IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
10TH DAY OF DECEMBER, 2024 SUITNO NICN/CA/48/2021
BETWEEN:
MR. VICTOR PATRICK ………………………………………………….……. CLAIMANT
AND
BAYO YAO HUAN JIAN IRON & STEEL GROUP CFT……………………… DEFENDANT
JUDGMENT.
1.
On 3/12/2021, the claimant took out a general form of complaint accompanied by statement of facts, witness statement on oath, list of witnesses, list of documents and photocopies of documents to be relied on. In the statement of facts, which is the pleading of the claimant, the claimant vide paragraph 22 of the statement of facts claim against the defendant as follows: -
1. A declaration that the purported termination/dismissal of the claimant’s employment by the defendant on the 2nd day of March, 2021, is, illegal, wrongful, unlawful and constitutional and therefore null and void.
2. A declaration that the termination/dismissal of the claimant’s employment on grounds of theft carries with it stigma on the character of the claimant which entitled him to substantial damages.
3. The sum of N1,003,000.00
(One Million, Three Thousand Naira) being his pay-off from 2004 to 2020.
4. The sum of N1,000,000.00
(One Million Naira) against the defendantas general damages.
5. The sum of N1,000,000.00
(One Million Naira) against the defendant for cost of litigation of this suit.
6. 10% (ten percent) interest on the judgment sum from the date of judgment until the entire judgment sum is fully paid to the claimant.
2. Following failed efforts by the bailiff to serve the defendant with the originating process commencing this suit, the defendant was served through substituted means, as per order of the court made on 25/5/2022. Upon being served with the originating process commencing this suit, the defendant on 24/05/2022 filed its statement of defence wherein the claim of the claimant was denied.
3. On
6/12/2022, the claimant testified as CW1 in proof of his case. The claimant after identifying his witness statement on oath adopted it as his evidence in this case. Six documents were tendered in evidence through CW1 they were admitted in evidence and marked as exhibits C1 to C6.
THE CASE OF THE CLAIMANT
4. The claimant was employed by the defendant vide exhibit C1, letter dated 15/1/2004, as a factory worker in production Department of the defendant on salary of the sum of N18,000.00. During the period of his employment, the claimant’s salary was paid by cash by hand through the account Department of the defendant. According to the claimant on 2/3/2021, he took over counting from his colleague Mr. James Ovat and also supervising other members of staff in his production department of the defendant, when he subsequently discovered that he had made a mistake in his counting and he informed the crane operator and directed him to remove the excess irons and keep them aside at a particular place where spoil irons or over counted irons are kept. However, one Mr. Paul, a Chinese on sighting the excess iron inquired why the excess irons were kept in that place and that he explained to him. According to claimant after normal counting and cross checking, the excess irons will be returned back to the finishing section where the counting was carried out, but on this faithful day, the reverse was the case as Mr. Paul invited him to his office and told him that for his mistake, the sum of N20,000.00 will be deducted at source from his salary. The claimant accepted the deduction. Accordingly, the sum of N20,000.00 was deducted from claimant’s February, salary that was paid in March, 2021, i.e. on 2/3/2021, where the claimant was paid the sum of N56,000. The clamant was photographed and it was posted at strategic locations within and outside the defendant’s company with a notice of his dismissal and ban from entering the defendant premises. The claimant stated that when he was dismissed and banned that was when he knows that for the very first time through the notice of dismissal and ban from entering that he was alleged to have been caught adding extra pieces of iron rods to a truck being loaded in the factory and it was also discovered that up to thirty pieces of extra iron rods are been added every time any truck was loaded.
5. The claimant averred in his statement of facts that on 21/5/2021 at EPZ Calabar the legal officer of EPZ Barr. Amaka, Tony of the defendant’s department and claimant held meeting toward resolving the issue of his dismissal and they were advice by Barr Amaka to reinstate the claimant as there is no evidence to support the allegation of theft against him. In June, 2021, the defendant reinstated the claimant and directed him through a phone call to resume work but, the claimant declined the offer of the reinstatement because his good reputation has been tarnished and the working environment is now harsh and oppressive following the emergence of a new management of the defendant. By the employment manual and conditions of service 2007 of the defendant due process for his dismissal was not followed since his dismissal was illegal, wrongful and unconstitutional.
6. The claimant as CW1 was cross examined on 23/4/2024. In his testimony under cross examination, CW1 stated that he can speak and write in English language. He can as well count very well. CW1 stated that he was employed as foreman in finishing section of the defendant. He also agreed that his appointment can be terminated under exhibit C2. That his monthly salary was N115,000, it was not stated under his contract of employment, but his salary continued to increase every year. The defendant produces 16 and 18 mm iron rods. A bunch is 188 pieces of iron rods for 16 mm and 106 for 18 mm iron rods. CW1 stated that he was in-charge of counting to make sure is correct before loading in customers vehicle. He was accused of putting excess rods in customer’s vehicle. In his statement of oath the claimant stated that he made mistake in counting. He did not give customer excess rods. When he counted rods he discovered that there was mistake excess of iron rods. When he discovered the mistake, he kept the iron where they usually keep them. He instructed his lawyer to write exhibit C6 and he read it very well, he supplied the facts to his lawyer to write. After writing he read. He told his lawyer military intimidated him as stated in exhibit C6.
