PATIENCE AMAKA NWODO -VS- ENUGU ELECTRICITY DISTRIBUTION

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

BEFORE HIS LORDSHIP, HON. JUSTICE I. G. NWENEKA

DATE: 5th February 2018 SUIT NO. NICN/EN/22/2016

BETWEEN

PATIENCE AMAKA NWODO … CLAIMANT

AND

ENUGU ELECTRICITY DISTRIBUTION COMPANY … DEFENDANT

REPRESENTATION:

Richard Emeka Ogbodo Esq. for the Claimant

Nzube Arthur Nwankwo Esq. with C. Agwaramgbo Esq. for the Defendant.

JUDGMENT

The Claimant by a Complaint filed on 3rd June 2016 claimed against the Defendant as follows:

An order mandating the Defendant to reinstate the Claimant as the Assistant Manager, Special Purpose Customers [SPCU] since her dismissal is unlawful, vexatious and in bad faith.

An order mandating the Defendant to pay the Claimant the sum of two hundred and forty five thousand, one hundred and eight thousand naira, thirty three kobo per month starting on September 2015 till date being and representing arrears of her monthly salary and/or any other lawful entitlement of the Defendant in form of allowances and other fringe benefits.

An order mandating the Defendant to pay the Claimant the sum of ten million naira being general damages for the traumatic experience and the hardship which the Claimant was subjected to as a result of the unlawful dismissal from her employment.

And any other order or orders as this Honourable Court will deem fit to make in the circumstances of this case.

The Claimant filed alongside the Complaint a Statement of Facts, verifying affidavit, list of witness and witness’ deposition, list of documents and copies of the documents. The processes were served on the Defendant on 9th June 2016. Thereafter, the Defendant, through its Counsel, Mr. Nzube Arthur Nwankwo, entered an appearance and filed its Statement of Defence, list of witnesses, witness’ deposition, list of documents and copies of the documents on 8th August 2016 together with a motion on notice for enlargement of time to file and serve these processes. The motion was heard and granted on 18th May 2017. Thereafter, the matter was set down for trial. Trial commenced and was concluded on 7th November 2017. The Claimant testified in support of her claim. She adopted her statement on oath dated 3rd June 2016 as her evidence in proof of her claim. She tendered 11 exhibits. Exhibit 1 – 1A is the letter of employment dated 14th April 2014. Exhibit 2 is her deployment letter dated 18th August 2014, exhibit 3 – 3C is Mr. Ekechi Kizito’s report dated 18th June 2015, exhibit 4 is the Defendant’s Employee handbook. Exhibit 5 – 5B is the report of the Audit Panel set up to investigate allegations against the Claimant, exhibit 6 – 6E is the Claimant’s letter to the State Auditor. Exhibit 7 is a query served on the Claimant and her response is exhibit 8 – 8i. Exhibit 9 – 9A is Claimant’s letter to the Defendant’s Managing Director, exhibit 10 – 10E is a follow up on her letter to the Defendant’s Managing Director and exhibit 11 – 11F is the Claimant’s letter to the Chairman Board of Directors of the Defendant. Under cross examination, the Defendant tendered one exhibit through the Claimant, exhibit 12, the letter of termination of the Claimant’s employment. The Defendant’s witness, Mr. S. C. Ugwuchime testified in defence of the Defendant. He adopted his statement on oath dated 8th August 2016 and identified exhibits 1-1A, 12 and 4. On conclusion of trial, the case was adjourned to 15th December 2017 for adoption of final written addresses. On 15th December 2017 the Claimant’s Counsel was absent but the Defendant’s Counsel, Mr. Nwankwo, was present. Pursuant to Order 45 rule 7 of the National Industrial Court [Civil Procedure] Rules, 2017, the Claimant’s final written address was deemed adopted and the Defendant went ahead to adopt its final written address and the matter was set down for judgment.

