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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: SEPTEMBER, 22 2015 SUIT NO: NICN/LA/495/2013 BETWEEN MR. LOUIS EKWUGHA - Claimant AND ORANGECABS LIMITED - Defendant REPRESENTATION S. Olalere for the Claimant Adeniyi Okunlola for the Defendant JUDGMENT This suit was commenced on 17/9/13 by a General Form of Complaint and by his endorsement, the Claimant claimed as follows - i. A DECLARATION that the verbal dismissal of the Claimant from the month of November 2012 till date is illegal, unlawful, null and void and of no legal effect whatever. ii. AN ORDER of the Honourable Court directing and mandating the Defendant to pay to the Claimant his salary at the rate of =N=36,000.00 per month from November 2012 till the determination of this suit. iii. General Damages for breach of contract of employment of the Claimant by the Defendant. iv. Cost of this action as assessed by the Honourable Court. v. AND SUCH ORDERS or further orders as the Honourable may deem fit to make in the circumstances. The Claimant filed along with his General Form of Complaint hi statement of facts, list of witness, list of documents to rely on at trial, Claimant's witness statement on oath and copies of documents to tender at trial. On the 18th July 2014, the Defendant filed its statement of defence and list of witness. The Defendant did not front load any document. The hearing of this case commenced on 3/3/14 when the Claimant testified as CW, adopted his written witness statement on oath dated 17/9/13 as his evidence in chief and tendered 5 documents as exhibits. The documents were admitted as exhibits and marked as Exh. C1 - Exh. C5. The case of the Claimant as revealed from his pleadings is that he was employed as a Corporate Driver by the Defendant via a letter of employment dated 13/2/12; that his contract of employment provided that in the event of resignation or termination of employment, both parties may only terminate the employment contract based on breach of contractual terms which provided that a minimum of two weeks' notice must be given or a month's salary paid in lieu of notice. It was also the case of the Claimant that he became seriously sick and admitted at the Lagos State General Hospital; that after he was discharged he went back to work in November 2012 but the Defendant verbally informed him that his service was no longer needed without any reason offered. Under cross examination on 11/11/14, CW testified that he was admitted at the General Hospital, Isolo on 29/10/12 and discharged the following day; that he did not go back to the office but used a Glo line to call and inform his supervisor; that he could not remember the date he went back to the office; that he handed the letter of referral given to him to the Doctor at the Military Hospital when he got there; that he sustained injuries on his back and could not sit; that the Hospital recorded his injury on his Hospital Card; that he paid =N=5,000.00 a day for therapy; that he could not remember the last day he worked with the Defendant and that he is still on the payroll of the Defendant because the Defendant did not sack him. The Defendant also opened its defence on 11/11/14. The Defendant called one Gbarigolo Akpos as its lone defence witness. DW simply adopted his written witness deposition dated 13/10/14 as his evidence in chief and tendered no exhibits. The case of the Defendant is that it employed the Claimant as a Corporate Driver on 13/2/12; that the Claimant continued to work with the Defendant until he absconded from duty without notice to the Defendant and terminated his employment in breach of his contract of employment by failing to give two weeks' notice due to the Defendant or a month salary in lieu of notice as provided for in his employment letter; that the Claimant was never at the Lagos State General Hospital or suffered any injury as alleged and that the Claimant is not entitled to any sum as salary from November 2012 till the determination of the suit as claimed since the Claimant was no longer in its employment and did not work for it. Under cross examination, DW stated that he knew from records prepared by the Human Resources Department that the Claimant worked with the Defendant; that Claimant's salary was reviewed on 1/6/12; that the Defendant would normally find out why a staff was absent from work; that the Supervisor would usually liaise with the staff after which the Human Resources Department would be contacted and that the Claimant absconded from duty. At the close of the case for either side, learned Counsel for the parties were directed to file their final written addresses for adoption in accordance with the Rules of this Court. The Defendant's final written address, a 6-page document was filed on 2/12/14. In it, learned Counsel set down a lone issue for determination as follows - Whether based on the pleaded facts and evidence before the Court, the Claimant has proved his case to be entitled to the reliefs sought founded on the alleged breach of contract of his employment. Arguing this issue, learned Counsel submitted that a Plaintiff alleging breach of contract of employment has onus on him to prove terms and conditions of contract and how same were breached and that it is not the duty of the employer as a Defendant to prove any of these facts, citing Okomu Oil Palm Co. Limited v. Iserhienrhien (2001)3 S.C 140 at 145. According to learned Counsel, by the evidence led by the Claimant, the Claimant did not give evidence of his terms and conditions of employment nor prove