THE CASE OF THE DEFENDANT.
7. On
29/5/2024, Victor Akpaesa testified in defence of the defendant as DW1. DW1 adopted his witness statement on oath as his evidence in this case. One document was tendered in evidence through DW1 it was admitted and marked as exhibit D1.
8. The defendant admitted that the claimant was her employee until when he was terminated for conniving with the defendant’s customers to steal the defendant’s products. The claimant was vide letter dated 4/1/2004 employed by the defendant as factory worker in the production department of the defendant. It was the duty of the claimant to set aside 12mm and 16mm iron rods in bundles of 188 pieces and 106 pieces for crane operator to load the iron rods into trucks belonging to defendant’s customers. On the day in question, defendant’s security staff, Alex Emmanuel observed that the claimant had set aside extra 30 iron rods in the bundles in order to short charge the defendant and he immediately alerted the defendant chief security officer who came to the claimant’s section and confirmed the fact that the claimant had deliberately increased the bundles of iron rods about to be loaded into the defendant’s customer’s truck. The defendant’s employee threatened to hand the claimant over to the police and he confessed to having placed 30 extra pieces of iron rods in the truck of one of the defendant’s customers who had already left the factory. The claimant was promptly reported to Mr Paul, the supervisor of the section, who confronted the clamant in the presence of the chief security officer and Mr. Alex Emmanuel. The claimant confessed to his misconduct and agreed that N20,000.00 be deducted from his entitlement in lieu of the iron rods he confessed selling to the defendant’s customer previously. The sum of N20,000.00 was deducted from claimant’s February, 2021 salary in lieu of the iron rods which he confessed selling to the defendant’s customer previously. Thereafter, the claimant was paid the balance of his salary and escorted outside the defendant’s factory premises by the defendant’s security men. The photograph taken was to evidence that claimant had been paid off his entitlement and the fact that he has been dismissed and was no longer entitled to enter the defendant’s premises especially for the information of the security men who were not on duty at the time the claimant was dismissed from the defendant’s employment.
9. The defendant is not in breach of employee manual, 2007. The defendant has not caused the claimant to supper any financial or economic hardship or loss. The claimant is not entitled to any relief. The claimant having claimed special damages is not entitled to general damages of N100,000,000.00 the defendant is not under any obligation to bear claimant’s cost of litigation. The claimant is not entitled to any interest. The claimant’s suit is an abuse of processes and liable to be dismissed with punitive costs.
10.
Under cross examination DW1 stated that he has been working for the defendant from December, 2020 to date. He stated that he is familiar with security and administrative procedure of the defendant. It is true there is provision of three months before appointment is confirmed. He was present on the day of the incident of alleged theft. Exhibit C3 was shown to witness, he said he snapped claimant to show he was paid, the sum of N20,000.00 deducted from claimant’s salary and he was sacked. There was deliberation and a decision was taken, he was party at the management meeting that deliberated on the incident. He has report but is not with him. Exhibit C6 was shown to witness and he said he is aware of the letter but he is not aware if there was a response. The detail of the truck which claimant was alleged to have extra loaded is with HR manager.
THE SUBMISSION OF THE DEFENDANT.
11.
In the final written address of the defendant franked by P. C. Stevenson, Esq; counsel for the defendant a single issue was formulated for determination, to wit:-
“Whether the Claimant has established his claims on the balance of probabilities?
12.
In arguing the sole issue counsel submitted that the Claimant has failed to establish any of his claims in this suit on the balance of probability. As it is trite law that a court can only enter judgment in favour of a Claimant in a declaratory action upon cogent and credible evidence. Counsel submitted that the evidence of the Claimant in this case is neither cogent nor credible and this Honourable Court is urged to dismiss the substantive suit herein. In support of this contention counsel refers this Honourable Court to the case of Chief Mike A. Nwaukoni V. Augustine Arueze and Ors. reported in (2011)AFWLR Pt. 564 Pg. 72 Ppt. at Pg. 98 where the Court of Appeal (Benin Division) stated the law as follows:
“A declaratory relief can only be granted on credible evidence on record. It is axiomatic that a trial court must be satisfied that a plaintiff on his own evidence is entitled to the relief he claimed. He must satisfy the Court by cogent and credible evidence.”
13.
Counsel submitted that the testimony of the Claimant is completely unreliable as it is not in line with his pleadings and in other instances completely false. For example, the Claimant in paragraph 3 of his Statement of Fact pleaded that he was employed by the Defendant on 5th day of May, 2000, as a factory worker in the Production department of the Defendant, however the only document tendered by the same claimant as proof of his employment is dated 5th January, 2004, (exhibit C1). This is a classical instance of party proffering evidence that is not in line with its pleadings and such evidence, this Honourable Court is bound to disregard in law.
14.
