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The National Industrial Court of Nigeria sitting in Yola presided over by Hon.Justice Nelson Ogbuanya, on Wednesday 17th May 2018 in a judgment delivered has declined to reinstate a Road Marshall of the Federal Road Safety Commission (FRSC) Yusuf Yahaya, for failing to plead material facts and lead evidence to establish that he has a statutory employment.
His Lordship observed that the strategy adopted by the claimant's counsel in not properly challenging the reason given by the FRSC in terminating his employment on the ground that " his services were no longer required ' was fatal to the claimant's case. His counsel, rather dwelled on the issue of rape allegation levelled against him by his colleague but which the defence counsel submitted was not made an issue and not the ground for his termination by the FRSC.
According to the Judge to gain reinstatement in a statutory employment, the condition of service should be tendered and evidence led on how the terms there in were breached in the course of the termination. The court lamented the absence of credible evidence of establishing the claimant's relief regarding reinstatement, and awarded him terminal benefit which he is entitled to under common law rule of master- servant relationship, and one month salary in lieu of notice for the unlawful termination.
The Claimant was a former employee of the Federal Road Safety Commission (FRSC), whose appointment as a Road Marshall II was terminated by the FRSC on the ground that ‘his services is no longer required’, whereas the Claimant believed it was on account of a rape allegation leveled against him by his colleague, of which he was served query and appeared before a Disciplinary Panel set up by the Defendant, which later indicted him.
He sought for the following Reliefs among others: A declaration that the termination of employment of the [Claimant] is a breach of the contract of employment of the [Claimant] as same is illegal, malicious, null and void, not founded on any fact or finding of fact against the [Claimant] by the Defendants and a breach of the [Claimant]’s fundamental right to fair hearing as guaranteed by the Constitution of the Federal Republic of Nigeria, section 36 of the 1999 Constitution thereof; An Order of the Hon. Court directing the Defendants to reinstate the plaintiff to his position with the 1st Defendant;
From the pleadings and testimony of the Defendant’s sole Witness, the Defendant did not join issues with the Claimant’s allegation that his employment was terminated because of allegation of rape, of which he was queried and disciplinary panel indicted him. Rather, the plank of the Defendant’s defence is that the management of the Defendant deemed it fit to dispense with his services, which according to the letter of termination (Exh. DY2/CY3), the termination was on the basis that ‘the Claimant’s services were no longer required’, and therefore, his appointment was terminated with immediate effect, and that was lawful, in absence of any contrary evidence led by the Claimant to establish the unlawfulness of the said termination of his employment.
On his claim for outstanding salaries and allowances, counsel submitted that the Claimant did not lead any evidence or plead details of his employment remunerations to enable the court determine what is outstanding to be awarded to him.
On the whole, Defendant’s counsel urged the court to discountenance the Claimant’s claims and dismiss the Suit for lacking merit.
Learned Claimant’s counsel, finally urged the court to hold that the Claimant has established his case by credible evidence which was not contradicted, controverted and challenged by the Defendant, and thus grant the Claimant’s Reliefs as prayed.
After reviewing the argument of the parties, the Court Presided by Hon. Justice N. C. S. Ogbuanya expressed thus;
“I participated actively in the proceedings; have read the processes filed and exchanged by the parties, listened with rapt attention during the trial and observed the demeanor of the witnesses for the parties while testifying.
At the conclusion of the proceedings, there is nothing in the pleadings or evidence adduced at the trial or written submissions of the counsel, that threw any light, drew any attention or made any attempt at showing what the conditions are in the said Federal Public Service and how the conditions are applicable to the case of the Claimant, and which Rules of the Public Service has been breached and in what manner, so as to anchor the Claimant’s case and sure-foot the reliefs he sought for, particularly to reinstate him in his position of employment with the Defendant.
With this development, the status of the employment becomes very crucial to determine, as the Reliefs sought for by the Claimant of which the Defendant is vehemently contesting, largely depends on the status of the employment. Given that such an employment can either be laced with Statutory Flavour or remains under the common law Master-Servant relationship, the Claimant’s pleading attempted to situate the employment as an employment laced with statutory flavour.
The claimant averred that: “The 1st Defendant is a creation of statute and an Agency of government charged with the responsibility of road safety maintenance by road users in Nigeria within the jurisdiction of this Hon Court”.
Incidentally, not even a word was mentioned in the pleadings or lip service paid at the trial to say which statute that created the Defendant as a government agency, so as to tickle judicial ears to tune its antenna to take judicial notice of the said statute and invoke same in aid of the Claimant’s employment in dire need of terminal bailout in court.
This decision of the apex court is clearly applicable to the circumstance of the Claimant’s case. I am therefore bound to follow same. Accordingly, I find that the Claimant was not able to establish that his employment with the Defendant is clothed with statutory flavour as he did not make sufficient pleadings or tendered the most relevant evidence (condition of service) to establish this vital material fact of the status of his employment as one laced with statutory flavour.
To that effect, I hold that his employment and indeed, this case, would only be considered on the basis of the common law principles of Master-Servant relationship, having failed to establish that the employment is one laced with statutory flavour.
From the position taken by the apex court, to which I am bound to follow, in so far as the Defendant cleverly did not join issue with the Claimant on the motive behind the termination of the employment, a strategy adopted by the Defendant’s latest counsel in the Defendant’s Further Amended Statement of Defence, the motive of the alleged rape allegation upon which the Claimant built his case, is hereby discountenanced. I so hold.
From this testimony, it is clear that the Claimant’s terminal benefits are still outstanding, of which he is entitled to, having exited the Defendant’s employment by Termination rather than Dismissal. Accordingly, I find and hold that this relief succeeds to the extent that the Claimant’s terminal benefits should be computed and paid to him by the Defendant.
To achieve this, the Claimant shall upon this Judgment report to the Defendant’s Headquarters at Abuja as earlier advised in the Termination of Appointment letter Ref: FRSC/HQ/AHR/696/Vol.II/49, for computation and payment of his terminal benefits.
On that note, I find the act of the Defendant of not giving any notice at all to the Claimant as constituting a breach of the employment contract of a duly confirmed employee of the Claimant’s caliber.
I therefore hold that the Claimant is entitled to One Month Salary in lieu of Notice, in addition to his other terminal benefits to be computed as at the time of the termination of his employment in August 2014.
Monetary payments in this Judgment shall be computed and paid within three (3) months of this Judgment. Otherwise, 10% interest per annum shall accrue on the sums due until finally liquidated.
