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UNONG MACAULAY UMOH -VS- MOBIL PRODUCING NIGERIA

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI

 

DATE: 3RD DECEMBER, 2018                                        SUIT NO: NICN/UY/40/2016

 

BETWEEN:

 

UNONG MACAULAY UMOH                                        CLAIMANT

 

AND

 

MOBIL PRODUCING NIGERIA UNLIMITED                      DEFENDANT

 

REPRESENTATION:

 

Ekemeniabasi Egbadon for the Claimant.

Richard Atoshi Danladi for the Defendant.

JUDGMENT

The Claimant who was a staff of the Defendant commenced this action on 30th November, 2016 by filing a Complaint accompanied by Statement of Facts, Statement on oath and List of documents as required by the rules of this court. In response, the Defendant entered a conditional appearance on the 26th January, 2017 and filed its Statement of Defence together with Witness Statement on Oath, List of Witness and List of Documents on 21st April, 2017. The Claimant by leave of court filed an Amended Statement of Facts on 5th October, 2017. The Defendant did not however find it necessary to amend its processes as the amendment by the Claimant was only the addition of paragraph 14B through which the “Working Agreement between Mobil Producing Nigeria Unlimited and Petroleum and Natural Gas Senior Staff Association of Nige

ria (PENGASSAN) MPN Branch” was pleaded. On its part, the Defendant sought and was granted leave to add or/and substitute Mr. Omajuwa Oteri, its Manager, Field Law Services with Mr. Mohammed Umar, Manager, HR, Production Engineering Support.

At the trial, the Claimant testified for himself as CW while Mr. Mohammed Umar testified for the Defendant as DW. In the course of the trial, CW tendered nine (9) documents as Exhibits as follows:

1. Exhibit CW 1 – Offer of Employment dated 20th June, 2013.

 
2. Exhibit CW 2 –

 

 The letter of confirmation of appointment dated September 22, 2014.
3. Exhibit CW 3 – Certificate of Excellence

 
4. Exhibit CW 4 – Certificate of Staff Performance Award.

 
5. Exhibit CW 5 – The Interview Statement dated 23rd February 2016.

 
6. Exhibit CW 6 – The Letter of Suspension dated 23rd February, 2016.

 
7. Exhibit CW 7 – Letter of Invitation to appear before the Disciplinary Committee in Lagos dated August 2, 2016.

 
8. Exhibit CW 8 – Letter of Separation from Company dated 31st August, 2016.

 
9. Exhibit CW 9 – Working Agreement Between Mobil Producing Nigeria Unlimited and Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) MPN Branch.

The Defendant tendered only one (1) document i.e. Standard of Business Conduct, admitted and marked as EXHIBIT DW. 1. At the close of trial, parties were invited to file and serve their Final Written Addresses beginning with the Defendant. Thus, the Defendant’s Written Address was filed on the 14th August, 2017 while that of the Claimant was filed only on 24th October, 2018. With the leave of court parties adopted their Final Written Addresses on 24th October, 2018. The Defendant also filed its Reply to the Claimant’s Final Written Address on 7th November, 2018.

The Claimant’s Claim against the Defendant are as follows:

(1)       A Declaration that the letter written by the Defendant to the Claimant dated the 31st August, 2016 with the caption “SEPARATION FROM COMPANY” purporting to disengage the Claimant from the services of the Company is irregular, wrongful, null and void having no semblance of any legal justification.

 

(2)       A Declaration that the Claimant is still in the employment of the Defendant and entitled to all his salaries and other emoluments as per the contract of service between the Claimant and the Defendant.

IN THE ALTERNATIVE:

  1. Payment of the sum of N260,020,188.00 being the salaries the Claimant would have earned in the next 12 years had his appointment not unjustifiably brought to an end.

  1. General damages of N100,000,000.00 for the trauma and emotional stress caused to the Claimant by the Defendant.

  1. Cost of this action assessed at N150,000.00.

The Case of the Claimant

 

The Claimant was employed by the Defendant on the 20th day of June, 2013 as the offshore Marine Coordinator (OMC). Due to satisfactory performance his appointment was confirmed on 22m1 September 2014. The Claimant had prior to his employment by the Defendant, worked in the same capacity for the Defendant as a contract staff since 2006. The Claimant has never been queried or verbally reprimanded due to his excellent performance. In fact, he had several awards as a result of his contribution to company offshore operations such as Certificate of Excellence and Staff Performance Award. On the 23rd February 2016, the Claimant’s was requested to attend a meeting on behalf his Manager, Kelechi Onyeso. No sooner he went into the meeting than he realized that it was not a meeting but an investigation panel set for him on alleged fuel theft. In spite of being found not culpable a suspension letter was handed him and he was escorted out of the Defendant’s premises. All this happened on the 23rd February, 2016. On 2nd August, 2016, the Defendant was invited to appear before the Disciplinary Committee in Lagos. At the sitting of the Defendant’s Disciplinary Committee, the Claimant was interrogated on the alleged fuel theft and nothing incriminating was found against him. But to his dismay, the Claimant was served with a letter of Separation from the Company dated 31st August, 2016. Hence this action for wrongful determination of employment with the attendant reliefs.

                                                                                                                                   

The Case of the Defendant

The Defendant’s case is that the Employment of the Claimant was terminated because his services were no longer required, and a month’s salary in lieu of notice was paid to him in accordance with the Claimant’s Employment Contract. And that since the Claimant has received and retained the sum of Nl,240,573.00 as a month’s salary in lieu of notice, he has accepted his lawful termination and cannot now travel full circle to claim for wrongful termination. The Defendant also states that the Claimant’s employment is neither for a fixed term nor does it enjoy statutory flavour and all he was entitled to under his Employment Contract was one month’s salary in lieu of notice and not the bogus salary up to retirement he claimed.

To the Defendant, the rules which govern the conduct of employees are captured in the Standard of Business Conduct, Policies, Guidelines and Programs which are made available to each employee.