It is also the submission of counsel that the Claimant herein is not a credible witness and this Honourable Court can quite rightly discountenance his testimony in this case. The Claimant under cross-examination on 23rd April, 2024, stated that he supplied his lawyer with the facts with which he wrote Exhibit C6 and that the aforesaid letter (exhibit C6) contained the allegation that the Defendant intimidated him with military men. However, a careful examination of the aforesaid document which is before this Honourable Court will show that there is no mention of the allegation that the Defendant herein intimidated the Claimant with military men. Counsel urged the court not to attach any weight to the testimony of the Claimant who clearly perjured himself under cross examination. In support of this position, counsel refers to the case of Chukwujekwu Okeke and Ors. v. Chief Mrs. Edith Ejezie & Anor. (2011) AFWLR part 603 at page 1812 particularly at page 1864 where the Ladan-Tsamiya JCA (as he then was), stated the law as follows;
“The position of the law is that material contradiction (as in this case)robs the testimony of any probative value. Onubogu Vs. The State (1974) 9SC1. Once contradiction has been established, the accounts given would be afforded no evidential weight and accordingly, no burden on the adversary to offer an explanation or contrary evidence.”
15.
Counsel further relied on the case of Price Lukman Ajose Vs. Federal Republic of Nigeria reported in (2011) AFWLR part 595 at page 396 particularly at page 402 where the law was stated thus:-
“No witness who has given on oath two materially inconsistent evidence is entitled to the honour of credibility. Such a witness does not deserve to be treated as a truthful witness.’’
16.
Counsel also submitted that the Claimant under cross examination on 23rd April, 2024, corroborated Defendant’s testimony by making admissions against his interest. The Claimant admitted that he discovered that there was a mistake resulting in excess iron rods and conceded in paragraph 10 of his Statement of Claim, that the sum of ?20,000.00 (Twenty Thousand Naira) only, be deducted from his entitlement, thus establishing the case of the Defendant. Counsel submitted that it is trite law that what is admitted needs no further prove. In support of this view reliance was placed on the case of Noble Drilling Nigeria Limited v. N.P.A. (2021) AFWLR (pt. 1079)
762. CA, where it was held that “An admitted fact does not need any proof…” also in the case of Okuvweri v. Unughabor (2021) AFWLR (pt. 1106)
754. CA, the court held that “The admitted facts are deemed proved and need no further proof…”
17.
On the claimant’s claim for the sum of ?1,003,000.00 (One Million, Three Thousand Naira) being his pay-off from 2004 to 2020, counsel submitted that this is speculative and un-grantable. It is apparent from the content of exhibit C2 (The Defendant’s Employment Manual & Conditions of Service, 2007) that their aforesaid document came into existence in the year 2007, whereas the Claimant claims commenced from 2004, when exhibit C2 was not even in existence. Secondly, the Claimant has neglected to proffer any evidence whatsoever as to how he computed his entitlement. There is no documentary evidence before this Honourable Court to establish the Claimant’s allegation that his salary was ?115,000.00 (One Hundred and Fifteen Thousand Naira) only, as stated under cross examination of 23rd April, 2024. It is submitted that the Claimant’s aforesaid claim is speculative and urged the court to dismiss the same. In support of this contention counsel relied on the case of Nkwo Market Community Bank (Nig.) Ltd. v. Paul Ejukeme Uwabucht Obi (2010) AFWLR (Pt. 529)
1094-1098. SC. Ratio5, where the Supreme Court held that:
“A court cannot act on assumption, speculation or conjecture. There must be evidence on which the court would base it judgment.”
18.
Counsel also relied on the case of Engr. Frank Okon Daniel v.INEC & ORS. (2015) AFWLR (Pt. 789)
993-1004 SC Ratio.12.
19.
Counsel urged the court to dismiss the Claimant’s claim for the sum of ?100,000,000.00
(One Hundred Million Naira) only as general damages. According to counsel the claimant in the substantive suit herein has made a claim for specific damages in the sum of ?1,003,000.00 (One Million, Three Thousand Naira) only and submit that his claim for general damages in the sum of ?100,000,000.00 (One Hundred Million Naira) only is unsustainable in law as such an award would amount to double compensation which is forbidden in our jurisprudence. Counsel refers the Court to the case of British Airways V. Mr. P. O. Atoyebi reported in (2015) AFWLR Pt. 766 Pg.442 particularly at page 469 where the Apex court condemned the aforesaid error in the following words;
“The law is that a person who has been fully compensated under one head of damages for a particular injury cannot be awarded damages in respect of the same injury under another head: Tsokwa Motors (Nig) Ltd V. U. B. A. Plc. (2008) All FWLR (Pt.403) 1240, (2008) 2 NWLR (Pt. 1071)
347; Artra Industries (Nig.) Ltd. V. N. B. C. I. (1998)
3 SCNJ 97, (1998) 4 NWLR (Pt.546)
357; Arisons Co. Ltd. V. Military State and Ors. (2009) 15 NWLR (Pt. 11643)
26. The award of an additional ?100,000.00 (One Hundred Thousand Naira) for stress and inconvenience in troublin, in my respectful view, not only manifestly too high but clearly amounts to double compensation.”
20.