CLAIMANT’S CASE

The Claimant’s case is that she was employed by the Defendant by letter dated 14th April 2014 [exhibit 1 – 1A] as Assistant Manager, Special Purpose Customers [SPCU] and resumed on 1st May 2014 at the Orlu Business District. She was subsequently deployed to Umuaka Service Centre by letter dated 18th August 2014 [exhibit 2] where she worked for the Defendant until 3rd September 2015 when the agents of the Defendant orally dismissed her from work. She traced her ordeal to a report by one Mr. Ekechi Kizito dated 18th June 2015 which led to the setting up of an Audit Panel to investigate the allegations against her without formally bringing the allegations to her attention and giving her opportunity to defend herself contrary to exhibit 4. Dissatisfied with the investigation, she wrote a letter to the State Auditor dated 24th June 2015, exhibit 6-6E. The Claimant testified that it was after receipt of her letter that the State Auditor served her a “Request for Explanation” dated 29th April 2015 but received on 29th June 2015 [exhibit 7]. Her response is Exhibit 8 – 8i. The Claimant testified that it was after her response that her employment was terminated on 3rd September 2015. She stated that she tearfully signed acknowledgement of receipt of the letter of termination [exhibit 12] but was not given a copy. The Claimant also stated that it was after her termination that a Panel Review was held on 18th September 2015 and she appeared before the Panel. She thereafter appealed to the Managing Director [exhibits 9–9A and 10-10E] and the Chairman Board of Directors of the Defendant [exhibit 11–11F] to no avail hence this action. Under cross examination, the Claimant admitted signing the acknowledgement of receipt of the letter of termination but maintained that a copy of the letter of termination was not given to her. The Claimant confirmed, under cross examination, that she received two weeks’ basic salary in lieu of notice after commencement of this suit.

DEFENDANT’S CASE

The Defendant’s case is summarized in the Defendant’s witness’ statement on oath. Mr. Ugwuchime testified that the Claimant’s employment was lawfully terminated by exhibit 12. He also stated that there were serious allegations of misconduct against the Claimant and that the Defendant followed the laid down procedure in investigating the allegations against the Claimant. He further stated that the Claimant’s employment was terminated because her services were no longer required and not on account of her alleged misconduct and concluded that the Defendant acted within its powers under Article 22 [a] and [d] of exhibit 4, the Employee Handbook. Under cross examination, the witness said “I did not make any attempt to find out what transpired at the Panel because the outcome of the Panel’s investigation had nothing to do with the reasons for the termination of the appointment of the Claimant.” The witness further stated that he did not know if the Claimant was paid the two weeks’ basic salary in lieu of notice as specified in exhibit 12.

SUBMISSION ON BEHALF OF THE DEFENDANT

At the close of trial, the Defendant filed its final written address wherein it raised two issues for determination, namely:

What is the nature of the relationship between the Claimant and the Defendant and as a corollary, what guides the relationship between the two [2] parties?

How was the employment of the Claimant determined, and as a corollary was the determination lawful?

On issue one, learned Counsel for the Defendant submitted that the relationship between the parties was that of a master-servant or employer-employee and that the relationship is governed by exhibits 1-1A and 4.

On issue two, learned Counsel submitted that paragraphs 1, 11, 12, 17a and 17c of the Claimant’s statement of facts and paragraphs 1, 11 and 12 of the written statement on oath are contradictory as the use of the terms dismissal and termination are irreconciliable regard being had to the legal definitions of the two terms. He submitted further that where an affidavit is self contradictory or contains inconsistent averments or an exhibit averred thereto is inconsistent with the averment in the body of the affidavit, same should be discountenanced and urged the Court to discountenance the claimant’s evidence on how her employment was determined. He referred to the cases of Duruaka v. Nwoke [2015] 28 WRN 106 at 113-114 and Ayinde v. Abiodun [1999] 8 NWLR [pt.616] 587 at 595. He submitted that the law is trite that in resolving the issue of how or why an employee’s employment was determined, it is the letter determining the employment that the Court must first resort to and referred to section 128 of the Evidence Act and Calabar Cement Co. Ltd. v. Daniel [1991] 4 NWLR [pt. 188] 750 at 760 -765. He therefore urged the Court to hold that the Claimant’s employment was terminated and that she was not dismissed as claimed. Learned Counsel submitted that the termination of the Claimant’s employment is lawful and referred the Court to Article 22 and 22d of exhibit 4 and urged the court to resolve issue two in the Defendant’s favour.

