Mr. Ayodele Aiyeola -VS- Golden Shield Insurance Brokers Ltd

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA

DATE: APRIL 30, 2019 SUIT NO: NICN/LA/599/2017

BETWEEN:

AYODELE AIYEOLA – CLAIMANT

AND

GOLDEN SHIELD INSURANCE BROKERS LTD. – DEFENDANT

REPRESENTATION:

C.M Ohamuo, Esq., (with Semidara Jones, Esq)- for the Claimant;

Tunde Abioje, Esq.,(with T.V Shenowo, Esq.)– for the Defendant/

Counter-Claimant

JUDGMENT

The Claimant who served as Assistant Manager, Underwriting/Claims, with the Defendant, an insurance brokerage company, commenced this Suit vide a General Form of Complaint dated and issued on 6^th December 2017, accompanied with the requisite frontloaded court processes, against his former employer, basically seeking for payment of his unpaid salary and salary in lieu of notice for wrongful termination of his employment without due notice by the Defendant, but which the Defendant counter-claimed against him, for the cost of the lost working computer during the course of the employment, and that he was subsequently dismissed after an earlier termination of his employment for unsatisfactory performance even after serving suspension punishment.

The Claimant’s endorsed reliefs including one other relief added in the Statement of Claim are for:

An Order that his October 2015 Salary be paid by the Defendant to the Claimant
An Order that his 1 (one) month’s salary in lieu of notice in the sum of N250,000 (two hundred and fifty thousand naira)
General Damages in the sum of N1, 000,000.00 (one million naira) for emotional distress and financial hardship of the Claimant caused by the actions of the Defendant.
Cost of this suit.

Upon service of the originating court processes, the Defendant reacted with Statement of Defence and Counter-Claim, with other defence processes dated and filed on 18^th December 2017, denying the Claimant’s claims and setting up a Counter-Claim against him, inter alia, in the sum of N140, 000.00 (one hundred and forty thousand naira), for the cost of the lost laptop in the course of duty.

In response to the Claimant’s Reply to Statement of Defence and Defence to Counter-Claim dated 20^th February 2019 and filed on 21^st February 2019, together with Claimant’s Further Witness Statement on Oath deposed to on 21^st February 2018, the Defendant followed with its Reply to Claimant’s Defence to the Counter-Claim, dated and filed on 9^th July 2018, filed along with Defendant’s Further Witness Statement on Oath of one Nwakaudu Okechukwu Provins. Parties joined issues on the Claimant’s claims and the Defendant’s Counter-Claim.

Trial had commenced at the proceedings of 22^nd February 2018, wherein the Claimant opened his case and testified for himself as sole Witness (CW). He adopted his two sets of Witness Statement on Oath deposed to on 6^th December 2017 and 21^st February 2018, and tendered 5 sets of documents described in the Claimant’s List of Documents dated 5^th December 2017, all admitted in evidence and marked as Exhibits ‘CA1-CA5’, respectively.

Gleaning from the pleadings and testimony of the CW, the Claimant’s case is that he was employed as an Assistant Manager, Underwriting/ claims by the Defendant vide a letter of Probationary Employment dated 15^th May 2014, with effect from 12^th May 2014, with monthly salary of N250, 000 (exh.CA1), which employment was confirmed after satisfactory probation period, vide a letter of Confirmation dated 24^th March 2015 (exh. CA2). That on 30^th October 2015, the Defendant terminated the employment vide a letter of Termination dated 30^th October 2015, expressed to take effect the same day (exh. CA3).

Claimant further testified that he was not paid his October salary and also not paid the one month salary in lieu of notice for termination of the employment as a confirmed staff in accordance with his employment letter. That the refusal to pay him his terminal benefits by the Defendant led to his resort for help to the Office of the Public Defender (OPD) of the Lagos State Ministry of Justice, vide a letter of Appeal for Legal Assistance dated 22^nd November 2016 (exh. CA4), which was acted on and the OPD wrote letter of Invitation dated 24^thJanuary 2017 to the Defendant (exh.CA5).

To the Claimant, as the parties couldn’t resolve the issues in the meeting held at the OPD, he has come to the court for redress, hence this suit. Claimant prays the court to grant his claims. Claimant denied knowledge of the Dismissal letter as it was never served on him, and insisted that he is entitled to the October 2015 salary he worked for as well as his one month salary in lieu of notice he was not given the required notice for the termination of his employment by the Defendant.