how and manner in which same were breached and that Claimant has failed to discharge the onus placed upon him. Counsel cited Section 135, Evidence Act, Cap. E14, Laws of the Federation of Nigeria 2004 and Alade v. Alic Nigeria Limited (2001)All FWLR (Pt. 563) 1849 at 1860. Learned Counsel further submitted that material averments in the Claimant's statement of facts are not supported by his evidence and that pleadings not supported by evidence are deemed abandoned and that the pieces of evidence given by the Claimant to the effect of the dates he was admitted and discharged were all pieces of evidence that go to no issue as they were not pleaded, citing Abubakar & Anor. v. Joseph & Anor. (2008)5-6 S.C (Pt. II) 146 at 197. It was the position of the learned Counsel citing Atitive v. Kabel Metal Nigeria Limited (2008)5-6 S.C (Pt. II) 47 at 63-64 that in ordinary contract of service, an employer is not bound to give reasons for terminating employee's employment, that the reliefs sought are not grantable in the instant case not being an employment with statutory backing, citing UBN v. Ogboh (1995)2 NWLR (Pt. 389) 664 and that even if the Claimant successfully prove unlawful termination of his employment, all he would be entitled to is what is due to him in lieu of notice, citing Isieuwore v. NEPA (2002)7 S.C. (Pt. 11) 125 at 137. Finally, learned Counsel submitted that the Defendant has led cogent and credible evidence which was not challenged during cross examination to the effect that the Claimant absconded from his employment and terminated same without due notice to the Defendant. Counsel urged the Court to dismiss the Claimant's case with substantial cost. The Claimant's 11 - page final written address was dated and filed on 11/12/14. Learned Counsel to the Claimant submitted a lone issue as follows for determination - Whether in the circumstance of this case and the evidence before the Honourable Court, the Claimant has proved his case and is entitled to the reliefs sought. Arguing this lone issue, learned Counsel submitted that, the Clamant a staff of the Defendant sustained injury while in the employment of the Defendant; that although Claimant's Solicitors wrote to the Defendant, the latter refused to pay the hospital bills of the Claimant. Learned Counsel, relying on Section 131(1), Evidence Act, 2011 and Iyere v. BFFM Limited (2001) FWLR (Pt. 37) 1166, submitted that the Claimant having testified and tendered documentary evidence to the Court, is entitled to Judgment in terms of his claims. Counsel urged the Court to discountenance the testimony of the DW on the ground that it was mere hearsay since DW testified that he was not yet employed by the Defendant while the Claimant was in the Defendant's employment and that he was not around the Defendant when the cause of action in this suit arose. Submitting further, learned Counsel urged the Court to accept the content of the letter written by the Claimant's Solicitors as correct same not having been challenged in any way by the Defendant citing Omoregbe v. Lawani (1980)3-4 S.C 108. According to learned Counsel, the Defendant only pleaded facts without evidence led in proof and relying on Suleiman v. Master Stroke Packages Limited (2013)39 NLLR (Pt. 120) 155, Counsel urged the Court to hold that the averments are abandoned. Learned Counsel further submitted that as regard any unclaimed relief by the Claimant, the Court is allowed under the doctrine of consequential orders to make orders that are incidental to its main orders even when the former is not supplicated for citing Akinbobola v. Plison Fisco (1991)1 NWLR (Pt. 167) 270 at 288; that under the doctrine of Ubi jus Ibi Remedium the Court can grant remedy where the right of the Claimant has been trampled upon as in the instant case citing Bello v. A. G. Oyo State (1986)5 NWLR (Pt. 45) 828 at 889-890 and that where remedies are provided under the statutes or rules of Court, the Court can suo motu citing Sections 14 & 19, National Industrial Court Act, 2006. Learned Counsel thus urged the Court to award enough compensation to the Claimant and also grant his prayers in their entirety. This Judgment was adjourned for delivery on 24/9/15. That day however falls on a public holiday of Eid-el-Kabir. Hence hearing notices were issued for parties and learned Counsel to attend the Court today for same. I have read and reviewed all the processes filed by learned Counsel on either side in this case, the evidence led as well as the final written addresses of Counsel. I also listened attentively to the testimonies of witnesses called and watched their demeanour in Court. In the light of what I have done therefore, I set down a lone issue as follows for the just determination of this case - Whether the Claimant has proved his case to be entitled the reliefs sought or any of them. The Claimant having approached this Court for judicial redress is under an obligation to prove his case with credible, cogent and admissible evidence for him to receive a grant of reliefs sought. Failure to do so will lead to his case and claims being dismissed. Now in proof of his case what are the evidence put forward by the Claimant? The Claimant tendered 5 exhibits in proof of his case. The exhibits are as follows - 1. Letter of Provisional Offer of Employment dated 13/2/12; 2. Letter of Salary Review dated 1/6/12; 3. Claimant's Hospital Card dated 31/10/12; 4. Radiological Report dated 2/11/12 and 5. Claimant's Solicitor's letter dated13/3/13. The position of the law is that in an action for wrongful termination of employment, it