Counsel submitted with respect to cost that the Claimant is not entitled to the sum of N1,000,000.00
(One Million Naira) only as cost of this suit. According to counsel it is trite law that a party cannot claim his solicitor’s fee from his adversary. The above mentioned position of the law was stated by Uwaifo JSC (as he then was in the case of IHEKWOABA v. ACB LTD (1998) 10 NWLR Part 571 at page 590 particularly at page 610 –
611 where His Lordship stated the law as follows:
“The issue of damages as an aspect of Solicitor’s fees is not one that lends itself to support in this country. There is no system of costs taxation to get a realistic figure. Costs are awarded arbitrarily and certainly usually minimally. I do not therefore see why the appellants will be entitled to general or any damages against the auctioneer or against the mortgagee who engaged him in the present case, on the ground of solicitor’s cost paid by them.”
21.
Counsel further refers to the cases of Guinness Nigeria Plc Vs. Nwoke (2001) FWLR, Part 36, at Page 987, Nwanji v. Coastal Services Ltd (2004) All FWLR Part 219 at Page 1157.
22.
In concluding his submission counsel argued that the Claimant is not entitled to any of the reliefs sought in his Statement of Claim, as same is an abuse of the process of this court, especially as the claimant could not substantiate his claims and prove same on the balance of probabilities. The entire claim of the Claimant lacks merit, hence same should be dismissed with cost in favour of the Defendant. Counsel urged the court to so hold.
THE SUBMISSION OF THE CLAIMANT:
23.
Williams E. Ebeye, Esq; counsel for the claimant in his oral submission before the court adopted the final written address of the claimant as his argument. In the final written address twin issues were formulated for determination. They are:-
1. Whether the claimant’s employment was wrongfully terminated by the defendant?
2. Whether the claimant is entitled to the reliefs sought by him in this suit against the defendant?
ARGUMENTS:
24.
Issue one: Whether the claimant’s employment was wrongfully terminated by the defendant? In arguing this issue counsel submitted that the answer to the issue one is in the affirmative. Counsel urged the court to resolve issue one in favour of the claimant. Counsel posited that it is trite law that where employee alleged wrongful termination of his employment, the onus is on him to prove not only the existence of a contract of employment between him and his employer but the terms of the very contract his employer breached in bringing the contract to an end. To support this submission counsel relied on the Supreme Court case of Filcharies Organ v N.I.N.G. Ltd (2013) Vol. 5-7 MJSC (Pt.1) @ 178 held inter alia:
‘’Where an appellant alleges termination of his employment, the onus is on him to prove not only the existence of a contract of employment between him and his employer but the terms of the very contact his employer breached in bringing the contract to an end.’’
25.
According to counsel in the case at hand, the claimant had led credible evidence to prove the existence of a contract of employment between himself and his employer, the defendant, in this case for example, the letter of employment reflecting his acceptance dated 5/01/2004 was tendered and admitted as exhibit C1.
26.
Counsel further submitted that the claimant had led credible evidence to prove the existence of the terms of contract his employer breached. For example, the claimant tendered the defendant’s employment manual & conditions of service 2007 between himself and defendant and was admitted as exhibit C2. For example, the defendant’s employment manual & condition of service 2007 provides;
DISMISSAL
An employee shall be liable to dismissal if he commits any of the following:
a. Theft
b. Serious fighting
c. Disclosure of company’s confidential information and trade/marketing strategy.
d. When an employee commits any of the above offences and management considers it to be of grave consequence to the interest of the company after due and exhaustive consideration, such an employee may earn instant dismissal, and no welfare, such as pay-off package, annual leave etc.
27.
Counsel refers to the case of U.B.A. Plc v Orahuba (2014) 2 NWLR (Pt.1319)
28.
1 @ 5, held inter alia:
‘’An employee cannot be removed or dismissed for a specific misconduct in the absence of adequate opportunity afforded to justify or explain same. Before an employer can dispense with the services of his employee all he needs to do is to afford the employee the opportunity of being heard before exercises his power of summary dismissal, even where the allegation of theft of iron rods leveled against him by the defendant.
29.
According to counsel, the claimant tendered notice of dismissal showing him in a picture and banning him from entering the company of the defendant. Also DW1 admitted on oath during cross examination by the claimant’s counsel as follows:-
a. That after the deduction of the sum of N20,000.00 (Twenty Thousand Naira) from the claimant’s salary he was sacked.
b. That he has report of the management meeting that deliberated on the matter but not in court.
c. The details of the truck which claimant was allegedto have extra loaded is with HR Meyed.
d. He defendant had documents in her possession which if produced would be un-favourable to her. See section 167(d) of the Evidence Act, 2011.
30.
Counsel further submitted as follows:-
a) That there is no evidence of the report of the deliberation of the management of the defendant in respect of the allegation of theft leveled against the claimant before this Honourable court.
b) That there is no evidence of the details of the truck which the claimant was alleged to have extra loaded before this Honourable court.
c) There is evidence that the claimant was dismissed even after the deductions of the sum of N20,000.00 (Twenty Thousand Naira) from his salary as additional punishment.
d) The claimant admitted during cross examination by the defendant’s counsel that he made mistake in counting and did not give customer excess rod when he counted rods.
e) The claimant also admitted during cross-examination by the defendant’s counsel that when he discovered that there was mistake excess of iron rod, he kept the iron rods where the usually keeps them.
