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National Industrial Court

Theresa Chinyere Ozoh -VS Enugu State University of Science &

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

Date: 7thDecember 2018                  SUIT NO. NICN/EN/210/2013

 

BETWEEN

 

THERESA CHINYERE OZOH                                …     CLAIMANT

 

AND

 

  1. ESUT BUSINESS SCHOOL               ]
  2. THE REGISTERED TRUSTEES          ]

ESUT BUSINESS SCHOOL               ]

  1. CHIEF [DR.] CHRIS I. EZEH            ]        …      DEFENDANTS
  2. TITUS OKEY ENUDU                        ]       
  3. NGOZI EJIONUEME                         ]

 

REPRESENTATION:

 

Sunday Chris Ugwuchime Esq. with ChimaobiOjeh Esq. for the Claimant

Peter Eneje Esq. for the Defendants

 

JUDGMENT

 

  1. This suit was commenced by a Complaint on 28th August 2013.By her second amended statement of facts dated and filed on 25th September 2018, the Claimant claimed against the Defendantsjointly and severally for:

 

  1. A declaration that the purported dismissal of the Claimant from the service of the 1st Defendant by the 4th Defendant via a letter dated November 15, 2012 is wrongful, illegal, null and void and of no effect whatsoever.

 

  1. A declaration that therefusal of the Defendants to pay the Claimant’s salary March 2010, April 2010 and May 2010 [full salary]; July 2012, August 2012, September 2012, October 2012 [half salary] and November 2012 [full salary], allowances, other benefits and expenses incurred in the cause of her work as a staff of the 1st Defendant on the basis of the memos dated 1-02-02 [instead of 1/02/2010], 13th February 2012, 09/12/2011 and 23rd July 2012 is unlawful.

 

  1. An order of Court directing the 1st to 4th Defendants to pay the Claimant her expenses, salaries, allowances and other benefits she was entitled to prior to her dismissal on November 15, 2012.

 

  1. An order of Court directing the 1st to 4th Defendants to pay the Claimant her expenses, salaries, allowances and other benefits she was entitled to from December 2012 until the 2nd Defendant lawfully terminates her services.

 

  1. An order of perpetual injunction restraining the 1st to 4th Defendants either by themselves, their officers, agents, privies or servants or through any person[s] whatsoever from giving effect to the letter of dismissal dated November 15, 2012 or further treating the Claimant as a dismissed staff of the 1st Defendant or disturbing her in any way whatsoever from carrying out her duties as a staff of the 1st Defendant.

 

  1. In the alternative to [c], [d] and [e] above, the sum of N150, 000,000 [one hundred and fifty million naira] being special and general damages for the Claimant’s wrongful dismissal from the service of the 1st Defendant.

 

Particulars of special damages

 

[i]      N152, 078.61 representing March 2010, April 2010 and May 2010

full salary at N50, 692.87 per month.

 

[ii]     N162, 413.32 representing more than half salary for 4 months:           [N39, 103.33 for July 2012; N39, 103.33 for August 2012; N43,

603.33 for September 2012; N40, 603.33 for October 2012].

 

[iii]    N75, 967.42 representing November 2012 full salary.

 

Other entitlements denied the Claimant

 

[i]      N55, 410.36 representing January 2011 to December 2011 annual salary increment at N4, 617.53 per month.

 

[ii]     N31, 581.06 representing 2012 leave allowance.

 

[iii]    N31, 581.06 representing 2012 end of year bonus [otherwise known as 13th month].

 

[iv]    N45, 000 representing money due to the Claimant from the money collected from students for project binding for 2009/2010, 2010/2011 and 2011/2012 sessions at N15, 000 per session.

 

[v]     N60, 000 representing money for tea items for 30 months from June 2010 to November 2012 at N2, 000 per month.

Expenses

 

[i]      N20, 000 representing transportation fares the Claimant incurred during the marketing of the Short-Term Courses organized by the Corporate Development and Training Department from 2010 to 2012.

 

[ii]     N7, 200 representing payment for advertisement of jingles for the Short-Term Courses in the Corporate Development and Training Department.

 