is incumbent upon the Claimant to place before the Court his contract of employment and prove to the Court how the termination of his employment was wrongful, see University of Calabar v. Essein (1996) LPELR 3416. This, the Claimant will prove by showing to the Court who may terminate his employment; the way and manner it may be terminated and how the present termination is not in compliance with the stated procedure in the contract of employment signed. Exh. C1 which is the letter of Provisional Offer of Employment states in the last Clause, among others, that both parties may terminate the employment contract based on breach of contract terms. It is for the Claimant to provide evidence in support of his assertion that his dismissal was wrongful. Claimant sought a declaration that his dismissal was illegal and unlawful. However he has failed to lead evidence to support his claim. There is no evidence before me on what made Claimant' dismissal illegal. The law remains that he who asserts must prove same. See Section 131, Evidence Act, 2011. Learned Counsel to the Claimant did not draw the attention of the Court to any law which the Defendant's act or conduct contravened to render its action illegal or unlawful. In much the same vein, I also find no evidence before me which would have moved this Court to declare Claimant's dismissal null, void and of no effect as sought. Now as an aside, it is surprising that the Claimant did not deem it fit to inform his employer of the alleged injury he sustained in the course of his employment. If the Claimant did, there is no evidence of such before me. In both his statement of facts and his witness deposition on oath, the Claimant testified that he became ill in the course of his employment with the Defendant and was eventually admitted at the General Hospital (See paragraph 15 of the statement of facts dated 17/9/13 and paragraph 6 of the Claimant's witness statement on oath also dated 17/9/13). There is no evidence of his admission at the General Hospital as claimed. Exh. C3 dated 31/10/12 is General Out-Patient - Index Card. If that exhibit is evidence of Claimant's admission at the General Hospital as claimed, there is no evidence before me relating to the date he was discharged from the Hospital. Under cross examination, the Claimant testified that he was admitted at General Hospital, Isolo on 29/10/12 and discharged the following day. The question is: Was the Claimant admitted at the Hospital and discharged before being issued Exh. C3 - Out Patient Card? Even when he alleged to have resumed work with the Defendant, Claimant did not state when he resumed and under cross examination, he claimed he could not remember the date he went back to work. I find so many questions unanswered which make the case of the Claimant to be so porous that this Court cannot find for him. The first relief sought by the Claimant is for a declaration that the verbal dismissal of the Claimant from the month of November 2012 till date is illegal, unlawful, null and void and of no legal effect whatever is therefore refused and dismissed. Apart from the reasons as stated thus far, it is important to further add that the Claimant admitted in paragraph 9 of his witness statement on oath that the Defendant verbally terminated his employment in gross breach of his employment contract. The right of an employer to terminate a contract of service will always remain in the employer. It is bringing into practice a theoretical but trite proposition that he who has the right to hire has the right to fire. See UBN v. Toyinbo (2008) LPELR-5056 (CA). To therefore declare the dismissal of the Claimant illegal, unlawful, null, void and of no legal effect whatever as sought is bound to cause chaos in labour and industrial relations with far reaching consequences. Even in circumstances where a termination or dismissal is declared wrongful, it is never also declared null and void and usually the available remedy is always in damages, depending of course on whether or not the employment is one with or without statutory flavour. To do otherwise will amount forcing a willing employee on an unwilling employer. The second, third and fourth reliefs sought are predicated on the success of the first relief. The first is the foundation upon which they are built. It is the pillar that holds the remaining reliefs together. Thus the first having failed, there is no way any of the remaining reliefs may be granted. It remains trite that a house built on a weak foundation and/or supported by a weak pillar is bound to collapse sooner than later. The obvious fact being as posited by Lord Denning that you cannot put something on nothing and expect it to stay there. It will collapse. See UAC v. MacFoy (1962) Ac 159. An ORDER of the Honourable Court directing and mandating the Defendant to pay to the Claimant his salary at the rate of =N=36,000.00 per month from November 2012 till the determination of this suit is refused and dismissed. This remedy is predicated on the success of the first relief and would only succeed if the first prayer had been granted. The same is applicable to prayer for General Damages and Cost of the action. Therefore, the first prayer having failed and been dismissed, the second, third and fourth reliefs sought are also refused and dismissed accordingly. For the avoidance of doubt and for all the reasons as stated in this Judgment, all the reliefs sought by the Claimant are refused and dismissed accordingly. Judgment is entered accordingly. ___________________ Hon. Justice J. D. Peters Presiding Judge