Mr. Vincent Ikedinachi Emmanuel -VS- Associated Bus Company Plc. & ORS- National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP, HON. JUSTICE O. Y. ANUWE

DATE: 11^TH APRIL, 2018 SUIT NO: NICN/OW/36/2015

BETWEEN:

Mr. Vincent Ikedinachi Emmanuel - - - CLAIMANT

AND

Associated Bus Company Plc. & ORS DEFENDANTS

JUDGMENT

This action was initially commenced at the High Court of Imo State on the 4th day of July 2014. By an order of transfer made on the 20th day of March 2015, his Lordship Hon. Justice P. O. Nnadi transferred this suit to this court. The case file was received at the registry of this court on 30th April 2015. When the matter first came up on the 23rd day of June 2015, I ordered parties to re-file their processes to bring them in compliance with the rules of this court. The Claimant in compliance, re-filed his originating processes on the 8th day of July 2015 wherein he claimed against the Defendants jointly and severally as follows:

1. A DECLARATION that the contract of employment between the Claimant and the 1st Defendant still subsists.

2. A DECLARATION that the collection of the hummer bus with registration number KRD 423 XD which was assigned to the Claimant by the 1st Defendant as well as driven by the Claimant for the 1st Defendant with the key of the said hummer bus by the 2nd Defendant who is the agent of the 1st Defendant is illegal, unlawful, inconsistent with the contract or agreement of employment between the Claimant and the 1st Defendant.

3. A DECLARATION that the claimant is still entitled to his daily trip allowance of the sum of N1500 paid per trip to the Claimant by the 1st Defendant.

4. AN ORDER of this Honourable court directing the 1st Defendant to return the shuttle hummer bus with the key to the Claimant.

5. PERPETUAL INJUNCTION restraining the 1st Defendant, her agents, privies, workers, servants from further unlawfully taking away the hummer bus with the key from the Claimant.

6. N10,000,000.00 (Ten Million Naira) against the Defendants jointly and severally being general damages for their illegal, unlawful and unwarranted act of collection of the said hummer bus with the key from the Claimant.

The Defendants filed a statement of defence on 17th November 2015 vide a motion for extension of time. On 2nd November 2016, the Defendants filed a motion to amend their Statement of Defence for which leave was granted on 13/12/2016. The Claimant had also filed a Reply to the Statement of Defence on 13/4/2016. These processes were accordingly regularized and hearing commenced on 12th July 2016. The Claimant testified for himself as CW1. Lady Nkechi Nwogu, the 1st Defendant’s Human Resources Manager testified on behalf of the Defendants as DW1. Hearing ended on 4th July 2017, parties closed their cases and they were ordered to file Final Addresses. The Defendants’ Final Written Address was filed on the 22nd day of September 2017 vide a motion for extension of time. Same was duly regularized on 14/11/2017. The Claimant’s Final Address was filed on 10th November 2017. The Defendants filed a Reply on points of Law on the 17th day of January 2018.

Parties adopted their respective final written addresses.

RULING ON MOTION FOR AMENDMENT

On 4th July 2017, the Defendants’ sole witness concluded his evidence. At that point, taking of evidence was closed in this case and the case was adjourned for filing of final written addresses. Before the date of adoption of addresses, the Claimant filed a motion on notice on 10th November 2017 seeking leave to amend his statement of facts. The motion was heard on the 22nd day of January 2018, the same day final written addresses of counsels were adopted but this court reserved ruling on the motion till today to be delivered together with judgment in the suit. I will first determine the motion before going into the substantive case.

In the motion, the Claimant sought the following orders:

1. An order granting leave to the Claimant to amend the statement of facts in the manner shown in the proposed amended statement of facts annexed as Exhibit A

2. An order deeming the separately filed and served amended statement of facts as properly filed and served.

The grounds supporting the reliefs are these:

i. The amendment sought is to bring the Claimant’s pleadings in line with the evidence already led before this court by the parties,

ii. The amendment if granted will properly highlight the case of the parties and assist the court to effectively determine all issues in controversy between the parties,

iii. This court has the powers to grant the amendment.

The affidavit in support of the motion was deposed to by the Claimant. He stated that while his counsel was preparing the final written address, the need arose for the amendment of his statement of facts to bring the facts pleaded in line with evidence already before the court. The amendment sought will not overreach or prejudice the Defendant, and it will properly highlight the case of the parties and assist the court to effectively determine the issues in controversy. It was further averred that the amendments to be made to the statement of facts are reflected in the proposed amended statement of facts marked Exhibit A.

In the written address in support of the motion, counsel for the Claimant submitted that the provisions of Order 17 and Order 26 of the Rules of this court under which the application is brought as well as Section 6 (6) of the 1999 constitution of the Federal Republic of Nigeria (as amended), are clear and unambiguous, and implies that applications for amendment can be made by either party at anytime before judgment. Counsel referred the court to the case of ARHURUHU vs. DELTA STEEL CO. LTD. (1997) 3 NWLR (Pt. 491) 82 and the case of UNIVERSITY OF LAGOS vs. AIGORO (1985) 1NWLR (Pt. 1) 143 at 148 to emphasize that the grant of the amendment sought lies within the discretionary powers of the court which must be exercised judicially and judiciously. Counsel went further that the court will readily grant an amendment where necessary, for the purpose of determining the real question in controversy between the parties as long as the application is made bona fide and in good faith. On this point, he cited the following cases:

• P.O.N. LTD vs. NABATURE (1994) 1 NWLR (Pt. 319) 235 @ 246

• IGWE vs. KALU (2002) 5 NWLR (Pt. 761) SC. 678

• OKAFOR vs. ACB (1975) 5 SC 89

He submitted that the factors that will make the court not to grant this application are not present in the instant case, as the applicant is not acting malafide. See OJAH vs. OGBONI (1976) 4 SC 89. He urged the court to do substantial justice by allowing the amendment, which according to counsel, is necessary for the ultimate achievement of justice. See ABEY vs. ALEX (1999) 14 NWLR (Pt. 637) P.159 Paras E-F.