  1. The Claimant filed with the General Form of Complaint a statement of facts, affidavit of verification, list of witnesses, statement on oath of her witnesses, notice to produce, list of documents and copies of the documents. Upon receipt of the originating processes the Defendants, through their Solicitor, Kenneth Okpe Esq., entered an appearance andby leave of Court granted on 26th November 2013regularized the filing ofthe defence processes of the 2nd to 6th Defendantsout of time. The Claimant filed her reply to the 2nd– 6th Defendants’ statement of defence and notice to produce listed documents on 3rd December 2013. Trial commenced before my learned brother on 11th June 2014. By leave granted on 4th November 2014, the Claimant amended her statement of facts and filed her statement on oath, list of documents and copies of the documents.  The 2nd – 6th Defendants filed their amended statement of defence andsworn statement of Mrs. Constance Eneye on 12th November 2014. Trial continued on 18th May 2017 and the Claimant was cross-examined. The case started de novo before this Court on 8th March 2018. By leave of Court granted on 4th May 2018, the Claimant filed her second amended statement of facts,statement on oath, list of documents and copies of the documents.By order of Court made on 11th July 2018, the 1st Defendant, Enugu State University of Science & Technology, was struck off the records as a party to the suit. By a further order of Court made on 24th October 2018, the 2nd to 6th Defendants [now the Defendants] amended their statement of defence and filed the sworn statement of Mrs. Constance Eneye. Trial commenced on 7th June 2018 and was concluded on 24th October 2018. The Claimant adopted her statement on oath dated 10th May 2018 as her evidence in the suit and tendered 47 exhibits marked exhibits 1 to 47 and was cross-examined. The Defendants’ witness, Mrs. Constance Eneye, also adopted her statement on oath dated 23rdOctober 2018 as her evidence in defence of the suit and was cross-examined. The case was thereafter adjourned for adoption of final written addresses. On 16th November 2018, learned Counsel for the Defendants, Mr.Eneje, adopted the Defendants’ final written address dated and filed on 5thNovember 2018 as his arguments in support of the defence. He argued that the summary of the Defendants’ defence is that the Claimant was dismissed on the basis of her letter of employment, and she has not proved in any way how her dismissal was wrongful, null and void and of no effect. It was also argued that the Claimant failed to prove, on the basis of her letter of employment, how she became entitled to the various reliefs sought in her claim and urged the Court to dismiss the claim as vexatious, frivolous and lacking in merit. Learned Counsel to the Claimant, Mr. Ugwuchime, also adopted the Claimant’s final written address dated and filed on 8th November 2018. By way of adumbration, he submitted that the Claimant’s employment is one of master and servant and the terms and conditions of employment are contained in exhibit 1 [exhibit 3 in the Court’s records]. He contended that by exhibit 40 the reason for the Claimant’s dismissal is that her service was no longer required not that she was found guilty of any misconduct or incompetence in the performance of her duties. It was also argued that exhibit 22 is a response to exhibit 30 and not the report of the disciplinary committee. On the issue of the Claimant’s entitlements as employee of the 1st Defendant, he referred to exhibit 23 on 3 months maternity leave, exhibits 2 – 2G on monthly report of collection of tea items and exhibits 24 [exhibit 25 in the Court’s records] and 11 on 13th month salary. The matter was consequently set down for judgment.

 

COURT’S DECISION

 

  1. I have considered the processes filed in this suit and submissions of learned Counsel for the parties. The Claimant’s case is that she was employed by the 1st Defendant on 1stMay 1999 as Programme Secretary at the Institute for Entrepreneurial Studies on a consolidated salary of N62, 400 per annum, exhibit 3. On 15th January 2002, she was redeployed to the 1st Defendant’s Okpara Avenue, Enugu office which redeployment was confirmed by letter dated 9th April 2002, exhibits 4 and 5. On 1st November 2007, she was appointed the Programme Network Officer with responsibility for contacting lecturers and resource persons and supervising the Bookshop amongst others, exhibit 6. She was subsequently promoted to Programme Officer 11 by letter dated 11th January 2008 effective 1st October 2007 on a consolidated monthly salary of N47, 850.09, exhibit 46.By the Claimant’s account, herproblem with the Defendants, particularly the 5th Defendant, began in February 2009 when an Auditor was sent to audit the Bookshop and requested for receipt booklets, sales records and project binding records which she handed over to him. The Auditor observed that the 5th Defendant collected a total sum of N383,830.00 from the Claimant and directed the Claimant to pay the cash in her custody into the 1st Defendant’s account, which she complied, exhibits 12 and 35. The 5th Defendant was displeased and this strained her relationship with the Claimant resulting in issuance of queries dated 7th May 2009, 16th July 2009, 26th January 2010 and suspension on 1st February 2010 and 23rd July 2012 and eventual dismissal, exhibits 7, 9, 15, 17,34 and 40 respectively.The Defendants’ case is that the 4th and 5th Defendants were never indicted for financial impropriety in the discharge of their duties, but performed their duties satisfactorily resulting in the renewal of the tenure of the 5th Defendant and subsequent elevation of the 4th Defendant to the post of Director of Studies. It is also the Defendants’ case that the 5th Defendant as Director of Studies had powers to discipline erring staff of the 1st Defendant including power to serve queries and it was not her duty to distribute money collected from students for binding projects or share tea items; and the Claimant was not denied her share of the money. The 5th Defendant also denied abusing or maltreating the Claimant or threatening her with dismissal. The Defendants denied rejecting the Claimant’sapplication for maternity leave but admitted the non-payment of her April 2010 salary and the five months’ deductions from her salary, exhibit 22. It is also the Defendantscase that the Claimant did not qualify for bonus or salary increment because she did not sell any form within the period under consideration and a Committee was set up to investigate her claims on sale of forms.By exhibit 31 the Claimant was invited to appear before the Committee on 10th February 2012 but she declined citing bias. The Committee investigated the claim and found it to be false, and in its report, exhibit 22, directed her to apologise and retracther claim but she refused, exhibit 33. The Claimant was suspended for three months, exhibit 34,and told to apologise and retract her claim on sale of forms but she again refused resulting in her dismissal.

