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/514/2016

 

BETWEEN

MR CHIKWUDI OKPOWHOR                                       CLAIMANT

 

AND

NIGERIAN INSTITUTE OF

MEDICAL RESEARCH                                                               DEFENDANT

 

REPRESENTATION

M. E. Omeye, Esq with C. H. Onwuemene, Esq for the Claimant

Adedotun Oseni, Esq for the Defendant

                                                           

JUDGMENT

1.   INTRODUCTION

2.    The Claimant was employed by the Defendant as Information Officer II on 02.09.2013 and was placed on a two years probation as is customary with the Public Service. The Claimant alleges that he had performed his duties diligently and received positive appraisals for year 2014. That he applied for confirmation at the completion of the probationary period as prescribed by the Public Service Rules via a letter dated 03.02.2016 which the Defendant responded to by requesting for his 2015 APER. That upon his response that the APER had been forwarded to the Director General of the Defendant and while he was awaiting a response, the Defendant terminated his employment without reason contrary to the provisions of Chapter 7 of the Scheme of Service of the Defendant. He further alleges that the Defendant failed to reinstate him or respond to the letter from his Solicitor drawing the attention of the Defendant to the irregularities culminating in the institution of this suit.

 

3.    Whereof the Claimant claims the following against the Defendant as per the endorsement on his General Form of Complaint and Statement of Facts:

 

a)     A DECLARATION that the termination of appointment of the Claimant via a letter dated 20.05.2016 by the Defendant before attaining the required statutory retirement age provided by the statute and or by Public Civil Service Rules without a just cause and contrary to laid down procedures provided in the Scheme of service of the Defendant is unlawful, illegal null and void.

 

b)     AN ORDER of this Honourable Court setting aside the letter of termination dated 20.05.2016 having failed to comply with Scheme of Service handbook of the Defendant and or the Public Service Rules.

 

c)      AN ORDER of the Honourable Court directing the Defendant to reinstate the Claimant forthwith and pay his outstanding arrears of salaries and all other emoluments from the date of termination of employment till judgment is entered herein.

 

d)     Cost of the action assessed at N2,000,000.00.

 

4.    TRIAL

5.    Upon commencement of hearing, Okpowhor Chikwudi, the Claimant testified as CW1; he adopted his witness statement on oath as his evidence before the Court and tendered eleven (11) documents in evidence, admitted and marked as Exhibits C1 to C11 respectively. CW1 was then cross-examined, thereafter the Claimant closed his case. Mr. Nnamdi Udu, the Legal Officer of the Defendant testified as DW1, he adopted his written deposition on oath as evidence, through him eight (8) documents were tendered in evidence, admitted and marked as Exhibits D1 and D8. DW1 was duly cross-examined, and the Defendant closed its defence. The matter was adjourned to enable parties file and exchange their respective final written addresses to be adopted on the adjourned date.

 

6.    DEFENDANT’S FINAL WRITTEN ADDRESS

7.    The Learned Counsel for the Defendant raised two issues for determination to wit:

 

a)     Whether the termination of the Claimant’s probationary appointment by the Defendant is unlawful.

 

b)     Whether the Defendant is entitled to the reliefs sought consequent upon the finding that his appointment was lawfully terminated.

 

8.    Arguing issue one, the Learned Counsel for the Defendant submitted that the Claimant was appointed on probation for 2 years subject to satisfactory performance of service during the probationary period. That the Claimant’s performance was found unsatisfactory hence the termination of his employment. The Learned Defence Counsel maintains that by the provisions of Exhibit D8, the termination of the Claimant’s appointment is not subject to any procedure laid down in chapter 7 of the Defendant’s Scheme as it only applies to confirmed officers only. That both Exhibits D7 and D8 created the mode by which the Defendant rightly followed. That by the combined effect of Rules 020801 and 020803 of the Public Service Rules, a probation Officer, whose appointment was terminated during or after probationary on grounds of non-qualification and/or inefficient service is only entitled to be transported freely down to the place from which he was engaged in addition to a month’s prior notice without further compensation.

 

9.    Counsel submitted that it is the duty of the employer to show that the termination of an employee’s employment was in accordance with the terms of the contract. The Learned Counsel also submitted that it is the duty of the Court to consider the terms in the written contract of parties to know what the parties intended that the Claimant testified that his confirmation was ongoing before his termination and that the Court cannot impose an employee on an unwilling employer and that the Claimant's underperformance was captured by Exhibit D6 (APER 275).

