IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

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

 

DATE: OCTOBER 3, 2024                                   

SUIT NO.: NICN/LA/400/2016

 

BETWEEN

MR OLUMIDE ANAWOYE                                                  CLAIMANT

 

AND

SMART MARK LIMITED                                                    DEFENDANT

 

REPRESENTATION

Stephen O. Egejuru, Esq for the Claimant

K. O. Uba, Esq for C. C. Amasike, Esq for the Defendant

 

JUDGMENT

1.     INTRODUCTION

2.      The Claimant was engaged by the Defendant as a Sales Representative sometime on 15.11.2013 until 06.03.2015 when he was placed on suspension alongside some of his colleagues by the Defendant. During the period of his engagement, the Claimant worked at different retail outlets operated by the Defendant and earned diverse remuneration. After his suspension, the Claimant was arrested at the behest of the Defendant by the Police, detained and subsequently charged to Court for the offence of stealing but the charge was later struck out for want of diligent prosecution. The Claimant thus accuses the Defendant of unfair labour practice, defamation and maliciously prosecuting him, allegations the Defendant vehemently denies.

 

3.      Whereof the Claimant approached the Court seeking for the following reliefs against the Defendant as per the endorsement on his Amended Statement of Facts:

 

i.            A DECLARATION that the Claimant’s indefinite suspension by the Defendant and the blunt refusal to allow him resume at his duty post without termination of employment constitute an unfair/constructive termination of his employment and unfair labour practice.

 

ii.            A DECLARATION that the Claimant’s employment was still valid and subsisting and that he is entitled to his salaries from the month of February till the date of the judgment of this suit.

 

iii.            A DECLARATION that the detention of the Claimant at the prompting and behest of the Defendant from 06 to 08 March 2015 without any reasonable cause is an infringement of his fundamental human right to freedom of movement and/or constitutes false imprisonment.

 

iv.            AN ORDER of this Honourable Court directing the Defendant to pay the sum of N76,495.00 (Seventy-six Thousand, Four Hundred and Ninety-five Naira) per month from February 2015 till final judgment is delivered in this suit.

 

IN THE ALTERNATIVE TO 4

 

v.            AN ORDER OF COURT directing payment of the one month salary in lieu of notice and the salaries of the Claimant for at least one year after the constructive/unfair termination of the Claimant.

 

vi.            General damages in the sum of N5,000,000.00 (Five Million Naira) for the loss of means of livelihood and the loss of livelihood for the malicious prosecution, false imprisonment/infringement of his right to movement and damage to the Claimant’s character as a result of the actions of the Defendant.

 

vii.            Cost of this suit assessed at N500,000.00 (Five Hundred Thousand Naira).

 

4.      TRIAL

5.      The Claimant testified as CW1, he adopted his written deposition as his evidence in chief, through him nine (9) documents were tendered in evidence, admitted and marked as exhibits C1 to C9 respectively. CW1 was cross-examined following which the Claimant closed his case. On behalf of the Defendant, one Solomon Warrie testified as DW1, he adopted his written deposition as his evidence in chief; through him five (5) documents were tendered in evidence, admitted and marked as exhibits D1 to D5 respectively. DW1 was cross-examined after which the Defendant closed its defence. The matter was then adjourned to enable parties file and exchange their respective final written addresses to be adopted at the adjourned date.

 

6.      DEFENDANT’S FINAL WRITTEN ADDRESS

7.      The Defendant in its Final Written Address raised a sole issue for determination, to wit:

 

a.      Whether by the evidence adduced in this suit by the Defendant’s representative, is it true that the Claimant was suspended indefinitely. And, whether by the evidence adduced in this suit by the Defendant’s representative, the Claimant was duly disengaged from the services of the Defendant.

 

8.      Learned Defence Counsel began his submissions by contending that the claim of the Claimant for salaries for the days he did not work is uncalled for as a worker is only paid for services rendered – Gboboh v British Airways Plc (2016) LPELR-40099(CA). That the onus is on the Claimant to prove his contractual relationship with the Defendant by placing before the Court the terms and conditions of his employment - Eze v NAMA & Ors (2016) LPELR-41453(CA). That the production of exhibit C1 (CW1’s identity card) and exhibit C8 (CW1’s statement of account) does not equate with terms and conditions of employment. Counsel argued that CW1 concealed the existence of exhibits D3 (query), D4 (CW1’s response to the query), D1 (audit report) and D5 (disengagement letter), so he is not a truthful witness. That CW1 admitted to the existence of these documents under cross-examination and facts admitted need no further proof – Nig. Advertising Services Ltd & Anor v UBA Plc & Anor (2005) LPELR-2009(SC).