The Defendants opposed the motion and filed a counter affidavit of Emeka Ijezie, a litigation officer in the law firm of counsels for the Defendants. It was averred in the counter affidavit that on 4/7/2017 this case was adjourned for filing of final written addresses and on 22/9/2017 the Defendant’s final written address was filed and served on the Claimant. Thereafter the Claimant filed the instant motion together with his final written address. The Claimant did not make amendment when he was conducting his case. The proposed amendment to paragraphs 31 and 36 are argumentative and overreaching of the Defendants. The amendment of the Claimant’s reliefs presents a case different from the original process. The amendment will overreach the Defendants as they do not have any other opportunity to join issues with the Claimant or effect consequential amendment at this stage of the case. The court was urged to refuse the application.

Counsel for the Defendants submitted in the written address in support of the counter affidavit that even though the court has a discretion to grant amendments, the case of ADEKEYE vs. AKIN-OLUGBADE (1987) 3 NWLR (Pt. 60) Pg. 218, per Oputa JSC, makes it clear that amendments are intended to correct errors in pleadings. Amendments are not intended to overreach the other party. Counsel submitted that the law is trite, that the court will readily grant an amendment where necessary, in order to secure substantial justice or settle controversy between parties.

According to the Defendants, by Order 26 Rule 2 of the Rules of this court, a court ought to refuse an amendment where such a presents a different case or will cause injustice to the other party or where it is brought mala fide, or where it will necessitate the hearing of further evidence especially on appeal, where it will not cure the defects in the procedure sought to be cured or it is inconsistent and useless, or indeed where it amounts to overreaching the other party or is an abuse of court process. Citing the case of OYENUGA & ORS vs. UNIVERSITY OF IFE (1965) NMLR 9, counsel submitted that the amendment sought, if granted, will not only confuse issues, but it will expand issues further, especially as it includes a complete change of the reliefs sought in the suit. According to counsel, the amendment sought at this late stage is in bad faith and will prejudice the Defendant, and granting it will be in violation of Section 36 of the 1999 constitution, and will work injustice and overreach the Defendants. He urged the court to refuse the application.

DECISION

I have examined the proposed amendments sought to be made to the Claimant’s statement of facts. Paragraphs 31 and 36 are new and material facts introduced into the statement of facts while, save for reliefs 1 and 4 which were retained in the reliefs, all other reliefs are either new or amended. At this stage of the case, the Defendants can no longer respond to the new facts the Claimant intend to introduce into the case. Furthermore, the reliefs the Claimant seeks to present in the amendment will totally change the reliefs upon which the suit was tried. In my view, the amendment was made rather too late in the proceedings and the Defendants will be overreached if allowed. Although this court has the inherent powers to allow amendments to pleadings of the parties at any stage of the proceedings, leave to amend will be refused when the proposed amendment will-

1. Entail injustice to the respondent,

2. Cause undue delay or is irrelevant or useless or merely raises a technical point,

3. Cause some injury to the respondent which cannot be compensated for by cost,

4. Overreach the respondent,

5. Result in a party being confronted with an entirely new case at an extremely late stage of the trial or is in conflict with the evidence already given in the trial.

See AKANINWO vs. NSIRIM (2008) All FWLR (Pt. 410) 610 at 658; LAMBU vs. ISYAKAU (2012) All FWLR (Pt. 640) 1295 at 1329-1331; IGWE vs. KALU (2002) FWLR (Pt. 97) 677 at 712.

The rules of this court in Order 26 Rule 1 (2) permits the refusal of amendment if the proposed amendment will, among other effects, cause injustice to the other party or necessitates hearing of further evidence or amount to overreaching the other party. Having considered the nature of the amendment sought to be made by the Claimant and in view of the stage of the case, it will not be just to allow the amendment. The amendment is refused and the motion is dismissed.

JUDGMENT ON SUBSTANTIVE SUIT

The Claimant claims the following reliefs against the Defendants in this action:

1. A declaration that the contract of employment between the Claimant and the 1st Defendant still subsists.

2. A declaration that the collection of the hummer bus with registration no. KRD 423 XD which was assigned to the Claimant by the 1st Defendant as well as driving by the Claimant for the 1st Defendant with the key of the said hummer bus by the 2nd Defendant who is agent of the 1st Defendant is illegal, unlawful, inconsistent with the contract or agreement of employment between the claimant and the 1st Defendant.

3. A declaration that the Claimant is still entitled to his daily trip allowance of the sum of N1,500 paid per trip to the Claimant by the 1st Defendant.