 

10.     Arguing issue two, Learned Counsel to the Defendant maintains that although the Claimant's employment is governed by statute, there was no confirmation to enable him enjoy permanence of employment. He submits further that where an authority adheres strictly to the procedure contained in the applicable instrument in terminating the employment of an employee, the Court can not be seen to overturn the decision made by that authority. He therefore urged the Court to hold that the Claimant is not entitled to the reliefs sought and therefore resolve the issues in favour of the Defendant.

 

11.  CLAIMANT'S FINAL WRITTEN ADDRESS

12.  Learned Counsel for the Claimant formulated two issues for determination:

 

a)     Whether the Claimant's employment was validly terminated in accordance with the extant laws guiding such employments.

 

b)     Whether from the totality of evidence before the Court the Claimant is entitled to the reliefs sought in the Complaint and Statement of Facts.

 

13.  The Learned Counsel for the Claimant submitted that the real controversy between the parties is that the termination of the Claimant's employment which was done by the Director General was ultra vires as he did not comply with Chapter 7:1 ,7.1.1 and 7.1.2 of Exhibit C1 which provides that only the Council has the powers to determine his appointment. Counsel further submits that for the Claimant's appointment to be terminated, a reason must be adduced and that prior to may 2016, no reason whatsoever was given to the Claimant. Instead, the Director General who had satisfied his performance positively in Exhibit C9 decided to concoct Exhibit D6 to carry out his illegal and wrongful termination. That he was not part of the appraisal as is the norm in Civil service that an appraisal form should be completed in the presence of an employee for him to accept or reject such appraisal. That the claim by the Defendant that he had another Supervisor who found him incompetent other than the Director General is completely false and incorrect.

 

14.  It is also the Learned Counsel’s submission that the Claimant's membership of the Non- Academic Staff Union upon assumption of duty did not go well with the Director General who had accused him of divulging information to the Union. That the then Director General had insisted that the Claimant must resign his membership of the Union, and it was because of his involvement in the Union that he was subsequently dismissed. He reiterates that the Director General cannot alter the Claimant's accrued rights from the contract of service.

 

15.  Arguing issue two, Learned Counsel posited that the intentions of parties are revealed in the express terms as contained in the letter of appointment, Scheme of Service and the Public Service Rules. That where a statute provides the procedure for termination, such procedure must be followed, doing otherwise will be contrary to the provisions of the law.  It is also the Learned Counsel’s submission that confirmation is the attestation of an employer that he is satisfied with the worker’s performance during the probationary period. The Claimant’s letter of employment stated that the employment will be for 2 years, and that confirmation of his employment will be subject to his satisfactory record of service during probation. That after two years, the Claimant’s appointment is impliedly confirmed by law and the Defendant is estopped from claiming that the Claimant is not confirmed. That where a staff is retained in the employment of his employer at the expiration of his probationary period and is receiving his monthly salaries and allowances, the staff is deemed to be a confirmed staff of the employer. He therefore urged the Court to hold that the termination of the Claimant’s employment is wrongful, amounts to unfair labour practice and against the terms of the contract of employment between the Claimant and the Defendant.

 

16.  DEFENDANT’S REPLY ON POINT OF LAW

17.  The Defendant’s Counsel filed this Reply on Points of Law as his response to the issues raised by the Claimant in his Final Written Address. The Learned Defence Counsel submitted that the Claimant’s submissions in his issue one is misconceived and does not represent the true position of the provisions of Chapter 7 of Exhibit C7. That the authorities relied by the Claimant are distinguishable from the instant case. Learned Counsel submitted further that the authorities on deemed confirmation of appointment and the need for an employer not to unnecessarily delay the confirmation of an employee is not on all fours with this present case.

 

18.  It is also the Learned Counsel’s submission that Exhibit D6 (2015 APER) appraised the Claimant’s services to be unsatisfactory for the period January to December 2015 within the probationary period. That the import of this is that the Claimant is estopped from denying knowledge of his non-confirmation and therefore cannot complain that his employment was wrongfully terminated when his competence and service to the Defendant was adjudged to be unsatisfactory. That it is not the business of the Court to inquire into the motive of an employer in the exercise of the discretion to termination or dismiss his employee.