 

9.      On the Claimant’s allegation of not been afforded fair hearing, Defence Counsel submitted that querying an employee and a response to such query satisfies the requirement of fair hearing – Raji v Wema Bank (2015) LPELR-41699(CA). That it is a principle of law that a Claimant is required to take reasonable steps to mitigate the loss resulting from the Defendant’s wrong if any, as such no damages will be awarded in respect of any part of the loss which he could have averted by taking reasonable steps to do so – Okongwu v NNPC (1989) LPELR-2475(SC). That this Court lacks jurisdiction to entertain matters on defamation – Board of Mgt of FMC Makurdi v Shie (2016) LPELR-42913(CA). That the failure by the Claimant to file a valid Reply to the Statement of Defence meant admittance of the fresh issues contained in the Statement of Defence – Imande & Anor v Igbu & Ors (2022) LPELR-57978(CA). That the evidence of the Defendant was uncontroverted and the Claimant failed to discharge fully the evidential burden placed on him by law. Counsel urged the Court to dismiss the Claimant’s case.

 

10. CLAIMANT’S FINAL WRITTEN ADDRESS

11. Learned Counsel for the Claimant formulated these issues for determination, viz.,

 

a.      Whether the Claimant was an employee of the Defendant.

 

b.      If the above question is answered in the affirmative, whether the Claimant’s employment has been terminated by the Defendant.

 

c.      Whether the detention, and harassment of the Claimant at the behest of the Defendant between 6th to 8th March 2015 was an infringement of the Claimant’s Constitutional guaranteed right to freedom of movement and personal liberty.

 

d.      Whether the Claimant is entitled to award of damages in the sum of N5,000,000.00 (Five Million Naira).

 

12. Learned Claimant’s Counsel on issue one contended that exhibits C1 and C8 reveal that CW1 was an employee of the Defendant, that DW1 admitted that CW1 was paid salaries as opposed to commission as alleged by the Defence. That by virtue of Section 91 of the Labour Act a contract of employment can be express or implied. That the absence of a written employment contract should inure in the Claimant’s favour by reason of Section 7 of the Labour Act and the principle of equity that a party will not be allowed to benefit from its own wrong – Abdullahi v Ibrahim & Ors (2023) LPELR-59984(CA). The Defendant had a duty to provide the Claimant with a written employment contract as required by Section 7(1) of the Labour Act and cannot be allowed in law to benefit from the consequences of the failure by the Claimant to tender such document in Court - Mobil Producing Nig. Unltd & Anor v Udo (2018) LPELR-8440(CA).

 

13. On issue two, Counsel argued that given the facts and circumstances of this suit exhibit D5 (disengagement letter) should not be ascribed any evidential or probative value as the Claimant consistently denied its existence. That exhibit D5 was authored and or produced while the Claimant was in detention so he could not possibly have known of its existence. So the employment of the Claimant still subsists and he is entitled to payment of accrued salaries from February 2015 till date of judgment. Counsel proceeded to argue issue three stating that the evidence that CW1 was arrested and detained between 06 and 08 March 2015 was uncontroverted. That the arrest was prompted by the Defendant on false allegation of missing goods resulting in a flagrant infringement of the Claimant’s fundamental right to movement as Constitutionally guaranteed.

 

14. Claimant’s Counsel contended on issue three that the Claimant is entitled to damages on grounds of: (a) malicious prosecution by the Defendant as the arrest, arraignment and trial of the Claimant at the Magistrate Court were motivated by malice by the Defendant. The criminal allegation made against the Claimant by the Defendant was baseless. (b) defamation through the Defendant’s publication, exhibit C9 is an online publication by the Defendant’s paid agent Metrowatch and is complete proof of defamation of the Claimant. That this Court has jurisdiction to entertain issues of defamation arising from matters related or connected with labour or employment – MHWUN v Ehigiegba (2018) LPELR-44972(CA). That contrary to the Defence Counsel’s submission, the Claimant filed a Reply to the Statement of Defence dated 14.11.2019. Counsel urged the Court to grant all the reliefs sought by the Claimant.

