IN THE HIGH COURT OF LSS

IN THE ADO-EKITI JUDICIAL DIVISION

HOLDEN AT ADO-EKITI

SUIT NO;------------------------------

BETWEEN

AISHA ABUBAKAR---------------------------------------------------------------CLAIMANT

AND

SHEKPE NEWS------------------------------------------------------------DEFENDANT

DEFENDANT’S FINAL WRITTEN ADDRESS

1.0 INTRODUCTION

This suit commenced with a writ of summons, statement of claim, written deposition on oath
and list of witnesses.

1.1 In the course of the trial, the claimant relied on physical evidence which consisted of:
I. Medical Report for Aisha Abubakar

II. Positive test Results for Herpes for Aisha Abubakar

III. Claimant’s employment contract, employment lettert and letter of dismissal

1.2. The defendants relied on the attendance register of Shekpe News, Notice of Query,
Query Letter and written depositions on oath of its witnesses.

1.2 The defendant relied on two witnesses to wit;

I. David Oyewole
II. Folake Adegoke

2.0 LEGAL ISSUES

1. Whether the claimant has sufficiently extinguished the burden of proof required in a
claim for wrongful dismissal?
2. Whether the defendant has established misconduct entitling the defendant to summary
dismissal of the claimant?
3. Whether the claimant is entitled to the reliefs claimed?

3.0 ARGUMENTS

ISSUE 1

WHETHER THE CLAIMANT HAS SUFFICIENTLY EXTINGUISHED THE BURDEN OF

PROOF REQUIRED IN A CLAIM FOR WRONGFUL DISMISSAL

My Lords, the principle of burden of proof is trite law and has been reiterated several times
by the court. The Supreme Court in College of Medicine v. Adegbite (1973) 5 SC 149 stated

“A plaintiff who alleges wrongful dismissal must prove it. “

The plaintiff has alleged wrongful dismissal on the part of the Defendants, the burden of
proving this assertion is solely on the Plaintiff. This assertion must be stated and proven in
their pleadings.

On what are pleadings the Supreme Court in P.D.P. v I.N.E.C. [2012] 7 NWLR (Pt. 1300)
547 held:
“Pleadings are averred facts in numbered paragraphs which parties rely on to
present their case so that the adverse party is not taken by surprise. And the facts in
pleadings must be concise and unambiguous. [Salami v. Oke (1987) 4 NWLR(Pt.
63) 1; Sodipo v. Lemminkainen OY (No.1) (1985)2 NWLR (Pt. 8) 547 referred to.]
(P. 566, para. D”.
This unequivocally refers to the Statement of Claim of a plaintiff as this is where a claimant
is expected to aver facts in numbered paragraphs. The Statement of Claim lays the foundation
for the subject matter and jurisdiction of the Court in a case before it.

In the instant case which is a matter of alleged wrongful dismissal, The Court of Appeal has
established what must be pleaded and contained in the pleadings of a claimant for their case
to succeed. In Adams v LSDPC [2000] 5 NWLR (PART 656), The Learned Lords of the
Appeal held:
““In an action for wrongful termination of appointment, the plaintiff must plead
and prove certain material facts as follows:

(a)that he is employed by the Defendant;

(b)the terms and conditions of his appointment including duration and
termination;
(c)who can appoint and remove him;
(d)the circumstances under which his appointment can be terminated;
(e) that his appointment can only be terminated by a person or authority other than
the defendant.”

Furthermore the Learned Lords held:

“Failure to do so will lead to a dismissal of the claim. In the instant case, there
being no pleadings and evidence on material facts before the trial court, the court
rightly dismissed the claim. (P.316, paras. F-G)”

The defendants contend that of the conditions (a)-(e) listed by the Appeal Court, only (a) was
pleaded and proven in court. We refer the court to the Statement of Claim of the Claimant.
Paragraphs 2 establishes that the claimant was an employee of the defendant, however neither
terms and conditions of the claimant’s employment, the appropriate authority to dismiss him,
the circumstances under which the claimant can be terminated and how it was terminated and
the wrongfullness thereof. As a consequence, the plaintiff’s claim must fail.

