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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 24TH SEPTEMBER, 2014 Suit No. NIC/ABJ/117/2011 BETWEEN JOHN ONALO ADAJI CLAIMANT AND 1. FEDERAL MINISTRY OF TRANSPORT DEFENDANT REPRESENTATION Kelvin Emeka Okoro Esq for the Claimant. Anya N. O. Esq for the Defendant. JUDGMENT The claimant by way of a complaint dated 16th December, 2011 and filed 19th December, 2011 seeks the following claims against the defendant. 1. The re-instatement of the plaintiff in the service of the defendant and or payment of all the plaintiff outstanding benefits from 2003 till date (which total sum from 2003 to 2010 is N1,185,632.69 (One Million One Hundred and Eighty-five Thousand Six Hundred and Thirty-two Naira Sixty-nine Kobo) Only. 2. The sum of N10,000,000.00 (Ten Million Naira) Only as general damages. Accompanying the complaint are statement of claims, witness statement on Oath, list of Documents to be relied upon and list of witnesses. The defendant filed a memorandum of appearance dated 23rd February, 2012 and filed on 14th March, 2012, statement of defence, witness statement on Oath, list of documents to be relied upon and list of witness. The matter went on trial the claimant testified in his case and tendered Exhibits. The defendant called a witness in the person of Mr. Abah Stephen the Assistant Chief Administrative Officer of the Federal Ministry of Transport, Abuja, who testified and tendered Exhibits as well. The parties adopted their final written addresses on 20th of May, 2014. For the defendant the sole issue that has arisen for the determination with respect to the claimant’s case in thus:- Whether in the light of the evidence led by the claimant in this suit, the claimant is entitled to the Judgment on the heeds of claims sought by the claimant in this suit. The defendant commenced by referring to paragraphs 19 of the claimant statement of claim which for the relief from the court is an order for his full reinstatement into the service of the 1st defendant and payment of all his outstanding benefits from 2003 till date which is N1,185,632.69 (One Million Eight Hundred and Five Thousand Six Hundred and Thirty-two Naira Sixty-nine Kobo) Only. The defendant submitted that it is trite that he who alleges must prove, citing the case of Tewogbade V Akande (1963) NWLR 404 at 406. That the claimant to succeed in his claim, it must be on the strength of his case and not on the weakness of the defence. The learned counsel submitted that Exhibit PW1 offer of Contract of Appointment dated 24th November, 2000 admitted by the claimant forms the foundation of his case. He submitted further that Exhibit PW1 is sacrosanct and no amount of oral evidence, no matter how worded or expressed can be used to alter; contradict or discredit a document as document do not lie and remain the best evidence. Counsel further stated that in x-raying Exhibit PW1 it offered the claimant a contract of appointment. On salary of N16,764.00 (Sixteen Thousand Seven Hundred and Sixty-four Thousand Naira) Only per annum with effect from 1st August, 1999 to 30th April, 2000 and N51,588.00 (Fifty-one Thousand Five Hundred and Eighty-eight Naira) Only per annum with effect from 1st May, 2000. Counsel submitted further that the Exhibit PW1 provided for the duration of this employment which is for a period of 12 months after which the contract of Appointment terminates. That for the purpose of emphasis Exhibit PW1 provides thus:- Paragraph 2 (i) You are employed on a salary on of N16,764.00 per annum (sic) with effect from 1st August, 1999 to 30th April, 2000 and N51,588 per annum with effect from 1st May, 2000. You will be paid rent subsidy, meal subsidy, utility and Transport Allowances at the rate that corresponds with salary. Paragraph 2 (ii) The duration of the employment is for a period of 12 months after which the Contract Appointment terminated. Paragraph 2 (iii) It will be at the discretion of the Permanent Secretary to renew this Contract Appointment for another period of one year if he so wishes. Paragraph 2 (iv) Any other benefit will be granted to you at the discretion of the Permanent Secretary at appropriate rate. Paragraph 2 (v) Without prejudice to (ii) above, either you or Government may terminate your contract engagement by a month’s salary in lieu of notice. Paragraph 2 (vi) So long as you remain in the Government service (i.e. in the service of this Ministry), you will perform any duty that is assigned to you. Paragraph 2 (vii) You will be subjected in all respects to all conditions of service as stipulated in all Government Regulations and Instruction. Paragraph 3 If the term of offer of this contract Appointment is acceptable to you, an agreement will be made available for your signature within a month of acknowledging acceptance of the offer on the attached copy of this letter. It is the submission of the defendant that neither the claimant nor the defendant needed to look elsewhere for the interpretation of the master servant relationship that existed between them. That from Exhibit PW1 the following deductions are drawn:- 1. That the offer of Contract Appointment given the claimant was for a period of 12 months. 2. That after 12 months, it would terminate. 3. That it was terminated by virtue of Exhibit D7 (Termination of Contract Appointment, dated 19th March, 2001). 4. That at the expiration of Exhibit PW1, it was not renewed. 