 

15. DEFENDANT’S REPLY ON POINTS OF LAW

16. Learned Defence Counsel reiterated his stance that the onus is on the Claimant to prove that he was an employee of the Defendant – Auwalu v Managing Director, Unity Bank & Anor (2021) LPELR-55464(CA). That the Claimant did not adduce evidence on the length of detention alleged in his address and that documentary evidence is the best form of evidence – Bakari v Ogundipe & Ors (2020) LPELR-49571(SC). On the issue of malicious prosecution, Counsel stated that the victim of a crime has a right to lodge a complaint of the crime to the Police for investigation – Mayaleke & Anor v Okenla (2015) LPELR-41700(CA). The reporting of a crime to the Police by a victim is never an infringement against the criminal.

 

17. On the issue of defamation, Counsel submitted that the Claimant failed to plead the particulars of the defamatory publication and did not join the publisher as a party to this suit. That the publisher of the defamatory material or publication is a necessary party and its absence deprives the Court of jurisdiction to hear the matter of defamation – Osondu & Ors v Ngonadi (2016) LPELR-41528(CA). Counsel on the issue of award of damages contended that damages are not awarded as a matter of course or speculation or on sentiment rather it is awarded on sound and solid legal principles – Anambra State Environmental Sanitation Authority & Anor v Ekwenem (2009) LPELR-482(SC). That the Claimant was disengaged by the Defendant before the crime was reported to the Police so the issue of waiting till conclusion of the criminal trial would not arise. Counsel urged the Court to dismiss the case.

 

18. RESOLUTION

19. Having regards to the facts and circumstances of this suit, the pleadings, evidence adduced, submissions of Learned Counsel on either sides, the Court distils the issue below for determination, namely:

 

20. Is the Claimant entitled to the reliefs sought herein in the light of the evidence adduced by him before the Court.

 

21. Learned Defence Counsel raised the issue of the Claimant not filing a Reply to the Defendant’s Statement of Defence which according to him raised fresh or new issues that required response; that the absence of such Reply means the allegations of facts in the Statement of Defence are uncontroverted. In response, Learned Claimant’s Counsel pointed out that the Claimant filed a Reply to the Defendant’s Statement of Defence dated 14.11.2019. The Court has gone through its records and observed that indeed there is a Claimant’s Reply to the Defendant’s Statement of Defence therein filed on 22.11.2019. The law is well settled that the Court and parties are bound by the records of the Court – O & O Networks Ltd v Broad Comms. Ltd (2021) 5 NWLR (Pt. 1770) 454. Consequent upon this, Learned Defence Counsel’s submission in relation to the alleged non-filing of Reply to the Defendant’s Statement of Defence is hereby discountenanced. I so hold.

 

22. The Court observed that the order and or format of listing the Claimant’s reliefs in his Final Written Address was significantly changed and or altered from what is contained in the endorsement on his Amended Statement of Facts. The endorsement on the Amended Statement of Facts reflects relief five as an alternative relief to relief four, in the Final Address however reliefs one to four taken together appear to be categorized as alternatives to the next listed three reliefs. Whether the latter is a result of an inadvertence of Counsel or the actual intention of the party is yet to be known. In law, it is the endorsement on the Statement of Claim that takes precedence – Arabambi v Advance Beverages Ind. Ltd (2005) 19 NWLR (Pt. 959) 1 at 32, B-C, Salisu v Mobolaji (2016) 15 NWLR (Pt. 1535) 242 at 292-293, G-A. Also, the Final Written Address of the Claimant does not constitute a pleading, the Court is bound to take cognizance of the endorsement on the Claimant’s Statement of Facts and that is what it would work with. I so hold.

 

23. The Claimant seeks for his relief one, a declaration that the Claimant’s indefinite suspension by the Defendant and the blunt refusal to allow him resume at his duty post without termination of employment constitute an unfair/constructive termination of his employment and unfair labour practice. The Defendant in its defence contends that the Claimant was never an employee of the Defendant rather he was simply engaged as a Sales representative and issued with an identify card (exhibit C1) for purposes of compliance with security requirements in Malls where its outlets operated from. The Claimant however maintains that he was an employee of the Defendant but was never issued with a letter of appointment/employment containing the terms and conditions of his employment. The Defendant’s position suggests the existence of a contract for service while the Claimant insists on the existence of an implied contract of service between him and the Defendant.