 

  1. The Defendants raised two issues for determination, to wit: whether the dismissal is in accordance with the terms and conditions of the contract of employment between the parties? Issue two is whether the Claimant is entitled to any claim on unpaid salaries, allowances, bonuses and other entitlements as a Programme Officer II with the 1st Defendant? On issue one, learned Counsel explained that the onus is on the Claimant alleging wrongful dismissal or termination of employment to establish it and referred to Union Bank of Nigeria Plc v. Samuel Chinyere [2010] 10 NWLR [pt. 1203] 453. He argued that the Claimant failed to plead and lead evidence in support of any details about her employment and failed to point at any condition of service, statute, public service rules or regulations breached as a result of the action taken against her and referred to Emmanuel Okeme v. Civil Service Commission Edo State &Ors. [2000] 14 NWLR [pt. 688] 430 and Texaco Nigeria Plc v. Alfred Adegbile Kehinde [2001] 6 NWLR [pt.708] 224.He explained that by exhibit 1 [exhibit 3] the Claimant can be dismissed for gross misconduct which was defined in EtimOkon Ante v. University of Calabar & Anor. [2001] 3 NWLR [pt.700] 239 at 258 as a conduct of grave and weighty character as to undermine the confidence which exists between the employee and his employer or working against the deep interest of the employer. He stated that the Claimant’s misconduct was pleaded by the parties and that in paragraphs 11 to 17 the Claimant made allegations of financial impropriety against the 4th and 5th Defendants which was not her duty. Learned Counsel for the Defendants referred to exhibits 7, 8, 9 and 10 and argued that the exhibits speak for themselves and qualify as conduct of grave and weighty character as to undermine the confidence which exist between the employee and employer.It was submitted that for a just and effectual determination of this case, the Court should first determine the category of the contract of employment between the parties. He posited that the Claimant’s employment was one of ordinary contract of employment regulated by the contract of the parties. Referring to Samson Babatunde Olarewaju v. Afribank Nigeria Plc [2001] 13 NWLR [pt.731] 691 at 705, he submitted that under this class of employment there cannot be specific performance and the master has power to terminate the contract with his servants at anytime and for any reason or for none.Learned Counsel highlighted some of the exhibits and submitted that the Claimant did not discharge the onus on her to show that her dismissal was wrongful, illegal, null and void and of no effect whatsoever. On issue two, it was contended that the Claimant did not establishthat her claim for unpaid salaries, allowances, bonuses, money collected from students for binding projects and monthly tea items formed part of her contract of service and referred to New Nigeria Bank Plc & Anor. v. Osoh& 40Ors. [2001] 13 NWLR [pt. 729] 232. He argued that the claims for arrears of salaries and out of pocket expenses are unfounded and referred to exhibits 22 and 29. It was submitted that based on the queries and answers and the letter of invitation, exhibit 31, the Defendants fulfilled the conditions required for fair hearing and rightfully dismissed the Claimant.

 

  1. The Claimant raised one issue for determination:whether the Claimant has established her case on balance of probabilities to entitle her to the reliefs sought? Learned Counsel for the Claimant submitted that the onus is on the party alleging wrongful dismissal or termination of employment to prove same by relying on the contract of employment and the notice of termination and referred to Calabar Cement Co. Ltd v. Abiodun Daniel [1991] 4 NWLR [pt.188] 750 at 760. He explained that in the instant case, the Claimant relied on her letter of employment and letter of dismissal from service, exhibits 1 and 40 to state that her job was wrongly terminated by the 4th defendant as the terms and conditions of her employment were not complied with. It was contended that the Claimant was entitled to one month’s notice of termination of her employment or one month’s salary in lieu of the notice and that this evidence was not contradicted by the defenceand relied onFiicharles Organ &Ors. v. Nigeria Liquefied Natural Gas Ltd. & Anor. [2016] 8 ACELR 35 at 52 where the Court held that where a contract of employment provides conditions for termination of an employment, the conditions must be strictly observed failing which the termination will be unlawful. He argued that by exhibit 1 [exhibit 3 in the records],the 1st and 2nd Defendants can summarily dismiss the Claimant from service if she is guilty of gross misconduct or incompetence in the discharge of her duties. He explained that on the basis of exhibit 1 the Defendants argued that the Claimant was lawfully dismissed for gross misconduct. Contrariwise, he explained that exhibit 40 expressly stipulates that the service of the Claimant was no longer required and any contrary oral reason cannot be given, adduced or implied by the Defendants and referred to Section 128[1] of the Evidence Act, 2011. He submitted that the law is that a letter of dismissal must state the reason otherwise it will amount to wrongful dismissal and may be actionable in defamation and referred to Abomeli v. NRC [1995] 1 NWLR [pt.37] 451.On the issue of non-payment of the Claimant’s March 2010 full salary on the strength of exhibit 17, April 2010 and May 2010 full salaries on the strength of exhibit 22; July 2012, August 2012, September 2012 and October 2012 more than half of her monthly salary on the strength of exhibits 22 and 34; it was argued that the Claimant did not and could not have engaged in the alleged physical confrontation as she was 7 months pregnant and referred to paragraph 32 of her statement on oath and exhibits 16, 18 and 20, which evidence was not challenged by the Defendants. It was submitted that there was no basis for the suspension as labour relations law and practice requires that the statement of any of the staff who witnessed the alleged ‘physical confrontation’ will be relevant as the 5th Defendant herself did not witness same and urged the Court to declare the Claimant’s suspension and non-payment of March 2010 full salary unlawful.