It was the further case of the Defendant that while it was prepared to transfer the accrued pension of the Claimant into his Retirement Savings Account in line with its guidelines, the Claimant refused to provide the relevant account information and/or sign the relevant document(s) to facilitate this transfer. It is upon the foregoing that the Defendant urged the court to dismiss the Claimant’s claims as baseless and lacking in merit.

                                                                                                                                               

Defendant’s Submission:

The Defendant framed two (2) issues for determination:

  1. i)Whether the Defendant complied with the provisions of the Employment Contract when it terminated the Claimant’s employment?
  2. ii)Whether the Claimant has been able to establish that the Defendant wrongfully terminated his employment when the Defendant complied with the specific terms in the Employment Contract on payment of salary in lieu of notice in cases of termination?

On issue I, the Defendant started by defining the term Contract of Employment as any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker. He posited that this is the definition in the Labour Act and relied upon by the Supreme Court in S. S. Co. Ltd vs. Afropak (Nig.) Ltd (2008) 18 NWLR (Part 1118) page 77 @ 94, paras. B – C.

The Defendant provided the three types of employment as per Lokulo-Sodipe, J.C.A., in Salami vs. Union Bank Of Nigeria Plc (2010) LPELR 8975 at page 22, paras. E – G stated thus:

 

“The law is settled that types of employment can be conveniently classified into three namely, (i) those regarded as purely master and servant; (ii) those where a servant is said to hold an office at the pleasure of the employer; and (iii) those where the employment is regulated or governed by statute, often referred to as having statutory flavour.”

The Defendant also defined an employment regulated or governed by statute as per Akintan, J.S.C., in C.B.N vs. Igwillo (2001) LPELR 835 @ pages 20 – 21, paras. O-A:

 

“When the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant”

The Defendant thereafter submitted that the Claimant’s employment does not fall under employment with statutory flavour but that of master and servant as evidenced by Exhibit CW. 1 (Claimant’s Employment Contract dated 20th June, 2013. And since the relationship is that of master and servant, the Defendant is not obliged to give reasons for the termination of the Claimant’s employment citing the dictum of Augie, J.C.A. (as she then was), in Atanda vs. Saffeiddine Transport Ltd (2001) LPELR 8303 @ page 18, paras. F as follows:

 

“It has been settled by a long line of judicial authorities that in a contract of service between an employer and an employee, where the service terms do not contain a statutory flavour, the contract between the parties is one of a master and servant and in a master and servant employment, as in this case, the master is under no obligation to give reasons for terminating the appointment of his servant.”

The cases of Olarewaju vs. Afribank Nigeria Plc (supra) and Daodu vs. Uba Plc (2004) 9 NWLR (Part 291) page 47 were also referred to.

The Defendant noted that Claimant’s employment was neither for a fixed term nor does it enjoy statutory flavour, and that the document regulating this relationship is Employment Contract (EXHIBIT CW. 1). He further submitted that the Defendant complied with the condition stipulated under the Employment Contract by paying the ‘One Month’s Salary in lieu of notice. He went on to quote the said provision of the Employment Contract for effect:

 

” … However, should the need arise to terminate your appointment after confirmation the Company will provide a one-month notice of termination or, payment in lieu (except in the case of summary dismissal for disciplinary reasons). If you wish to resign your appointment you are obliged to give one month’s notice or payment in lieu of notice.”

The Defendant also submitted that the foregoing provision has bestowed three rights on the Defendant which are cognizable in law:

  1.         The Right to terminate the Claimant’s employment any time after confirmation of appointment as in the cases of Texaco Nigeria Plc vs. Kehinde (2000) LPELR 10000 @ 44, paras. B – O, per Amaizu J.C.A and Ansambe vs. B.O.N Ltd (2004) LPELR 7432, per Ogbuagu, J.S.C. The Defendant argued that even the Claimant had conceded this when he admitted in cross-examination that the Defendant had the power to terminate his employment. He therefore submitted that what is admitted needed no further prove relying on Jolasun vs. Bamgboye (2010) LPELR 1624 and Edopolo & Co. Limited vs. Ohenhen (1994) 7 NWLR (Part 358) page 511 @ 519.

  1.        The discretion on whether or not to adduce reasons for such termination. He stated merely stating that the Claimant’s services were no longer required was enough. The Defendant called in aid dictum ofWali, J.S.C., in the case ofIhezukwu vs. University of Jos (1990) LPELR 1461 @ page 21, para. D:

“Where there is a notice of dismissal or termination of appointment of an employee by the employer, it is not necessary for the employer to prove the reasons stated in the notice.”

The Supreme Court case of Ativie vs. Kabel Metal Nig. Limited (2008) 10 NWLR (Part 1094) page 399 @ 419, para. F, was also referred to per Akintan J.S.C.:

 

“An employer is not bound to give any reason for terminating the appointment of a servant where such employment is not one with statutory flavour.”

Accordingly, the Defendant argued that it is only when it adduce reasons for the Claimant’s termination that the Defendant would be called upon to prove those reasons. This the decision of the Supreme Court in the case of Institute of Health Abu Hospital Management Board vs. Anyip (2011) LPELR 1517.

Finally on the point, the Defendant submitted that it is the position of the law that an employer is not bound to give any reason for terminating the appointment of a servant if is in tandem with the Employment Contract between the Parties as in this suit.

c).         Payment of one month’s salary in lieu of notice as compensation for termination. On this point, the Defendant submitted that by the   ‘Probationary Period and Confirmation’ clause in EXHIBIT CW. 1, the Claimant’s employment can be terminated by the Defendant giving “one month’s notice or one month’s salary in lieu of notice”. He then submitted that having been paid this and in view of Claimant’s admission during cross-examination, it needed no further prove that the Claimant is not entitle to any compensation. The Defendant buttressed this proposition of the law by apposite ratios from three (3) Supreme Court cases:

  1. i)         Ogbuagu, J.S.C.,in Osisanya vs. Afribank Nigeria Plc (2007) LPELR 2809:

”In a master and servant relationship, the damages available to the employee is the payment of his salary and other entitlements already lawfully accruable and payable for the period for which the employee should have been given notice of termination. The damages will be the amount he would have earned if his employment was properly and validly determined.”