 

24. A contract of service, is a relationship entered into by two parties – employer and employee (or master and servant) whereby the servant agrees to serve the master and to be subject to the control of the master either for a fixed term or a term of indefinite duration in return for a benefit. A contract for service on the other hand is a client – contractor type of relationship, where more often than not, the contractor is engaged to perform certain tasks or provide certain services to the client for a certain fee or commission. So in basic terms, while a contract of service is based on an employer-employee relationship, where the employee discharges duties for the employer; a contract for service is a client-contractor type of relationship, where the contractor carries out business on his own account or rather provides services for which he has represented himself as competent and capable of undertaking for an agreed fee or commission.

 

25. The Courts in distinguishing contract of service from contract for service have applied several tests, see Biokpo v NDLEA & Ors (2021) LPELR-56250(CA), some of which include:- (a) control test which emphasizes the ability of the master (employer to tell a servant (employee) not only what to do but also how to do it and when[1] – Atadoghu v Alade (1957) WNLR 184. See also Sodipo v Kuti (1971) NCLR 803 where it was held that control is close, for example, if a taxi driver who is paid wages, and piles the route prescribed by the master returns the key and proceeds for the day to the master at night, the contract is one of service, as a master-servant relationship exist. (b) Integration test: in a contract of service, the employee is employed as part of the business, his work is done as an integral part of the business, whereas in contract for service the employee discharges his duties or work for the business, is not integrated into it but is only accessory to it – Stevenson Jordan & Harrison Limited v Macdonald & Evans (1952) 1 TLR 101 at 111.

 

26. (c) multiple test – here the Court considers a multiplicity of factors in determining whether or not a relationship is a contract of service or a contract for service – Ready Mixed Concrete (South East) Limited v Minister of Pensions (1968) 2 QB 497. Some of these factors that the Court will consider in determining the nature of the relationship include: (i) payment – usually in a contract for service, an independent contractor is paid by way of fees and not by way of wages or salary. So payment by way of commission only or on the completion of the job is an indication that the contract is for services but not conclusive proof. The length or duration it takes for payment to be made could also be an indicator; as the longer it takes could indicate a contract for service as oppose to a contract of service. (ii) ownership of equipment – where an employer supplies the tools and other capital equipment there is a strong likelihood that the contract will be construed as one of employment, the nature of the job and the cost of the equipment supplied could also be a determinant in arriving at a conclusion on the nature of the employment relationship.

 

27. (iii) personal obligation to work – more often than not in a contract of service, the employee would have a personal obligation to work and cannot delegate his responsibilities or duties to another to discharge on his behalf. That is, the freedom to do one’s work or job either by oneself or by another is inconsistent with a contract of service, although a limited or occasional power of delegation may not be. (iv) hours of work – where the work hours are not fixed, it is likely that the contract is not of employment. (v) place of work – it is not fatal to the existence of contract of employment that the work is not carried out on the employer’s premises. Where work is carried out both within and outside the premises of the employer there is the likelihood of it being a contract for service, though not conclusive proof. (vi) exclusive service – where the contract allows the contractor to work for people other than the employer, it indicates, the contract is more likely one for services and not of services.[2]

 

28. The totality of evidence before the Court reveal that the Defendant had control over the Claimant in relation to the discharge of his responsibilities, the Defendant transferred the Claimant to different of its retail outlets at will. The tone and language of command recorded in exhibit D3 (query) corroborates the fact that the Defendant had control over the Claimant. Also, exhibit D4 (response to query) shows that the Claimant was an integral part of the business of the Defendant, he was as a sales representative required to visit the Defendant’s warehouses, record stocks, work at its retail outlets amongst other duties. Furthermore, exhibit C8 discloses that the Claimant was paid salaries by the Defendant, the disbursement or deposits made by the Defendant into the Claimant’s bank account were recorded and described as salaries as oppose to commissions or fees for sales of company’s products. The Claimant had no freedom to elect to do the Defendant’s assigned tasks either by himself or whomsoever he delegates, he could also not without reason choose his place of work, his services were rendered exclusively for the Defendant.