4. An order of this honourable court directing the 1stdefendant to return the shuttle hummer bus with the key to the claimant.

5. Perpetual injunction restraining the 1stdefendant, her agents, privies, workers, servants from further unlawfully taking away the hummer bus with the key from the claimant.

6. Nl0,000,000 (Ten Million Naira) against the defendants jointly and severally being general damages for their illegal" unlawful and unwarranted act of collection of the said hummer bus with the key from the Claimant.

The parties filed their pleadings and also called one witness each in proof of their cases. The Claimant testified as the only witness in his case. In his evidence, which is in line with facts pleaded in his statement of facts, the Claimant stated that he was employed by the 1st Defendant as a shuttle service driver on 12th May 2011 in an appointment letter of the same date which contained the terms and conditions of his appointment. He accepted the offer and he was given a staff identity card number 2902. He started work and a hummer bus with registration number KRD 423 XD was assigned to him to drive on routes directed by the 1st defendant. Upon his appointment, he was put on probation for 6 months. He drove the shuttle hummer bus until 11th December 2013 when the key to the bus was taken from him. On that day, the Claimant returned from a trip and was waiting for his bus to be loaded for his next trip when the 2nd Defendant invited him into his office and asked him to hand over the key to the shuttle bus and directed the Claimant to proceed for treatment. The Claimant handed over the keys of the bus to the 2nd Defendant and he left to treat his waist pain which he sustained from an attack on him by tax force officers at Aba on 9th December 2013.

On 2nd January 2014, the Claimant resumed work and went to the 2nd Defendant to inform the 2nd Defendant he was back to resume work but the 2nd Defendant informed him the 1st Defendant has instructed that the bus should not be returned to the Claimant. Since the Claimant’s appointment as shuttle service driver, he has never committed any act of gross misconduct and has never had any problem with passengers or anybody at all. He has also been diligent in the discharge of his duties. Since 2nd January 2014, the Claimant has continued to report to the office of the 1st Defendant but he was not assigned the bus or another one. By 2nd February 2014 his January salary in the sum of N12,048.96 was not paid to him. As a result, he consulted Chinwendu Onyeakwu Esq who wrote a letter dated 3rd February 2014 to the 1st Defendant. Upon receipt of the letter, the 1st Defendant immediately paid the Claimant’s salary for January 2014 and also replied the letter on 17th February 2014. When the Defendants still refused to hand over the bus to the Claimant, his solicitor, wrote a letter dated 3rd April 2014 to the 1st Defendant. The 1st Defendant’s reply to the letter is dated 23rd April 2014. The Claimant covers a minimum of 3 trips per day before the bus was taken from him. He makes the sum of N4,500 daily as trip allowance at N1,500 per trip. The Defendants further paid his salaries for the months of February, April 2014 but his trip allowances were not paid to him. In 2013, the Claimant was entitled to N6000 as accident free bonus but he was not given. As a result of the Defendants’ refusal to return the bus to him, the Claimant has remained idle

In the additional written deposition of the Claimant which he also adopted as his evidence in this case, the Claimant further stated that since his appointment into the employment of the 1st Defendant until the day he was wrongfully disengaged, he had never driven recklessly and no passenger had made any allegation of reckless driving against him. He had even won an award of accident free driving which award has not been delivered to him. He was at no time stepped down by the Defendants or given step down letter. He did not abscond from work but was wrongfully disengaged. At no time in his employment was he given a query.

The Defendants’ witness is one Lady Nkechi Nwogu. She said she is the Human Resources Manager of the 1st Defendant company. She told the court that the Claimant was a shuttle bus driver employed by the 1st Defendant. On 11th December 2013 the Claimant was routed from Enugu to Owerri but he drove recklessly and one of his passengers made a complaint to the Defendants. As a result, the 1st Defendant directed that the Claimant be stepped down in line with company policy and procedure. The Claimant was given a letter of step down after which he absconded from work. He has since then not reported to resume work. The Claimant breached the terms and conditions of service by his dereliction of duty and on 25/4/2014, the 1st Defendant gave a query to the Claimant to explain his absence from work. The Claimant refused to answer the query. The salaries paid to the Claimant were not because of letters from his solicitors. The 1st Defendant pays trip allowances to drivers only after they make successful trips. The Claimant is not entitled to trip allowance during the period of his absence for work.

Upon close of evidence, counsels to the parties filed their final written addresses. In the final written address of the Defendants, their counsel, Mr. Emeka Nwagwu, raised a sole issue for determination thus:

Whether the Claimant has proved the facts of his case and entitled to the reliefs sought in this suit

Counsel started his argument by stating that the burden of proof in civil cases is on the Claimant as laid down in Sections 133(1),(2) and 134 of the Evidence Act, and is only discharged on a balance of probabilities in all civil proceedings. See IGWE vs. ALVAN IKOKU COLLEGE OF EDUCATION, OWERRI (1994) 8 NWLR (Pt. 363) 459 at 477 Para H. This case according to counsel, is built on EXHIBIT C2 i.e. the letter of employment of the Claimant.

It is counsel’s submission that the crux of the Claimant's case can be found from paragraphs 11-15 of his statement of claim, which the Defendants denied, and the Claimant failed to volunteer any evidence of the beating, i.e. medical reports to support his claims, in view of the 1st Defendants’ averment that driver's taxes are paid by the 1st Defendant, a fact known to the tax authorities.

