fidelity Bank Plc unreported Suit No. NICN/LA/85/2014 the judgment of which was delivered on 24th January 2017. Here, the law is that evidence ought to be led before an award for special damages is granted; and to succeed in a claim for special damages it must be claimed specifically and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence. See NNPC v. Clifco Nig. Ltd [2011] LPELR-2022(SC) and Mr Ignatius Anyanwu&ors v. Mr Aloysius Uzowuaka&ors [2009] LPELR-515(SC); [2009] 13 NWLR (Pt. 1159) 445 SC. All items of loss must be specified by the claimant before they may be proved and recovery granted. See Christopher U. Nwanji v. Coastal Services Nig. Ltd [2004] LPELR-2106(SC); [2004] 11 NWLR (Pt. 885) 552; [2004] 18 NSCQR 895. Furthermore, the claimant has a duty to give specific particulars of the special damages he is claiming. This is to enable the opposing party know what he is to meet in the case. See AG, Anambra State v. CN Onuselogu Enterprises Ltd [1987] LPELR-614(SC); [1987] NWLR (Pt. 66) 47; [1987] All NLR 579; [1987] 9 - 11 SC 197 and Marine Management Associates Inc. & anor v. National Maritime Authority [2012] LPELR-206(SC).

In the instant case the claimants claims all resonate from the employment contract and the only document produced in support of that employment which lists out specifically the claimants entitlements is exhibit C4.

 

36. Now the position of the law is that there is no gainsaying that an unsigned document is worthless and has no evidential value. This rule, however, applies only where the document in issue ought to be signed. In NWANCHO V. ELEM [2004] ALL FWLR (PT. 225) 107, AIKI V. IDOWU [2006] ALL FWLR (PT. 293) 361; [2006] 9 NWLR (PT. 984) 47and SARAI V. HARUNA [2008] 23 WRN130,it was held that any document which ought to be signed and is not signed renders its authorship and authenticity doubtful. And by MADAM JARATU ABEJE & ANOR V. MADAM SARATU APEKE [2013] LPELR-20675(CA), though unsigned documents should attract little or no evidential weight or value, it is not everything in writing that goes under the rubric of “document” that will lose its evidential worth simply because it is not signed. Is Exhibit C 4 a document that ought to be signed? Being a Document containing the terms and condition of employment and the obligations of both the employer and the employee I find and hold that signing of same is a sine qua non and failure to sign Exhibit C4 renders it a worthless document to which no evidential value can be attached. I find that as the Claimant has not put the relevant and proper documents before the court, the court is unable to determine the Claimant’s reliefs (2) to (7).

 

37. The Defendant raised a counter claim to wit.

i.        A  DECLARATION that the contract of employment between the Claimant and the 3rd Defendant//Counter Claimant being shrouded in misrepresentation is illegal, null and void.

 

ii.     AN ORDER directing the Claimant to pay back to the 3rd Defendant/Counter Claimant the sum of N6,280,599.00 (Six Million Two Hundred and Eight Thousand Naira Five Hundred and Ninety-Nine Naira)only being the total amount paid to the Claimant from January 2015 – December 2015.

 

iii.   AN ORDER directing the Claimant to pay back to the 3rd Defendant/Counter Claimant the total sum of N1,455,000.00 (One Million Four Hundred and Fifty – Five Thousand Naira) comprising of rent of N1,200,000.00, service charge of N75,000.00 and 15% agency and legal fees amounting to N180,000.00 being the amount expended by the 3rd Defendant/Counter Claimant in securing accommodation for the Claimant as Head teacher.

 

iv.   The sum of N2,000,000.00 (Two Million Naira only) as general and exemplary damages.

 

v.      Cost of action.

 

38. Before I address the Counterclaim the Court suomoto asked that parties to address the Court on how the Court is to the view the argument of the 3rd defendant that she is an agent of a disclosed principal with respect to the case of the claimant and should be struck out of the case on the one hand while maintaining a counter claim against the Claimant in this suit on the other hand. The submissions of counsel were most unhelpful. The position of the law with regard the tortuous liability of the agent of a disclosed principal has been well established in IFEANYU CHUKWU (OSONDU) LTS Vs. SOLEH BINEH LTD 2005M5NWLR (PT 656) 322. That a plaintiff is at liberty to bring an action in tort against either the agent or the disclosed principal. And in contract the law is trite as to variable that inter play, to wit: UKPANAH V. AYAYA (2010) LPELR-8590(CA)  (Pp. 28-29 paras. E) "The Respondent is this appeal comes within the meaning of agent. He is an agent of a disclosed and named principal. Agent of a disclosed principal cannot be joined as a party with his principal in a claim arising from the agency and if joined the Court in its judgment will strike out the case against the agent. See QUA STEEL AROCHECT LTD. & ORS. V. BASSEY (1992) 5 NWLR (Pt. 239) 67. It follows that an agent of a disclosed principal (the Respondent herein) cannot be held liable for an act or omission arising for the agency."  Per NGWUTA ,J.C.A in UKPANAH V. AYAYA (2010) LPELR-8590(CA)  (Pp. 28-29 paras. E) However, for this principle to apply there must be full disclosure of all material facts. See NASR & ANOR V. ROSSEK (1973) LPELR-1946(SC)  (Pp. 28 paras. D), and must not have exceed the limits of his authority. COTECNA INTERNATIONAL LTD V CHURCH GATE NIG. LTD & ANOR (2010) LPELR-897 (SC).UBONG V. UDO   (PP. 7 PARAS. A). In fact the question of person liability in Principal and agent d                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 depends on the intention of the parties to be deduced from the nature and terms of the particular contract; and also, on the surrounding circumstances including any binding custom. UBA PLC V. SIEGNER SABITHOS (NIG) LTD (2018) LPELR-51586(CA)(Pp. 22-25 paras. B). in fact the Counterclaimant has not established any of the above ingredients to the satisfaction of this court not to mention excluding the exceptions. Furthermore as was rightly pointed out by the claimant the Counter claimant have not shown this court any document wherein it was stated that the possessionof a Master Degree was a condition precedent to the claimants working for the defendant in any capacity whatsoever, I find and hold also, In addition, looking at the content of the counter claimants counterclaim I am at a loss as to the co relationship between the reliefs singled out in this counter claim and the cost of internet etc as recoverable for lack of qualification. All in all I find no merit in either of the arguments, being an agent of a disclosed principal not substantiated nor was the counterclaim.

The counterclaim therefor fails and is hereby dismissed.

 

39. The Claimant’s case succeeds but only as far relief 1 in part,

1.      The termination of the claimant’s employment as per the letter of ‘termination of employment’ dated 4th December, 2015 is a nullity as the claimant had duly resigned therein before.

 

2.      Reliefs 2-7 have not been substantiated nor satisfactorily proved in this court and are hereby struck out.

 

40. I make no order as to cost.

 

41. This is the Court’s judgment and it is hereby entered accordingly.

 

 

 

…………………………

HON. JUSTICE E. N. AGBAKOBA

JUDGE, COURT 3

ABUJA