 

29. Notwithstanding the reason given by the Defendant for issuing exhibit C1, it reads that “the person whose photograph, name and signature appear on this card is an employee of Smartmark”. All these indices point to the fact that contrary to the Defendant’s stance, the Claimant was its employee and the relationship between them was an implied contract of service in the absence of a written or formal contractual document. This was clearly in contravention of Section 7(1) of the Labour Act that requires the issuance of a written contract within three (3) months of engaging the employee or worker. Be that as it may, the Claimant alleges he was placed on indefinite suspension by the Defendant and not permitted to resume work inviting the Court to declare such conduct as constituting constructive termination of his employment and unfair labour practice. The Defendant on its part states that it terminated the Claimant’s employment on 08.03.2015 as evinced by exhibit D5 (letter of disengagement) which it claims the Claimant was aware of.

 

30. A claim the Claimant denies in his Reply to the Statement of Defence alleging that the signature on exhibit D5 is clearly not his. This position is nevertheless pliant given the fact that the Claimant for reasons best known to him at trial made reference to deposing to a witness statement on oath meaning he inadvertently omitted adopting his additional witness statement on oath that accompanied his Reply pleadings. The implication of this is that the Claimant’s Reply pleading is not supported by evidence. See Abubakar v INEC (2022) 8 NWLR (Pt. 1833) 463 at 477, B-C, PDP v INEC (2022) 18 NWLR (Pt. 1863) 653 at 687, B. Section 101(1) and (2) of the Evidence Act (as amended) empowers the Court for the purpose of ascertaining whether a signature, writing or seal, finger impression is that of a person by whom it purports to have been made to compare it with any signature, finger impression alleged to have been written by such person. From the various documents and processes before the Court that has the signature of the Claimant, it appears that the Claimant has different signatures or more than one way of penning his signature.

 

31. A cursory examination of the signature attributed to the Claimant on exhibit D5 reveals that it looks similar with that on exhibit C1 when compared. There are also similarities in the way certain alphabets are written on exhibit D5 with CW1’s hand writing on exhibit D4. Although, CW1 was emphatic under cross-examination that he was suspended but not terminated from the Defendant’s employment and or services, his evidence in chief that he was arrested by the Police on 06.03.2015 and released on 08.03.2015 does not foreclose the possibility of receipt of exhibit D5 on 08.03.2015. The Defendant’s stance is that it suspended the Claimant vide exhibit C2 on 06.03.2015 with effect from 07.03.2015 but called the Claimant in the morning of 08.03.2015 on phone informing him of the calling off of his suspension and inviting him to the office. That on the Claimant’s arrival he was issued with exhibit D5 and later handed over to the Police, who arrested the Claimant and some of his colleagues but released them same day. This seems probable given the tone of plea CW1 used in concluding exhibit D4.

 

32. More so, the Claimant’s silence on the existence of exhibits D3 and D4 respectively implies his tendency to be economical with the truth on certain issues and makes his denial of knowledge of exhibit D5 less probable. Though the Defendant’s conduct in the abrupt and somewhat sinister termination of the Claimant’s services are far from been commendable or fair, the Claimant has not placed sufficient material evidence to establish that his suspension was indefinite. Learned Claimant’s Counsel in his address made heavy weather of the fact that the Claimant could not have been in receipt of exhibit D5 given the length of his detention. As earlier mentioned the only evidence the Claimant gives about the length of his detention is that of being detained by the Police from 06.03.2015 till 08.03.2015. Meaning Claimant’s Counsel’s submission in this regards is not supported by any pleading or evidence and therefore goes to no issue. This is because, no matter how brilliant, Counsel’s address cannot substitute or take the place of pleadings or evidence – Nwa-Anyajike v INEC (2023) 12 NWLR (Pt. 1897) 1 at 37, D-F, Onwuta v State of Lagos (2022) 18 NWLR (Pt. 1863) 701 at 722-723, H-B.