We humbly refer the court of the decision in BENUE CEMENT COMPANY PLC V.
PETER ASOM AGER & ANOR (2010) 9 NWLR (PT. 1199) 292
Ndukwe-Anyanwu, JCA “It is trite law and elementary too, that a party who asserts
that his suspension and termination of employment, was in breach of the terms of
contract entered into, such a party has the duty of pleading and proving by concrete
evidence, the terms of the contract, and how it was breached”
Furthermore for the elimination of all doubt we refer the My Lords to the decision of the
Supreme Court, which all lower courts must adhere,
PER Mohammed JSC in Ibama v S.P.D.C. (Nig) Ltd. [2005] 17 NWLR (Pt. 954)
at 379
“This is because it is the law that when an employee complains that his employment
has been wrongfully terminated, he has the onus of placing before the court the
terms of the contract of employment before proceeding to prove the manner the
said terms were breached by the employer. It is not the duty of the employer who is
a defendant to an action brought by the employee to prove any such breach as laid
down by this court in many cases particularly in Amodu v. Amode (1990) 5 NWLR
(Pt. 150) 356 at 370 where Agbaje, JSC said -

"It appears clear to me that since it is the plaintiff's case that his dismissal
by the defendants is not in accordance with the terms and conditions of the
contract of service between them it is for the plaintiff to plead and prove the
conditions of service regulating the contract of service in question."

See also Iwuchukwu v. Nwizu (1994) 7 NWLR (Pt. 357) 379 at 412.

The overwhelming case law and precedent before this court proves that the Claimant’s case
must fail. The Claimant has failed to extinguish the burden of proof required by law and by
precedent. The Statement of Claim and pleadings of the Claimant do not disclose any of the
relevant facts required to prove a claim for wrongful dismissal. We urge the court to dismiss
this case in its entirety.

ISSUE 2

Whether the defendant has established misconduct entitling the defendant to summary
dismissal of the claimant?

The defendant in Paragraph 5 of its pleadings avers that the claimant was dismissed due to
gross misconduct.

We refer the court to Oyedele v. Ife University Teaching Hospital (1990) 6 NWLR
(Pt.155) 194 where it was held
 “It appears therefore that misconduct is what the employer says is misconduct.”

We refer the court to Paragraphs 6, 7, 8, 9, 10 and 14 of the Defendant’s pleadings. The

Defendant subsequently proved these facts by tendering oral and documentary evidence in
support. The attendance register of the Defendants reveals unequivocally that the claimant
was absent from work on the 5th, 18th and 24th January 2022 and the 2nd and 11th February
2022 without notice or excuse contrary to company policy. The claimant was extremely late
to work on the 7th, 10th, 13th, 19th and 28th January 2022 and 3rd February 2022 without
notice or excuse contrary to company policy.

My Lords, the defendants dismissed the claimant for gross misconduct and the evidence put
forward supports those facts. Furthermore, the Claimant was served a Notice of Query by
email and oral notice. The defendant was merely exercising her legal rights.

We submit the following authorities:

Osagie v N.N.B. Plc (Pt. 913) [2005] 3 NWLR 517

“Ordinarily, a master is entitled to dismiss his servant from his employment for good or
bad reasons or for no reason at all.”

An employer can summarily dismiss his employee whose offence amounts to gross
misconduct. [Co-operative Dev. Bank v. Essien (2001) 4 NWLR (Pt. 704) 479; Savannah
Bank v. Fakokun (2002) 1 NWLR (Pt. 749) 544 referred to.] (P.540, para. G)

Texaco Nigeria Plc v Alfred Adegbile Kehinde Per Onnogehen, JCA (as he then was)
“The duty on the respondent to make out a prima facie case becomes obvious when one
realises the fact that it is settled law that an employer has the legal right to terminate or
dismiss an employee without giving reason for doing so- see N.N.B. Plc v Osunde (1998) 9
NWLR (PT 566) 511”
Etim Okon Ante v University of Calabar & Anor [2001] 3 NWLR (PT. 700) 239

“Where an employee is guilty of gross misconduct which has been deferred as a conduct of
a grave and weighty character as to undermine the confidence which exists between and
his employer or a conduct which works against the deep interest of the employer, he could
be lawfully dismissed summarily without notice and without wages. [Ajayi v. Texaco (Nig.)
Ltd. (1987) 3 NWLR (Pt.62) 577; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9)
599; U.B.N. Ltd. v. Ogboh (1995) 2 NWLR (Pt.380) 647 referred to.] (Pp. 258-259, paras.
H-A)”

In addition to the infractions and constant absenteeism of the Claimant, the Claimant defied
lawful instructions given by her superiors. We refer the court to the Notice of Query sent on
January 18th, 2022 as stated in the written deposition of the Head of Human Resources. The
Claimant was instructed to stop coming to work late and to answer the Query served upon her
by her superiors. Alas, the attendance records show she was absent that day. This is more
than enough grounds for dismissal.