 

  1. The Claimant explained that the reason given by the Defendants for non-payment of her April 2010 and May 2010 salaries was that she did not tender a letter of apology on resumption of duty after suspension, exhibit 17; but that she did, exhibit 19 and when the 5th Defendant rejected exhibit 19 she sent exhibit 21. It was submitted that exhibit 19 complied with the directives in exhibit 17 and that the action of the 5th Defendant was vindictive and urged the Court to declare the non-payment of the Claimant’s April 2010 and May 2010 salaries by the Defendants unlawful. It was contended that from exhibits 29, 22 and 34 the 2011 salary increment for the 1st Defendant’s staff was based on admission forms sold for 2010/2011 session; and the 5th Defendant had resolved that the Claimant made false claims on sale of forms even before she set up the committee to evaluate the Claimant’s claims. Learned Counsel submitted that the 3 months’ suspension videexhibit 34and the payment of less than half of the Claimant’s salary for July 2012, August 2012, September 2012 and October 2012 by the Defendants was unlawful as there was no basis for the suspension and urged the Court to so hold. It was also submitted that having worked in November 2012 the Claimant was entitled to full salary and urge the court to declare the non-payment unlawful. The Claimant also explained the basis of her claim for 2011 salary increment, 2012 leave allowance, end of year bonus, monthly tea items and project binding money and submitted that she is entitled to these benefits. It was further submitted that the Claimant is seeking, in the alternative to reliefs c, d and e the sum of N150, 000,000.00 damages for wrongful termination of her employment and relied on Mobil Producing [Nig.] Unlimited & Anor. v. Udo Tom Udo [2008] 36 WRN 53 at 102. On cost, it was submitted that costs follow event and in assessing and awarding cost, the Court must act judicially and judiciously and referred to Joseph DamengMundun&Ors. v. Moday Hassan [2013] LPELR-20774 and Order 55 Rules 1, 2, 4 and 5 of the National Industrial Court [Civil Procedure] Rules 2017.

 

  1. In my respectful view, the issue for determination formulated by the Claimant is apposite and I adopt it. It is settled law that the burden of proof is on the Claimant who alleges wrongful dismissal or termination of her employment and she discharges this by setting out the terms and conditions of her contract of service and the manner in which it was breached. See sections 131[1] and 133[1] of the Evidence Act 2011 and Patrick Ziideeh v. Rivers State Civil Service Commission [2016] 9 ACELR 22 at 31. It is also the law that the Claimant who seeks declaratory reliefs has the burden of establishing her entitlement to the relief. See Diamond Bank Plc v. Alhaji Usman Yahaya & Anor. [2011] LPELR-4036[CA] at page 27. It must be noted, however, that the standard of proof is still on a balance of probabilities. The Claimant is only required to show that the law and facts of her case support her claim and cannot rely on the mere admission of the Defendants or absence of defence. See Dr. Kenneth Ojo v. ABT Associates Incorporated & Anor. [2014] LPELR-22860[CA] at page 25. I have reviewed the pleadings, depositions of witnesses and the exhibits. The Claimant tendered her employment and promotion letters, exhibits 3 and 46, and dismissal letter, exhibit 40. The Claimant also pleaded facts and tendered documents, exhibits 2, 23, 24, 30, 38 and 39, which show the course of dealing between her and the Defendants.The Claimant’s evidence in support of her claim for wrongful dismissal or termination can be gleaned from paragraphs 12 to 26, 31 to 37, 51 to 61, 65 to 70 of her statement on oath dated 10th May 2018.Exhibit 3 sets out the terms and conditions of her employment and exhibit 40 is the dismissal letter. Paragraphs 65 to 70 of the Claimant’s statement on oath detail the manner in which her dismissal breached the terms of her employment. Accordingly, I find and hold that the Claimant, contrary to the submission of learned Counsel for the Defendants in paragraph 3.2 page 6 of their final written address, has discharged the legal and evidential burden thrust on her. The next question is was the Claimant’s dismissal in accordance with her terms of employment? Parties are agreed that the relationship between the Claimant and the 1st and 2nd Defendants is one of master and servant regulated by exhibit 3. Being the foundation of the contract, it is reproduced below.

 

 

 

The state of our law, as ably captured in the final written addresses of learned Counsel for the parties, is that the employer can terminate the employment of the employee at any time subject to compliance with the terms of her employment. Where the termination or dismissal is in breach of the terms of employment, the employer will be liable in damages for wrongful termination or dismissal. See the cases ofDr. Ben O. Chukwumah v. Shell Petroleum Development Company of Nigeria Limited [1993] LPELR-864[SC] 1 at 28,Mrs. C.O.A. Fakuade v. Obafemi Awolowo University Teaching Hospital Complex Management Board [1993] LPELR-1233[SC] at pages 14-15, The West African Examination Council v. MuritalaOyewusiObisesan [2008] LPELR-8500[CA] at page 19 and Fiicharles Organ &Ors. v. Nigeria Liquefied Natural Gas Ltd. & Anor. [2016] 8 ACELR 35 at 52 where Muhammad, J.S.C., held:

 

“Again it is trite that he who hires can fire. It nevertheless remains the law that an employer must observe and adhere to the conditions under which the employee is hired before such employee can be fired otherwise the employer can ipso facto be held liable for unlawful termination of the services of the employee.”