  1. ii)       Tabai, J.S.C, in Ativie vs. Kabelmetal Nig. Limited (supra) @ pages 415, paras. C – F, 416, paras. B – E and 419, paras. F:

”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 the notice and other legitimate entitlements due to him at the time the employment was brought to an end. He gets no more. In such cases the award of general damages is inappropriate. “

iii)       Hon. Onnoghen, J.S.C. (as he then was) in Ifeta vs. S.P.D.C. Nig. Ltd (2006) LPELR 1436 @ page 40, paras. A-C:

”It is settled law that in an action for termination of appointment where the Court finds that the termination is wrongful, the proper measure of damages is what the employee would have earned within the period of notice required to properly bring the employment to an end and together with other benefits by way of overtime, rent subsidy etc in accordance with the terms of the contract of employment.”

The Defendant submitted that since the Claimant was paid the one month’s salary in lieu he would only be entitled to other legitimate entitlements such as Claimant’s accrued pension and nothing more. Finally, the Defendant submitted therefore that the Claimant’s claims for salaries for the next 12 years in the sum of N260,020,188. 00 is baseless. The Defendant however reiterated its willingness to remit or credit the value of Claimant’s accrued pension into his Retirement Savings Account of the Claimant in line with the Defendant’s Guidelines.

 

ISSUE II

Whether the Claimant has been able to establish that the Defendant wrongfully terminated his employment when the Defendant complied with the specific terms in the Employment Contract on payment of salary in lieu of notice in cases of termination.

            On this issue, the Defendant contended that the onus is on the Claimant to prove that the termination of his employment was unlawful and that to discharge this, the Courts have identified certain conditions the Claimant must prove. Example was given of the Supreme Court case of Oloruntoba-Oju vs. Abdul-Raheem (2009) 13 NWLR (Part 1157) page 83, where Adekeye, J.S.C., posited @ 136, paras. F – H that:

 

“It is trite law that the onus is on the Plaintiffs/Appellants to prove that the termination of their appointments is unlawful and to discharge this onus, they must prove that:

  1. a)They are employees of the Respondents;
  2. b)Placing before the Court the terms of the contract; the terms and conditions of their employment;

 

  1. c)Who can appoint and who can remove them;
  2. d)In what circumstances the appointments can be determined by the employer and the breach of the terms.”

The cases of Emokpae vs. University of Benin (2002) 17 NWLR (Part 795) page 139 and Adeniran vs. NEPA (2002) 14 NWLR (Part 786) page 30 were also cited in support. Since the conditions in a) and b) are obvious, the Defendant proceeded to demonstrate that the “Probationary Period and Confirmation” clause in EXHIBIT CW. 1 are a complete answer to conditions c) and d) above. The clause thereof not only shows that appointment is the responsibility of the Defendant but also the appointment can be determine by giving one month’s notice or one month’s salary in lieu of notice. He reiterated that the Defendant has done just that by paying the Claimant a full month’s salary in the sum of N1,240.573.00 in lieu of notice; and is ever ready to remit or credit the value of Claimant’s accrued pension into his Retirement Savings Account in line with the Defendant’s Guidelines but for the Claimant refusal to provide the relevant account information and/or sign the relevant document(s).

On the onus on a Claimant claiming wrongful termination of employment, the Defendant referred to Supreme Court case of Bukar Modu Aji vs. Chad Basin Development Authority and 1 Or (2015) 16 N.W.L.R  PT. 1486 @ Pages 568 – 569, paras, F – B thus:

 

“A plaintiff who complains that his employment has been wrongfully terminated is enjoined by law and he has the onus to place before the court the terms of his contract of employment and then go on to prove in what way the terms were breached by the employer. Where he fails on both counts, his case would have no leg to stand on. In principle, it is not for the employer who is a defendant to an action brought by the employee to prove any of these issues. In the instant case, the appellant did not plead or prove the terms of his employment with the respondents and so his case had no legs to stand on”.

The Defendant also submitted that a Court cannot look outside a contract of service in determining rights and obligations of parties thereto, and again referred to Bukar Modu Aji’s (supra) @ P. 574, Paras. G – H, thus:

 

“Where the contract of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms thereof. Therefore, in a written or documented contract of service, the Court will not look outside the terms.”

On the submission by the Claimant that the Defendant breached the Employment Contract by its failure to comply with Exhibit CW. 9 (Working Agreement between Mobil Producing Nigeria Unlimited and Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) MPN Branch, the Defendant simply stated that the Working Agreement does not avail the Claimant as it is unenforceable. The Defendant further stressed that Collective Agreements, are not enforceable in respect to an employee except where they are specifically incorporated into the employee’s contract of Employment. The Defendant cited a retinue of cases in support of this proposition of the law beginning with Osoh & Ors v. Unity Bank Pic (2013) 9 NWLR (Part 1358) 1, TEXACO (Nig.) Plc v. Kehinde (Supra) and Union Bank of Nigeria v. Edet (no citation), where Uwaifo, J.C.A, held as follows:

 

“Collective Agreements except where they have been adopted as forming part of the terms of employment, are not intended to give, or capable of giving individual employees a right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest nor are they meant to supplant or even supplement their contract of service.”

While on this issue the Defendant submitted that since the Claimant’s assertion that his employment was terminated by the Defendant without recourse to the provisions in Exhibit CW. 9 is not supported by any documentary evidence before the Court, the court was urged to discountenance such assertion as a non-issue in law taking refuge in the Supreme Court’s decision in Nwokorobia vs. Nwogu & Ors. (2009) LPELR 2127 @ page 29, para. F.