SUBMISSION ON BEHALF OF THE CLAIMANT

The Claimant’s written address is dated 30th November 2017 and filed on 5th December 2017. The Claimant raised one issue for determination namely, whether the Defendant complied with the terms of the Employee Handbook before terminating the appointment of the Claimant and what is the measure of award of damages for wrongful termination of employment?

Arguing the lone issue, learned Counsel to the Claimant submitted that the termination of the Claimant’s appointment did not comply with the provisions of Article 22[a] of exhibit 4. Continuing he argued that where it is shown that the Defendant complied with Article 22[a] of exhibit 4, the next thing is termination after which Article 22[b] of exhibit 4 would be activated and submitted that these stipulations were ignored by the Defendant. He submitted that “Assuming without conceding that the termination of the Claimant’s appointment is [sic] properly done, the Claimant is entitled to the payment of her salary up to date and other fringe benefits.” He referred to the case of Nigerian Maritime Administration and Safety Agency v. Stephen Odey [2014] 2 WRN 83 at 108 and Nigerian Telecommunications Ltd v. Awala [2001] 45 WRN 146. On measure of damages, learned Counsel referred to the case of Shell Petroleum Development Co. v. Olanrewaju [2008] 18 NWLR [pt. 1118] 1 and UBN Plc v. Chinyere [2010] 10 NWLR [pt. 1203] 453 and urged the Court to resolve the issue in favour of the Claimant.

DEFENDANT’S REPLY ON POINT OF LAW

By way of reply on points of law, learned Counsel to the Defendant submitted that the cases of Nigerian Maritime Administration and Safety Agency v. Stephen Odey [supra] and Nigerian Telecommunications Ltd v. Awala [supra] relied on by the Claimant do not apply to this case because the “ratio decidendi in these two cases is that where an employer dismisses or terminates the appointment of an employee on grounds of misconduct, then the employer must show that fair hearing was afforded the employee during the investigation of the alleged misconduct. But in the present case the appointment of the Claimant was not terminated on grounds of misconduct.” He submitted that the fact that an allegation of misconduct against the Claimant was being investigated did not fetter the Defendant’s right under Article 22 [a] and [d] of exhibit 4 to terminate the Claimant’s employment if her services were no longer required. Continuing, learned Counsel submitted that the oral testimony of the Claimant cannot override the wordings of exhibit 12, the termination letter. He submitted that “By simply stating that the Claimant’s services were no longer required without giving any reason why the said services were no longer required, the Defendant correctly in our humble opinion brought the termination under the first arm of Article 22[a] of exhibit 12.” Learned Counsel quoted extensively and relied on a judgment of my learned brother, Honourable Justice Anuwe, in the case of Francis Onyebuchi v. E. E. D. C & Anor, Suit no. NICN/OW/17/2016. He finally submitted that the Claimant is estopped from challenging the termination of her appointment after receiving her two weeks’ basic salary in lieu of notice.

COURT’S DECISION

I have read and understood the statement of facts, statement of defence and witness depositions filed by learned Counsel on either side and listened to the testimonies of the witnesses during cross examination and watched their demeanour. I have also read and carefully evaluated the 12 exhibits tendered and admitted in this case and the written addresses filed by both learned Counsel. Having done this, it is my considered opinion that the issue for determination in this case is whether the Claimant has proved her case on a balance of probability to be entitled to the reliefs sought or any of them. It is settled law that in civil cases, the burden of proof is on he who asserts same. See sections 131[1] and 132 of the Evidence Act 2011 and the cases of Ebute John Onogwu & 4Ors. v. Benue State Civil Service Commission & 3Ors. [2012] LPELR-8604 [CA] 1 at 26, Senator Chris Adighije v. Hon. Nkechi J. Nwaogu & Ors. [2010] LPELR-4941 [CA] 79-80 and Federal Mortgage Finance Ltd. v. Hope Offiong Ekpo [2003] LPELR-5627 [CA] 1 at 23-24, [2004] 2 NWLR [pt.856] 100. Thus, to succeed the Claimant must put forward cogent and credible evidence in support of the reliefs sought. In considering the merit of the Claimant’s case, I need to make certain clarifications.

