IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP:                            HON. JUSTICE M. N. ESOWE        

 

DATE: FEBUARY 14, 2023                         SUIT NO.: NICN/LA/530/2017

 

BETWEEN

MRS FOLUKE SHABA                                                          CLAIMANT

 

AND

1.   SAFMARINE NIGERIA LIMITED

2.   MAERSK NIGERIA LIMITED                            DEFENDANTS

 

REPRESENTATION

A. AdedoyinAdeniyi, EsqwithPatrick Mgbeoma, Esq for the Claimant.

Michael Akinleye, Esqwith JoyEbong,Esq for the 2nd Defendant.

 

JUDGMENT

INTRODUCTION

1.      The Claimant was employed by the 1st Defendant as a Customer Service Assistant sometimes on 27.07.2005 and issued a letter of appointment on 15.08.2005 she rose through the ranks and was elevated to the position of Sales Manager. On 08.04.2016 the Defendants reviewed her salary in line with the Defendants’ compensation policy.By an internal memo dated 01.08.2017 the Claimant was informed by her line Supervisor of unsatisfactory performance and that she would no longer continue her role as Sales Manager with effect from 01.09.2017, the Claimant was advised to look for another opportunity within the organization.

 

2.      On 04.08.2017 the Claimant was issued a letter of termination of employment by the 2nd Defendant and when she complained about its propriety she was notified that the 1st Defendant has been wound up. The Claimant is now before the Court to challenge the termination of her employment on grounds that it was wrongful and contrary to the terms of the contract of employment, a claim the 2nd Defendant vehemently refutes.

 

3.      The Claimant vide her General Form of Complaint and Statement of Facts claims against the Defendants as follows:

 

a)     A DECLARATION that by virtue of the 1st Defendant’s failure to issue the Claimant one (1) month notice of termination of employment and the failure to pay one month salary in lieu as contained in the Claimant’s employment letter dated 27.11.2005, the purported termination of the Claimant’s employment by the 2nd Defendant be declared null and void.

b)    AN ORDER compelling the Defendants to pay the Claimant her remuneration/salaries from the date of the purported termination of her employment being 31.08.2017 till the final determination of this suit on ground that her employment was not validly terminated in line with the 1st Defendant’s offer letter duly accepted by the Claimant.

c)     AN ORDER compelling the Defendants to pay the Claimant the sum of N50,000,000.00 (Fifty Million Naira only) as general damages for the unlawful termination of the Claimant’s employment.

d)    Cost of instituting this action.

 

4.      The 2nd Defendant in response to the Claimant’s suit filed a conditional memorandum of appearance and the 2nd Defendant’s Statement of Defence which was subsequently amended with leave of Court. Reacting to the 2nd Defendant’s Statement of Defence the Claimant filed an Amended Reply to the 2nd Defendant’s Amended Statement of Defence.

 

5.      TRIAL

6.      Hearing in this suit commenced on 13.03.2020 with the Claimant testifying as CW1, she adopted her witness statements on oath as her evidence, through her eight (8) documents were tendered and admitted in evidence marked as Exhibits C1 – C8 respectively. On 18.05.2022, CW1 was duly cross-examined by Learned Counsel to the 2nd Defendant, thereafter the Claimant closed her case.

 

7.      One Albert Layode testified on behalf of the 2nd Defendant as DW1 on 06.07.2022, he adopted his witness statement on oath as his evidence, through him twenty-two (22) documents were tendered and admitted in evidence marked as Exhibits D1 – D22 respectively. DW1 was duly cross-examined by Learned Counsel to the Claimant, thereafter the 2nd Defendant closed its case.

 

8.      The matter was subsequently adjourned to enable parties file and exchange their respective final written addresses to be adopted at the next adjourned date.

 

9.      2ND DEFENDANT’S FINAL WRITTEN ADDRESS

10. The 2nd Defendant filed its final written address on 12.09.2022 with leave of Court wherein it formulated four (4) issues for determination, to wit:

 

11. Having regard to the pleadings, evidence and circumstances of this case, whether there is an employment relationship/contract between the Claimant and the 2nd Defendant.

12. Whether the Claimant is not barred and/or stopped from instituting this action against the Defendants, having accepted the terminal entitlements and benefits paid to her by the 2nd Defendant.

13. Whether from the facts and evidence before this Honourable Court, the Claimant has established any case of wrongful termination of employment against the 2nd Defendant.