Also, counsel argued that the combination EXHIBIT 'D1' and 'D2' clearly

supports the case of the Defendants on the issue of step down of the Claimant for careless driving on the trip from Enugu to Owerri on 11/12/13, and the Claimant’s unilateral stoppage of work on 11/12/13, with no evidence from him that he ever stepped his foot on the company premises afterwards. Counsel contended that instead, the Claimant through a lawyer Onyeukwu & Associates on 3/2/2014, and on 3/4/14, through N. D. OJEH & CO, wrote to the 1st Defendant before the institution of this action, with his main relief being a declaration that the contract between the claimant and the 1st defendant subsists, different from his earlier position with his lawyers who wrote about his termination/dismissal from employment.

Again, in counsel’s view, the facts relied upon by the Claimant from paragraph 20-26 of his statement of facts were not proved. There is no evidence that the Claimant reported back to work, either oral evidence of a witness or extract of the attendance register to disprove abscondment, or evidence of any document evidencing treatment in a hospital. It is counsel’s opinion that Exhibit 'C6' the subject matter of paragraph 27 of the statement of facts was not signed, and consequently is a worthless document, in line with the case of FARO BOTTLING COMPANY LTD vs. OSUJI (2002) 1 NWLR (Pt. 748) 311 at 330-331 Paras G-A, where the Court of Appeal held as follows:

“Where a document contains nothing to show that it was

executed and or signed, it must retain its status as a court ought not attach any probative value to it...”

It is the submission of counsel that all the averments on paragraph 27 falls into the same category of a worthless averment, without prejudice to the 1st Defendant's letter of 17th February, 2014 and 23/4/14 which also emphasized that the Claimant absconded his duty post. The relief seeking a declaration that the Claimant is entitled to his daily trip allowance of N1,500 paid per trip is not supported by Exhibit 'C2'. The contract between the parties, by the wording of the relief, it is a trip allowance and it is common ground between the parties that the Claimant never did a trip for the 1st Defendant at all times material to this suit, and cannot be entitled to the trip allowance of N1500.

Counsel’s contention is that Exhibit 'C2' must be construed simply to give effect to it, and in interpreting the provisions of a written contract, no addition or subtraction is permissible, no word should be ignored in the interpretation of the intention of the parties, otherwise the court will be seen as rewriting the agreement between the parties. See BOOKSHOP HOUSE LTD vs. STANLEY CONSULTANT LTD (1986) NWLR (Pt. 26) 87 at 97.

Similarly, counsel argued that a reading of Exhibit 'C2' reveals that reliefs 2, 3, 4, 5 and 6 are not justiciable. They do not flow from the clear wordings of

the contract of the parties, and it could not have been the intention of the parties that the 1st defendant was obliged to handover the alleged bus KRD 423 X to the claimant as claimed, because all the drivers are in a pool under the control of the 1st Defendant through the 2nd Defendant.

Counsel referred to the case of MOLADE vs. MOLADE (1958) 3 FSC 72, where it was held that the intention of the parties cannot be contradicted if this is clear in the instrument; and also WEJIN vs. ASHAKA CEMENT CO. LTD (1991) 8 NWLR (Pt. 211) 608 at 615, where it was held as follows:

“The interpretation of contracts shall exclude moral questions unless these are made part of it. A trial court must therefore confine itself to the terms negotiated agreed upon and committed into writing by the parties. Nothing extraneous should be read into it. These are the conditions the parties accepted. These cannot be edited or reedited”

In the same vein, counsel asserted that Exhibit 'C2' clearly states that the shuttle buses are owned by the 1st Defendant and all the drivers must report to Head, Shuttle Services, the 2nd Defendant for the operations of the shuttle services; and by Exhibit 'C2', the bus with Reg. No. KRD 4232XD cannot be deduced to be assigned to the Claimant as his own and for his purposes to make the step down of the Claimant inconsistent with the said contract or agreement, because the Claimant was just employed as a shuttle driver, Exhibit 'C2' cannot enable the court to make the order sought in Reliefs 2, 3, 4, 5 and 6.

Counsel’s opinion is that the reliefs sought in this suit by the Claimant do not arise from EXHIBIT 'C2', the Claimant signed and received Exhibit 'D4' on 13/5/11 as shown on Exhibit 'C2', the Claimant admitted under cross examination the existence of a document conditions of service, which is Exhibit 'D4', and Exhibit D2 and D3 were made by the 1st Defendant pursuant to pages 32 and 33 of the provisions of Exhibit D4.

Counsel drew the court’ attention to pages 28 and 29 of Exhibit 'D4', and submitted that those pages make provisions for Dereliction of duty which attracts sanctions: 3 - Written Caution, 4 - warning, 6 - Indefinite Suspension without Pay, 8 – Termination. The 1st Defendant stopped the salary of the Claimant upon receipt of Exhibit D5, in September, 2014 because it was obvious that he has absconded permanently and walked out of the contract with the 1st Defendant. The Claimant never denied that at all times material to this suit, he did not work for the 1st Defendant in total breach of the contract.