Exhibit 40 is critical in this consideration and it is reproduced below:

 

 

 

Learned Counsel for the Defendants in paragraphs 3.3 to 3.7 of the Defendants final written addresslaboured to justify the Claimant’s dismissal. He explained that by exhibit 1 [exhibit 3], the Claimant could be dismissed if found guilty of gross misconduct or incompetence in the performance of her duties and relying onEtimOkon Ante v. University of Calabar [supra] and Union Bank of Nigeria v. Chukwuelo Charles Ogboh [supra] catalogued the cases of Claimant’s misconduct in exhibits 7, 8, 9, 10, 12, 13, 15, 16, 17, 21, 22, 25, 28, 29, 31, 32, 33, 34, 35 and 38. However, it must be noted that if effect is to be given to the provision for summary dismissal in exhibit 3, there must be a finding of gross misconduct by the 1st and 2nd Defendant before the Claimant can be dismissed and the letter of dismissal must clearly state the reason for her dismissal. Exhibit 40 does not contain such finding of gross misconduct against the Claimant or make reference to exhibit 22 or finding of the Committee. While the weight of judicial authorities, arising from the common law principle of master and servant, is that the employer can dismiss an employee for any reason or for no reason at all, see the cases of The West African Examination Council v. MuritalaOyewusiObisesan [supra] and Raphael Ogumka v. Corporate Affairs Commission [2010] LPELR-4891[CA] 21-22, it is my respectful view that our labourlaw jurisprudence has grown beyond this common law principle of master and servant relationship. In Olaniyan v. University of Lagos [1985] 2 NWLR [pt.9] 599, the Supreme Court, per Karibi-Whyte, J.S.C., posited that “the law has arrived at a stage where the principle should be adopted that the right to a job is analogous to a property.” In Daniel M. Ogbaje v. Abuja Investment and Property Development Company Limited [2007] LPELR-11855[CA] at page 41, it was held that:

 

“In interpreting the relationship of parties to a written agreement, courts have been enjoined to confine themselves to the plain words which are derivable from the rights and obligations of parties under such agreement.”

 

See alsoIncorporated Trustees of Nigerian Baptist Convention & 12Ors. v. Governor of Ogun State & 3Ors. [2016] LPELR-41134[CA] at pages 19-20.In The West African Examination Council v. MuritalaOyewusiObisesan [supra] at pages 14-15, Uwa, J.C.A., observed that:

 

“Generally, what determines termination of an appointment depends upon what the terms of contract between the parties provides.”

 

In Frank Jowan & 77Ors. v. Delta Steel Company Ltd. [2013] 1 ACELR 18 at 25, it was held that where there is a document or series of documents incorporating the terms and conditions of an employment, a Court of law should not look outside those terms in deciding the rights and obligations of the parties thereto. Thus, each case has to be determined on its merits. Now, back to exhibit 40, the letter of dismissal. It will be observed that while exhibit 40 is titled “Dismissal from the service of ESUT Business School”, paragraph two thereof states “Please be informed that the ESUT Business Council has directed and you are hereby informed that your service is no longer needed by the ESUT Business School with effect from 15th November 2012.” There appears to be a contradiction between the heading and paragraph two of exhibit 40. While the caption purports to be a ‘dismissal’, the content of the letter gives the impression of summary termination. It is my firm view that where an employee is dismissed, the dismissal letter should say so expressly. This distinction is necessary because paragraph four of exhibit 3 provides:

 

“The appointment may be terminated at any time by either party giving to the other one-month notice in writing or one-month pay in lieu of notice. However, should you be guilty of gross misconduct or incompetence in the performance of your duties, the Council will exercise its power of summary dismissal.” [Underlining mine]

 

It is plain to me that by the contract of the parties there are three means of termination of the employment, by notice, payment of salary in lieu of notice or summary dismissal. While the employment can be terminated by notice or payment of salary in lieu of notice without reason, it is my respectful view and I so hold that, by the contract of the parties, the 1st and 2nd Defendants must give reason for dismissal of the Claimant. This is clear from a literal interpretation of exhibit 3. It states “should you be guilty….” There must be a finding of guilt by the employer. In Incorporated Trustees of Nigerian Baptist Convention & 12Ors. v. Governor of Ogun State & 3Ors. [2016] LPELR-41134[CA] at pages 19-20, Tsammani, J.C.A.,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.”

 

In George Abomeli v. Nigerian Railway Corporation [1995] 1 NWLR [pt.372] 451 at 466, the Court of Appeal, per Pats-Acholonu, J.C.A., [as he then was] held:

 

“In matters affecting dismissal of an employee for whatever act, the common approach by the Court is to view the matter with broad-mindedness and fairness of methodology. The employer is expected to show a reason for dismissal – a reason which the law would have to accept as sufficient to warrant the dismissal of the employee.”

 