Firstly, learned Counsel to the Defendant contended that paragraphs 1, 11, 12, 17a and 17c of the Claimant’s statement of facts and paragraphs 1, 11 and 12 of the written statement on oath are contradictory as the use of the terms dismissal and termination are irreconciliable regard being had to the legal definitions of the two terms. He therefore urged the Court to discountenance the claimant’s evidence on how her employment was determined. He referred to the cases of Duruaka v. Nwoke [supra], Ayinde v. Abiodun [supra] and James Onyejiawa Igbojimadu & Another v. Ezebunanwa Ibeabuchi & Ors. [1998] 1 NWLR [pt.533] 179 at 194. In the latter case, Uwaifo, JCA, [as he then was] held “In essence, as there was such variance, the legal position is that no evidence was led in support of the averment since the learned trial Judge had a duty to reject evidence that is at variance with the facts pleaded and hold the parties bound by their pleading.” In Prince Bolanle Oyeyemi Ayinde v. Alhaji Musa Oloyede Abiodun & 3 Ors, Mukhtar, JCA [as he then was] held “Once there are such grave contradictions in the evidence of a party his case invariably becomes weakened as the overall effect evidence is taken with a pinch of salt and is regarded as unreliable, and ought to be rejected.” What is the Claimant’s evidence that learned Counsel to the Defendant complained about? I will set out the paragraphs 1, 11 and 12 of the Claimant’s statement on oath.

“1. That I was an Assistant Manager, Special Purpose Customers (SPCU) with the defendant until 3rd day of September 2015 when the agents of the defendant orally dismissed me from work.

“11. That it is on the basis of the foregoing that my employment with the defendant was terminated on the 3rd day of September 2015. I tearfully signed that I have collected the Letter of Dismissal after which the defendant refused to issue me with the said letter and also refused to allow me to continue working.

“12. That after the termination of my employment with the defendant, a Panel Review was held on 18th day of September 2015 and I, who had already been dismissed, was called up to come and defend myself which I also did.”

I agree with learned Counsel to the Defendant that the Claimant used the words “termination” and “dismissal” interchangeably. However, this did not amount to a contradiction in the evidence put forward by the Claimant as to make it unreliable. The Claimant’s evidence is consistent with her pleading and clearly expresses her understanding of what transpired. Literally the word “dismissal” means removal of someone from her job; while “termination” means to bring something to an end. I am of the firm view that the Claimant used both words in this light without regard to the legal meaning ascribed to them. The authorities relied on by learned Counsel are inapplicable to this case. I therefore find and hold that there is no material contradiction in the evidence put forward by the Claimant.

Learned Counsel to the Defendant also argued that the Claimant is estopped from challenging the termination of her appointment after receiving her two weeks’ basic salary in lieu of notice. The Claimant admitted under cross examination that she received the two weeks’ basic salary in lieu of notice after commencement of this suit. It is curious that neither of the parties pleaded this fact. This fact was extracted under cross examination. The law is trite that evidence extracted during cross examination which has not been pleaded by either of the parties goes to no issue. See the cases of Afolarin Adenle v. Folarin Olude [2002] LPELR-129 [SC] 1 at 19 [[2002] 9-10 SC 124] and Dr. George Nyong Ikpe Udofia v. Akwa Ibom State Civil Service Commission & Ors. [2011] LPELR-4055 [CA] 1 at 8. This fact having not been pleaded goes to no issue and is hereby discountenanced together with the written submissions on it. I so find and hold.

Be that as it may, the law is fairly settled that where a contract of service gives a party a right of termination of the contract either by giving notice or payment of salary in lieu of notice and the latter course is chosen, the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice at the time of termination of the contract. It is not enough that in the letter of termination he offers to pay salary in lieu of notice. See the case of Ben O. Chukwumah v. Shell Petroleum Development Company of Nigeria Limited [1993] 4 NWLR [pt. 289] 512, [1993] LPELR-864 [SC] 1 at 28. It is in evidence that the Claimant’s employment was terminated on 3rd September 2015. Exhibit 12 was not given to the Claimant on that day and the payment in lieu of notice was not made contemporaneously with the termination of her employment. This vitiates exhibit 12 and renders the termination wrongful. I find and hold that receipt of the two weeks’ basic salary in lieu of notice after commencement of this action does not create an estoppel against the Claimant.