 

19.  RESOLUTION

20.  I have carefully examined the facts and circumstances of this suit, the processes filed by both parties, the evidence adduced and the submissions of Counsel, and I hereby distil this sole issue below for determination, namely:

 

21.  In view of the evidence adduced by the Claimant, has he discharged the burden of proof required by law to entitle him to the grant of his reliefs.

 

22.  The Claimant instituted this suit against the Defendant for wrongful termination of his employment. In civil cases the burden of proof lies on he who asserts to adduce credible, cogent and sufficient evidence to establish what he asserts to be in existence – Section 131 of the Evidence Act, 2011. It therefore behooves on the Claimant to prove his case on the balance of probabilities or on the preponderance of evidence by producing credible evidence, documentary and or oral to establish his claims. See Obe v MTN Nig Comm. Ltd (2021) 18 NWLR (Pt. 1809) 415. In an action for wrongful dismissal, it is necessary to plead the contract of employment, which is the foundation of the action. Without the contract and its particulars being pleaded by the Plaintiff, no evidence of the terms of the contract which has been breached would be admissible at the trial and this will be fatal to the action since it will lack foundation - Ovivie v Delta Steel Co. Ltd. (2023) 14 NWLR (Pt. 1904) 203 at pp. 227-228, paras. G-C.

 

23.  In line with the above cited authorities, the Claimant in the bid to prove his employment by the Defendant (Nigeria Institute of Medical Research), tendered his letter of appointment issued by the Defendant dated 02.09.2013 (Exhibit C1). It is the law that documents speak for themselves, so there is no controversy that CW1 was an employee of the Defendant. CW1 also tendered in evidence Federal Republic of Nigeria Public Civil Service Rules (Exhibit C2) and Scheme of Service, Nigerian Institute of Medical Research (Exhibit C7) which he asserts together with Exhibit C1 contains the terms of the employment relationship with the Defendant. Indeed, the Defendant is a government parastatal established by the Research Institute (Establishment etc) Order 1977, pursuant to the National Science and Technology Act of 1977. Being a government owned organization established by statute which operates in accordance with its establishing law, the Defendant’s terms and condition of service is under the regulation of the Public Service Rules Exhibit C2. Under Rule 160103, Parastatals are to retain and improve existing rules, procedures and practice in their establishment to ensure that there are no deviations from the principles contained in the Public Service Rules. Likewise, it states that in the absence of internal rules and regulations on any matter, the relevant provisions of the Public Service Rules should apply. Hence the application of Exhibit C7 (Scheme of Service, Nigerian Institute of Medical Research) to the instant suit.

 

24.  The Claimant’s relief one is for ‘a declaration that the termination of appointment of the Claimant via a letter dated 20.05.2016 by the Defendant before attaining the required statutory retirement age provided by the statute and or by Public Civil Service Rules without a just cause and contrary to laid down procedures provided in the Scheme of service of the Defendant is unlawful, illegal null and void’. It is the law, that a party who complains that his employment has been wrongfully terminated or that he had been wrongly dismissed, has the onus to produce before the Court the terms and conditions of employment and follow same up by proving in what manner the said terms and conditions of service were breached by the employer. The success or otherwise of such a party depends solely on the terms and conditions of the employment since the Court is not permitted to go outside the agreed terms and conditions of the employment. Texaco (Nig.) Plc v Kehinde (2001) 6 NWLR (Pt. 708) 224 at pp. 236-237, paras. H-A. The Claimant maintains that his appointment could only be terminated with the procedure laid that in Chapter 7 particularly paragraphs 7.1, 7.1.1 and 7.1.2; a procedure the Defendant did not follow. He also insists that the only authority to determine his appointment is the Council and not the Director General. The Defendant on the other hand argues that it followed the prescribed procedure in terminating the Claimant’s employment.

 

25.  A thorough examination of Exhibit C7, reveals that the procedures for termination of appointment as set out in chapter 7 envisages two categories of officers: temporary officers and permanent workers. Having established the above, to determine whether the Defendant had followed the required procedure, one must answer the question: under what category does the Claimant fall? From Exhibit C1 (letter of appointment), the Claimant’s appointment which took effect on 11.09.2013 was subject to a probationary period of two (2) years and it was stated that confirmation will be subject to a satisfactory record of service during the period of probation. Learned Counsel to the Claimant had argued that the Claimant having been in the employment of the Defendant for more than two years is deemed to have been confirmed. On other hand the Learned Defence Counsel contends that the Claimant was still on probation when his appointment was terminated.