 

In any case, the Defendant asserted that, assuming without conceding that the Claimant’s employment was wrongfully terminated, the law is clear that the Claimant can only claim damages. The Defendant again quoted the dicta of Tabai, J.S.C and Onnoghen, J.S.C. (as he then was) in Ativie vs. Kabelmetal Nigeria Limited (supra) @ pages 415, paras. C – F, 416, paras. B – E and 419, paras. F and Ifeta vs. S.P.D.C. Nigeria Limited (supra) @ page 40, paras. A-C respectively.

On the Claimant’s claim of N260,020,188 for the next 12 years, the Defendant submitted that since the Claimant’s employment is not for a fixed term and there is no any provision in the Contract that states that the Claimant is entitled to be under the employment of the Defendant until he attains the age of 60 years, it is rather ludicrous for the Claimant to have computed in monetary terms his envisaged entitlement in the sum of N260,020,188 being his salaries and other benefits for the next 12 years. The Defendant also submitted that the Supreme Court has denounced such a practice in the case of Obot vs. C.B.N. (1993) LPELR 2192, where Uwais, J.S.C. (as he then was) held @ page 36, paras. A-0 as follows:

 

“This is however untenable because that is not in accordance with the principle on which damages for wrongful dismissal are assessed. See Denmark Production Ltd. v. Boscobel Productions Ltd. (1968) 1 All E.R. 513 at p.524 where it was decided that; “As an employee dismissed in breach of his contract of employment cannot choose to treat the contract as subsisting and sue for an account of profits which he should have earned to the end of the contractual period; he must sue for damages for wrongful dismissal and must of course mitigate those damages as far as he reasonably can.”

Finally on this same point, the Defendant posited that even if the Claimant’s termination was wrongful, the quantum of damages recoverable by the Claimant has been stated by the Courts to be the amount the employee would have earned over the period of notice and not salaries he would have earned up to the time of retirement. The Defendant advanced the case of Geidam vs. NEPA (2015) N.L.L.R (Pt. 210) 329 P. 361 Paras. E – H. P. 362 Paras C–E, in which it was held that:

 

“The measures of damages recoverable in situations of wrongful termination or dismissal of a servant are determined by what the employee would have earned over the period of notice required for the determination of the employment and not salaries he would have earned up to the time of employee’s retirement. The length of service, gratuity or retirement age, et cetera, have no role to play in cases of wrongful dismissal of a servant. The method of assessing the damages recoverable by the Plaintiff is the amount he would have earned over the period of notice which in the instant case was 3 months.”

In consequence of the foregoing, the Defendant submitted that the two declaratory reliefs of the Claimant must fail since the Claimant’s employment was terminated in compliance with the Employment Contract (Exhibit CW. 1).

The Defendant also considered the first, second and third alternative reliefs as untenable for being against the law on the subject.

 

Claimant’s Submission:

The Claimant adopted the two issues for determination as formulated by the Defendant:

  1. i)Whether the Defendant complied with the provisions of the Employment Contract when it terminated the Claimant’s employment?

On this issue, the Claimant submitted as follows:

  1. a)That it becomes relevant to consider the form of the Claimant’s Contract of Employment in this case, which is one that is written and same agreed by both parties (employer and employee).

  1. b)That the law is settled where there is a written contract of employment, it is outside the province of the Court to look anywhere for terms of termination of the contract other than in the written contract. See the case of Katto v. C.B.N (1999) 6 NWLR (PT 607) 390 AT 405, Paras 0-F.

  1. c)That the terms and conditions of the Claimant’s Employment is contained and relates to more than one document termed Offer of Employment (Exhibit CW1), Working Agreement between Mobil Producing Nigeria Unlimited and Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) (Exhibit CW9), and Defendant’s Standard of Business Conduct, Policies and Guidelines and Programs (Exhibit DW 1).

  1. d)That it is these said documents in paragraph c) above that this Honourable Court is to look into to determine whether the termination of the Claimant’s employment was in accordance with the terms and conditions of employment or not, as they are binding on both parties.

  1. e)That the terms and conditions of Contract of employment are the substratum of any case where the issue of wrongful termination of employment is to be determined. The importance of the terms of contract of service in determining the question of the contract was emphasized by the Supreme Court in the case of Ifeta v. Shell Pet. Dev Co. Ltd (2006) 7 MJSC 121 at 133 para G:

“In determination of this issue, I need to emphasize the bindingness of the terms of the contract of service between the parties. There is no doubt that the parties’ freedom of contract carries with it the inevitable implication of sanctity of their contracts. This means that if any question should arise with respect to the contract, the terms in any documents which constitute the contract are invariably the guide to it interpretation. On the material question is what did the parties in the instant case agree with respect to the termination of the contract of service”.

  1. g)   That by Exhibit CW9 (Working Agreement between Mobil Producing Nigeria Unlimited and Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) it is stated on page 2, paragraph 1“This working Agreement made this 13thday of May 2014 between Mobil Producing Nigeria Unlimited (hereinafter referred to as the Company”) and Petroleum and Natural Gas Senior Staff Association of Nigeria, Mobil Producing Nigeria Unlimited. (hereinafter referred to as the Association) to determine and regulate terms and condition of service…..” it clearly depicts an agreement between the Defendant and the said Union (PENGASSAN) of which the Claimant is a member where the terms and condition of service also applied to him.
  2. h) That the Claimant’s employment with the Defendant was terminated by the Defendant arising from the allegation of his likely involvement in Fuel Theft giving rise to where he attended an interview in the guise of being representative in a meeting which gave rise to an interview statement (Exhibit CW5), subsequently suspension letter (Exhibit CW6, then Invitation letter to appear before the Disciplinary Committee (Exhibit CW 7) which is not in line with the provision of the Working Agreement entered into by parties in the event of a disciplinary action stated in pages 12-14, paragraphs 14(A) (I, II, III, IV, V) of Exhibit CW 9.
  3. i)That it is not in dispute that an employer can terminate the employment or contract with the servant at any time without stating the reason but where the reason is stated the burden then rest on the employer to establish that reason. See the case of UBA Plc v. Oranuba (2014) 2 NWLR (PT.1390) 1 at 21.
  4. j)  That where there exist a written down contract of employment or service as the case may be, such act must be in accordance with the terms of the contract between the parties.
  5. k) That in the Case ofAnsambe v. BON Ltd (2004) LPELR 7432, Ogbuagu, JSC held:

“By and large, the master can terminate the contract with his servant any time for any reason or for no reason at all…….. In other words, once it is established that a relationship of master and servant exist it carries with it, all its attendant consequences, one of which is the right of a master to terminate the service of his servant according to the terms of the contract between them.”