14. Whether the Claimant is entitled to the reliefs sought in her Statement of Facts dated 1st November, 2017.

 

15. Learned Counsel to the 2nd Defendant raised a preliminary issue of law contending that jurisdiction is the bedrock of adjudication and from the averments of the Claimant in her pleadings, particularly paragraphs 4, 29 and 30 of her Statement of Facts, the Claimant has repeatedly stated that there is no employment relationship between her and the 2nd Defendant, meaning no privity of contract. The Claimant by her own admission cannot maintain an action against the 2nd Defendant as it is not privy to her employment contract with the 1st Defendant.

 

16. Counsel stated further that the Statement of Facts do not set out the rights of the Claimant against the 2nd Defendant. For a statement of claim to disclose a reasonable cause of action, it must set out the legal rights of the Claimant and the obligations of the Defendant. Since the Claimant alleges that there is no employment relationship between her and the 2nd Defendant the 2nd Defendant cannot be held liable for wrongful termination of the Claimant’s employment – Ibrahim v Osim (1988) LPELR-1403(SC). In the absence of a reasonable cause of action there can be no right to enforce against the 2nd Defendant. The absence of employer-employee relationship between the Claimant and the 2nd Defendant robs this Court of jurisdiction to entertain this suit. Counsel urged the Court to dismiss the suit against the 2nd Defendant.

 

17. Arguing issue one, Counsel contended that the Claimant’s case is built on gross suppression and misrepresentation of fact which goes to the credibility of the case of the Claimant. The issue of whether there is an employment must be proved with cogent and credible evidence. Though the Claimant alleges that she has no contract of employment with the 2nd Defendant, she has failed to adduce credible evidence in support of the said allegation. The evidence before the Court is that the Claimant has a contractual employment relationship with the 2nd Defendant. The Claimant was initially employed by the 1st Defendant but by a resolution dated 03.01.2013 (Exhibit D1), the 2nd Defendant acquired the 1st Defendant. By the said acquisition, the 2nd Defendant took over all the contractual liabilities of the 1st Defendant.

 

18. The Claimant subscribed to the addendum to her initial contract of employment following the acquisition of the 1st Defendant as reflected in Exhibit D4. Exhibit D4, issued by the 2nd Defendant, establishes beyond any form of per adventure that there is an employment relationship between the Claimant and the 2nd Defendant. CW1 under cross-examination admitted that Exhibit D4 was signed by the Human Resources. The transfer of the Claimant’s employment to the 2nd Defendant was done with the Claimant’s consent. A contract of employment may be implied or inferred – Johnson &Ors v Mobil Producing (Nig) Unltd&Ors (2009) LPELR-8280(CA). The 2nd Defendant led credible documentary evidence to show that the Claimant was its employee including tendering several months pay slips – Exhibits D5, D11 and D20; the 2nd Defendant’s appraisals of the Claimant’s performance – Exhibits D6 and D16.

 

19. The 2nd Defendant exercised disciplinary powers over the Claimant which she acknowledged when she was issued Exhibit D19 (a query). The Claimant enjoyed benefits from the 2nd Defendant, she was issued a voucher (Exhibit D17) when she got wedded. She also enjoyed medical benefits (Exhibit D13). The Claimant having benefited from the contractual relationship with the 2nd Defendant cannot now be heard to challenge same – Mocoh SA &Anor v Shield Energy Ltd &Anor (2021) LPELR-54559(CA). Counsel urged the Court to hold that there is an employment relationship between the Claimant and the 2nd Defendant and resolve issue one in the 2nd Defendant’s favour.

 

20. On issue two, Counsel submitted that following the termination of the Claimant’s employment, the 2nd Defendant paid the Claimant her terminal benefits totaling N1,632,325.40 as evinced by Exhibit D12. The Claimant acknowledged receipt of the payment and signed a release and waiver clause as shown on Exhibit D2, so the Claimant is estopped from instituting an action against the 2nd Defendant – Section 169 of the Evidence Act, 2011.There is no evidence that the Claimant ever protested payment of her terminal benefits or the execution of the release and waiver clause – Imperial Medical Centre &Anor v Ahamefule (2017) LPELR-42886(CA). The Claimant having accepted her terminal benefits and executed the release and waiver clause has waived her right to complain of wrongful termination in this suit – Ogbenah v Total E&P Nigeria (NICN/ABJ/18/2019, unreported, judgment delivered on 17.01.2020).