There are only two grounds for summary dismissal in the contract of service: if the Claimant is guilty of gross misconduct or incompetent in the performance of her duties. That is to say there must be a finding of gross misconduct or incompetence in the discharge of her duties; and whichever ground is chosen must be stated in the letter of dismissal. Exhibit 40 does not, in my respectful view, disclose the reason for the Claimant’s dismissal. Dismissal on the ground that her service is no longer required is not within the contemplation of the parties. Also, the Defendants cannot hide under the common law principle that an employer is not obliged to give reason for dismissal of the employee. Parties have agreed on the grounds for dismissal of the Claimant and they are bound to comply with the terms of their contract. See Fiicharles Organ &Ors. v. Nigeria Liquefied Natural Gas Ltd. & Anor. [supra] and Mr. SuleObaje v. Nigeria Airspace Management Agency [2013] LPELR-19958[CA] at page 26. It is trite that justification of a particular dismissal is a question of fact that must be established in evidence; and the onus is on the Defendants to justify the dismissal when challenged by the Claimant. See Nigerian Employment and Labour Relations Law and Practice by ChiomaKanuAgomo at pages 174 and 176.  In U. T. C. Nigeria Ltd. v. Samuel Peters [2009] LPELR-8426[CA] at page 18-19, it was held that where conditions of service exist between the employer and the employee, the provisions are binding on them. Any disciplinary measure by way of dismissal or termination must follow the laid down procedure. It is for this reason that I agree with the submission of learned Counsel for the Claimant in paragraph 5.6of her final written address that the Defendants must give reason for the Claimant’s dismissal and the reason adduced must be consistent with the two grounds provided in exhibit 3 and must be clearly stated in the letter of dismissal. For this purpose, it needs to be stated that the gross misconduct must be the gross misconduct found and acted upon by the employer at the time the decision to dismiss the Claimant was taken and not that deduced from the pleadings and argument of Counsel as was done in paragraphs 3.7 and 3.8 of the Defendants final written address. There is nothing in exhibit 40 setting out the misconduct alleged against the Claimant. Dismissal on the ground that the Claimant’s service is no longer required is not the same as dismissal for gross misconduct. Exhibit 22 which purports to be the report of the disciplinary committee is inchoate and not a final report. At any rate there is no nexus between exhibits 22 and 40. Assuming I am wrong, exhibit 22 cannot be justified on any ground. The report did not state how the Committee arrived at its conclusion that the Claimant’s claims on sale of forms were ‘among others false, misleading and aimed at tarnishing the image of EBS management.’Is it that the names are fictitious or that the receipts were forged or that the payments were not received? The Claimant supplied evidence of sale of the forms backed up by names and amount collected. These are questions begging for answers which also give credence to the observation of the Claimant that the committee set up by the 5th Defendant would not give her fair hearing. The 5th Defendant had prior to setting up the Committee in exhibit 29 concluded that the Claimant did not sell any forms. These words were repeated in exhibit 22 which was signed by the 5th Defendant. In The Attorney-General of Kwara State & 2Ors. v. Alhaja Kike Ojulari [2006] LPELR-6151[CA] at page 38, Ogunwumiju, J.C.A., had this to say:

 

“Surely, the concept of fair hearing demands more than the provision of avenue for a question and answer session between the accuser and the accused. Fair hearing should be an opportunity not only to be heard but to be heard by an apparently impartial panel.”

 

There is no doubt in my mind that the Committee constituted by the 5th Defendant was not an impartial panel and could not give the Claimant fair hearing. It is a Committee set up to fulfil all righteousness. In the circumstance, I find and hold that the Claimant’s dismissal is in breach of her terms of employment and consequently wrongful but not illegal, null and void.

 

  1. This now leads me to a consideration of the Claimant’s claims. The first relief isfor a declaration that the purported dismissal of the Claimant from the service of the 1st Defendant by the 4th Defendant via a letter dated November 15, 2012 is wrongful, illegal, null and void and of no effect whatsoever. As I have found above, the dismissal of the Claimant did not follow her conditions of service. Non-compliance with exhibit 3 vitiates exhibit 40 and renders the dismissal wrongful. I therefore find and hold that the Claimant’s dismissal is contrary to exhibit 3 and consequently wrongful; but the dismissal is not illegal, null and void and of no effect whatsoever. The effect of holding that a dismissal is null and void and of no effect whatsoever is that the contract of employment is still subsisting. This Court cannot make a declaration in an ordinary master and servant relationship that the contract is still subsisting. This is so because the Court cannot force an employee on an unwilling employer.See Mr. Kunle Osisanya v. Afribank Nigeria Plc [2007] LPELR-2809[SC] at pages25-26, where Ogbuagu, J.S.C., held:

 

“It need be stressed and this has long been settled, that in a master and servant relationship, a dismissal of an employee by the employer, cannot be declared null and void and of no effect whatsoever as claimed by the appellant in this case leading to instant appeal. The remedy as is also settled, is an award of damages, where the termination or dismissal, is held to be wrongful.”

 

Relief one succeeds in part.

 

  1. Relief two is for a declaration that therefusal of the Defendants to pay the Claimant’s salary March 2010, April 2010 and May 2010 [full salary]; July 2012, August 2012, September 2012, October 2012 [half salary] and November 2012 [full salary], allowances, other benefits and expenses incurred in the cause of her work as a staff of the 1st Defendant on the basis of the memos dated 1-02-02 [instead of 1/02/2010], 13th February 2012, 09/12/2011 and 23rd July 2012 is unlawful. The evidence in proof of this claim is contained in paragraphs 34, 35, 36, 37, 38, 39, 40, 41, 52, 53, 58, 59 and 71 of the Claimant’s statement on oath. This piece of evidence was not controverted. The Defendants’ evidence is contained in paragraphs 14 – 20 of the Defendants’ witness statement on oath. The Defendants’ evidence is that the Claimant’s salary for April and May 2010 were withheld due to her failure to tender a letter of apology as directed in exhibit 17. Paragraph four of exhibit 17 states:

 

“Before your full re-absorption at the end of two months, you are to tender a letter to EBS Council through the DOS promising not to engage again in any disruptive and violent confrontation in the office in the future.”