  1. l)That in the instant case the Defendant accused the Claimant of being involved in Fuel theft and it was the Defendant’s responsibility to establish his involvement but failed to do only to terminate the employment of the Claimant without recourse to the procedures stipulated in one of the documents (Exhibit CW9) relating to the Contract of Employment which is a written down agreement binding on all parties.

  1. m)That the Claimant in his averments and evidence on record after adopting his statement on Oath recounted the episodes that led to his wrongful termination and how the Defendant handled it whimsically without following due process provided in the contract of Employment consisting of Exhibit CW1, Exhibit CW9 and Exhibit DW 1 which are the only documents to be considered and read together to resolved the issue effectively and efficiently. See the case of CBN v. Igwillo (2007) 25 W.R.N pg 1 at 8 & 9, Ratio 8 and 9.

 

  1. n)That Claimant in his evidence before this Court told this Court that the Defendant terminated his appointment over an allegation of his involvement in Fuel theft and how the said investigation carried out did not state whether he was guilty or exonerated.

  1. o)That during Cross Examination of the claimant by the Defendant’s Counsel it was not established that the Defendant indeed complied with the provision of the Contract of Employment in terminating the Claimant’s employment thereby making it unlawful and unjustifiable.

 

  1. p)That Defendant on the other hand in its Defence was evasive in that its sole witness did not have any knowledge of the facts relating to the case thereby presenting no defence in establishing that it indeed complied with the provisions of the Contract of Employment when it terminated the Claimant’s employment.

The Claimant also took a swipe at the evidence of DW 1, arguing:

  1. i)That DW is Manager, Field HR Services of the Defendant. That Claimant was offered employment as Support Operations Department and the Defendant desirous of providing a productive working Environment formulated policies, Guidelines and Programs to govern its employees conduct made available to each of them. That the Claimant was separated from the company by a letter dated August 31, 2016 and paid a full month’s salary in lieu of notice. That the Defendant is under no obligation to allow the Claimant in its employment up to 12 years. That the Claimant’s employment enjoyed no statutory flavour and his employment was terminated when his services were no longer required.

  1. ii)That under Cross Examination, the DW l said he never worked in the same department with the Claimant. He said it was a fact that the Claimant appointment was terminated but he does not know the reason and he was not aware the Claimant was suspended prior to the termination. He further said he was not aware that the Claimant appeared before the Disciplinary Committee or investigation panel, neither does he know whether the Claimant violated any of the policies in Exhibit DW1. He also stated that he did not know whether the Defendant ever reported any offence committed.

iii)       That from the above evidence of the Defendant’s witness, it will be deduced that the said witness had no knowledge of facts as regards the case and could not proffer any tangible or credible evidence in support of the Defendant’s Case to show that the Defendant’s complied with the provisions of the Contract of Employment when it terminated the Claimant’s employment or successfully challenge the evidence of the Claimant before this Court.

  1. iv)That the law is well settled that where evidence is given by a party and same not contradicted by a party who has an opportunity, such evidence be accorded credibility, referring to the case of Mainagge v. Gwamma (2004) 120 LRCN Page 4572 at 4573 Ratio 1, where the Supreme Court held:

“It is now settled law that where an evidence is given by a party and is not contradicted by the other party who has the opportunity to do so, and such evidence proffered is not inherently and does not offend any rational conclusion or state of physical things the Court should accord credibility to such evidence”.

  1. v)That from the foregoing, this court is respectfully urged to resolve this issue in favour of the Claimant.
  2. ii)        Whether the Claimant has been able to establish that the Defendant wrongfully terminated his employment when the Defendant complied with the specific terms in the employment contract on payment of salary in lieu of notice in cases of termination?

 

On the above issue the Claimant made the following submissions:

  1. a)That the Claimant has been able to establish the Defendant wrongfully terminated his employment even after paying his salary in lieu of Notice.

  1. b)That the Claimant has discharged the onus resting on him to prove that his employment has been wrongfully terminated as enunciated in the case of Bukar Modu Aji v. Chad Basin Develoment Authority & Anor (2015) 16 NWLR (Pt.1486) PG 568 – 569, Paras F.

  1. c)That in the instant case, the Claimant in his averments and evidence had stated that he was an employee of the Defendant via the offer of Employment Exhibit CW. l whose employment was brought to an end unjustifiably by the Defendant without recourse to the laid down procedure in Exhibit CW. 9 which is a document regulating the terms and conditions of service as it relates to determination of the employment of an employee upon the allegation of his involvement in fuel theft without substantiating the allegation to either prove his liability or not.

  1. d)That the Claimant during the trial was extensively cross examined by the Defendant’s counsel on the issue of fuel theft thereby affirming and advancing the case of the Claimant that the his employment was unjustifiably brought to an end over allegation that was never substantiated neither was he found liable by the investigation panel set up for that purpose.

  1. e)That the Claimant in further proof of the existence of his assertions of his appointment being terminated unjustifiably and unlawfully, he tendered nine (9) documents as Exhibits particularly Exhibit CW9 – Working Agreement between Mobil Producing Unlimited and PENGASSAN. An Agreement said to determine and regulate the terms and conditions of service of its members in the employ of the Defendant of which the Claimant was a member.

  1. f)That the said Agreement with particular reference to page 12, paragraph 14 (A) (I, II, II, IV and V) on the Disciplinary Action/Procedure to be taken against an employee, which was not followed before the Claimant’s appointment/employment was unjustifiably brought to an end.