 

33. In Otti v Excel-C Medical Centre Ltd (2019) 16 NWLR (Pt. 1698) 274, it was held that “a person who signs a document is bound by it. Put differently, in the absence of fraud, duress, or plea of non est factum, the signature of a person on a document is evidence of the fact that he is either the author of the contents of the document that are above his signature or that the contents have been brought to his attention. It does not matter that he did not read the contents of the documents before signing it. The general rule is that a party is estopped by his deed and a party of full age and understanding is bound by his signature to a document, whether he reads or understands it or not. It is only a party that has been misled into executing a deed or signing a document essentially different from what he intended to execute or sign that can plead non est factum as a defence in an action against him…”

 

34. This Court has noted that the signature attributed to the Claimant on exhibit D5 is similar with the signature of the Claimant on exhibit C1 when compared and also that on his initial witness statement on oath. Section 101(1) of the Evidence Act, 2011. The onus rests on the Claimant to show that the said signature was not his, a burden in the considered view of this Court was not discharged satisfactorily. The only question on record asked by Claimant’s Counsel to DW1 on exhibit D5 was whether DW1 authored exhibit D5, to which DW1 responded in the negative. The issue here to my understanding is not the contest of authorship but receipt and knowledge of the existence of exhibit D5, a fact the Claimant did not controvert. On this note, his relief one fails and is hereby dismissed. I so hold.

 

35. Next is the claim for a declaration that the Claimant’s employment is still subsisting and he is entitled to his salaries from February 2015 till date of judgment. At the risk of repetition, this Court has found that the Claimant’s employment was terminated on 08.03.2015 by the Defendant vide exhibit D5. Besides, it beats the mind that the Claimant in one breath is seeking a declaration that his indefinite suspension constitutes unfair constructive termination of employment and in another breath seeking a declaration that his employment with the Defendant still subsists. It is like speaking from both sides of the mouth. The law requires parties to be consistent in their claims. This nonetheless, exhibit C8 reveals that the last salary paid by the Defendant to the Claimant was on 03.02.2015 with the description January salary.

 

36. There is no evidence before the Court that when exhibit D5 was issued and served on the Claimant, he was paid in lieu of notice alongside his salary for February 2015. The evidence before the Court indicates that the Claimant worked for the Defendant all through the month of February 2015 up till 06.03.2015, a fact the Defendant does not dispute. It is the law that facts admitted need no further proof – NRMA&FC v Johnson (2019) 2 NWLR (Pt. 1656) 247 at 261, C-E, CBN v Dinneh (2021) 15 NWLR (Pt. 1798) 91. In other words, it is deemed established that the Defendant did not pay the Claimant his emoluments for the month of February 2015 and the days he worked in March 2015 before he was disengaged from the Defendant’s services. The Defendant has not adduced any evidence why it elected to refrain from paying the Claimant his salary for February 2015 and the days he worked in March 2015.

 

37. The law requires the employee first to show that he or she worked for the employer discharging his or her obligations as required, yet the employer failed in its responsibility of paying the employee. The burden of proof then shifts to the employer to prove that it paid the employee who had discharged his or her responsibilities as required as and when due – Honika Sawmill (Nig.) Ltd v Hoff (1994) 2 NWLR (Pt. 326) 252. The evidence before the Court points to the fact that the Claimant’s salary at the time of his disengagement from the Defendant’s services was N76,495.00, a fact corroborated by exhibit C8. CW1’s suspension on 06.03.2015 was not one without pay which technically implies that he ought to be paid his emoluments till the date of his disengagement from the Defendant’s services. In the light of the foregoing, the Claimant’s relief two succeeds in part and it is declared that the Claimant is entitled to his salaries from the month of February 2015 to March 8, 2015.

 

38. The Claimant also seeks a declaration that his detention from 06.03.2015 to 08.03.2015 at the prompting and behest of the Defendant without reasonable cause constitutes an infringement of his fundamental right of freedom of movement and amounts to false imprisonment. Section 41(1) and (2)(a) of the Nigerian 1999 Constitution (as amended) provides “(1) Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereby or exit therefrom. (2) Nothing in subsection (1) of this section shall invalidate any law that is reasonably justifiable in a democratic society - (a) imposing restrictions on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria…”

 

39. The above section guarantees the fundamental right to freedom of movement of every Nigeria citizen and this right would not be said to be infringed upon where a law imposes restriction on a person reasonably suspected to have a criminal offence. The facts and evidence before the Court as evinced by exhibits D1 and D2 respectively reveal that there was an audit carried on the Claimant’s salesmanship which allegedly disclosed that a number of items in the Claimant’s custody held in trust for the Defendant were unaccounted for. This gave rise to a suspicion and accusation of pilfering or stealing. The Claimant does not deny been in custody of these items. The fact that the Police conducted a search in the home of the Claimant and found nothing incriminating did not exonerate him from suspicion of committing a criminal offence of stealing otherwise he would not most likely have been charged to Court on same offence.