 

26.  The position of the Learned Claimant’s Counsel to my mind is not supported by any paragraph of the Claimant’s pleadings but rather contradicts the Claimant’s stand in his Statement of Facts and testimony during cross examination that he had applied for confirmation and the process was ongoing when his appointment was terminated. The totality of Exhibit C3 (Application for Confirmation dated 03.02.2016); Exhibit C4 (Defendant’s reply to Exhibit C3 dated 16.2.2015) and Exhibit C5 (Claimant’s reply to Exhibit C4 dated 16.2.2015) lays credence to this position. It is therefore hard to believe like Learned Counsel for the Claimant argues that the Claimant who had himself applied for confirmation also thought his appointment was confirmed. A person who applies for confirmation envisages two possible outcomes, to wit: that his application will be granted or denied.

 

27.  It is settled law that parties are bound by their pleadings. The law also is that the address of Counsel no matter how beautiful cannot take the place of pleadings and evidence – Bature v Chedi (2021) LPELR-55178(CA). Evaluation should have been on the evidence presented on led facts only.  See Ministry of Land and Survey, Nasarawa State v Nwafor & Ors (2021) LPELR-56254 (CA) pp. 44 – 45, paras F - A. Moreover, Section 123 of the Evidence Act provides facts admitted need not be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings; provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions. To this end, this Court is convinced on the preponderance of the evidence highlighted above that the Claimant was indeed still under probation, and the process of confirmation ongoing when his appoint was terminated. I so find and I so hold.

 

28.  Now since the Court found that the Claimant was still on probation when his appointment was terminated, what then is the correct procedure to have been followed? For clarity, it is important to reproduce the relevant provision of Chapter 7 of Exhibit C7 captioned ‘Termination of Appointment’ below. 71.1 provides: The Council or the Director-General with respect to officers on EUSS 01 -05 may terminate appointment in accordance with the terms of contract of service or in exercise of disciplinary power conferred by the laws of the Institute, the appointment of a member of staff whose appointment is temporary, part time or probationary; or who is appointed after or allowed to continue in employment beyond any retiring age as prescribed by Council, or whose appointment is for a fixed period or not intended to continue until retiring Age. (Emphasis mine).

 

29.  For the avoidance of doubt, the implication of the above provision is that the Officers in the category stated above could have their employment terminated in accordance with the terms of the contract or in accordance with the disciplinary powers conferred by the relevant laws of the Institute. Paragraph 71.5. further provides; Contract officers, staff on temporary appointment and unconfirmed officers could have their appointments terminated without having to undergo the above stated disciplinary process that is (7.1.2, 7.1.3 and 7.1.4). From the evidence before the Court, Exhibit C1 (letter of appointment) which embodies the employment contract between the parties provides; you or the Institute may at any time, unless you are otherwise dismissed from service terminate your appointment with one month notice in writing or pay a month’s salary in lieu of notice.

 

30.  Where there exists conditions of service and a procedure for termination of employment as in the instant case, a premature termination ought ordinarily to follow the laid down procedure. There is need to follow laid down procedure in the conditions of service in terminating employment. Calabar Cement Co. Ltd. v. Daniel (1991) 4 NWLR (Pt. 188) 750 at 760. Did the Defendant’s comply with the contract of employment?  Exhibit C6 (letter of termination) reads; ‘I am directed to inform you that your services are no longer required in the Institute. Consequently, your appointment is hereby terminated with effect 23^rd May 2016. You will be paid one month salary in lieu of notice.’ From face value, Exhibit C6, has complied with the provisions of Exhibit C1.

 

31.  The Claimant also contends that the Defendant had failed to give him the reason for terminating his employment as it is required by law. The Defendant on the other hand argues that an employer need not give reason for terminating the employment of his employee. In Skye Bank PLC v. Adegun (2024) LPELR-62219(SC) (pp. 31 - 32 paras. E - B), the Supreme Court held, "It should also be stated that, an employer is not obliged to give any reason for firing an employee, but once the employer gives a reason for terminating or dismissing an employee, the burden lies with him (not on the employee) to justify the said reason. INSTITUTE OF HEALTH ABU HOSPITAL MANAGEMENT BOARD v MRS JUMMAI R. I. ANYIP (2011) LPELR-1517 (SC) this Court held as follows: "Although it is trite that an employer is not obliged to give any reason for firing his servant all the same it is settled law that where he has preferred any reason at all it is obliged to satisfactorily prove the same as the onus is on him in that regard, otherwise the termination/dismissal may constitute a wrongful dismissal without more".