  1. g)That the above stated document being tendered by the Claimant in support of his case successfully proves his evidence thereby causing it to be more credible as stated in the case of Interdrill Nig. Ltd v. USA Plc (2017) 13 NWLR (Pt. 1581) 52 where the Supreme Court held:

 

“Once documentary evidence support oral evidence, oral evidence becomes more credible as documentary evidence always serves as a hanger from which to assess oral evidence”.

  1. h)That the Defendant having paid the Claimant one month salary after determining his appointment wrongfully does not make it right or lawful and the position is that an act which was not valid from the beginning cannot be validated by any subsequent act even if it is valid as held in the case of MILAD, Benue State v. Ulegede (2006) 5 NLLR PG 1 at 11-12 Ratio 12:

 

“The principle is now settled that where an act is void ab initio, It cannot be validated by subsequent act even if valid. This is because you cannot put something on nothing … “

 

  1. i)That the said Exhibit CW. 9 is an agreement entered into between the Defendant and PENGASSAN whom the Claimant is a member and which said document as stated therein does determine and regulate the terms and conditions of service (page 2, paragraph 1 of the said document) which invariably forms part of the contract of employment which the Defendant cannot ignore nor choose which document to read and apply when taking any action relating to it’s employees.

  1. j)That same applies to this Court in determining a contract of employment involving several documents as held in the case of CBN v. Igwillo (2007) 25 W.R.N PG 1 at 8 & 9, Ratio 8.

 

  1. k)That the Claimant having established that the termination of his appointment was unlawful with documentary evidence before the Court and same not being controverted by the Defendant with any credible evidence upon which this Court should rely on is entitle to the Reliefs Sought, particularly when it bothers on an allegation which was never substantiated as in the case of Ezekiel v. Westminister Dredging Nig. Ltd (2006) 5 NLLR PG 392 at 396 Ratio 5:

“…..But if it is due to an unproved criminal allegation which carries with it some stigma on the character of the employee, he is entitled to do substantial damages far beyond salary in lieu of notice.”

 

  1. l)That from foregoing this court is urged to hold that the Defendant did not comply with the Contract of Employment when terminating the Claimant’s appointment, same being unlawful, unjustifiable and wrongful thereby granting the Claimant the reliefs sought.

DEFENDANT’S REPLY TO CLAIMANT’S ADDRESS

 

In response to the submissions of the Claimant’s final address, the Defendant filed a Reply of 8 pages dated 7th November, 2018 which would be considered in due course.

 

DECISION OF THE COURT

I have digested the facts of this case as given in the various processes, carefully watch the demeanour of the witnesses and evaluated their evidence as it were, and I think the issue to be determined is: Whether the Claimant has proved his case to be entitled to any or all of the reliefs sought.

Before I delve into the issue proper, I need to say a word on the Defendant’s Reply to the Claimant’s Final Written Address filed on the 7th November, 2018. All the Defendant did in his about 8 pages reply was to reargue and sometimes seek to improve on the arguments proffered in his Final Written Address. This is not the purport or function of a reply. A reply on point of law is not supposed to be a repair kit to correct an error or lacuna in the initial brief of argument. It was Niki Tobi, J.S.C. (of blessed memory) who in the case of Ogolo v. Fubura (2003) 11 NWLR (Pt. 831) 238, held:

“Counsel for the appellants as well as counsel for the 1st set of plaintiffs/respondents repeated themselves in their reply briefs. A reply brief should be limited or restricted to answering any new points arising from the respondent’s brief and not to repeat points already made or dealt with in the appellant’s brief. It is not the function or role of a reply brief to improve on the appellant’s brief by repeating the arguments contained therein but rather to reply to new points which are substantial in the respondent’s brief.”

See also the Supreme Court case of Basinco Motora Limited v. Woermann Line & Anor (2009) 13 NWLR (Pt. 1157) 149. Since the reply filed by the Defendant in the instant case is a mere repetition of the arguments in the final address and therefore clear negation of above principles, I have no option but to discountenance the reply in this judgment. I so hold. 

In the determination of the issue at hand, I will be guided at all times by the dictates of the Supreme Court in a long line of cases such as Kato v. CBN (1999) 6 NWLR (Pt. 607) 390, Ibama v. S.P.D.C. (Nigeria) Limited (2005) 17 NWLR (Pt. 954) 364 and Ziideel v. R.S.C.S.C (2007) 3 NWLR (Pt. 1022) 554. The underlining principles in all these cases and many more, is to the effect that an employee seeking the declaration that the termination of his appointment is a nullity must plead and prove the following material facts:

  1. a)The nature of the employment.
  2. b)The condition of service.
  3. c)The circumstances under which the appointment can be terminated.

I intend to analyse the pleadings and evidence in this case in the light of material facts (a-c) above and will only refer to the argument of the parties where necessary.

On the nature of employment, it is not in dispute that the relationship between the parties in this case is one of master and servant. The foundation of the Claimant’s case are the Offer of Employment Letter (Exhibit CW. 1), the Letter of Separation from the Company (Exhibit CW. 8) and Working Agreement between Mobil Producing Nigeria Unlimited and Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) Exhibit CW9. It is a fact that neither in their pleadings or their testimonies in court did the parties go outside this category of employment or alluded to any other fact that will take this case to the realm of employment with statutory flavour. So, the basic principles governing the contract of master and servant will hold sway here. In this sort of relationship, it is trite that the employer who hires an employee has corresponding right to fire him at any time even without assigning any reason for so doing. He must, however fire him within the four walls of the contract between them. Where the employer fires an employee in compliance with the terms and conditions of their contract of employment there is nothing the court can do as such termination is valid in the eyes of the law. It is only where the employer, in terminating or dispensing with the services of an employee does so without due regard to the terms and conditions of the contract of employment, that the courts shall declare the determination wrongful and award appropriate measure of damages. See the case of Isheno v. Julius (2008) 2 S.C.N.J. 243, per Walter S. N. Onnoghen, J.S.C. (as he then was now CJN).