 

21. Canvassing arguments on issue three, Learned Defence Counsel contended that the Claimant’s relief in relation to failure to issue one (1) month notice is against the 1st Defendant and not the 2nd Defendant.  There is therefore no relief challenging the notice issued by the 2nd Defendant. As such, the alleged breach of the Contract of Employment between the 2nd Defendant and the Claimant is a non-starter. The failure of the Claimant to establish that a contractual employment relationship exists between her and the 2nd Defendant is fatal to her relief for wrongful termination.

 

22. The Claimant acknowledged under cross-examination that she received Exhibit D9 dated 01.08.2017 wherein she was informed that where she fails to find another opportunity within the organization, her services will no longer be required effective 01.09.2017.  The Claimant did not find another opportunity within the organization so her employment was terminated.  As evinced in Exhibit D7, the Claimant under-performed in her role as Sales Manager which led to the termination of employment.  The contention that her employment was wrongfully terminated because Exhibit D10 did not comply with the required length of notice is baseless.  The Claimant has failed in proving the alleged breach of the Contract of Employment.

 

23. On issue four, the 2nd Defendant’s Counsel submitted that a Court does not make a declaration as of right, or on admission or in default of defence, the Claimant’s relief one being declaratory required she satisfies the Court by credible evidence her entitlement to the relief – Igbinovia v UBTH [2000] 8 NWLR (Pt. 667) 53at68, B-D.  The Claimant having failed to prove her entitlement for relief 1, the other reliefs are bound to fail.  The law is settled the failure to prove the main declaratory relief means the ancillary reliefs have no basis – McDonald Scientific Emponium Ltd v Access Bank [2021] LPELR-53301 (CA).

 

24. The Claimant’s relief 2 is not sought as an alternative relief but is premised on relief one.  The Claimant’s relief 2 is not based on any provision of the Contract of Employment between the 2nd Defendant and the Claimant.  In cases of wrongful termination, the remedy of the employee is not for salaries earned if theemployment had not been wrongfully terminated – Obanye v UBN [2018] LPELR-44702 (SC). The Claimant’s second relief which is for payment of the purported salaries which she did not earn is not grantable.

 

25.  Relief 3 is for general damages at a sum of N50,000,000.00 which the Claimant did not provide any empirical analysis for, leaving same bare of evidence.  The claim is vague and unsubstantiated and should be dismissed – UNIJOS v Ikegwuoha[2013] 9 NWLR (Pt.1360) 478 at 505-506, G-H. Counsel urged the Court to resolve the issue in favour of the 2nd Defendant and dismiss the Claimant’s suit in its entirety.

 

26. CLAIMANT’S FINAL WRITTEN ADDRESS

27. The Claimant in response to the 2nd Defendant’s Final Written Address filed her Final Written Address on 05.10.2022 wherein Learned Counsel to the Claimant in responding to the preliminary objection raised by the Learned Counsel to the 2nd Defendant stated the 2ndDefendant cannot be found to state two different things from the same dispute at the same time.  The 2nd Defendant cannot state the Claimant does not have employment relationship with it and in the same breath state it rightly terminated the employment of the Claimant – Adejumo v Agumagu [2015] 12 NWLR (Pt. 1472) 1 at 28, E-G. The 2nd Defendant cannot state this Court lacks jurisprudential competence to determine this suit and yet try to justify the propriety or otherwise of the termination notice it purportedly served on the Claimant.  The 1st and 2nd Defendants were co-employers of the Claimant.  Counsel urged the Court to dismiss the preliminary objection as same was brought in bad faith.

 

28. Counsel further stated the arrangement between the 1st and 2nd Defendants is unknown to the Claimant which clearly shows a co-employer, triangular employment relationship and makes both parties jointly liable for their lawful actions against the Claimant.  Contracts can be inferred from the conduct of the parties and not necessarily by the provisions of written address – Section 91 of the Labour Act.

 

29. Learned Counsel to the Claimant formulated three (3) issues for determination, to wit:

30.  Whether the Claimant’s employment with the 1st Defendant was not wrongfully terminated by virtue of the Defendant’s failure to give the Claimant the required one month notice before terminating her employment.

 

31.  Whether by virtue of the manifest contradictions and irregularities of the evidence adduced by the 2nd Defendant on the status of the 1st Defendant, this Honourable Court can place reliance on same to absolve the 1st Defendant from liability over its unlawful termination of the Claimant’s Contract of Employment.