CW was rigorously cross-examined by the Defendant’s counsel and Claimant’s case closed.

On its part, the Defendant opened its defence and Counter-Claim at the trial proceedings of 20^th July 2018. Defendant called two Witnesses. Nwachukwu Okechukwu Provins, the Defendant’s Assistant Company Secretary/Legal Adviser testified as DW1. He adopted his two sets of Witness Statements on Oath deposed to on 18^th December 2017 and 9^th July 2018, and tendered 11 sets of documents, described in the Defendant’s List of Documents dated 18^th December 2018, all admitted in evidence and marked as Exhibits ‘DA1-DA11’. Helen Idowu, the Defendant’s Manager, Internal Audit and Investigation, testified for the Defendant as DW2. She adopted her Witness Statement on Oath deposed to on 18^th December 2018.

Going by the pleadings and testimonies of the DW 1 and DW2 in respect of the Defendant’s defence and Counter-Claim, the case of the Defendant is that the Claimant fall short of expectation in performance of his duties due to lackadaisical attitude to duties, which attracted some queries issued to him, particularly the query in an Internal Memo dated September 3, 2015 (exh.DA5). That the Claimant’s response to the query was reviewed but considered unsatisfactory and communicated to him vide an Internal Memo dated September 8, 2015 (exh.DA6), which led to his suspension conveyed to him in the letter of Suspension dated September 9, 2015 (exh. DA7).

By the said letter of suspension, the Claimant was to serve suspension for two weeks without pay with effect from September 10, 2015 and upon resumption on September 24 2015, he should undergo Performance Improvement Program (PIP) and if after the performance review of his PIP, his performance still turns out unsatisfactory, his employment would be terminated.

It is also the Defendant’s case that upon resumption and undergoing the PIP, the Claimant’s employment was terminated by the Defendant for unsatisfactory performance vide the letter of Termination of Appointment dated October 30^th 2015 which takes effect the same day (exh. CA3 tendered by the Claimant).

It was further testified for the Defendant that a letter of Dismissal dated November 2, 2015 was letter issued to the Claimant (exh.DA1), which was said to be delivered to the Claimant but was not acknowledged by him. To the Defendant, with the dismissal for misconduct, the Claimant was not entitled to any terminal benefit.

THE COUNTER-CLAIM:

By the Counter-Claim, the Defendant/Counter-Claimant claims the following reliefs against the Defendant:

“A sum of one hundred and forty thousand naira (N140, 000.00), being the cost value of her laptop with its accessories which was given to the Defendant for his official assignments but which the Defendant admitted he lost. Counter-Claimant will at the trial of this case rely on Invoice issued by Bait Solution dated 05/05/2014 (N104,000) and Roselink Nigeria Limited invoice dated 8/2/2014 item tagged 1 Office Home & Business with value N36,000 which were already bought and the latter in Defendant’s stock before claimant was employed;
Sum of one million naira (N1M) being general damages;
Sum of five hundred thousand naira (N500,000.00) being the embarrassment which the defendant suffered by the defendant’s taking her to Office of Public Defender when she has not done anything wrong;
Sum of three hundred thousand naira (N300,000) being cost of this action. Counter Claimant will at the trial of this case rely on the Receipt issued by Tunde Abioje to the CounterClaimant as his professional fees for defence and prosecuting the counterclaim”.

The case of the Defendant/Counter-Claimant is that an office laptop with accessories worth N140,000.00 was lost in Claimant’s custody, of which he should pay for the replacement. DW1 tendered Price Quotation of the lap top from Bait–Ascon dated 05/05/2014 (N104,000 per unit ) and Invoice for the Accessories from Roselink Nig.Ltd dated 8/2/2014 in the sum of N36,000.00 (1 MS Office Home& Business), both admitted as Ex.DA9 and DA10, respectively.

It was further contended for the Defendant/Counter-Claimant that the Claimant’s act of reporting the matter to the OPD for intervention, was embarrassing to the Defendant, of which a claim for N500,000.00 was made against the Claimant. The Defendant/Counter-Claimant also wants the sum of N300,000.00 for defending the suit and prosecuting the Counter-Claim. Professional Fees Receipt dated 8/2/17 from Tunde Abioje & Co., the Defendant/Counter-Claimant’s counsel, was tendered and admitted as exh.DA11.