“An employee can be summarily dismissed for disobedience of lawful order under both the
common law and statute law. [Olatunbosun v. N.I.S.E.R. (1988) 3 NWLR (Pt80) 25 SC
referred to.] (P.258, para. G)

This legal right has been established and restated in numerous judicial authorities.

In Eze v Spring Bank Plc [2011] 18 NWLR (Pt. 1278) 118 it was held,
“An employee may be summarily dismissed without notice and without wages if he is guilty
of gross misconduct. And gross misconduct is a conduct that is of a grave and weighty
characters to undermine the confidence which should exist between an employee and the
employer. Also,working against the deep interest of the employer amounts to gross
misconduct entitling an employer to summarily dismiss the employee. To warrant
summary dismissal, it suffices that the conduct of the employee, as in the instant case, is of
such grave and weighty character as to undermine the relationship of confidence which
should exist between the employer and employee. [Ajayi v.Texaco Nig. Ltd. (1987) 3
NWLR (Pt. 62) 577;Olaniyan v. University of Lagos (1985) 2 NWLR(Pt. 9) 599; Sule v.
Nigerian Cotton Board (1985) 2 NWLR (Pt. 5) 17 referred to.] (Pp. 131-132, paras.G-B)”

My Lords, the Claimant was dismissed on grounds of gross misconduct, the false allegation
of discrimination is merely to mislead this court. Shekpe News does not discriminate based
on health, sex, tribe, ethnicity or on any grounds. All decisions and promotions are made
purely on merit and are at the discretion of the Court. We urge the court to dismiss this
action, the defendant has established that the dismissal of the claimant was purely the
exercise of a legal right recognised by law and the Supreme Court.

ISSUE 3

Whether the claimant is entitled to the reliefs claimed?

My Lords, the Claimant prayed the court for four reliefs reproduced below:
i. Damages incurred for the unlawful dismissal of the claimant in the sum of
N1,500,000 ( ONE MILLION, FIVE HUNDRED THOUSAND NAIRA
ONLY)
ii. Special damages for the emotional damages suffered by the claimant due to
discrimination she suffered in the sum of 500,000 {FIVE HUNDRED
THOUSAND NAIRA ONLY}
iii. Cost of this suit
iv. 10% INTEREST on the judgement sum from the date the judgement is delivered
until the judgement sum is fully liquidated.

The Claimant is entitled to none of these reliefs My Lords. If it were true that the Claimant
was truly dismissed wrongfully, the extent to which damages may be claimed are already set
in law. Firstly, the Defendants bring to the notice of the court the self-contradictory Statement
of Claim of the Claimants. The Claimants claim a wrongful dismissal in Paragraph 14 of the
Statement of Claim but seek reliefs for unlawful dismissal. My Lords, these contradictions
are grave because an unlawful dismissal and a wrongful dismissal are two different issues in
law. If the Claimant seeks reliefs for unlawful dismissal they are yet to plead which laws or
facts that prove the unlawfulness of the actions of the Defendants. All of their previous
claims relate to a wrongful dismissal, they cannot now come ask for reliefs based on unlawful
dismissal which they have led with no facts or previously pleaded.

The Courts cannot imply terms or inferences on pleadings of parties before it. This would
impinge on the neutrality of the Court and fair hearing.

Even if the misuse of the terms ``unlawful” and “wrongful” was an oversight on the part of
the Claimants, the law is settled on what form of damages may be claimed in issues arising
from a breach of contract of employment.

In New Nigeria Bank Plc v Gabriel Egun (2001) 7 NWLR (Pt. 711) 1, Their Lordships
held:
“Since the decision of the Supreme Court in Paterson Zochonis and Co. Ltd. v. Ogedengbe
(1972) 3 SC 98; 1 All NLR (Pt. 1) 202, it became settled that our courts do not award
general damages for breach of contract of employment. Counsel also cited Swiss-Nigeria
Wood Industries Limited v. Bogo(1972) 1 All NLR (Pt.2) 433, (1971) 1 U.I.L.R. (Pt. 3) 337
at 341; Chukwumah v. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512 at 538 and Alraine
(Nigeria) Limited v. Eshiett (1977) 1 SC.89.”