 

32.  Whether the Claimant’s is entitled to the relief for damages against the Defendants for the wrongful termination of the Claimant’s employment under the guise of alleged non-performance in her employment and the hardship suffered by the Claimant from the actions of the Defendants.

 

33. Arguing issue one, Learned Counsel contended that the 2nd Defendant was unable to debunk the Claimant’s evidence that she was not given one month notice in line with Clause 12 (f) of Exhibit C1.  The 2nd Defendant has admitted that the Contract of Employment with the 1st Defendant requires there should be compulsory one (1) month notice which the 1st Defendant did not comply with. Exhibit C3 was titled: “Performance Review: Consequence Management” and not “termination notice”. Exhibits C5 and C6 which emanated from the 2nd Defendant were both titled “termination notice”.  The content of Exhibit C5 was to the effect that the Claimant’s employment was to end on 31.08.2017.  The Claimant has fulfilled the requirement of the law on adducing evidence on her condition of service and in what manner the said terms of contract of service was breached – F.M.F Limited vEkpo [2004] 2 NWLR (Pt.856) 100 at 128-129.

 

34. An employment contract is said to be wrongfully terminated where it is done in breach of the terms of the employment contract between the parties. Section 9(7) of the Labour Act provides three (3) ways by which a Contract of Employment shall be terminated.  Section 11(6) of the Labour Act is category about the issue of parties to a contract of employment waiving their right to notice or accepting payment in lieu of notice.  Parties are bound by the terms of their agreement, the Court will not be allowed to read into such a contract, terms on which there is no agreement.  Counsel urged the Court to hold there is a valid and voluntary contract between the Claimant and the Defendants which the Court would be enjoined to enforce same.  The Defendants have not been able to place sufficient material before the Court that they have complied with the contract of employment.  CW1 was never cross-examined on whether her employment was rightly terminated or not which entails the evidence is unchallenged – Egbuna v Egbuna[1989] 2 NWLR (Pt. 106) at 13.

 

35. On issue two, Counsel stated that the law is where there are conflicts or in consistencies in the evidence of a witness it tends to weaken the effect of the evidence and the Court needs to advice itself on weight it intends to attach on the testimony of such a witness.  DW1 gave inconsistent evidence on the status of the relationship between the 1st Defendant and the 2nd Defendant.  There are equally discrepancies in the documentary evidence before the Court emanating from DW1.  The oral testimony of DW1 did not help matters in clarifying the inconsistencies, Counsel urged the Court to refrain from reliance on the evidence by DW1 – Orunengimo v Egebe [2007] 15 NWLR (Pt. 1058) 630, Wachukwu&Anor v Owunwanne&Anor[2011] 5SC (Pt. 1) 168, Counsel urged the Court to discountenance the evidence given by DW1.

 

36. Arguing issue three, Counsel stated that by Section 254C (c) of the 1999 CFRN, this Court is clothed with unfettered power to grant the Claimant’s claim. The Claimant has gone through a lot of hardship and lost a lot of financial earning as a result of the 1st and 2nd Defendants’ wrongful termination so she is entitled to damages.  The Claimant is completely entitled to what she would have earned if her contract had not been wrongly terminated.  The issue of general damage flows naturally as compensation for wrongdoing and not special damages that must be specifically proven to warrant the grant of same – G.K.F. Investment Nigeria Limited v Nigeria Telecommunications Plc [2009] 6-7 SC (Pt. 11) 163.

 

37. The Claimant has laid bare her facts and placed all necessary documents before the Court to warrant the grant of the Claimant’s reliefs.Base on the fact of this case and the indiscriminate breach of the terms of the 1st Defendant’s contract of employment by both the 1st and 2nd Defendant who have submitted that they are both joint employers to the Claimant, the Claimant is deserving of her entire claims.

 

38. 2ND DEFENDANT’S REPLY ON POINTS OF LAW

39. Learned Counsel to the 2nd Defendant reacting to the Claimant’s Final Written Address filed a Reply on Points of Law on 24.10.2022 wherein he contended that the Court in determining the issue of jurisdiction looks at the Claimant’s Statement of Facts – Aondoakaa v Oboy&Anor[2021] LPELR-56605 (SC).  The Claimant in responding to the objection raised by the 2nd Defendant has wrongly placed reliance on the averments in the 2nd Defendant’s pleadings.  From paragraphs 6, 23, 29 and 30 of the Claimant’s Statement of Facts, the Claimant alluded to facts that there is no employment relationship between herself and the 2nd Defendant and that the 2nd Defendant did not terminate her employment.  By her pleadings, the Claimant essentially dis-owns her case against the 2nd Defendant.  There is no paragraph of the Claimant’s Statement of Facts to the effect that the 1st and 2nd Defendants are co-employees of the Claimant or there is a triangular employment between the parties.  Counsel’s address cannot take the place of evidence.