Both DW1 and DW2 were thoroughly cross-examined by the Claimant’s counsel, and the Defendant/Counter-Claimant’s case closed.

In his defence to the Counter-Claim, Claimant had denied owing the sum claimed for the lost laptop and insisted that the Counter-Claim is unjustified and should be dismissed.

Final Written Address was thereafter filed and exchanged by both Counsel.

COUNSEL’S SUBMISSIONS

Submissions by Defendant/Counter-Claimant’s Counsel:

Learned Defendant’s lead counsel, Tunde Abioje Esq., in his un-numbered but 22 paged-Final Written Address dated 6^th August 2018, raised four (4) issues for determination, viz: (1). Whether the Defendant/Counter-Claimant has placed before this Honourable Court sufficient material evidence to show that she validly dismissed the Claimant?; (2). Whether the Claimant is entitled to any of his reliefs?; (3).Whether the inclusion of 4^th Relief in the Claimant’s Statement of Fact which is not contained in Form 1 General Form of Claimant’s Complaint be considered at all being an abuse of Court process?; (4). Whether Defendant/Counter-Claimant is entitled to her reliefs in her Counter-Claim against the Claimant/Defendant?

On issue (1), counsel submitted that the Defendant/Counter-Claimant has presented sufficient materials to prove act of misconduct on the part of the Claimant that enabled exercise of summary dismissal on him by the Defendant. Counsel refers to exh.DA4, DA5 and DA6 which are queries and response with apology by the Claimant, wherein the Claimant admitted of wrong doing of his poor attitude to work. Counsel cited and relied on S.123 Evidence Act 2011 and Kinlagun v. Oshoboja (200)5 SC (pt.11) p.100, to the effect that facts admitted need no further proof. Counsel strenuously argued that due to unsatisfactory performance of his duties, the Defendant was justified in dismissing him and not termination, and urged the court to uphold the dismissal.

On issue (2), counsel referring to the Termination Clause of the Employment letter (exh CA1) contended that since there is no provision for payment of salary in lieu of notice for a confirmed staff, the Claimant does not have any basis for claiming one-month salary in lieu of notice. Counsel cited and relied on Dalek Nigeria Limited v. Oil Mineral Producing Areas Development Commission (OMPADEC)(2007) All FWLR (Pt.364)204, to the effect that where a contract is clear and unambiguous, the court is bound to uphold same.

Counsel further argued, relying on Union Bank Plc v. Ajabule & Anor. (2011)12 SC (Pt.IV)1, that since general damages are presumed by law and flows from wrong complained of, the Claimant is not entitled to the relief of General Damages, as there was no wrong done against the Claimant whose employment was terminated and later converted to dismissal. Counsel also argued that as the Claimant did not place any material in respect of the claim for cost in relief 3, and by authority of Macfoy v. UAC (1962)152, one cannot place something on nothing and expect it to stay, the relief ought to be dismissed.

On issue (3), counsel, citing Ntuk & 9 Ors. v. Nigerian Ports Authority (2007)5-6SC1, contended that it amounts to gross abuse of court process for the Claimant to add another Relief (claim for owed salary) in the Statement of Claim which relief was not in the General Form of Complaint that contained only 3 reliefs. To counsel, the additional relief in the Statement of Facts should be excluded since Complaints/Writ controls Statement of Facts/Claims.

Our issue (4), it is counsel’s submission that the Counter-Claim has merit and ought to succeed. Counsel contended that the Defendant/Counter-Claimant has shown with relevant evidence that its lap top computer with the accessories worth N140,000 got lost while in custody of the Claimant. To counsel, there was admission of that fact and by S.123 Evidence Act 2011, there is no further need to prove the admitted facts. Counsel argued that it was unjustified for the Claimant to have reported the Defendant to the Office of Public Defender (OPD) of the Lagos State Ministry of Justice and therefore caused it an undeserved embarrassment, of which should be compensated with general damages of the claimed N500,000.00. Counsel further argued that to defend the suit and the Counter-Claim, the Defendant/Counter-claimant engaged the services of counsel whose professional fees was settled in the sum of N300,000 (exh.DA11). And the evidence was uncontroverted, and thus, deemed admitted, citing and relying on Amayo v. Erinwingbovo (2006)5SC (Pt.) 1.