 

In exhibit 19, the Claimant wrote, inter alia: “Following the end of the suspension, and in compliance with instructions in the aforesaid letter, I write to formally notify, Sir, of my resumption of duty and to indicate as directed in the said letter of suspension that I will not engage in any disruptive or violent confrontation in the office.” The 5th Defendant considered this insufficient resulting in exhibit 21 by the Claimant which she cited in exhibits 22 and 29as the reason for withholding her April 2010 salary. There is no inherent right in an employer to suspend its employee without pay. Such right must be derived from the contract of employment. In fact, the weight of judicial authorities is that, in the absence of express stipulation in the contract of service, that the employee is suspended with pay pending investigation into her misconduct. See Mr. Bernard OjeifoLonge v. First Bank of Nigeria Plc [2006] LPELR-7682[CA] at pages 44-47 and The Shell Petroleum Development Company Ltd. v. Mr. NtukNtuk [1998] 4 NWLR [pt.545] 249. There is nothing in the Claimant’s contract of service authorising the 5th Defendant to suspend the Claimanton half salary or without pay. The suspension of the Claimant on half salary or without pay is without justification and I so hold. In addition, exhibit 17 did not specify the format of the ‘letter to EBS Council’. Exhibit 19, in my view, substantially complies with exhibit 17 rendering exhibit 21 superfluous. The rejection of exhibit 19 by the 5th Defendant and citing the alleged non-compliance as reason for withholding the Claimant’s April and May 2010 salaries amounts to a unilateral variation of the contract of service, unjustifiable and an unfair labour practice. See S. O. Ilodibia v. Nigerian Cement Company Limited [1997] LPELR-1494[SC] at page 16 and Fatima Abrahams v. Drake & Scull Facilities Management [SA] Pty, case no. C 1105/10. In the latter case, it was held that an employer is not entitled to implement a change in the terms and conditions of employment without negotiating and obtaining the consent of the employee.In addition, the Claimant having worked till 16th November 2012 before her purported dismissal is entitled to her salary for November 2012. Accordingly, I hold that therefusal of the Defendants to pay the Claimant’s salary March 2010, April 2010 and May 2010 [full salary]; July 2012, August 2012, September 2012, October 2012 [half salary] and November 2012 [full salary]on the basis of the memos dated 1-02-02 [instead of 1/02/2010], 13th February 2012, 09/12/2011 and 23rd July 2012 is unlawful.

 

  1. Relief three seeks an order of Court directing the 1st to 4th Defendants to pay the Claimant her expenses, salaries, allowances and other benefits she was entitled to prior to her dismissal on November 15, 2012. This claim iswide and lacking in specifics and it is trite that where a party’s claim is wide and unmanageable the Court will not grant it. See Charles Eigbe v. Ajoke Elizabeth Eigbe [2012] LPELR-19690[CA] at page 14.This claim therefore fails and it is dismissed.

 

  1. Relief four is for an order of Court directing the 1st to 4th Defendants to pay the Claimant her expenses, salaries, allowances and other benefits she was entitled to from December 2012 until the 2nd Defendant lawfully terminates her services. This claim presupposes that the Claimant’s employment is still subsisting. It is settled law that where there has been a purported termination of a contract of service, a declaration that the contract of service is still subsisting will rarely be made. As a result, specific performance or reinstatement is not possible in an ordinary master and servant relationship. The Court cannot impose a servant on an unwilling master. SeeS. O. Ilodibia v. Nigerian Cement Company Limited [supra] at page 18,Mr. Kunle Osisanya v. Afribank Nigeria Plc [supra] at page 19 and P. C. Imoloame v. West African Examinations Council [1992] LPELR-1500[SC] at pages 21. This relief fails and it is dismissed.

 

  1. Relief five seeks an order of perpetual injunction restraining the 1st to 4th Defendants either by themselves, their officers, agents, privies or servants or through any person[s] whatsoever from giving effect to the letter of dismissal dated November 15, 2012 or further treating the Claimant as a dismissed staff of the 1st Defendant or disturbing her in any way whatsoever from carrying out her duties as a staff of the 1st Defendant. There must be a declaration of right in favour of the Claimant before an order of injunction can be made. Once the principal relief sought is refused, no order incidental to the principal relief can be granted. SeeBenjamin Ukelere v. First Bank of Nig. Plc [2011] LPELR-3869[CA] at page 29. It is trite law that a perpetual injunction will only be granted in favour of the Claimant if she has satisfied the Court that she has a legal right to be protected by the Court. See Pa TayoOjo v. Chief Jerome Akinsanoye [2014] LPELR-22736[CA] 60 and Prince RasakYesufuOgiefo v. HRH JafaruIsesele 1 &Ors. [2014] LPELR-22333[CA] 59. In the latter case, Saulawa, J.C.A., held:

 

“A Court of law cannot grant a perpetual injunction on a mere prima facie case. Perpetual injunction cannot be granted on speculation or conjecture on the part of the trial judge that the plaintiff seems to have proved his case. Perpetual injunction, because of its very nature of finality can only be granted if the plaintiff has successfully proved his case on the balance of probability or the preponderance of evidence.”

 

There is nothing before me showing that the Claimant has a legal right to be protected by this order of injunction. I have found earlier that this Court cannot impose the Claimant on the Defendants. Consequently, an order of injunction restraining the Defendants either by themselves, their officers, agents, privies or servants or through any person[s] whatsoever from giving effect to the letter of dismissal dated November 15, 2012 or further treating the Claimant as a dismissed staff of the 1st Defendant or disturbing her in any way whatsoever from carrying out her duties as a staff of the 1st Defendant cannot be made. This relief fails and it is dismissed.