31.
Issue two: Whether the claimant is entitled to the reliefs sought by him in this suit against the defendant? Counsel in arguing issue 2, submitted that it is trite law that in cases of ordinary contract of employment where the terms provide for a specific period of notice before termination or salary in lieu thereof, the remedy available to plaintiff who is wrongfully terminated is award of salary for the period of the notice and other legitimate entitlements. In support of this submission counsel relied on the case of Ativie v K.N.L. (2008) 8 MJSC 85-86.
32.
Counsel argued that in cases of ordinary contract of employment where the terms provide for a specific period of notice before termination or salary in lieu thereof. The only remedy available to an employee who is wrongfully terminated is award of salary for the period of the notice and other legitimate entitlements due to him at the time the employment was brought to an end.
33.
According to counsel in the instant case, from exhibit C2 tendered by the claimant, if his services are no longer required by the defendant, he will be paid his pay-off packages and also the pay-off shall be calculated at two weeks’ salary for every one year worked in the company with respect to total number of years he has put into the service of the company.
34.
It is submitted there is evidence that the monthly salary of the claimant was N115,000.00 (One Hundred and Fifteen Thousand Naira) when he was cross examined by the defence counsel on the 23rd of April, 2024.
35.
Counsel refers to the decision in the case of British Airways v Makanjuola (1993) 8 NWLR (Pt.311) 276, it was held:-
Where a wrongful termination/dismissal carries with it some stigma on an employee’s character, the employer shall be entitled to substantial damages far beyond what the employee would have earned for the period of notice required by the terms of employment.’’
36.
It is also submitted that the claimant is entitled to the reliefs sought on the following grounds:-
a. The claimant had led credible evidence to prove the existence of a contract of employment between himself and his employer, the defendant, in this case. For example, the letter of employment reflecting his acceptance dated 5/01/2004 was tendered and admitted as exhibit C1.
b. The claimant had led credible evidence to prove the existence of terms of contract his employer breached. For example, the claimant tendered the defendant’s employment manual & condition of service 2007 between himself and defendant and was admitted as exhibit C2.
c. The Claimant was not given adequate opportunity to justify or explain the allegation of theft of iron rods leveled against him by the defendant. For instance, the claimant tendered notice of dismissal showing him in a picture and banning him from entering the company of the defendant.
37.
Also DW1 admitted on oath during cross examination by claimant’s counsel as follows:-
I.
That after the deduction of the sum of N20,000.00 (Twenty Thousand Naira) from the claimant’s salary he was sacked.
II.
That he has report of the management meeting that deliberated on the matter but not in court.
III.
The details of the truck which claimant was alleged to have extra loaded is with HR Meyed.
38.
In concluding his submission counsel urged the court to grant the reliefs sought and discountenanced the submission of the defendant.
COURT’S DECISION:
39.
I have considered the processes filed by the parties in this suit, the evidence led in the course of the trial and the written and oral submissions of counsel for both parties.
40.
The claimant in this case is seeking for six reliefs. The first and 2nd reliefs are for declarations. While the remaining reliefs are for special damages, general damages, cost of litigation and interest on the judgment sum.
41.
Coming to the determination of the claim before the court, it has been established by a long line of decided cases that the burden of proof in civil cases like the case at hand rests always on he who asserts. Therefore, the burden is on the Claimant in the instant case to prove that he is entitled to the reliefs being sought. It is when the Claimant has adduced sufficient, cogent, credible and admissible evidence establishing his claim that the burden shift to the Defendant. This is because the Burden of proof in civil cases or matters is not static and may shift in the course of proceedings in a case, depending on the state of pleadings at various stages, the initial evidential Burden of introducing evidence to prove a claim to a legal right or liability based on the assertions of facts upon which right or liability is claimed, is placed on the Claimant and until it is satisfactorily discharged on the balance of probabilities or preponderance of evidence as required under section 134 of the Evidence Act 2011, it does not shift pursuant to section 133(1) of the Act. In this case, the Claimant is the one that desired this court to enter judgment in his favour as per his claim. Therefore, the Claimant bore the initial evidential Burden of proving the facts he asserted and on which he based his claims, if judgment is to be entered in his favour. See Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 410; Agu v. Nnaji (2002) 18 NWLR (Pt.798) 103; Onwuama v. Ezeokoli (2002) 5 NWLR (Pt.760) 353; Oyovbiare v. Omamurhonu (1999) 10 NWLR (Pt. 621) 23; Ike v. Ugboaja(1993) 6 NWLR (Pt.301) 539; Onobruchere v. Esegine (1986) 1 NWLR (Pt.19) 799; G. & T. (Inv.) Ltd. v. Witt& Bush Ltd. (2011) 8 NWLR (Pt.1250) 500; UTC Nigeria Ltd. v. Phillips (2012) 6 NWLR (Pt. 1295) 136; Ikogu v. L.P.D.C. (2009) 17 NWLR (Pt. 1171); Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548; U.B.N. Plc v. Ravih Abdul & Co. Ltd (2019) 3 NWLR (Pt. 1659) 203; Plateau State of Nig. v. A.-G., Fed. (2006) 3 NWLR (Pt.967) 345; Imana v. Robinson (1979) 3 - 4 SC 1; Buhari v. INEC (2008) 19 NWLR (Pt.1120)246; Okoye v. Nwankwo (2014) 15 NWLR (Pt.1429) 93; Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt.561) 339; Nduul v. Wayo [2018]
16 NWLR 561.
42.