On the issue of condition of service, it is trite law that a servant who complains that his employment has been wrongfully brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. It is not the duty of the employer as defendant to prove that the termination was not wrongful: see Amodu v. Amode (1990) 5 N.W.L.R. (pt. 150) 356 at 370;   Katto v. Central Bank of Nigeria (1999) 6 N.W.L.R. (pt. 607) 390 at 405; Okomu Oil Palm co ltd v. Isehienrhien (supra) at 673-674, Idoniboye-Oba v.  NNPC (2003) 1 S.C.N.J 108-109 and Ziideeh vs. Rivers State Civil Service Commission (2007) All FWLR (Pt. 354) 243 at 258. In other words, the employee 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.

In the instant case, I must say the Claimant has scaled the first hurdle. The Claimant pleaded and tendered in evidence his Offer of Employment Letter (Exhibit CW. 1), Working Agreement between Mobil Producing Nigeria Unlimited and Petroleum and Natural Gas Senior Staff (Exhibit CW 9) and the Letter of Separation from the Company (Exhibit CW. 8) among others. It is however in the scaling the second hurdle (proving how the terms of contract of employment are breached) that the Claimant is found wanting. And the reasons are not far-fetched.

Short of dumping these documents before the court, the Claimant did not lead any evidence to prove that Offer of Employment Letter (Exhibit CW. 1) was breached by the Defendant. Neither did he attempt to prove that the Letter of Separation from the Company (Exhibit CW. 8) was inconsistent with Exhibit CW. 1 or that the Working Agreement between Mobil Producing Nigeria Unlimited and Petroleum and Natural Gas Senior Staff (Exhibit CW. 9) was related or connected to the terms of the contract to render it (Exhibit CW. 9) relevant to this case. In other words, the nature of the documents that were tendered needed to be explained and related to instances of non-compliance or breaches to the employment contract. This the Claimant failed to do. All the Claimant tried to do was to show that the Defendant had implicated him in fuel theft to which a panel was constituted and he was exonerated. So it was wrong for the Defendant to issue him the separation letter as it were. I therefore agree with the Defendant that since the Claimant’s employment was terminated simply for services no longer required, the Claimant cannot read into it what is not there by attributing his termination to something else. See Adams v. L.S.D.P.C (2000) 5 NWLR (Pt. 656) 291 C.A, Iwuoha vs. Mobil Producing (Nig) Unlimited (2013) All FWLR (Pt. 664) 144 at 150-151 and Idoniboye-Oba v.  NNPC (2003) 1 S.C.N.J 109. The Employment Contract remains the best and only way of deciding the rights of the parties thereof.

 

Not only that the Claimant failed to show any nexus between the Working Agreement between Mobil Producing Nigeria Unlimited and Petroleum and Natural Gas Senior Staff (Exhibit CW. 9) and Offer of Employment Letter (Exhibit CW. 1). I therefore find myself in agreement with the assertion of the Defendant that Exhibit CW. 9 does not avail the Claimant since it was not incorporated into his contract of employment and therefore unenforceable. I find all the cases cited by Defendant in that regard apposite. It was I. A. Iguh, J.S.C., who in the case of Abalogu v. Shell (2003) 6 S.C.N.J. 287, while considering the necessity of incorporating collective agreement in contract of service held that:

 

“There can be no doubt that where a collective agreement is incorporated or embodied in the conditions of a contract of service whether expressly or by necessary implication, it will be binding on the parties but not otherwise. See Chukwumah v. Shell Development Company of Nigeria Ltd. (1993) 4 N.W.L.R. (pt. 289) 512 at 543-544. In the present case, the Collective Agreements were in no way incorporated in the Appellant’s Contract of Service, Exhibit D.  Clause 11 of Exhibit D provides thus:

“You hereby acknowledge that you have read our rules relating to confidential information and inventions attached to this letter. You hereby agree to be bound by all the undertakings of the said rules which form part of this letter of agreement.”

 

My lord, I. A. Iguh, J.S.C., in the same case at page 287, went on to state:

“It is plain to me that had the Collective Agreements, Exhibit E and F, been intended to be binding on the parties, Clause 11 of Exhibit D would have incorporated them as forming part and parcel of the Appellant’s Conditions of Service just as the Respondent’s rules relating to “Confidential Information and Inventions” were expressly incorporated into Exhibit D as forming part and parcel thereof.”

Since the onus is on the Claimant to prove that the termination of his employment was wrongful, it would not be out of place to take a critical look at the evidence advanced by the Claimant in this suit. I read the testimony of the Claimant a couple of times and I must say it is too scanty for one who is serious in proving his case. Apart from tendering the nine (9) documents as exhibits, there was no effort to demonstrate the purport and worth of the documents through the witness or tie the documents to the claimant’s case. Even after a damaging cross-examination, the Defendant did not find it expedient to re-examine the Claimant for possible repairs. It was only in his Final Written Address that the Claimant attempted to marry the facts from the Statement on oath to his arguments. The Claimant proffered some arguments, to wit: That the terms and conditions of the Claimant’s employment is contained and relates more than one document (Exhibit CW. 1, CW. 9 and DW. 1). That the Claimant’s employment was terminated because of oil theft and that all disciplinary procedures thereof leading to the termination of appointment were not in accordance with exhibit CW. 9 relying on the adopted Statement on Oath of the Claimant. That the Claimant in further proof that his appointment was unlawfully terminated tendered nine (9) documents. A document as important as exhibit CW. 9, apart from being tendered, was not referred in both the Examination-in-Chief of the Claimant and it was most convenient for the Defendant not bring it up in Cross-Examination of the Claimant.