Furthermore, counsel submitted that Exhibit C2 is not a contract with statutory flavor, hence the first relief of the Claimant cannot be granted by this court. In a contract of employment with statutory flavor, the terms of employment of an employee are governed by statutes creating the employer. Any infraction of the terms of employment and discipline are guaranteed by the statute can be declared null and void, and in such situations, the employee is restored to the position as if no disciplinary measures had been taken at all. Similarly, counsel contended that in the event the court holds that the 1st Defendant breached any of the conditions of contract, the court can award the Claimant unpaid salaries and entitlements, and in the extant case the Claimant did not work in this case. Counsel relied on the under-listed decided cases:

1. BENIN ELECTRICITY DISTRIBUTION CO. PLC v MR. NAPOLEON

ESEALUKA (2015) 2 NWLR (Pt. 1444) 411

2. OLORUNTOBA-OJU vs. ABDUL-RAHEEM (2009) 13 NWLR (Pt. 1157) 83,

3. BAMGBOYE vs. UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt. 622) 290,

4. EZE vs. SPRING BANK PLC (2011) 18 NWLR (Pt. 1278) 113,

5. IFETA vs. S.P.D.C. (NIG) LTD (2006) 8 NWLR (Pt. 983) 583.

The opinion of counsel is that the Claimant commenced this suit after he had effectively abandoned his duty post, absconded for more than ten months of doing no work for the 1st Defendant, was unwilling to go through disciplinary procedure despite Exhibits 'D2' and 'D3' that were served on him. The service of Exhibit D3 through courier service waybill is complete proof of his receipt of the letter. See B.E.D.C. PLC vs. ESEALUKA (supra).

According to counsel, there is a presumption that a letter sent by post was received by the addressee and it is not open for the addressee to contend that the presumption is not available to the sender where the addressee fails to show that the mode of delivery was other than by post.

In counsel’s view, relief one is superfluous. It is an attempt by the Claimant to seek an order/declaration imposing a reluctant servant on an unwilling and frustrated master. Counsel urged the court not to declare that a servant who is not ready to work and/or be subjected to disciplinary procedure of his master is still in the employment of his master.

Further, counsel argued that DW1 demonstrated that the 1st Defendant is registered with NSITF and NHIS which are medical insurance providers hence it was untrue when the Claimant gave the reason of “abscondment” as leave granted to him to treat waist pain without any documentation to support his assertion. In the same stride, counsel submitted that if there was no clause in Exhibit C2 conferring the hummer bus on the Claimant, the court cannot declare as illegal, unlawful or unwarranted as alleged collection of the hummer bus belonging to the 1st Defendant from the Claimant. Thus the claim for ten million naira damages fails. Counsel urged the court to resolve the lone issue against the Claimant and dismiss this suit.

Counsel for the claimant, Mr. I. C. Achara raised the following issues for determination in the final written address of the claimant:

I. Whether the contract of employment of the Claimant has been determined.

II. Whether, having regards to the terms and conditions of the Claimant's contract of employment, the actions of the Defendants against the Claimant are not wrongful.

III. Whether the Claimant has proved his claims on a preponderance of evidence and entitled to judgment of this court.

On issue one, counsel submitted that the Claimant's contract of employment with the 1st Defendant is valid and subsisting, having not been determined. It is trite that when the contract of employment between parties are reduced into writing, recourse must be had only to the documents constituting the said contract of employment in resolving any question arising from the said contract of employment including questions as to the determination of the said contract.

In counsel’s view, the pleadings and evidence in the extant case, it is the Claimant's letter of Appointment (Exhibit C2) and the 1st Defendant's terms and condition of Service (Exhibit D4) alone that constitute the terms of the Claimant's contract of employment with the 1st Defendant. The court can therefore only limit itself to the construction of the provisions of Exhibits C2 and D4 in order to ascertain if the claimant's contract of employment has been properly determined.

It is the contention of counsel that Exhibit C2 provides that the Claimant's contract of employment can be determined by his giving three months’ notice of resignation of appointment, or payment in lieu of notice. These terms are clearly and unambiguously stated in Exhibit C2. They ought to be given their literal and natural meaning. See SULE vs. NIGERIAN COTTON BOARD (1985) 2 NWLR (Pt. 5) 17. Counsel argued that from Exhibits C5 and C7, it is evident that the 1st Defendant admitted that the claimant was neither suspended indefinitely from work nor dismissed, a fact which was also admitted by DW1 under cross-examination.

Also, counsel contended that the Defendant’s averment that the Claimant's contract of employment was determined by the conduct of the Claimant absconding from work was denied by the claimant, who refuted same with evidence; thereby placing the onus squarely on the defendants to prove same. The law is trite that he who asserts must prove, and the burden of proof as to the existence of any particular fact lies on that person who wishes the court to believe in its existence See Section 136(1) of the Evidence Act and the cases of LAGURO vs. TOKU (1992) 2 SCNJ (Pt. II) 201; CHUKWUJEKWU vs. OLALERE (1992) 2 NWLR (Pt. 221) 86.

According to the Claimant, the Defendants failed to prove that the Claimant absconded or was derelict in his duties. Even assuming without conceding that the medical leave granted the Claimant by the 2nd Defendant was not recognized by the 1st Defendant, and therefore seen as abscondment, that alleged abscondment or dereliction of duty does not on its own constitute a determination of the Claimant’s contract of employment. Paragraph 6.1, column no. 30 at page 28 of Exhibit D4 which was heavily relied upon by the Defendants, has provided for sanctions, where such alleged dereliction of duty was proved, to include written caution (in the first instance of the offence) warning (in a second instance of the same offence), indefinite suspension (in a third instance of same said offence) and termination (in the 4th and final instance of committing the same offence).