On the declaration being sought the law is trite that a claimant seeking a declaratory relief must succeed on the strength of his own case. The evidence to support a claim for declaration can be oral or documentary. The court would not make declarations or grant declaratory reliefs unless such reliefs have been proven by evidence by the party seeking such relief, regardless of whether or not the party on the other side filed evidence. Grant or refusal of declaration is discretionary. It is granted only in circumstances in which the court is of the opinion that the party seeking it, is, when all facts are taken into consideration, fully entitled to the exercise of the court’s discretion in his favour. See Alao v. Akano(2005) 11 NWLR (Pt. 935) 160; N.N.P.C. v. Evwori (2007) All FWLR (Pt.369)
1343; C.P.C. v. I.N.E.C. (2011) 18 NWLR (Pt. 1279) 493.
43.
There is no doubt from the pleading and evidence contained in the witness statement on oath adopted by the claimant as his evidence, that in the course of performing his duty he made mistake in the counting of iron rods for loading into the truck of the defendant’s customer. He directed the crane operator to remove the excess iron rods and keep them aside at a particular place where spoilt irons or over counted irons are kept. According to the claimant one of the defendant’s officials, by name Mr. Paul, a Chinese national on sighting the excess irons inquired why the excess irons were kept in that place and that he explained to him.
44.
It is also the case of the claimant that after normal counting and cross checking, the excess irons will be returned back to the finishing section where the counting was carried out, but on that day the reverse was the case, as Mr. Paul invited the claimant to his office and told him that for his mistake, the sum of N20,000.00
(Twenty Thousand Naira) will be deducted from his salary. The claimant accepted and the said sum was deducted from his February, 2021 salary paid in March, 2021. The claimant was photographed and his picture posted at strategic locations within and outside the defendant’s premises and EPZ, with inscription notice of dismissal and ban from entering the defendant’s premises. According to the claimant when he was dismissed and banned from entering the premises of the defendant that was when he knew for the very first time through the notice of dismissal and ban that he was alleged to have been caught adding extra pieces of iron rods to trucks being added in the factory and also that it was discovered that up to thirty pieces of extra iron rods are been added every time any truck was being loaded.
45.
The claimant apart from his oral testimony did not call the crane operator he directed to set aside the iron rods in line with the practice of the defendant. He did not also tell the court whose duty it is to return the excess iron rods to the finishing section of the defendant. This has left a vacuum in the evidence of the claimant.
46.
The defendant in reaction to the claim of the claimant on the iron rods and deductions of the N20,000.00 from claimant salary, stated that, one Alex Emmanuel a staff of the security Department of the defendant observed that the claimant has deliberately added 30 pieces of iron rods to be loaded to a truck of one of the defendant’s customers. The claimant was reported to the Chief Security Officer and DW1. The Chief Security Officer and DW1 confirmed the allegation and confronted the claimant and threatened to report the matter to police. However, the claimant admitted the misconduct and confessed to placing 30 iron roads to a customer that has already left. The matter was also reported to Mr. Paul the supervisor of the section who also went and confronted the claimant he confessed to the misconduct. The sum of N20,000.00 deducted from claimant’s salary was for 30 pieces of iron rods, the claimant confessed to have placed in the truck of one of the defendant’s customers who had already left the factory. The claimant was paid balance of his entitlement and was escorted out of the premises of the defendant by the security men his photograph was pasted for those not on duty, so that when they come they would know that claimant had been dismissed and is not allowed to enter the premises of the defendant.
47.
It is clear from the pleadings and evidence before the court that, the claimant seems to be saying that the N20,000.00 he agreed to be deducted from salary was for mistake he committed in counting iron rods which he ordered the crane operator to keep where spoilt and over counted iron rods are kept. While the defendant is saying that the N20,000.00 was for 30 pieces of iron rods the claimant confessed to have placed in the truck of one of the defendant’s customers.
48.
I am inclined to agree with the defendant that the sum of N20,000.00 deducted from claimant’s salary was for 30 pieces of iron rods placed by the claimant in one of the defendant’s customers truck. I came to this conclusion in view of the fact that the assertion was made in the defendant’s statement of defence and the claimant failed and neglected to file reply to the said assertion to controvert and contradict it. This means the claimant has accepted that assertion to be true and correct. The law is trite what was not denied is deemed to have been admitted.
49.
Secondly, I do not agree that a worker who has worked hard to earn his salary and was not guilty of any wrongdoing will in his right senses agree to deduction of the sum of N20,000.00 from his salary, without protest. If it is true as the claimant has stated that there is a place where spoilt and over counted iron rods are kept, then the claimant would not have allowed the defendant to surcharged him for making mistake. The claimant’s acceptance of deduction of the sum of N20,000.00 from his salary is an indication that the claimant is guilty of the alleged misconduct.