 

40. In fact, the call for leniency by the Claimant in exhibit D4 is significant in that it discloses that the Claimant had a clear understanding of the gravity of the accusations against him. So the issue of arrest and detention without a reasonable cause would not arise. It would have been different, if the allegations were manifestly unfounded and false or stemmed out of malice. This is because in law, the intentional instigation of the arrest and detention of a person without reasonable or probable cause is an unlawful act – Okonkwo v Ogbogu (1996) 5 NWLR (Pt. 449) 420 at 435, H-A, Zenith Int’l Bank Ltd v Alobu (2017) 4 NWLR (Pt. 1554) 135. From the facts of this suit, it appears that the Defendant had probable cause to make a report to the Police against the person of the Claimant as the report was not actuated by malice or without foundation or frivolous. The discharge of the Claimant by the striking out of the charge for want of diligent prosecution does not transmute to the allegation or accusation been completely false.

 

41. In cases of false imprisonment, the duration of the restriction of the movement of the person whose liberty was restrained is not what particularly calls for concern. Rather it is the fact that the false arrest or complete deprivation of liberty for however short the time was without lawful cause, justification or consent. See Orji v Amara (2016) 14 NWLR (Pt. 1531) 21 at 53, E-G. At the risk of repetition, this Court has found that there was a probable cause for the Defendant to suspect the Claimant and report the Claimant to the Police, as there were items in the Claimant’s custody held in trust for the Defendant, which could not be accounted for. On this note, the Claimant’s relief three is hereby refused and accordingly dismissed. I so hold.

 

42. The Claimant for his relief four seeks an order of this Honourable Court directing the Defendant to pay the sum of N76,495.00 (Seventy-six Thousand, Four Hundred and Ninety-five Naira) per month from February 2015 till date of judgment. It has already been established that the employment of the Claimant no longer subsists, as he was disengaged on 08.03.2015 vide exhibit D5. As argued by the Learned Defence Counsel, a worker or employee who does not work is not ordinarily entitled to pay. The nature of the employment relationship between the Claimant and the Defendant is one clearly devoid of statutory flavour, so the issue or reinstatement or subsistence of employment does not arise. It has earlier been stated that from the totality of the evidence before the Court, there is no evidence that the Claimant was paid his salary for February 2015 up till the date of his disengagement despite working for the Defendant during this period.

 

43. In furtherance to this finding, the Court is of the considered view that the Claimant’s relief four succeeds in part to the extent that it directs the Defendant to pay sum of N96,893.66 (Ninety-six Thousand, Eight Hundred and Ninety-three Naira) being the Claimant’s salary from February 2015 till 08.03.2015. I so hold. Relief five (5) is an alternative to relief four (4), the purport of an alternative claim is that one remedy is available in place of the other – Fed. College of Education, Technical, Potiskum v Joseph (2020) 9 NWLR (Pt. 1729) 381. So where a claim by a party to a suit succeeds and the Court grants same, there will be no need for the Court to consider any alternative claim thereto. This is because, when a party makes a claim in the alternative, the belief is that he wants either of the reliefs sought, in which case when he is granted any of the reliefs, it suffices for the purpose of satisfying his claim – Mustapha v Abubakar (2011) 3 NWLR (Pt. 1233) 123, G.S. & L. Ltd v AMCON (2023) 15 NWLR (Pt. 1907) 345.

 

44. Since the Court has considered and granted in part the Claimant’s main claim, that is, relief four, there would be no justification for the Court to embark on the consideration of his alternative claims. Doing so would be improper and injudicious in the absence of any exceptional reason. On this note, the Claimant’s relief five is refused and dismissed. I so find and I so hold. Relief six is for general damages in the sum of N5,000,000.00 (Five Million Naira) for the loss of means of livelihood and the loss of livelihood for the malicious prosecution, false imprisonment/infringement of his right to movement and damage to the Claimant’s character as a result of the actions of the Defendant. This Court in the course of this decision, in its considered view found and held that the Claimant did not adduce satisfactory and convincing evidence in proof of his claims of malicious prosecution, false imprisonment and infringement of his right to movement.