The Defendants had also insinuated that the Claimant abdicated his duties when he was refused being given the shuttle bus key after he returned in January to resume work, and several months later, they stopped the payment of his salary when they could no longer reach. These insinuations according to counsel, are untrue. They should therefore not be given any probative value. This is because:

1. Firstly there is uncontroverted evidence in Exhibit C4, corroborated by Exhibit C5 that after a month of resuming work from medical leave and being repeatedly refused access to the shuttle bus to enable him continue with his duties, the Claimant wrote to the 1st Defendant through a solicitor, to vent his complaint.

2. There is also uncontroverted evidence in Exhibit C6 corroborated in Exhibit C7 that the Claimant made further complaint to the 1st Defendant through another solicitor, seeking redress in the circumstances of the entire episode between himself and the 2nd Defendant.

3. There is evidence in Exhibit D5 that as at March 2014, the management of the 1st Defendant was considering sanctioning the Claimant for customer complaint and not for any alleged abscondment.

4. There is evidence that the Defendants were paying the Claimant's salary but withheld his trip allowances, not because of any alleged abscondment, but based on seizure of the shuttle bus from the Claimant following customer complaint.

It is counsel’s argument that the Claimant's contract of employment has not been determined as conceived by his terms of service. He urged the court to resolve this issue one in favour of the Claimant and hold that his contract of employment with the 1st Defendant is still valid and subsisting having not been determined.

Regarding issue two, counsel submitted that he case of the Claimant is that sometime in the cause of his employment, on 9/11/2013 he was accosted by Government tax officers. In the incident, he sustained a waist injury which he reported to his immediate superior in office, the 2nd Defendant. Thereafter, the 2nd Defendant invited him to his office, requested for the shuttle bus keys, and asked the Claimant to proceed on a medical leave to attend to the waist pain. The Defendants on the other hand, alleged that there was a passenger complaint against the Claimant for reckless driving, consequent upon which a directive was passed to step the Claimant down and invite him to a meeting with the human resources manager. The Claimant refused to honour the invitation but absconded from work, and several attempts to reach him failed which led to the stoppage of the Claimant's salary many months later.

It is counsel’s submission that with the Claimant’s denial of these alleged facts, the onus of proving the above assertion rested squarely on the Defendants to discharge, which they have been unable to do, and based on the facts of this case and the evidence led in this suit, the actions of the Defendants which were taken outside the terms and condition of the Claimant's employment are wrongful. Similarly, counsel argued that the particulars of the existence of a passenger complaint against the Claimant, were not sufficiently presented. Rather, DW1 during cross-examination gave vague and contradictory evidence. The pieces of watery, vague and irreconcilable evidence of DW1 cannot be held to establish the existence of the alleged passenger complaint, if at all there was any. Also, Exhibit D1 which was relied upon to issue the directive to step down the Claimant was denied by the Claimant. The alleged step-down directive does not form part of the policy or procedure of the 1st Defendant Company as applicable to the Claimant's terms and condition of service. Counsel added that in treating any passenger complaint, the terms and conditions of service as contained in Exhibit D1 and paragraph 6.4 at page 31 of Exhibit D4, does not include a step-down directive.

Also, counsel contended that since the alleged step-down directive was not provided for in the Claimant's contract of employment, the seizure of the shuttle bus key and refusal to hand same back to the Claimant, predicated on the alleged step-down directive without any written caution or disciplinary action against the Claimant, is ultra vires the Claimant's contract of employment with the 1st Defendant and wrongful, and from the evidence of DW1 under cross-examination the circumstances and situation when a step-down directive is initiated against a staff of the 1st Defendant is when drivers exceed speed limits and flout other rules on a regular basis.

It is counsel’s contention that in the circumstance of the Defendants’ failure to supply the essential facts or proof to lend any credence to the alleged step-down action, the court should not supply missing facts or evidence to make out the case for the Defendants, and Exhibits D2 and D3, alleged to be query from the 1st Defendant to the Claimant are fabrications made by the Defendants for purpose of this suit; both of which were denied by the Claimant as never existed, and were particularly discredited by the direct testimony of DW1 when she said under cross-examination that the Claimant was not given any written caution.

Again, counsel argued that in view of the contradictions in the Defendants’ evidence, the court cannot pick and choose which of the conflicting evidence to rely on, but must jettison both, and attach no weight whatsoever and howsoever to the said pieces of worthless documentary evidence. See DAGAYYA vs. STATE (2006) All FWLR (Pt. 208) 1212 SC.

Counsel urged the court to resolve issue two in favour of the Claimant and hold that the actions of the Defendants against the Claimant are ultra vires the proven terms and conditions of the Claimant's contract of employment and thus wrongful.

With respect to issue three, counsel submitted that from the state of the pleadings of parties and evidence led in this suit and on the strength of the foregoing submissions, the Claimant has proved his claims in this suit on a preponderance of evidence and balance of probability, and is entitled therefore to the judgment of this court.