50.
From the evidence before the court the claimant’s dismissal from service was as a result of misconduct in the alleged placing or loading extra iron roads into the defendant’s customer’s truck. The claimant is also alluding to issue being a criminal allegation. The law is now well firmly settled that in private employment, like the one at hand, an employer can summarily dismiss the servant in all cases of gross misconduct or cases where allegation of crime is involved. All that employer is required to do is to ensure fair hearing is accorded to the employee.
51.
The law is well settled on what is required of an employer before summarily dismissing an employee, in cases of misconduct bordering on criminality is to satisfy the rule of natural justice and fair hearing a person likely to be affected directly by disciplinary proceeding must be given adequate notice of the allegation against him to afford him opportunity for representation in his own defence. The complaint against him must not necessarily be drafted in the form of a formal charge. It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him. It is not necessary, nor is it a requirement under the law that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a Court of law where the accusation against the employee is of gross misconduct involving dishonest bordering on criminality. See Arinze v.
First Bank of Nig. Ltd . (2004) 12 NWLR (Pt. 888) 663; (2004) 5 SCNJ 183; (2004) 5 S.C. (Pt.1) 160;
(2004) 5 S.C. 35.
52.
In the case at hand the evidence showed that the incident that led to dismissal of the claimant took place on 2/3/2021. A careful perusal of paragraphs 11, 12, 13 and 14 of the claimant’s statements of fact clearly goes to show that claimant was not given fair hearing in the procedure adopted to dismiss him. This may have also been the reason why no letter of termination/dismissal was issued to the claimant, apart from exhibit C3 which is unsigned document not meant for the claimant, but meant for the general public.
53.
The defendant in her response stated that the claimant’s photograph was to evidence that claimant had been paid of his entitlement and he had been dismissed, was no longer entitled to enter the defendant’s premises especially for information of security who were not on duty at the time the clamant was dismissed from defendant’s employment. The banning of claimant from premises of the defendant was attributed to his admission of misconduct. The defendant also denied that claimant was threatened with soldiers.
54.
The way and manner the defendant treated the case of the claimant need much to be desired. It clearly shows that the claimant was not accorded fair hearing as no query was issued to or disciplinary committee set up to try him for misconduct. All that was done was claimant’s misconduct was reported to one Mr. Paul, the supervisor of the section on receipt of the report of the incident, confronted the claimant who according to the defendant the claimant confessed to committing misconduct. The claimant agreed that the sum of N20,000.00 be deducted from his entitlement in lieu of notice of the iron rods he confessed selling to the defendant’s customer previously. Thereafter, the claimant was paid his balance of his salary and escorted outside the defendant’s factory premises by the defendant’s security men. See paragraphs 4, 5, 6 and 7 of the defendant’s statement of defence. A careful perusal of these averments will revealed that claimant was not accorded fair hearing in the whole process leading to his dismissal. In the circumstance the defendant having not accorded the claimant right to fair hearing his dismissal from service was wrongful as it was not done in line with the law.
55.
It is to be noted that to accord fair hearing is to give the person entitle to it opportunity of knowing the allegation level against him and give him adequate time to defend himself. In the case at hand the process that led to termination/dismissal of claimant took place within few hours as everything was done within the day of the incident. To even make matters worst and to show lack of according claimant with fair hearing, the defendant has asserted that the claimant was threatened that he will be handed over to police and he confessed to misconduct. This has glaringly show that, if there had been any admission of misconduct it was not voluntarily made as he was threatened with being handed over to the police I believe the threat had in-still some fear into the claimant. This goes to vitiate any claim of compliance with due process.
56.
The counsel for the defendant has argued that the evidence of the claimant in respect of issue of his employment and exhibit C6 are contradictory and that the court should reject the entire evidence of the claimant as not reliable.
57.
It is significant at this juncture to re-echo the Law that documentary evidence is superior to oral evidence. This is so because while a witness may lie and his evidence may not be accepted, documents, it is said do not lie, and once properly received in evidence, the Court is bound to act upon it.
In the case of F.A.T.B. Ltd v. PARTNERSHIP INV CO. LTD (2003) 18 NWLR (Pt. 857) 35, @ 74, the Supreme Court per Iguh JSC emphasizing on the importance and superiority of documentary evidence where he stated thus:
"Documentary evidence, where it is relevant, ought to be produced and tendered as they speak for themselves as against the ipse dixit of a witness which may not be readily accepted by the Court - see B.O.N. LTD V. SALEH (1999) 9 NWLR (Pt. 618) 331 referred. See also Section 132(1) of the Evidence Act Cap 112 Laws of Federal Republic of Nigeria ." See also FBN v. MAY CLINIC (2001) 4 SCNJ 1 @ 72, U BN LTD v. OZIGI (1994) 3 NWLR (Pt. 333) 385.
58.