 

40. The Court cannot adjudicate outside the pleadings or claims sought.  The Claimant is not allowed to approbate and reprobate at the same time. The Claimant’s relief one being declaratory, she had a duty to adduce evidence on the existence of the 1st Defendant, the perceived default in the 2nd Defendant’s defence on same notwithstanding – Agbanobi v Agbanobi (2022) LPELR-58430(CA). Having benefited from Exhibit D12 – release and waiver clause, the Claimant cannot now claim it is not authentic – Ndoma-Egba v A.C.B Plc (2005) LPELR-1973(SC). The Claimant did not lead any evidence to support her allegation of untold hardship same is unsubstantiated and should be discountenanced. Counsel urged the Court to dismiss the Claimant’s case in its entirety.

 

41. RESOLUTION

42. Upon a careful consideration and review of the facts of this case, the processes filed by the parties herein, the evidence adduced by the parties herein, the submissions of Learned Counsel to the Claimant and the 2nd Defendant, this Court is of the considered view that the issues in contention may be properly addressed thus:

 

43. Considering the averments in the Claimant’s pleadings, has the Claimant made out a case against the 2nd Defendant to entitle her to reliefs against it.

44. Has the Claimant discharged the burden of proof placed on her by law to entitle her to judgment.

 

45. Learned Counsel to the 2nd Defendant has copiously argued that jurisdiction is the bedrock of adjudication and from the averments of the Claimant in her pleadings, particularly paragraphs 4, 29 and 30 of her Statement of Facts, the Claimant has repeatedly stated that there is no employment relationship between her and the 2nd Defendant, meaning no privity of contract. To this, Learned Claimant’s Counsel contends that the 2nd Defendant is approbating and reprobating in the same breath, having contended that it rightly terminated the Claimant’s employment. It cannot turn around to contend that there is no contractual relationship between it and the Claimant.

 

46.The position of our laws are replete that jurisdiction is the lifeline of any adjudication. It is a fundamental threshold issue – Aje Printing (Nig) Ltd v Ekiti LGA (2021) 13 NWLR (Pt.1794) at 541. It is such a serious subject that once the issue of jurisdiction is raised, the Court has a duty to look into it to determine whether or not it is seized with requisite jurisdiction. This is in order to prevent wastage of the time of the Court, litigants and Court’s staff, including human, material and financial resources. See Aladesanmi&Ors v Holden Properties Ltd (2018) LPELR-49357(CA). As rightly pointed out by the 2nd Defendant’s Counsel what determines jurisdiction is majorly the claim of the Claimant. It is essentially the nature of the claim and not the parties that is fundamental in the determination of whether the Court can proceed to entertain a suit on its merits. See SCC (Nig) Ltd v Eliyah&Ors (2020) LPELR-52907(CA).

 

47.It is important to note that in the instant case, it does appear that the Learned Counsel to the 2nd Defendant is not contending that this Court lacks jurisdiction to entertain the Claimant’s suit, that is, the subject matter of the Claimant’s suit, but simply challenging the competence of the Claimant’s cause of action especially as it relates to the 2nd Defendant. It is possible for a Court to have jurisdiction in respect of a subject matter, but lack the competence thereby vitiating the effect of the jurisdiction. See Kolawole&Ors v Obaoja (Nig) Ltd &Anor (2019) LPELR-48839(CA).

 

48. A cause of action simply put is a fact which when proved would entitle a Claimant to a remedy against a Defendant – Macabase (Nig) v UBN Plc&Anor (2022) LPELR-56726. The 2nd Defendant has argued that the Claimant at paragraphs 4, 29 and 30 of her Statement of Facts alluded that there is no employment relationship between her and the 2nd Defendant, the said paragraphs read as follows:

 

49. “4. The Claimant avers that the 1st Defendant is an independent entity and a sister company to the 2nd Defendant, but they are separate and distinct legal entities… 29. The Claimant avers that the 2nd Defendant is not a party to the contract of employment between her and the 1st Defendant. 30. The Claimant avers that since the 2nd Defendant is not privy to the contract of employment between her and the 1st Defendant, the 2nd Defendant cannot claim rights and liabilities flowing from the said contract of employment entered into by herself and the 1st Defendant.”