 

32.  The condition stated by Exhibit C1 for confirmation of the Claimant’s appointment is satisfactory performance of service by him. Although Exhibit C6 (letter of termination) does not contain any reason for the termination of the Claimant’s appointment, it is the position of the Defendant that the reason for terminating the Claimant’s appointment was his inefficient and unsatisfactory performance of service. In law, he who assert must prove. The onus therefore lies on the Defendant who asserts poor performance to prove same. The Defendant tendered Exhibit D4 (internal memo) and D6 (APER for 2015) as its evidence. I scrutinized the said exhibits D4 and D6 and find them sufficient proof in the discharge of the burden of proof on the Defendant. The burden of proof therefore shifts to the Claimant who refutes the Defendant’s stance to lead evidence to controvert it.

 

33.  According to the Claimant, in his Reply to the Statement of Defence, the Director General who has certified his performance as satisfactory during the 2014 appraisal as evidence by Exhibit C9 (Annual Performance Evaluation Form (APER) from 01.01.2014 to 31.12.2014) turn around to underate his performance by exhibit D6 (APER for 2015) because he was unhappy that the Claimant had joined NASU and had accused the Claimant of divulging certain information to the Union.

 

34.  Nevertheless, the Claimant who in his averment had stated that he had written to the Director General renouncing his membership of the Union in the bid to salvage his job did not attach any proof of the said letter. He also did not attach any proof that he had in fact written to the Union renouncing his membership as he claimed. For what it’s worth, the Claimant had tendered Exhibit C10 letter to the Chairman NASU NIMR branch (titled RE: Membership of NASU NIMR Branch) which is a letter to the union reaffirming his membership and notifying them that the purported withdrawal was done out of duress, and Exhibit C11 Letter of Complain to NASU informing them that his employment was termination. However, the said exhibits (C10 and C11) are original copies. This creates doubts as to whether the said letters were ever delivered to the Union as he claimed. During cross-examination, the Claimant had testified that he was not the only employee who was a member of the NASU and is not aware that any of the other employees who were also members had their appointments terminated.

 

35.  Also, it is the testimony of the Claimant in his Reply to the Statement of Defence that he had joined the Union upon assumption of duty. This means the Claimant was a member of the Union when the 2014 appraisal was done. I have taken the liberty to examine both exhibit C9 and D6 and found both were signed by the same person Prof. I. A. O. Njah (Director General). If this is the case, then one may wonder why the Claimant had accepted the initial appraisal but dispute that of 2015. At what point did the Director General become so opposed to his membership of the Union? Again, the duty of the Court is not to speculate but to give judgment based on the weight of the evidence before it. Learned Counsel’s argument that there was no other officer supervising the Claimant as alleged by the Defendant is unfounded as the Defendant’s Exhibit D6 (APER for 2015) was signed by none other than the Director General whom the Claimant himself had confirmed was his direct supervisor. The Defendant had also noted in Exhibit D4 (internal memo) that the Claimant’s Supervisor had expressed dissatisfaction with his performance.

 

36.  The Claimant claims that he was never part of the 2015 Appraisal and that his grouse is that the portion which required him to accept or reject the appraisal was left incomplete. Exhibit C5 shows that the Claimant himself had filled out exhibit D6 and forwarded same to the Director General’s office. The Claimant failed to show what impact his rejection of the appraisal would have had, would it have led to a new appraisal or an appraisal by a different person? What the Public Services Rules requires is that an officer on probation is required to pass the prescribed examination, if any, and to complete his probation period to the satisfaction of the authority empowered to appoint him – Rule 020303 of the Public Services Rules 2008.

 

37.  It has not been the policy of Courts in Nigeria to foist a servant on an unwilling master, unless such an employee is qualified by employment to a permanent and pensionable position. The sole purpose of putting an employee on probation is to give the employer an assurance that the employee is a fit and proper person to be placed on permanent appointment and probationary period is a period of observation. Therefore, once the condition laid down for the termination of appointment during the probationary period is satisfied or complied with, an employee cannot justifiably complain." Al-Bishak v. National Productivity Centre & Anor (2015) LPELR-24659(CA) pp. 41 - 41 paras B - D. It is the considered view of this Court that the Defendant had complied with the procedure required for the termination of the Claimant’s appointment as laid down in Chapter 7 of exhibit C7 and exhibit C1. Similarly, the Court finds that that exhibits D4 and D6 are sufficient proof that the Defendant was not satisfied with the services of the Claimant therefore it would be injurious to force the Claimant on the Defendant. Consequently, this Court cannot grant this relief. Accordingly, this relief fails. I so hold.