This leads me to a consideration of the Claimant’s claims in this suit. The first relief sought by the Claimant is for an order mandating the Defendant to reinstate her as the Assistant Manager, Special Purpose Customers [SPCU] since her dismissal is unlawful, vexatious and in bad faith. In proof of the allegation that her dismissal is unlawful, vexatious and in bad faith, the Claimant led evidence of facts leading to her termination. See paragraphs 4 to 12 of her written deposition and exhibits 3-3C, 5-5B, 6-6E and 7, 8-8i. The Defendant contested these facts and stated that the termination of the Claimant’s employment was in line with exhibit 4, the Defendant’s Employee Handbook, particularly Article 22[a] and [d]. See paragraph 2 of the Defendant’s witness’ deposition. Under cross examination, the Defendant’s witness said: “I did not make any attempt to find out what transpired at the Panel because the outcome of the Panel’s investigation had nothing whatsoever to do with the reasons for the termination of the appointment of the Claimant.” He also could not state the procedure adopted by the Panel. I watched the demeanour of this witness and observe that he was not coherent, and certainly, not a witness of truth. I believe the testimony of the Claimant that the Panel set up by the Defendant to investigate allegations against her breached the procedure outlined in Article 22 [a] of exhibit 4 and as a result the Claimant was not given a fair hearing. I so find and hold.

However, the Defendant’s case is that the Claimant’s employment was not terminated on account of the allegation against her but for the reason that her services were no longer required. See paragraph 2 iv and vi of the Defendant’s witness’ statement on oath. Learned Counsel to the Defendant argued extensively on this point in paragraphs 3.07 and 3.08 of his final written address and paragraphs 3.2, 3.3 and 3.4 of his reply on points of law. He submitted that the fact that an allegation of misconduct against the Claimant was being investigated did not fetter the Defendant’s right under Article 22[a] and [d] of exhibit 4 to terminate the Claimant’s employment if her services were no longer required. Continuing, learned Counsel submitted that the oral testimony of the Claimant cannot override the wordings of exhibit 12, the termination letter. He submitted that “By simply stating that the Claimant’s services were no longer required without giving any reason why the said services were no longer required, the Defendant correctly in our humble opinion brought the termination under the first arm of Article 22[a] of exhibit 12.” Learned Counsel relied on a judgment of this Court, per Honourable Justice Anuwe, in the case of Francis Onyebuchi v. E. E. D. C & Anor, Suit no. NICN/OW/17/2016 and urged the Court to hold that exhibit 12 complies with Article 22[a] and [d] of exhibit 4. This makes a review of exhibit 12 and Article 22[a] and [d] of exhibit 4 necessary. Exhibit 12 reads:

“Memorandum

Date: 3^rd September, 2015

From: Managing Director/CEO To: Nwodo Amaka Patience

Corporate Headquarters, Enugu AM (Special Customer)

Staff No.: 41743

Ufs: SM (RCS), Orlu District

Ref: CHQ/EEDC/AGM (HR)/2015/20.2/2479

TERMINATION OF APPOINTMENT

This is to inform you that your services with Enugu Electricity Distribution Company (EEDC) are no longer required.

Consequently, your appointment is hereby terminated with immediate effect in line with Article 22(a) of EEDC’s Employee Handbook.

As a result you have ceased to enjoy all the rights and privileges applicable to members of staff of this company.

You should therefore surrender all company’s property in your possession to the SM (HR), Imo State Office or his designate before your exit.

You will receive two weeks basic salary in lieu of notice.

You should acknowledge receipt of this letter of termination of by signing the attached copy.

Sgd.

ROBERT DICKERMAN

MANAGING DIRECTOR/CEO

Acknowledgement:

I hereby acknowledge the above termination of appointment letter:

Name:…Nwodo P. A…………………………….Designation:……AM (SPCU)..…………………..

Signature:……………………………..Date:…09/09/15………Staff No:…41743….……………..”