 

50. As rightly pointed out by Counsel on both sides, parties are bound by their pleadings and the Court cannot go outside the pleadings of a party in determining a cause. The pleadings of parties must be sufficient, comprehensive and accurate, as parties are not allowed to raise at trial, issues not pleaded. See James v Mid Motors Nig Ltd (1978) 11-12 SC 31. Both Counsel have pointed out that in cases of wrongful termination of employment, the Claimant is required to plead and prove these material facts: a) that she is employed by the Defendant; b) the terms and conditions of her appointment including the duration and termination; c) who can appoint and remove her; d) the circumstances under which her appointment can be terminated; e) that her appointment can only be terminated by a person or authority other than the Defendant. See Adams v LSDPC [2000] 5 NWLR (Pt. 656) 291 at 316, D-E, Morohunfola v Kwara State Tech (1990) 4 NWLR (Pt. 145) 506.

 

51. It is perhaps in an attempt to discharge this burden that the Claimant in her Statement of Facts as cited above stated that she was employed by the 1st Defendant – Safmarine Nigeria Limited sometimes on 27.07.2005 and issued a letter of appointment on 15.08.2005, that is, Exhibit C1. Exhibit C1 is her appointment letter which contains certain terms and conditions of service; exhibit C1 though on the letter head of the 1st Defendant, the signatory signed for “Safmarine Containers Ltd”. The issue at hand is that the 2nd Defendant alleges that the 1st Defendant is now defunct, it presented documents to show that on 29.09.2005 the name of the 1st Defendant was changed by the Corporate Affairs Commission, in addition to another document indicating resolution for the takeover and acquisition of the said 1st Defendant.

 

52. The 2nd Defendant had at paragraph 6 of its Amended Statement of Defence stated that it shall contend at trial in this suit that it and the 1st Defendant were joint/co-employers of the Claimant. The Claimant did not amend her Statement of Facts to reflect this state of facts. Rather in her Reply to the 2nd Defendant’s Amended Statement of Defence she seems to build on the 2nd Defendant’s position of joint/co-employers. At paragraph 17 of the Claimant’s Reply to the 2nd Defendant’s Amended Statement of Defence, the Claimant stated that the 2nd Defendant assumed/acquired the liabilities of the 1st Defendant, which includes the contract of employment of the Claimant.

 

53. It does appear that there seems to be a somersault in the facts alluded to in the Claimant’s pleadings, giving it the charge of inconsistency as labeled on the evidence of DW1 as regards the existence or otherwise of the 1st Defendant by the Claimant’s Counsel.Can the Claimant thus maintain an action against the 2nd Defendant using divergent state of facts? It is my considered view that the answer is in the negative, the Claimant at paragraphs 4, 29 and 30 of her Statement of Facts stated unequivocally that there was no privity of contract between her and the 2nd Defendant in relation to her employment. Then did a 360 turn stating that the 2nd Defendant took over the liabilities of the 1st Defendant which includes the contract of employment, which gives the Claimant a shaky foundation to build her case on.

 

54. If the foundation of the Claimant’s case is faulty, what can the Claimant do? It is the law that you cannot place something on nothing and expect it to stand. The Claimant’s Counsel raised several legal issues in the Claimant’s pleadings: issue of alleged transfer of the Claimant’s employment to another employer without her consent, breach of Clause 12(f) of Exhibit C1 containing the terms and conditions of her employment by issuing the Claimant’s termination letter less than one month contrary to the required one (1) month notice,  unfair labour practice as regards the termination of the Claimant’s employment when she was earlier given till 01.09.2017 to find another role in the Defendant’s organization; the distinction as separate corporate entities between the 1st Defendant and the 2nd Defendant; the applicability or otherwise of the release and waiver clause.