On the whole, learned defence counsel urged the court to dismiss the Claimant’s claims and uphold the Defendant’s counter-claim.

Submissions by Claimant’s Counsel:

Learned Claimant’s lead counsel, C.M Ohamuo Esq., in his also un-numbered but 19 paged-Final Written Address dated 28^th August 2018, raised three (3) issues for determination, viz: (1).Whether the Claimant’s employment was validly terminated; (2). Whether the Claimant is entitled to his reliefs as contained in his pleadings, and (3). Whether the Defendant/Counter-Claimant is entitled to her reliefs in her in her Counter-Claim?

Canvassing arguments on issue (1), the learned Claimant’s counsel while agreeing with the learned Defendant’s counsel’s submission with the authorities cited and relied on the settled contractual principle to the effect that parties are bound by the terms of their agreement under the doctrine of ‘pacta sunt servanda’, urged the court to interpret the unambiguous terms of the letter of employment (exh. CA1) as it relates to termination of employment of a confirmed staff, such as the Claimant. Counsel contended that the available evidence is that the Claimant’s termination was not with any notice and going by the termination clause of the exh.CA1, he is entitled to one month notice or salary in lieu of notice, none of which was given to him by the Defendant for the termination. Counsel further submitted, citing and relying on Union Bank of Nigeria Plc v. Chinyere (2012)2N1LR 41 @ 62 , Para.F-H(sic- check citation); Isheno v. Julius Berger Nig. Plc (2008)4MJSC 127, Para.F-G, that the Claimant is entitled to one month’s salary in lieu of the notice he was not given.

On the conversion of the termination to dismissal, learned counsel contended that it was a mere gimmick to deny the Claimant his entitlement which the Defendant has computed and was in the process of paying before it rather turned around to convert the termination to dismissal on a different reason which was not brought to the Claimant’s attention for him to respond to. Counsel further argued that the testimony of DW1 under cross-examination confirms that the purported dismissal letter was not served on the Claimant who had left office following termination of his employment. Citing and relying on Mr. James O. Avre v. Nigeria Postal Service (2014) 46 NLLR (Pt.147)1; Ekunola v. CBN & ANOR (2013) LPELR 20391, counsel urged the court to hold that the purported dismissal was not justified.

On issue (2), it is counsel’s contention that the Claimant is entitled to his reliefs having provided sufficient evidence in support of his claims. He submitted that having worked for the month of October 2015 the Claimant is entitled to the payment which is still being withheld by the Defendant. Counsel further contended, citing and relying on Elochin v. Mbadiwe [1986] (sic-wrong citation) that the act of the Defendant in not paying the Claimant’s owed salary affected the Claimant’s ability to take care of his family and necessitated his seeking assistance from OPD, and such act could earn him damages in the sum of N1,000,000.00, which he claims from the Defendant.

On issue (3) dealing with the Counter-Claim, learned counsel contended that the claim for the lost lap top in the course of duty was not justified and the Defendant inflated the value. Counsel submitted that the Claimant sought remedy to his legal problem with the Defendant by approaching the OPD, and that could not have caused any embarrassment to the Defendant. Counsel submitted that the cost claimed by the Defendant was not appropriate as it was based on discretion of the court. Concluding, counsel urged the court to uphold the Claimant’s claims and dismiss the counter-claim by the Defendant.

At the resumed proceedings of 8^th February 2019, both counsel adopted their respective Final Written Addresses and adumbrated on same, while urging the court to uphold their respective side of the case. Thereupon the matter was set down for Judgment.

COURT’S DECISION

I had active participation in the proceedings; reviewed the processes filed and exchanged by the parties, including their counsel’s submissions in their respective Final Written Addresses, listened to and noted the testimonies and demeanor of witnesses and evaluated evidence tendered in the proceedings. Both counsel formulated a total of seven (7) legal issues for determination in respect of the Claimant’s Substantive suit (3 issues) and the Defendant’s Counter-Claim ( 4 issues).

I will quickly dispense with the issue (3) raised by the Defendant’s counsel alleging that the additional relief in the Claimant’s Statement of Facts amounts to abuse of court process , and as such, the additional relief (claim for the owed October 2015 salary) not listed in the Complaints should be excluded since Complaints/Writ controls Statement of Facts/Claims.