It is counsel’s argument relying on Sections 133 and 134 of the Evidence Act and the cases of AGBOOLA vs. UBA PLC (2011) All FWLR (Pt. 574) 74; EYA vs. OLOPADE (2011) All FWLR (Pt. 584) 28; IBIYEYE vs. FOJULE (2006) All FWLR (Pt. 302) 156; NWANKPU vs. EWULU (1995) 7 SCNJ 197; MOGAJI vs. ODOFIN (1978) 4 SC; that where a party desires any court to give judgment as to any legal right or liability dependent on the existence of certain facts which he asserts, such a party shall prove that those facts exists and the burden of proof, in civil proceedings, shall be discharged on the balance of probabilities or preponderance of evidence, and to decide this balance the totality of the credible evidence of both parties is taken into account and appraised so as to determine which evidence has more weight when placed on the imaginary judicial scale by the trial court. See OSUJI vs. EKEOCHA (2009) All FWLR (Pt. 490) 614 SC.

Counsel submitted that the Claimant has proved each and every fact relevant to establish his claims herein on a preponderance of credible evidence and on the balance of probability. He urged the court to grant the Claimant's claim in its entirety, having proved by credible evidence that he is the Defendant’s employee, the Defendant acted wrongfully outside the terms of employment in stopping his employment, which makes the Claimant entitled to damages and other declaratory reliefs.

In his reply on points of law to the Claimants address, learned counsel for the Defendants submitted that the declarations sought in this action are not legitimate, as the Claimant unilaterally walked out of his contract with the 1st Defendant, and absconded from duty after he was stepped down to undergo disciplinary procedure in total breach of his contract. Counsel cited the case of L.C.R.I. vs. NDEFOH (1997) 3 NWLR (Pt. 491) 72 at 79, where it was held that the law is quiet clear and it tallies with common sense that a relationship between the employer and the employee is based on a confidential relationship which cannot possibly continue to exist in the absence of mutuality.

Counsel argued that Exhibits C4, C5, C6 and Exhibit C7 cannot help the Claimant. Instead, they prove that the Claimant was with the law firms instead of working for the 1st Defendant who led evidence of details of medical providers under an insurance scheme for its entire staff.

Issue two distilled by the Claimant’s counsel according to the Defendants, did not originate from the reliefs sought in this suit. If the Claimant felt that the actions of the Defendants were wrongful, he ought to have sought it as a relief and prove same through evidence at the trial. A court of law cannot grant a party a relief not claimed by him. See AYANBOYE vs. BALOGUN (1990) 5 NWLR (Pt. 151) 392 at 413 and O.S.H.C. vs. SHITTU (1994) 1 NWLR (Pt. 321) 476 at 487.

Counsel’s argument in response to the Claimant counsel’s submissions on the third issue in his final address; relying on the case of KODILINYE vs. ODU (1935) 2 WACA 336, is that the Claimant failed woefully to prove his case and cannot rely on the weakness of the Defendant's case, whose duty is merely to defend the case. Counsel urged the court to dismiss this suit as frivolous and an abuse of process of court.

COURT’S DECISION

I have considered the evidence adduced by the parties in this case and also the submissions of learned counsels for the parties in their respective written addresses. The two issues which appear to me necessary for determination in this suit are these:

1. Whether the contract of employment between the Claimant and the 1st Defendant still subsists.

2. Whether the Claimant has proved his case and thus entitled to the reliefs he sought in this suit.

ISSUE 1:

The Claimant is seeking in this suit, a declaration of the court that the contract of employment between him and the 1st Defendant still subsists. In other words, the Claimant claims that his employment with the 1st Defendant has not been determined.

There is no dispute in this case that the Claimant was an employee of the 1st Defendant. The Claimant’s appointment letter is Exhibit C2. He was employed on 12/5/2011 by the 1st Defendant as Shuttle Service Driver. The Claimant said in his evidence that on 11th December 2013, the 2nd Defendant collected the key to the shuttle bus assigned to the Claimant and directed the Claimant to go for treatment of his waist pain. The Claimant handed over the keys of the bus to the 2nd Defendant and he left to treat his waist pain which he sustained from an attack on him by tax force officers at Aba on 9th December 2013. He went back to resume work on 2nd January 2014 but the 2nd Defendant informed him that the 1st Defendant had instructed that the bus should not be returned to the Claimant. Since then he has continued to report to work but he was not assigned the bus or another one and his salaries were paid to him. Under cross examination, the Claimant stated that he did not receive any letter of termination or dismissal and he received his salary up to August 2014 except July salary which was not paid.

DW1 told the court that the Claimant was stepped down as a result of a complaint of reckless driving by a passenger but the Claimant absconded from work thereafter. He has since then not reported to work; and on 25/4/2014, he was given a query to explain his absence from work. Under cross examination, DW1 stated that the Claimant’s continued absence from work led to his salary being stopped. Before then, he was being paid his salaries. DW1 also said the Claimant’s employment has not been terminated.

In the Claimant’s employment letter, Exhibit C2, it is a condition of the employment that after confirmation, the employment is terminable by either party by giving 3 months notice of termination or payment in lieu of notice. There is no evidence in this case showing that the Claimant was given 3 months notice of termination of his employment nor is there evidence that he was paid 3 months’ salary in lieu of notice. The Claimant has told the court that he has not been given termination or dismissal letter. From the evidence of DW1, the Claimant’s salary was only stopped but his employment has not been terminated.