 

55. While this in itself is not out of place, the multi dimensional approach of raising so many legal issues in pleadings incurs the risk of not dealing adequately with some of the issues raised. This perhaps is the case with the Claimant in the instant suit. The Claimant is bound by her pleadings, the law is that a party’s case is in his pleadings and his case is proved by evidence. See Eze v Ene (2017) EJSC (Vol. 71) 129 at 143, A-B. The Claimant’s case from her Statement of Facts is that the 2nd Defendant is not a party to her employment contract with the 1st Defendant and so cannot terminate her employment. The music changed as her case as per her Reply to the 2nd Defendant’s Amended Statement of Defence is that the 2nd Defendant had acquired/assumed the liabilities of the 1st Defendant including the contract of employment with the 1st Defendant. She was also emphatic when she gave evidence under cross-examination that she still works for the 1st Defendant.

 

56. It is elementary principle of law of pleadings that facts must be concisely, precisely, and accurately pleaded. Pleadings should not give any room for doubt or speculation as to its real content. Statement of claim must clearly state the facts to be relied upon at the hearing and not embark on any rigmarole. Where the facts in Statement of Claim are not precisely stated, a Defendant will be in some difficulty to respond directly or precisely to the averments. See Osuji v Ekeocha (2009) 16 NWLR (Pt. 1166) 81, Ugwu&Ors v Attah&Ors (2018) LPELR- 41512(CA).

 

57. It is this diversity of position as to the Claimant’s case that appears to have birthed the rigmarolish 2nd Defendant’s defence such that it states on the one hand there is no case against it, and on the other, it rightly terminated the Claimant’s employment. The issues that call for resolution in a case being tried on pleadings are circumscribed and fixed by the pleadings of the parties before the Court. It is the Claimant who brings a suit before the Court that also primarily nominates the issues for decision in the case. See Longe v FBN Plc (2012) All FWLR (Pt. 525) 258, Odogwu&Anor v Nwajei&Ors (2013) LPELR-21030(CA).

 

58. Pleadings are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them. See Aminu v Hassan (2014) 5 NWLR (Pt. 1400) 287, Ayhok&Anor v Plateau Publishing Corporation &Ors (2020) LPELR-50320(CA).The lack of clarity in stating the facts upon which the Claimant relies on in urging this Court to grant her reliefsleaves the Court will the option of picking which is the actual case of the Claimant. This flippant attitude iswhat the law frowns at. See French &Ors v Omonode&Ors (2021) LPELR-56061(CA).

 

59. It is from this inconsistent pleadings that the Claimant gave evidence. Her first witness statement on oath states that the 2nd Defendant is not a party to her contract of employment; CW1 second statement on oath states otherwise. The Court is not allowed to pick and choose which evidence to believe or disbelieve. In Basil v Fajebe(2001) 4 SC (Pt. II) 119 at 127, the Supreme Court held that a party who adduces inconsistent evidence over one and the same issue damages his own case, unless he can reconcile the inconsistencies. See Okonkwo v Zurmi&Anor (2018) LPELR-46855(CA).

 

60. It is on the basis of the above, I am of the considered view that the Claimant’s case and evidence against the 2nd Defendant especially as it relates to their employment contractual relationship is so wobbly, an amendment of the Claimant’s Statement of Facts to reconcile it with the Reply to the 2nd Defendant’s Amended Statement of Defence would have been in order to resolve this. Be that as it may, it is not for the Court to make a case for parties. The Claimant’s inadvertence in this regards turns out to be fatal to her case.

 

61. Consideration of the issue of estoppel arising from the release and waiver clause would in my humble view amount to sieving from the Claimant’s pleadings what part of her case to look into, this the law frowns at. Consequently, I find the Claimant’s case as constituted in her Statement of Facts and Reply to the 2nd Defendant’s Amended Statement of Defence incompetent owing to the conflicting facts on the contractual relationship between the Claimant and the 2nd Defendant which were not reconciled. The first leg of the 2nd Defendant’s preliminary objection is hereby upheld. I so hold.

 

62. Accordingly, issue one is resolved in the negative against the Claimant and the Claimant’s case is hereby struck out for being incompetent. I so hold. Having resolved issue one against the Claimant, consideration of issue two would be unnecessary as calling upon the Court to evaluate the evidence of the parties would be akin to placing something on nothing and expecting it to stand. All other issues in respect of same are accordingly discountenanced.

 

63. On the whole, I find the failure of the Claimant to reconcile the inconsistent facts as touching her contractual employment relationship with the 2nd Defendant fatal and her suit is hereby struck out. I so hold. No orders as to cost, parties to bear their respective cost.

 

64. Judgment is accordingly entered.

 

 

 

Hon. Justice M. N. Esowe, FCIArb

Presiding Judge