5. That whatever benefit, be it the said renewal of the Contract Appointment was at the discretion of the Permanent Secretary. Counsel further submitted that the claimant failed to lead any evidence on the head of claim to establish that:- a. That his termination in Exhibit D7 has been set aside and had been recalled. b. That the Contract Appointment had been reversed. c. That his salaries were unpaid. The defendant also submitted that it is illegal for the claimant to be under the belief that the possession of Exhibit PW6 (Personal Emolument Form) Exhibit PW9 (Personal Identity Card) issued to him in error without more could cure a termination of employment issued by the employer. The defendant said that if it had wanted the services previously rendered by the claimant to be permanent and pensionable, it would have done so but it did not because if the type of Contract Appointment entered into with claimant. Also if the defendant had wanted to retain the services of the claimant as a contract appointee by renewing same but it did not having to take into cognizance the totality of the misconduct of the claimant while in the service of the defendant as well as documented Exhibits DW4 to DW14. That the defendant considering the character and forensic evaluation of duties rendered by the claimant decided not to continue therefore terminated the contract appointment. To the defendant a master can terminate the contract of employee with his servant at any time and for any reason or for no reason whatsoever. However, the contract must be terminated in accordance with the terms of the contract. Also that no court can impose a willing employee on an unwilling employer. That through documentary evidence, the defendant showed it was through with the services of the claimant. On the issue of witch hunting the counsel submitted that the claimant was only busy whipping extra-ordinary sentiments over issues of employment that had long been addressed by the employer. That the termination of the claimant’s employment had brought to an end the relationship of masters and servant between the defendant and the claimant. The learned counsel also referred to paragraph 20 of the statement of claim where the claimant is seeking the sum of N10,000,000.00 (Ten Million Naira) only as general damages for what he has suffered as a result of this case. On for paragraph 2.1 for the order of the court to order 1st defendant to pay him10% interest from the date of judgment till full satisfaction of the judgment. On this the counsel submitted that by pleadings and evidence led the claimant has failed to discharge the burden of proof placed on him and consequently not entitled to the releifs sought or claimed. Counsel submitted that the claimant did not lead cogent compelling evidence to establish that the act of the defendant caused him loss or that his claim flows from the wrong complained of. In conclusion the counsel for the defendant urged the court to dismiss in its entirety the claims of the claimant for his failure to place before the court any evidence that will convincingly substantiate his case. The case of the claimant as put forward by his counsel in the final address wherein he raised the following issue to wit:- Whether the claimant has prove his case on preponderance of vidence as to entitle the Honourable Court to grant his prayers. The counsel commenced that it is the duty of the claimant to prove his case on the preponderance of evidence relying on the provisions of Section 131 of the Evidence Act. That in civil cases the burden of proof is on the party who asserts a fact to proof same. The learned counsel submitted that on the issue of contract of employment the claimant was employed without issuance of letter of employment and withhold salaries for months. It was after several protest and letters that the defendant issued offer of contract of appointment. That the said offer of contract is dated November 2000 while the employment started on 1st August, 1999. He submitted that the Permanent Secretary made it very clear to the claimant that the said offer of contract Appointment was issued to enable the defendant pay salaries of claimant and others. According to the counsel that under cross-examination of the defendant witness, he made it clear in his answer that there was this agreement that it was not proper to issue offer of contract appointment. The witness said further that the issue of offer of contract appointment was delayed in that the government wanted to abolish contract employment. Counsel said that the response of the defendant witness shows that the said offer of contract appointment was not proper. To the counsel the defendant acknowledged the contract as illegal and the therefore the offer of contract appointment is illegal abinitio and so it cannot stand. He submitted further that illegality of the offer of contract appointment why the duration of the employment for a period of 12 months after which the contract appointment terminates is not applicable. Counsel further submitted that after the offer of contract of appointment, the defendant continued the employment relationship with the claimant for years as indicated in various activities and minutings in defendant records. The grouse of the claimant as can be gathered here is that he and others were not comfortable with a situation where letters of employment were not issued more especially salaries were