The Defendants have alleged that the Claimant absconded from work since December 2013. But the 1st Defendant has continued to pay the Claimant’s salaries up to September 2014. Exhibit C9 is the Claimant’s statement of account. It shows that his salaries were paid till September 2014 when it was stopped. Although it is alleged that the Claimant absconded from work, the Defendants did not terminate his employment but have paid his salaries for the subsequent 9 months after the alleged abscondment. The Defendants, when they stopped the salary of the Claimant, did not also terminate the employment or dismiss the Claimant. Merely stopping the salary of the Claimant does not amount to termination of his employment. From the evidence of DW1, the Defendants stopped the salary as a disciplinary action when the Claimant could not be seen. The salary was not stopped because the Claimant’s employment was terminated. In any case, DW1 told this court in clear words that the Claimant’s employment has not been terminated. From the facts and evidence in this case, it is clear that the Defendants have not terminated the employment of the Claimant. The employment is therefore subsisting.

The Defendants counsel has argued that an employee cannot be forced on an employer, and that the Claimant’s employment is not one with statutory flavour, hence the employment cannot be declared to still subsist. With due respect to counsel, his argument is far from the point in this case. If the Claimant’s employment has been shown to have been terminated, then this court cannot declare it to subsist. In this case, the employment has not been terminated in any way. Until it is terminated, the effect is that it is still subsisting. I resolve issue 1 in favour of the Claimant.

ISSUE 2:

The case of the Claimant is that he was employed by the 1st Defendant as a shuttle service driver and he was assigned a hummer bus with registration number KRD 423 XD to drive on routes directed by the 1st Defendant. He drove the shuttle hummer bus until 11th December 2013 when the key to the bus was taken from him by the 2nd Defendant. When the Claimant returned from treatment on 2nd January 2014, he was informed by the 2nd Defendant that the 1st Defendant has instructed that the bus should not be returned to the Claimant. Since then, the Claimant has continued to report to the office of the 1st Defendant but he was not assigned the bus or another one and as a result of the Defendants’ refusal to return the bus to him, the Claimant has remained idle.

By the terms in Exhibit C2, the Claimant was employed as a shuttle service driver. The employment letter also contain that the Claimant’s duties shall include driving the company’s vehicle assigned to the Claimant and any other duties as may be assigned to him. It is not specified in the conditions of service contained in the employment letter that the hummer bus with registration number KRD 423 XD must be assigned to the Claimant. That is to say the hummer bus was assigned to the Claimant at the discretion of the 1st Defendant. The 1st Defendant may also decide to withdraw the bus from the Claimant. By the terms of his employment as shuttle bus driver, the Claimant may be assigned any bus to drive. The Defendant may also decide not to assign him any bus but assign him to any other duty. This discretion of the 1st Defendant in the employment is also stated in clause 2.1 of Exhibit D4 which is the conditions of service in the 1st Defendant’s employment. It provides that the company will clarify to all staff the duties and the time schedules specific to their office and that employee shall work in such place and in such manner that management shall direct. By this term of the condition of service, the Claimant cannot insist the 1st Defendant must assign him the said hummer bus to drive nor is the 1st Defendant under any obligation to assign any bus to the Claimant to drive. In view of these facts, I find no merit in reliefs 2, 4, 5 and 6 sought by the Claimant

The Claimant also sought a declaration that he is still entitled to his daily trip allowance of the sum of N1,500 per trip. In his evidence, he said per trip allowance is the sum of N1,500 and he covers a minimum of 3 trips per day before the bus was taken from him. He makes the sum of N4,500 as daily trip allowance. The Defendants paid his salaries up to April 2014 but his trip allowances were not paid to him. It appears the Claimant is saying he is entitled to be paid his daily trip allowances for the period the Defendant took the bus from him. In Exhibit C2, trip allowance is prescribed for the Claimant but it is “payable per trip according to company policy”. By this condition of the Claimant’s employment, trip allowance is payable only after undertaking a trip. The Claimant confirmed this fact under cross examination when he stated that trip allowances are paid to drivers that do trips. DW1 too explained that the 1st Defendant pays trip allowances to drivers only after they make successful trips. In this case, it is clear from the evidence of the Claimant and DW1 that the Claimant did not make any trip for the 1st Defendant since 11th December 2013 when the bus was taken from him. Therefore, the Claimant is not entitled to trip allowances for trips he didn’t make. The Claimant appears to say that since it was the Defendant who didn’t allow him make trips by taking the bus from him, the Defendant is liable to pay him for the trips he missed. I have stated earlier that the condition of service gave discretion to the 1st Defendant in the assignment of work to the Claimant. Therefore, the 1st Defendant is not under any obligation to assign a bus to the Claimant to drive. The refusal of the 1st Defendant to release the bus to the Claimant or assign any bus to the Claimant to drive does not make the 1st Defendant liable for any benefit the Claimant might have missed or lost in the process. In the period the Claimant was not assigned any bus to drive, he was however being paid his monthly salaries. This was done up to September 2014. I find the Claimant has not proved his claim in relief 3.

In the final result, the Claimant’s relief 1 is granted. A declaration is made to the effect that the contract of employment between the Claimant and the 1st Defendant still subsists. Reliefs 2, 3, 4, 5 and 6 are dismissed. No order as to cost.

Judgment is entered accordingly.

Hon. Justice O. Y. Anuwe

Judge