The problem with the evidence of the Claimant is manifest. First of all, the Claimant should note that depositions in the Statement of facts have to be proved like averments in pleadings. See the Supreme Court case of UBN v. Astra Builders (2010) 41 (Pt. 2) N.S.C.Q.R. 1040. Secondly, where evidence has not been led on a statement of defence same is deemed abandoned. See the Supreme Court case of University of Jos v. Ikegwuoha (2013) 9 NWLR (Pt. 1360) 498, para. F. Thirdly, final address however brilliantly couched and delivered cannot be a substitute for evidence. I cannot put it better than my lord, Bode Rhodes-Vivour, J.S.C. when he said in Ogunsanya v. The State (2011) 6 S.C.N.J. 220:

 

“In any case, a case is won on credible evidence and not on address. No amount of brilliant address or playing to the gallery by counsel can make up for lack of evidence to prove or defend a case in court. The main purpose of an address is to assist the court, and never a substitute for compelling evidence. Failure to address will not be fatal or cause miscarriage of justice. This is so because whether counsel addresses a court or not the court must do its own research with the sole aim of seeking the truth and determining which side is entitled to judgment. In the absence of address by counsel the trial was fair.”

The same cannot be said of the evidence of the Defendant in spite of the criticism levelled against it by the Claimant. In its examination-in-chief, the Defendant reiterated that the Claimant’s employment was determined in accordance with Exhibit CW. 1 and was not cross-examined on that assertion. The Defendant was also able to extract from the Claimant in cross-examination some vital statements which was detrimental to the Claimant. The Claimant agreed that by exhibit CW. 1 (offer of employment), the Defendant had the power to terminate the Claimant’s appointment by giving one months’ notice or payment of salary in lieu by either party. He also agreed that the offer of appointment was not for a specific number of years and that he had received the said one salary in lieu of notice.  Hear him:

 

“Yes, I received that money to pay my daughter’s hospital bill (who was born that same day).”

 

Now, the acceptance of salary in lieu of notice is not without legal implications. The law is that where an employee accepts payment in lieu of termination of his employment, he cannot be heard to complain that his contract of employment was not validly and properly determined and thereby rendering the determination mutual. See the Supreme Court cases of Agoma v. Guiness (Nigeria) Limited (1995) 2 NWLR (Pt. 380) 672 SC and Morunhunfola v. Kwara Texh (1990) 4 NWLR (Pt. 145) 506 SC. These two authorities should be distinguished from Mil. Admin. Benue State v. Ulegede (2001) 17 NWLR (Pt. 741) SC, a case cited by the Defendant. In that case it was held that where the retirement of a person is void because of non-compliance with the provision of a statute, the acceptance of payment in lieu of notice cannot preclude such a person from complaining about his retirement which is void ab initio. Since the termination of appointment in the instant case is in compliance with the terms of contract, the case is of no moment.

 

It is in view of the foregoing that I find and hold that the termination of the employment of the Claimant is not wrongful same having been in compliance with terms and conditions of the contract of employment.

The next question is, what is the fate of the Claimant’s reliefs in this case? The first relief is for a declaration that the letter of separation is irregular, wrongful, null and void having no semblance of any legal justification. Having decided that the determination of the employment was not wrongful, I am left with the last lap of the question, which is, whether the said letter can be irregular, null and void and of no legal consequences. This cannot be so as such a declaration is not an appropriate remedy for the category the Claimant’s employment. A declaration that the termination of employment is null and void and of no effect only affects contract of service with statutory flavour where the statutory pre-conditions have not been complied with. See the case of Opua v. NNPC (2001) 14 NWLR (Pt. 734) 552 CA. In Isievwore vs. NEPA (2002) FWLR (Pt. 124) 398 at 408, the Supreme Court hit the nail on the head when it said:

 

“Employment with statutory backing must be terminated in the way and manner prescribed by the relevant statute and any manner of termination inconsistent therewith is null and void and of no effect. But in other cases governed by only agreement of parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed. Any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void.” 

Similarly, the declaration that Claimant is still in the employment of the Defendant and entitled to all his salaries and other emoluments is not tenable. The law is that where there is a purported termination of a contract of service, as this one, a declaration that such a contract exists is rarely made. This is because a court will not grant specific performance of a contract of service. See the case of Kabelmental Nigeria Limited v. Ativie (2008) 5 S.C.N.J. 222-223, Isierwore v. N.E.P.A. (2002) 7 S.C.N.J. 331-332 and Ifeta v. Shell Petroleum (2006) 4 S.C.N.J. 124. There is therefore force in the submission of the Defendant that, at worst, the Claimant would have been entitled to damages if the employment was wrongfully terminated and no more.   

The alternative reliefs sought by the Claimant do not fare any better. The relief for payment of the sum of N260,020,188.00 being the salaries the Claimant would have earned in the next 12 years had his appointment not unjustifiably terminated is to say the least speculative and does not represent the state of the law. Two cases are instructive. The first one is the case of Spring Bank Plc v. Babatunde (2012) 5 NWLR (Pt. 1292) 83 CA which says a servant who has been unlawfully dismissed cannot claim wages for services not rendered. The second is the case of Okeme v. Civil Service Commission, Edo State (2000)14 NWLR (Pt. 688) CA. which is most apposite. In that case it was held that an employer does not guarantee a job to an employee until the employee’s retirement age and the time stipulated for retirement only set out the maximum duration possible for the employment under the existing contract. Consequently, the Court will not grant a claim for payment of salary up to the retirement age of the employee. I am therefore in total agreement with the submission of the Defendant on this and most particularly the Supreme Court case of Obot vs. C.B.N. (1993) LPELR 2192, in holding that this relief is not grantable.

The reliefs of General damages of N100,000,000.00 for the trauma and emotional stress and the Cost of this action assessed at N150,000.00 cannot also stand. This is in view of my earlier stance that the termination of appointment of the Claimant was not wrongful since it was done in accordance with terms of contract of employment of the parties.

From all I am saying the Claimant has failed to prove his case to be entitled to any or all of the reliefs sought. The case is therefore hereby dismissed for lacking in merit and this without prejudice to payment of the accrued pension of the Claimant into his Retirement Savings Account.

Judgment entered accordingly.

                          ………………………………………

HON. JUSTICE M. A. NAMTARI

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