In the instant case exhibit C1, the claimant’s letter of employment is by Law far superior to the ipse dexit of CW1 under cross examination or witness statement on oath, therefore I am unable to agree with counsel for the defendant on the issue of contradiction. It is clear that the claimant asserted that he was employed on 5/1/2000 and he stated that he will rely on his letter of employment the letter of employment tendered in evidence was admitted and marked as exhibit C1. Exhibit C1 clearly shows that the claimant was employed on 5/1/2004, I do not consider this as contradiction as exhibit C1 being documentary evidence tendered by the claimant has clearly clear any doubt concerning date of his employment and the defendant has admitted exhibit C1 tendered by the claimant as showing the correct date of his employment. I discountenanced submission of counsel for the defendant in the issue of date of employment as the parties are at ad idem on exhibit C1 as the letter of claimant’s employment with the defendant.
59.
On exhibit C6, there is no issue of threat mentioned therein. The claimant had in his statement of facts clearly asserted that he was threatened by the defendant that if he did not agree to be photographed they will use soldiers attached to the defendant to deal with him.
60.
I do not also agree with the counsel for the defendant that claimant has contradicted himself. Exhibit C6 is very clear and unambiguous it is only evidence to show that letter was written and demand made and no more, it never proved anything.
61.
Though the claimant was not accorded fair hearing and that has rendered his dismissal wrongful, there are other disturbing issues that will work against the success of the claim of the claimant.
62.
For instance, vide paragraphs 15 and 16 of the statement of facts, the claimant stated that on 21/5/2021 at EPZ, the legal officer of EPZ one Barr. Amaka, Tony of the defendant and himself at a meeting toward resolving the issue of his dismissal the defendant is to reinstate the claimant. In the Month of June, 2021, the defendant reinstated the claimant and directed via phone call to resume work, but the claimant declined the offer of the reinstatement because his good refutation has been tarnished and the working environment is now harsh and oppressive following the emergence of a new management of the defendant.
63.
It is clear to me from the assertions in paragraphs 15 and 16 of the statement of facts that the assertions therein have watered down the claim of the claimant in that these averments have clearly shown that there was effort made for an amicable settlement which had yielded positive result and the defendant had reinstated the claimant back to his work and he was asked via telephone call to resume work, but on his own he declined and refused to resume. The action of the claimant has now shown that it is the claimant himself that repudiate the contract of service between him and the claimant, as the earlier dismissal has been of no effect since claimant had been reinstated to continue his job but on his own volition decided not to resume. This means he is the one that ended the contractual relationship. This was done without giving notice or payment in lieu of notice. The contract of employment between the claimant and the defendant had ended abruptly without due process. Since it was the claimant that now repudiated the contract he is not entitled to any claim from the defendant.
64.
This has also put to lie the claim by the claimant that the defendant has refused to amicable settlement of the case.
65.
From all I have been saying above the claimant has not been consistent in his claim and having repudiate the contract between him and the defendant he is not entitled to any relief. As the court will not allow a party to benefit from his own wrong doing.
66.
The claimant is not entitled to declarations he is seeking declaring his dismissal illegal, wrongful, unlawful and unconstitutional and therefore, null and void.
67.
The law is well settled that a party making a claim before a court of law is required to be consistent in his claim. The court cannot allow a party to speak from both sides of his mouth. The Court would hardly decree anything in favour of such inconsistent party before it. Indeed, consistency is one of the most potent signpost or hallmarks of truth in the litigation arena, and all parties are enjoined, at all times, to endeavour to be consistent, as it ranks a great deal on the ladder of credibility. See Gov. of Lagos State & Ors V. Ohaigo (Nig.) Ltd & Anor (2018) LPELR-45552 (CA ) per Sir Biobele Abraham Georgewill, JCA.
68.
The law will also not allow a party to blow cold and hot at the same either by his pleadings, evidence or argument. Equity prohibits or precludes a party from approbating and reprobating or affirming a state of affairs at one time and denying same at another time. This is not permissible. See A.G. RIVERS STATE V. A.G. AKWA IBOM STATE & ANOR (2011) LPELR 633 (SC), also reported (2011) 8 NWLR (Pt. 37), LADEGA V. DUROSIMI (1978) 3 SC 91.
69.
It is a settled principle of law that the foundation of an action fought on pleadings, is the pleadings of the parties, which set out in summary form the material facts upon which each party intends to rely at the trial. Pleadings therefore, define and delimit with accuracy and clarity the real matters in controversy between the parties. It is by the pleadings that parties are enabled to articulate and frame the issues in dispute between them and which the Court will be called upon to adjudicate.
70.
It is also a sacrosanct rule of pleadings that a party must be consistent in his pleadings and also be consistent with his evidence. He cannot be allowed for the purpose of placing a burden on the other party, to present two diametrically different positions on the same matter in his pleadings and expect to have the nod or the stamp of the Court. See ODOFIN V. ONI (Supra).
71.
The claimant in this case will blame no one but himself for presenting two different versions of his case in his pleading and statement on oath. This has cast doubt on the veracity of the account of the case as given by the claimant and rendered this court helpless, but to dismiss the claimant’s action for lacking in merit.
72.
The claimant’s action failed same is hereby dismissed.
73.
I make no order as to cost.
74.
Judgment is hereby entered accordingly.
Sanusi Kado,
Judge.
REPRESENTATION:
Bassey Martins Elemi, Esq; for the claimant,
P. C. Stephenson, Esq; for the defendant.