The Statement of Facts represents Statement of Claim while General Form of Complaints represents Writ in this court. The applicable principle remains the same. The principle of law on this issue is quite settled. Flowing from the legal principle that the Statement of Claim supersedes the Writ, it is the law that where a relief claimed in the Statement of Claim differs from that of the Writ that of the Statement of Claim supersedes. See: Adebusokan v. Yunusa (1971) All NLR 257; Elf Nig Ltd v. Sillo [1994]6NWLR (Pt.350)258; Daniel Holding Ltd v. UBA Plc (2005)7SC(Pt.1)18; Ntah v. Aniagbo (1972)5SC101. Conversely, where some reliefs are claimed in the Writ but any omitted in the Statement of Claim, such omitted relief is deemed abandoned. See: Lahan v. Lajoyetan (1972)6SC190 @192.

Given the age-long state of the law on this issue, I find as incongruous and an attempt to misrepresent the law, the learned Defendant’s line of argument on this issue. I hasten to be distanced from such anomalous submission. Same is accordingly refused and discountenanced. In the circumstance, the Claimant’s four reliefs inclusive of the additional relief set out in the Statement of Facts are hereby deemed proper reliefs for adjudication of this suit. I so hold.

Having dispensed with one of the four issues submitted for determination by the Defendant’s counsel, three issues submitted from each of the both sides remain, now totaling six issues. Since a claim is circumscribed by the reliefs claimed (See: Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] 10 NWLR (Pt. 1095) 399), I have pruned and harmonized the issues, to comprehensively address the Reliefs sought for in the Claimant’s Substantive suit and the Defendants’ contention in opposition and the Counter-Claim.

Accordingly, in my view, the main issues for determination are follows:

(i) Whether the Claimant was validly dismissed by the Defendant;

(ii) Whether Claimant’s termination of employment was wrongful and therefore entitle him to remedy for wrongful termination and other reliefs sought?; and

(iii) Whether the Defendant’s Counter-Claim has merit?

Both counsel had presented arguments in their respective Final Addresses in respect of this issue (i). The trust of the Defendant’s defence was that the Claimant was dismissed for misconduct and therefore not entitled to any benefit, being a dismissed staff. The Defendant through DW1 tendered as evidence in support, exh.DA1 (Letter of Dismissal) dated November 2, 2015, citing poor performance as a ground for the summary dismissal of the Claimant.

The Claimant had vehemently denied knowledge of his purported dismissal vide exh.DA1, and denied ever receiving such a letter. Claimant’s counsel had strenuously argued that the said dismissal letter was an after-thought aimed at denying the Claimant’s terminal benefits at the point of his exit vide the Letter of Termination of Appointment dated October 30 2015 (exh. CA3), stated to take effect the same day.

Both parties joined issues on the service of the said Dismissal letter. During cross-examination, DW1 was asked: “In your paragraph 3 of Witness Statement on Oath (WSO), you said you personally served the letter of dismissal on the Claimant at his home address. Do you have any proof that you actually handed over the letter to the Claimant personally. He answered: “I don’t have proof. He refused to acknowledge receipt”.

Apart from the challenge of not clearly establishing the service of the dismissal letter on the Claimant, a major legal setback that threatens the validity of the said dismissal of the Claimant is whether the Dismissal letter can stand in the face of the earlier Termination letter? In other words, can an employer still dismiss an employee who was already terminated? This is instructive as both Termination and Dismissal are exit pathways for an employee, yet their procedure and effect on the employee differ markedly.

One thing is clear that both Termination and Dismissal bring to an end the employment relationship between an employer and employee (See: Alh. M.K First Bank of Nig. Plc & Anor.(2011)LPELR-8971(CA), and none substitutes or operates contemporaneously with each other. Thus, a germane issue would still remain unresolved in respect of the validity of the Claimant’s dismissal even if the service of the dismissal letter is no longer an issue or did not arise at all.

From the foregoing, it is therefore my considered view and I hold that as at 30^th October 2015 with the coming into effect of the termination, vide Letter of Termination of Appointment dated October 30, 2015(exh.CA3), the Claimant ceased to be an employee of the Defendant and therefore no longer available for exercise upon him the disciplinary measure of dismissal. To that end, I hold that the purported dismissal of the Claimant is invalid. Accordingly, the Letter of Dismissal dated November 2 2015 (exh. DA 1) is hereby discountenanced as not commanding any significant evidential value towards resolving the dispute between the parties. I so hold.