The Claimant in paragraph 11 of her statement on oath and under cross examination maintained that she signed for exhibit 12 but it was not given to her. This piece of evidence was not controverted in any way and the Defendant did not lead evidence [beyond the signature of the Claimant on exhibit 12] to show that she actually collected it. See the case of First Bank of Nigeria Plc v. S.M.P. Akiri [2013] LPELR-21966[CA] pages 23-24.

“Article 22: TERMINATION OF EMPLOYMENT

“[a] The Company guarantees security of tenure of service to all her employees. However, the Company reserves the right to terminate the appointment of an employee without assigning any reasons, if, in Management’s opinion, the continued employment of the employee[s] is detrimental to the interest of the Company.

“The following misconducts shall attract termination of employment:

Flagrant disregard for the contents of this Handbook
Refusal to obey reasonable instruction
Drunkenness
Sleeping on duty
Smoking in prohibited areas
Dereliction of duty
Unauthorised possession of Company product/property
Engagement in union activities without due and appropriate authorization
Poor performance
Failure to accept/respond to query

Where misconduct may lead to loss of employment, the disciplinary process shall be as follows:

Query
Response to query within 48 hours

Constitution of disciplinary panel

Review of panel report
Implementation of panel report”

It is not in dispute that the Defendant is entitled to terminate the employment of the Claimant on the ground that her services were no longer required under Article 22[d] of exhibit 4. However, there is no mention of Article 22[d] in exhibit 12. If exhibit 12 had stopped after the first paragraph that would have been the end of the matter; but it did not end there. Paragraph 2 contains the following sentence: “Consequently, your appointment is hereby terminated with immediate effect in line with Article 22(a) of EEDC’s Employee Handbook.” The law is now settled that it is within the right of an employer to terminate the services of the employee, but where conditions for such termination are terms of the contract of service, such conditions must be satisfied. See the cases of Ben O. Chukwumah v. Shell Petroleum Development Company of Nigeria Limited [supra] and Mrs. C.O.A. Fakuade v. Obafemi Awolowo University Teaching Hospital Complex Management Board [1993] LPELR-1233[SC] at pages 14-15.

Learned Counsel to the Defendant laboured unsuccessfully to persuade this Court to hold that the termination is under the first sentence of Article 22[a]. It is my considered view that this Court should reject this invitation. In the words of learned Counsel, “Indicative of the soundness of this conclusion is the use of the word ‘consequently’ in the second line of exhibit 12.” I respectfully do not agree with learned Counsel. Article 22[a] is different from Article 22[d]. Article 22[d] is a proviso to Article 22[a], [b] and [c] and qualifies the stipulations therein. Article 22[a] empowers the Defendant to terminate the Claimant’s employment without assigning any reasons if, in Management’s opinion, the continued employment of the Claimant will be detrimental to the interest of the Defendant. It then goes on to list misconduct which will attract termination and procedure to be followed in the event of termination. Exhibit 12, therefore, could not have been made pursuant to Article 22[d] by any stretch of imagination. Parties are deemed to mean what they have written. See the case of Kenneth Ojo v. ABT Associates Incorporated & Another [2014] LPELR-22860[CA] at pages 30-31. This becomes necessary when regard is had to the fact that both parties pleaded and gave evidence of the proceeding of the Audit Panel. Perhaps, the intention of the Defendant was to terminate the Claimant’s employment pursuant to Article 22[d] of exhibit 4, it did so unsuccessfully. Exhibit 12 is self contradictory, and it is not within the province of this Court to imply into exhibit 12 what is not manifest on the face of the document. This is reinforced by the unchallenged testimony of the Claimant in paragraph 11 of her written deposition that exhibit 12 was not given to her after she was made to sign it. In paragraph 12 of the Claimant’s statement on oath she testified that, “after termination of my employment with the Defendant, [emphasis supplied] a Panel Review was held on 18th September 2015 and I, who had already been dismissed, was called up to come and defend myself which I also did.” This piece of evidence was not challenged and gives credence to her denial of receipt of exhibit 12. The question is, why would the Defendant invite the Claimant to face a fresh disciplinary panel if her employment was terminated on 3rd September 2015 and she collected her letter of termination on 9th September 2015? While I agree with learned Counsel to the Defendant that oral evidence cannot vary a written document, it is my firm view that where there are surrounding circumstances which cast doubts on the integrity of a document, in this case exhibit 12, the Court can and should admit oral evidence to explain it. See the case of Hon. Ogbonna Asogwa v. Peoples Democratic Party & Ors. [2012] LPELR-8575[CA] at page 19, per Eko, JCA, held “When documents ex facie are violently contradictory it may be necessary for the makers to be called to explain how they each came to the making of the contents of their respective documents. This may be an exception to the rule that oral evidence cannot vary the contents of a document.” This throws up another question. Does the mere signing of the acknowledgment of receipt column of exhibit 12 without evidence that it was actually given to her create an estoppel against the Claimant? I think not! In First Bank of Nigeria Plc v. S.M.P. Akiri [2013] LPELR-21966[CA] at page 23, it was held that the issue as to whether a document is received or not is purely an issue of fact to be proved by evidence. In law, the burden of proving the existence of the material issue in controversy is on the party who will lose if no evidence is adduced. See section 136[1] of the Evidence Act. To my mind, this is a clear case of unfair labour practice and must be deprecated.