 

  1. Now, let me consider the alternative relief. The Claimant claimed in the alternative to reliefs [c], [d] and [e] [three, four and five] above, the sum ofN150, 000,000 [one hundred and fifty million naira] being special and general damages for the Claimant’s wrongful dismissal from the service of the 1st Defendant. The Claimant gave particulars of the special damages which include

N152, 078.61 representing March 2010, April 2010 and May 2010full salary at N50, 692.87 per month; N162, 413.32 representing more than half salary for 4 months:[N39, 103.33 for July 2012; N39, 103.33 for August 2012; N43,603.33 for September 2012; N40, 603.33 for October 2012] and N75, 967.42 representing November 2012 full salary. Based on my finding on reliefs one and two above, I find this aspect of the claim proved. There was no legal or contractual basis for withholding the Claimant’s salary or placing her on half salary. Accordingly, the Claimant is awarded the sum of N390, 459.35. The claim for N55, 410.36 representing January 2011 to December 2011 annual salary increment at N4, 617.53 per month is refused. Salary increment is not a right and there is nothing in exhibit 3 or the dealings of the parties showing that the Claimant was automatically entitled to a salary increase. In addition, exhibit 24 did not make the sale of forms a condition for salary increase. I find that by the course of dealing of the parties from exhibit 23 that the Claimant is entitled to leave allowance. Accordingly, I award the sum of N31, 581.06 representing 2012 leave allowance. The claim for end of year bonus in the sum of N31, 581.06 is refused. Bonuses are discretionary payments and did not form part of the Claimant’s contract of service. Moreover, the Claimant’s employment was terminated before the end of the year.Also, there is evidence of the practice of sharing of tea items in exhibits 2 to 2G. These exhibits were not impugned in any way. However, by exhibit 2G the tea items were monetized and the Claimant’s share for the months of November and December 2008 was N4,760. There is no explanation for her subsequent exclusion from the sharing for the period June 2010 to November 2012. Accordingly, I find the sum of N60, 000 representing money for tea items for 30 months from June 2010 to November 2012 at N2, 000 per month proved. Apart from the viva voce of the Claimant, there is no documentary evidence to show her entitlement to money collected from students for project binding. Accordingly, the claim for N45, 000 representing money due to the Claimant from the money collected from students for project binding for 2009/2010, 2010/2011 and 2011/2012 sessions at N15, 000 per session is refused. The Claimant’s claims for refund of expenses is subject to verification and approval by the 5th Defendant who directed her vide exhibit 29 to submit her claims through the Head of her Unit. There is no evidence before me that the Claimant complied with this directive and was not paid. This aspect of the claim fails and it is dismissed.

  1. General damages are within the discretion of the Court to grant. However, general damages are not granted in vacuo or just for the asking. They are awarded for breach of contract or breach of duty owed to the Claimant. SeeUdofel Limited & Anor. v. Skye Bank Plc [2014] LPELR-22742[CA] at pages 41-42. Once a breach of contract is established, damages follow. General damages are presumed to be the direct and probable consequence of the act complained of. They are awarded to assuage a loss which flows naturally from the Defendants’ act in the absence of any yardstick with which to assess the award except by presuming the ordinary expectations of a reasonable man. See Federal Mortgage Finance Ltd. v. Hope Offiong Ekpo [2003] LPELR-5627[CA] at pages 38-39, Cameroon Airlines v. Mr. Mike E. Otutuizu [2011] LPELR-827[SC] at page 31 andSyndicated Investment Holdings Limited v. NITEL Trustees Limited & Anor. [2014] LPELR-22952[CA] at page 34. However, it is trite law that in an employer and employee relationship, the measure of damages for wrongful termination is usually the sum of money payable in lieu of notice. See Mobil Producing [Nig.] Unltd & Anor. v. Udo Tom Udo [2008] 36 WRN 53 at 102 and Gabriel Ativie v. Kabelmetal Nig. Limited [2008] 5-6 SC [pt.11] 47. Having found that the dismissal or termination of the Claimant is in breach of her contract of service, the measure of damages is the period of notice.By exhibit 3, either party can terminate the contract by giving one month’s notice or paying one month’s salary in lieu of notice. The Claimant’s last salary was N75, 967.42. Accordingly, I award the Claimant N75, 967.42 representing her one month’s salary as general damages.

 

  1. For the avoidance of doubt, the Claimant’s case succeeds in part. Judgment is entered in favour of the Claimant against the Defendants as follows:

 

  1. The purported summary dismissal of the Claimant by the Defendants vide exhibit 40 is in breach of the Claimant’s contract of service and thus wrongful, but not illegal, null and void and of no effect whatsoever.

 

  1. It is hereby declared that therefusal of the Defendants to pay the Claimant’s salary March 2010, April 2010 and May 2010 [full salary]; July 2012, August 2012, September 2012, October 2012 [half salary] and November 2012 [full salary] on the basis of the memos dated 1-02-02 [instead of 1/02/2010], 13th February 2012, 09/12/2011 and 23rd July 2012 is unlawful.

 

  1. Reliefs three, four and five fail and are hereby dismissed.

 

  1. The sum of N558, 007.83 is awarded to the Claimant against the Defendants as special and general damages for wrongful dismissal.

 

  1. Costs follow events. See Union Bank of Nigeria Plc v. Charles Olusola Toyinbo [2008] LPELR-5056[CA] page 67. Pursuant to Order 55 rules 1 and 5 National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 and taking into consideration the age of the case and the processes filed by the Claimant, cost of N200, 000 [two hundred thousand naira] is awarded in favour of the Claimant against the 1st and 2nd Defendants.

 

  1. This judgment shall be implemented within thirty days from the date hereof, failing which the monetary award shall bear interest at the rate of 10% per annum from the 7th January 2019 until the judgment is fully satisfied.

 

  1. Judgment is entered accordingly.

 

 

 

 

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

7/12/18

 

 

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