not paid. That because he was the one writing letters of complaint on behalf of his contemporaries that made him to have been signed out for witch hunting and oppression. That the Deputy Director Mrs. Adebola oppressed him and succeeded until he was butted out of the Federal Government Service. The counsel submitted that the claimant having proved his case on the issue of reinstatement would statutory flavour the court is at liberty to order for is reinstatement. On the issue of damages and interest counsel submitted that the court has the right to award damages where the termination of employment is adjudged wrong. Relying on the authority of Murphy Shipping and Commercial Service Ltd V Maritime Workers Union of Nigeria that once termination of employment declared wrong the court has power to award damages. He concluded that the claimant having proved his case by preponderance of evidence, that the court should grant the prayers of the claimant in the interest of justice. On points of law the defendant referred to the claimant claim before the court thus:- i. Reinstatement of the claimant in the service of the defendant. ii. Payment of all claimant’s outstanding from 2003 till date. iii. Payment of N10M (Ten Million Naira) as general damages. iv. Payment of 10% interest from the date of Judgment till full satisfaction of Judgment. That counsel submitted that the claimant evidence and pleadings have not established the admissible basic for any of the claims to stand against the defendant. He submitted further that the claimant case has not disclosed any reasonable cause of action against the defendant. On the issue of Exhibit PW1 letter of contract appointment dated 24th November, 2000, the counsel for the defendant submitted that the claimant referred to Exhibit PW1 as illegal and void. Since he admitted that he entered into illegal and void contract that it is trite that no court of law can enforce any illegal and void contract that this includes the present court. That for admitting that the offer of contract of appointment is illegal abinitio he had admitted that the duration of this employment is for a period of 12 months after which the contract appointment terminates. The counsel reply to the issue of oppression against the claimant from the beginning of his employment till he was forced out of the employment of the defendant by asking the question as to whether it is an oppression to offer someone an appointment that he duly and voluntarily accepted. That the claimant was never charged to court for alleged offences committed by him, even when he was involved in an accident. That the claimant was never oppressed by the defendant. Furthermore, the defendant submitted that the defence witness statement on Oath was served on the claimant and was admitted in evidence in court that there was nothing extenuating on his part that made him not a proper witness. That above all that there is no law that compels a litigant to call a witness in a matter. Lastly, the counsel submitted that the employment of the claimant was properly terminated first by extension of time, since PW1 provided for 12 months duration period. He further commented that it is wrong and unethical on the part of the claimant’s counsel to dress (the claimant) in borrowed dress by painting him as a crusader, trail blazer, a labour union activist that championed the cause of his colleagues. That this is evident when the claimant classified exhibit PW1 as modern day slavery, not proper, illegal abinitio, void, negligent oppressive and negates the standard obtained in labour law that the claimant has painted his employer in bad right and public odium thereby lowering its estimation in the eyes of those known by the defendant. He also commented on the use of word wrongful termination and wrongful dismissed interchangeable. Counsel said the appointment of the claimant was terminated and not dismissed because of its consequences. That above all the duration was not wrongful. In conclusion, learned counsel for the defendant urged the court to hold that the claimant’s case discloses no reasonable cause of action against the defendant and the suit be dismissed. Having carefully considered the submissions of counsel the issues for the court to determine is:- Whether the employment of the claimant was lawfully terminated or whether from the circumstances and facts of this case the claimant is entitled to the reliefs sought in this suit. The rules and documents governing the employment relationship of the claimant with the defendant is the Public Service Rules and his letter of offer of appointment. The contract of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms. It is trite that where there is an agreement regulating any agreement between parties, the main duty of the court is to interpret the agreement and give effect to the wishes of the parties as expressed in the documents. This is to say that courts are enjoined to look at the words used in the document in order to ascertain the intention of the parties. The question to ask then is what is the nature of the claimant’s employment? The claimant John O. Adaji, was a former employee of the Federal Ministry of Transport. By a letter of offer of contract of appointment dated 24th November, 2000 Exhibit PW1 the claimant was offered employment as a Driver/Mechanic for a fixed term of 12 months. The letter of appointment states the duration of the