It is a well established canon of statutory interpretation that in order to fully appreciate and understand the intention of the parties, the document should be read as a whole and not disjunctively or in isolation. See the cases of Calabar Cement Co. Ltd. v. Abiodun Daniel [1991] 4 NWLR [pt.188] 750 at 761. In B.F.I. Group v. Bureau of Public Enterprises [2007] LPELR-8998 [CA] at pages 28-29, per Peter-Odili, JCA [as he then was] held “In the construction of a contract, the meaning to be placed on it is that which is plain, clear and obvious result of the terms used. A contract or document is to be construed in its ordinary meaning as question of fact where the language of a contract is not only plain but admits of one meaning, the task of interpretation is negligible. The words are to be construed according to the ordinary meaning. When construing documents in dispute between two parties, the proper course is to discover the intention or contemplation of the parties and not to import into the contract ideas not patent on the face of documents. Where the contract is reduced into writing, the terms of such contract are to be deduced from the written agreement.” Also, in Incorporated Trustees of Nigerian Baptist Convention & 12 Ors. v. Governor of Ogun State & 3Ors. [2016] LPELR-41134[CA] at pages 19-20, Tsammani, JCA, held “Now, the general principle of law is that, parties are bound by their agreements. Accordingly, the proper purpose of interpretation of such documents evidencing the agreement[s] of the parties, is to discover the intention of the parties and not to ascribe to the parties what they have not intended by that document. The Court saddled with the duty of construing that document in order to discover the intention of the parties should restrict itself to the words used in the document. In that respect, words or ideas not intended by the parties should not be imported into the document that are not patent on its face, see Obikoya v. Wema Bank Ltd (1991) 7 NWLR (pt. 201) p.119 at 130; and Amizu v. Nzeribe (1989) 4 NWLR (pt.118) p.755. This is so because, the parties to the agreement are presumed to intend what they have in fact written down, and therefore, the words written down by them should be given their ordinary and plain meaning, unless circumstances show or dictate that a particular construction ought to be applied in order to give effect to that particular intention envisaged by the parties.”

Applying these decisions to this case, it is my respectful view that exhibit 12 was not issued pursuant to Article 22[d] or the first part of Article 22[a] of exhibit 4. I find and hold that it was issued pursuant to Article 22[a] and did not comply with the procedure for termination of employment specified in Article 22[a] of exhibit 4. Also, although exhibit 12 is dated 3rd September 2015, it was presented to the Claimant for signature on 9th September 2015, six days after her termination. Learned Counsel to the Defendant urged the case of Francis Onyebuchi v. E. E. D. C & Anor, Suit no. NICN/OW/17/2016 on this Court but did not furnish the Court with a copy of the judgment. Much as the decision is of persuasive authority, I humbly beg to defer from the conclusions of my learned brother. The Court in that case did not interpret the provision of Article 22[a] vis-à-vis the letter of termination. It is my respectful view that the duty placed on the Court not to go outside the letter of termination to discover the reason for the termination carries with it an equal responsibility not to exclude from the letter of termination what was expressly written therein. Consequently, I find and hold that the termination of the Claimant’s employment was wrongful.