 

38.  The next leg of the Claimant’s claim, relief two is for an order of this Honourable Court setting aside the letter of termination dated 20.05.2016 having failed to comply with Scheme of Service handbook of the Defendant and or the Public Service Rules. This in my view is ancillary to relief one above. The Black’s Law Dictionary defines an ancillary claim to be a term that denotes any claim that reasonably may be said to be collateral to, dependent upon, or otherwise auxiliary to a claim asserted within federal jurisdiction in action. In Hartley Pen Co v. Lindy Pen Co., D.C. Cal., 16 F.R.D. 141, 154, it was held that a claim is "ancillary" when it bears a logical relationship to the aggregate core of operative facts which constitutes main claim over which the Court had independent basis of federal jurisdiction. See also Nabore Properties Ltd v. Peace-Cover (Nig.) Ltd & Ors (2014) LPELR-22586 (CA) (Pp 28 - 29 Paras D - A).

 

39.  It is trite that where the basis of a main relief is not sustained, the consequential relief sought ought not to be granted. Gov., Kwara State v. Lawal (P.387, paras. G-H) (2007) 13 NWLR (Pt. 1051) 347. The principle traces its paternity to the latin maxim: Accessorium seguitur principale - accessory thing goes with the principal to which it is incidental to. Where a party’s principal claim fails, the accessory claims that are appendages to it will fail too. See Ogoke v. Nduka (2020) 4 NWLR (Pt. 1715) 509 at p. 529, paras. A-G. In line with the foregoing authorities, the Claimant’s had failed in his relief one to show that his termination was contrary to the procedure laid down in the Scheme of Service handbook or the Public Service Rules. Having so failed, relief two which is ancillary must also fail. I so find and hold.

 

40.  For his relief three, the Claimant is seeking an order of the Honourable Court directing the Defendant to reinstate the Claimant forthwith and pay his outstanding arrears of salaries and all other emoluments from the date of termination of employment till judgment is entered herein. In law, where the Court concludes that the employment of an employee has statutory flavour and that he does not hold his office at the pleasure of his employer, and that his premature retirement is therefore unlawful, null and void, the employee, is entitled to be reinstated. Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599; Oloruntoba-Oju v. Abdul-Raheem (2009) 15 NWLR (Pt.1157) 83; Comp. Gen. Customs v. Gusau (2017) 18 NWLR (Pt. 1598) 353 (Pp. 386-387, paras. H-B). In other words, an order of reinstatement can only be made in favour of an employee whose termination has been found and declared to be wrongful, unlawful, null and void. The Court having found above that the termination of the Claimant’s employment was lawful, cannot grant this leg of the Claimant’s claim. Therefore, the Claimant’s relief three fails. I so hold.

 

41.  The Claimant’s relief four is for cost of the action assessed at N2,000,000. Order 55 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 provides: “In every suit, the costs of the whole suit, and of each particular proceeding therein, and the costs of every proceeding in the Court, shall be at the discretion of the Court as regards the person by whom they are to be paid.” The import of the foregoing is that the award for cost of action, lies at the discretion of the Court which discretion must be exercised judicially and judiciously. In the case of Yakubu v Min. Housing & Environment, Bauchi State (2021) 12 NWLR (Pt. 1791) 465, it was held that, the general rule is that costs follow event, and a successful party is entitled to costs and the award or refusal of costs is at the discretion of the Court provided it is exercised judicially and judiciously.  It is the considered view of this Court that having dismissed all the Claimant’s reliefs above, it would be injudicious to exercise its discretion in favour of the Claimant. Accordingly, the Claimant’s relief four fails and is hereby dismissed. I so find and so hold.

 

42.  Overall, the Claimant’s claims fail in its entirety and are all dismissed. I so find and I so hold.

 

43.  I make no orders as to cost, parties to bear their respective costs.

 

44.  Judgment is accordingly entered.

 

 

Hon Justice M. N. Esowe, FCIArb

Presiding Judge