employment is for 12 months after which the contract appointment would terminate. In other words, the contract is for a fixed term of 12 months, and it terminates automatically at the end of 12 month. The option for renewal is at the discretion of the Permanent Secretary, as Paragraph (iii) of Exhibit PW1 letter of offer stated that:- Paragraph (iii) It will be at the discretion of the Permanent Secretary to renew this Contract Appointment for another period of one year if he so wishes, which makes the renewal not automatic. The claimant complained that he and his colleagues were not issued letter of offer of appointment in time by the defendant and their salaries were also delayed before payment was paid to them. The delayed in issuing letter of offer of appointment was explained by the defendant witness that the management of the ministry could not agree that it was proper to bring in contract appointees at that time because government was at the verge of abolishing contract employment. The important thing here is that the letter of offer of appointment was eventually issued to the claimant and other drivers after the meeting of the Junior Staff Committee, the claimant and other 10 (Ten) drivers were recommended for appointment Exhibit DW1. Flowing from the terms of the contract of employment, the claimant employment would automatically terminate at the end of 12 months of offer of employment. The question to tackle is whether the defendant has the power to terminate the appointment of the claimant? It is trite that an employer has the right to terminate the appointment of his employee for good or bad reason or for no reason at all. The important and the basic issue is whether the defendant adhered to the terms and conditions of the contract of employment, in bringing to an end the contract of employment. The motive for doing this is irrelevant. It is trite that an employer has the right to discipline any erring staff in its employment including the claimant. From the facts available to the court the claimant was disciplined by the defendant. He was issued a query by a letter dated 12th January, 2001 which he acknowledged on 18th of January, 2001. He replied to the query by a letter dated 19th January, 2001. The defendant decided that the contract of appointment of the claimant and 2 other drivers be terminated in accordance with Public Service Rules 04401 for misconduct and that the penalty for such offence as stated is in Public Service Rules 04406. The rules governing the relationship between the claimant and the defendant are his letter of appointment, and the Public Service Rules. The terms of the contract of employment is the bedrock of the claimant’s claim where the issue of wrongful termination of employment calls for determination. The claimant’s letter of employment gives either party an option to bring the contract to an end. As Paragraph (V) states:- Without prejudice to (ii) above, either you or Government may terminate your contract engagement by a month’s salary in lieu of notice. In line with paragraph V above, the defendant decided to exercise their rights, by terminating or by bringing to an end the employment relationship between the defendant and the employee offering the claimant a month salary in lieu of notice in compliance with the terms of the contract of employment. The letter of termination of the claimant’s appointment the 2nd paragraph of this letter states thus:- You will be paid a month’s salary in lieu of notice. Thereafter a letter was issued terminating the appointment of the claimant dated 19th March, 2001. The letter of termination of appointment is hereby reproduced for ease of reference:- PERSONNEL MANAGEMENT Xxxxxxxxxxxxx Bukar Dipcharima House Central Area, Abuja. P. 21475/Vol.1/28 19th March, 2001 2347470. 2347471 Mr. J. O. Adaji, 1, Laust Road, Iyagba – Idah L.G.A. Kogi State. u.f.s. Transport Officer, Federal Ministry of Transport Abuja. TERMINATION OF CONTRACT APPOINTMENT I am directed to refer to this Ministry’s letter No. MT.151/S.1/11/105 of 24th November, 2000 in respect of Contract of Appointment offered you and to inform you that in line with paragraph 2(ii) of the letter, the Contract of Appointment is terminated with immediate effect as your services are no longer required by the Ministry. 2. You will be paid a month’s salary in lieu of notice along with this letter. 3. Please acknowledge receipt. SIGNED R. W. ADEBOLA (MRS.) For: Honourable Minister. DFS, In line with para. 2 above, kindly authorize the release of a month’s salary in lieu of notice to the Transport Officer who will ensure delivery to Mr. Adaji along with the original letter. SIGNED R. W. ADEBOLA (MRS.) AD (E.P&R) 19th March, 2001 It is trite that the issuance of the letter of termination of appointments brings to an end the employment relationship between the claimant and the defendant. The defendant demonstrated that the claimant was no longer in their employment by the stoppage of his salaries and allowances. Both parties are not misled as to what is going on. In the circumstance of this case, the claimant is not entitled to an order of reinstatement or an order for payment of salaries, allowances and other entitled except his salary for a month salary in lieu of notice. For these reasons the claimant’s action lacks merit and is hereby dismissed. Judgment is entered accordingly. ______________________________ HON. JUSTICE O. A SHOGBOLA JUDGE