NITEL PLC V OCHOLI [2001] 10 NWLR (PT 720) 195

“In an action for wrongful dismissal a plaintiff is not entitled to general damages as they
belong to claims in tort. [UBN Plc.v. Ogboh (1991) 1 NWLR (Pt.167) 369; P. Z. & Co.
Ltd.v. Ogedengbe (1972) 1 All NLR (Pt.l) 202; Shell Petroleum Dev. Co.v. Tiebo VII
(1996) 4 NWLR (Pt.445) 657; Federal College of Education v. Anyanwu (1997) 4 NWLR
(Pt.501) 533; Okeme v. C.S. C. Edo State (2000) 14 NWLR (Pt.688) 480 referred to.] (P.
218, paras. G-H)”

It is well established that general damages cannot be awarded for a breach of contract of
employment. Damages may only be awarded based on the position the Claimant would have
been had the breach never occurred. Hence we urge the court to follow the precedents
previously set and uphold the principle of stares decisis by striking out the first relief of the
Claimants. The Claimants are not entitled to general damages to the tune of one kobo. This
concept is strange to all of Nigerian Law.

On the second relief claimed as special damages

Special damages must be proved and pleaded.

Special damages consists in all items of loss which must be specified by the plaintiff before
they may be proved and granted. In the instant case, by failing to plead the necessary
particulars in support of his claim for special damages the appellant had failed to satisfy a
necessary requirement of the law in proving his claim [B.E.O.O Industries (Nig) Ltd v.
Maduakoh (1975) 12 SC 91 at 108 referred to] (P.86, paras. D-E)

The Court is not a Father Christmas and will not award costs which are not established or
proven. The Claimants have failed to plead how they arrived at this exorbitant amount of
N500,000 as special damages.

“A plaintiff claiming special damages for loss of earnings or loss of profit must not only
specifically plead it with sufficient particulars but must also lead real and credible
evidence in strict proof thereof which would readily lend itself to quantification or
assessment. In the instance case, the statement of claim does not contain enough
particulars of the loss of profits suffered by the appellant as a result of the respondent's
failure to supply him with wheat flour as agreed between the parties. W.A.S.A. (Nig.) Ltd.
v. Kalla (1978) 3 SC 21

“A court should not and will not make an award on special damages unless it is able to
satisfy itself that the basis of the claim is established by and on a preponderance of
evidence.” Haway v. Mediowa (Nig.) Ltd.[2000] 13 NWLR (Pt. 683) 79

Furthermore,
Generally, the measure of damages in contract where it exists is restitutio in integrum, that
is, to put the plaintiff in the position where he would be if the breach did not occur. The
plaintiff would therefore not be entitled to restitutio in opulantum, he would not be entitled
to a windfall. The person entitled to such an award must actually have sustained the loss
for which he claims he should be restored to his former position. [Okongwu v. NNPC
(1989) 4 NWLR(Pt.115) 296

In the instant case, a claim for damages under a contract for wrongful dismissal o
In Mobil Producing Nig. Unlimited v Asuah (Pt. 740) [2001] 16 NWLR 729
“The measure of damages for wrongful dismissal is prima facie the amount the plaintiff
would have earned had he continued with the employment. Where the defendant has a
right to terminate the contract before the end of the term, damages should only be awarded
to the end of the earliest period at which the defendant could so terminate the contract:
[Beredugo v. College of Science and Tech., Port Harcourt (1991) 4 NWLR (Pt.187) 651;
Ihezukwu v. University of Jos (1990) 4 NWLR (Pt.146) 598; Nigerian Produce Marketing
Board v. Adewunmi (1972) 1 ALL NLR (Pt.2) 433 referred to.] (Pp. 758-759, paras. G -
H)”

Furthermore, in N.N.B Ltd. v Oniovosa [1995] 9 NWLR (Pt. 419) 329

“Where an employee is wrongly dismissed, based on a false accusation of misconduct,
without being given any notice or salaries in lieu of notice, his remedy lie in an action for
the amount of salaries he would have received during the period of notice and not for
reinstatement. [Onalaja v. African Petroleum Ltd; (1991) 7 NWLR (2006) 691; Taiwo v.
Kingsway Stores (1950) 19 NLR 122; U.B.N. Ltd. v. Oghoh (1995) 2 NWLR( Pt.380) 697
referred to]. (P. 336, paras. E-F)”

4.0 PRAYERS
Based on the arguments above, defendant counsel humbly prays this court as follows:
1. This suit be dismissed in its entirety.

5.0 CONCLUSION
The claimant has suffered severe damage as a result of the actions of the defendant. The
claimant has gone through emotional trauma, loss of a business which is her livelihood and
loss of goodwill. In the case of Hakar Air Services v. Keazor, RHODES-VIVOR JSC,
stated that willful misconduct will give rise to a right to damages to the individual to whom
the harm was done. Claimant counsel humbly prays the court to grant justice to a widow and
alleviate the needless suffering she has endured since the incident.