What does this finding entail? In Mobil Producing [Nig.] Unltd & Another v. Udo Tom Udo [2008] 36 WRN 53 at 102, it was held that a servant is generally entitled to damages in the sum of the period of notice. In Gabriel Ativie v. Kabelmetal Nig. Limited [2008] 5-6 SC [pt.11] 47, [2008] LPELR-591[SC] at pages 13-14, Tabai, JSC, held that “It has been settled in a long line of authorities that in cases of ordinary contract of employment where the terms provide for a specific period of notice before termination or salary in lieu thereof, the only remedy available to an employee who is wrongfully terminated is the award of salary for the period of notice and other legitimate entitlements due to him at the time the employment was brought to an end. He gets no more.” See also the case of Patrick Ziideeh v. Rivers State Civil Service Commission [2007] 1-2 SC 1, [2007] LPELR-3544[SC] at pages 27-28, Calabar Cement Co. Ltd. v. Abiodun Daniel [supra] at page 759 and Johnson Omale v. University of Agriculture Makurdi & 2 Ors. [2011] LPELR-4366[CA] at page 25. The Claimant is only entitled to her salary for the period of notice specified in her employment contract and not an order for re-instatement. See the cases of Johnson Omale v. University of Agriculture Makurdi & 2 Ors. [supra] and Afribank [Nigeria] Plc v. Kunle Osisanya [1999] LPELR-5206[CA] 29-30. It is an established fact that the Claimant was paid her two weeks’ basic salary in lieu of notice after commencement of this suit. As the law frowns against double compensation, she is not entitled to any additional payment in lieu of notice. Also, she is not entitled to an order for re-instatement. Consequently, relief one fails and is hereby dismissed.

In relief two, the Claimant seeks an order mandating the Defendant to pay the Claimant the sum of two hundred and forty five thousand, one hundred and eight thousand naira, thirty three kobo per month starting on September 2015 till date being and representing arrears of her monthly salary and/or any other lawful entitlement of the Defendant [sic] in form of allowances and other fringe benefits. There is no iota of evidence to substantiate this claim. I have carefully read through the statement of facts and Claimant’s statement on oath and did not find any evidence of the Claimant’s monthly salary. Exhibit 1-1A is of little assistance. It is trite law that in an action for wrongful termination of employment, claims for salaries and other entitlements are in the nature of special damages which must be specifically pleaded and strictly proved. See the case of Nigerian Telecommunications Ltd. v. Emmanuel Oshodin [1999] 8 NWLR [pt. 616] 528 at 542. See also the case of MV Courageous Ace & 2Ors. v. Nigerdock Nigeria Plc [2016] LPELR-40223[CA] at pages 20-21, where the Court of Appeal, per Oseji, JCA, held “It is an established principle of law that documentary evidence cannot serve any useful purpose in a trial where there is no oral evidence led by any of the parties to explain their essence in the suit. The court cannot be drawn into the arena of litigation to explain the use or relevance of documents dumped on it.” Consequently, relief two fails also and is hereby dismissed.

In relief 3, the Claimant seeks an order mandating the Defendant to pay the Claimant the sum of ten million naira being general damages for the traumatic experience and the hardship which the Claimant was subjected to as a result of the unlawful dismissal from her employment. In Mobil Producing [Nig.] Unltd & Another v. Udo Tom Udo [2008] 36 WRN 53 at 102, it was held that “Damages means the sum of money which a person wronged is entitled to recover from the wrong doer as compensation for the wrong…. The award of damages is a matter for the trial Court and this court would not ordinarily interfere with it. The quantum of damages recoverable by a party for wrongful termination of his employment will largely depend on whether the wrongful termination of employment was a result of the failure to give the required notice or as a result of an alleged malpractice. If the wrongful termination is as a result of the former, the quantum of damages recoverable may be the employee’s salary for the period of the required notice. But if it is due to the latter, then such a determination carries with it some stigma on the character of the employee for which he shall be entitled to substantial damages far beyond his salary for the period of the requisite notice.” In view of the finding that the Claimant was paid her two weeks’ basic salary in lieu of notice, the award of general damages will amount to double compensation. The claim for general damages is refused and accordingly dismissed.