 

45. The Claimant’s claim for damages for loss of means of livelihood and loss of livelihood is neither supported by pleadings nor evidence and therefore are deemed abandoned or ignored and go to no issue. Considering this leg of the Claimant from a different spectrum one again sees the fallacy surrounding it in the face of the Claimant’s relief two. If the issue of the claim that the Claimant’s employment still subsists had been anything to go by, it would have been ostentatious and injudicious to consider and grant a relief on the loss of means of livelihood or loss of livelihood. This issue having not been supported by pleadings and evidence is hereby discountenanced. I so hold. On the issue of damage to the Claimant’s character, the Learned Defence Counsel has argued that the Court does not have jurisdiction because it bothers on defamation, also that the Court lacks jurisdiction because the publisher of the exhibit C9 (printout of online publication) was not joined as a party to this suit being a necessary party.

 

46. The issue of the Court’s jurisdiction on matters of defamation in workplace or in the course of employment has been dealt with much earlier, and I see no need to go over it again. First, the Claimant did not plead particulars of the defamatory statement made to damage his character, subject him to public disdain, ridicule or opprobrium, discredit or present him as someone unreliable in his trade or profession. Second, for the publishers of exhibit C9 to be considered as a necessary party, there must be a question that cannot be effectually and completely determined unless they are made parties to this suit. It was in the Claimant’s final written address that the Claimant alluded that the publishers of exhibit C9 were paid agents of the Defendant, inferring that it was the Defendant that prompted the publication of exhibit C9.

 

47. It need be reiterated that Counsel’s address no matter how beautiful or brilliant cannot be a substitute for pleadings or evidence. In law, a trial Court cannot be held to be competently well constituted to determine a suit bordering on libel without the presence of the alleged publisher of the libellous publication – Osondu & Ors v Ngonadi (2016) LPELR-41528(CA). The absence of the publishers of exhibit C9 is fatal to the claim of the Claimant with regards to the allegation of damage to his character by the Defendant. Assuming the publishers of exhibit C9 were parties to this suit, one would still have to consider whether or not exhibit C9 is a fair report of what transpired in Court following CW1’s arraignment. As the law is that a publication is not defamatory if it is an accurate and fair report of what transpired, and it need not be verbatim or word for word. If what is stated is substantially a fair and accurate account of what is sought to be conveyed, then the statement cannot be said to be defamatory – Ologe v New Africa Holdings Ltd (2013) 17 NWLR (Pt. 1384) 449 at 466, A-B. On this note, this relief fails and is dismissed accordingly.

 

48. The next relief is for cost of action assessed at the sum of N500,000.00. the award of Costs are supposed to be compensatory to a successful party without being punitive to an unsuccessful party – Olusanya v Osinleye (2013) 11 NWLR (Pt. 1367) 148 at 170, A-B. Cost follows event and cannot cure all financial loss incurred or sustained in the litigation. Where cost is awarded it is meant to have some cushioning or palliative effect on the financial burdens of the party in victory – Egypt Air Ltd v Ibrahim & Anor (2021) LPELR-55882(CA), Anazodo v Pazmeck Intertrade (Nig.) Ltd & Anor (2023) LPELR-59879(SC); (2023) 10 NWLR (Pt. 1891) 1, EKSU & Ors v Fajembola & Ors (2022) LPELR-57501(CA). In the light of these authorities, the Court assesses and sets cost at the sum of N400,000.00 (Four Hundred Thousand Naira) in favour of the Claimant.

 

49. In conclusion, the issue for determination is resolved in part in favour of the Claimant, his claims succeeds only to the extent set out below:

 

a)     IT IS DECLARED that the Claimant is entitled to his salaries from the month of February 2015 to March 8, 2015.

 

b)    The Court directs the Defendant to pay the sum of N96,893.66 (Ninety-six Thousand, Eight Hundred and Ninety-three Naira) being the Claimant’s salary from February 2015 till 08.03.2015.

 

c)     Cost of this suit is assessed at the sum of N400,000.00 (Four Hundred Thousand Naira) in favour of the Claimant to be paid by the Defendant.

 

50. Judgment is entered accordingly.

 

 

Hon. Justice M. N. Esowe, FCIArb

Presiding Judge


[1] See Oladosu Ogunniyi, Nigerian Labour and Employment Law in Perspective, 2nd Edition, 2004, Folio Publishers Limited, Ikeja, Lagos state, Nigeria, at page 15.

[2] See Oladosu Ogunniyi, op cit