The issue (ii): Whether Claimant’s termination of employment was wrongful and therefore entitles him to remedy for wrongful termination and other reliefs sought- would be considered in the light of the reliefs sought for by the Claimant. Relief (1) (which was added in the Statement of Facts) seeks for “Order that his October 2015 Salary be paid by the Defendant to the Claimant”. By exh. CA3, the Claimant’s monthly salary is N250,000. It is also common ground between the parties and from the records that the Claimant’s employment was subsisting up to 30^th October 2015, when his termination took effect vide exh.CA3. His October 2015 was not paid. While the Defendant posited that the said October salary was forfeited as part of the Claimant’s terminal benefits a dismissed employee, the Claimant contends that it was money already worked for and due to be paid.

Perhaps, the Defendant and its learned counsel had reasoned that one of the effects of dismissal is denial/loss of terminal benefits by the dismissed employee, but overlooked the nagging legal issue as to whether such forfeiture includes earned salary before dismissal, which already ranked as a debt owed to the employee. It is this apparent misconception of the legal regime of employment exit that prompted such posture by the Defendant. However, it is time to note that such earned salary not being terminal benefit is not liable to be forfeited by a dismissed employee. I so hold.

I therefore find that the Claimant’s earned salary of October 2015 was not paid as at the time of his exit from the Defendant’s employment in October 2015, and such earned salary, not being terminal benefit, is not liable to forfeiture even if the Claimant was validly dismissed from the employment. In the circumstance, relief (1) succeeds. The Defendant is hereby ordered to pay the Claimant his October 2015 salary in the sum of N250,000.00 (two hundred and fifty thousand naira). I so hold.

Relief (2) seeks for an “Order that his 1 (one) month’s salary in lieu of notice in the sum of N250,000 (two hundred and fifty thousand naira)”. This relief is premised on the contention that the Defendant wrongfully terminated the Claimant’s employment. It was common ground between the parties and from the records, I find that the employment of the Claimant was confirmed vide Letter of Confirmation of Appointment dated March 24, 2015 (exh.CA2). This confirmation of employment enables the activation of the Confirmed Staff column of the Termination Clause in the Offer of Probationary Appointment dated May 15, 2014, for the Claimant (exh.CA1/DA3).

It was hotly contested on both sides whether the termination clause includes payment of salary in lieu of notice for a confirmed staff. While the Defendant argued that it was not included, the Claimant maintains that it is included and not complied with by the Defendant in exercising its right to terminate the employment. Incidentally, both counsel are in tandem and had alluded to the application of the principle of sanctity of contract under the contractual doctrine of ‘Pacta sunt servanda’. On my part, I also maintain the view that contract of employment is a sacrosanct document like any other contract which terms are to be observed and applied in resolution of dispute arising between the parties. In U.B.N Plc. v. Soares [2012] 11 NWLR (Pt. 1312) C.A. 550@ 571, Paras. B-C, it was held that: “Parties are bound by the terms of a contract of employment, particularly where the terms are clear and unambiguous”. Thus, where the terms are clear and unambiguous, it should be read in its ordinary meaning to echo the intention of the parties. No court would ordinarily lend its judicial arms to do otherwise. See: Ihunwo v. Ihunwo [2013] 8 NWLR (Pt. 1375) S.C.550 @ 583, Paras.E-G.

It is on this footing that I proceed to construe the termination clause of the letter of employment between the parties. It states:

“Termination:

Whilst on probation, this contract of employment can be terminated by either party notifying the other in writing One (1) Week prior to the termination, or by payment of One (1) Week’s salary in lieu of notice. After confirmation, the applicable Notice period shall be one (1) Month. Please note that in all instances the Notice shall become effective on actual receipt of such Notice by the addressee and the date of receipt shall not be counted”.

The core argument of the Defendant is that the termination clause did not state expressly the requirement for payment of the salary in lieu of notice but provides only for notice period of one month. Again, I find this line of argument incompatible with the trending legal regime of the subject, as the liability to pay salary in lieu of notice is an inherent obligation of an employment contract other than an employment of fixed tenure. See: Alh. Saleh Buba v. Adamawa State University & anor. (Unreported Suit No. NICN/YL/02/2017, Judgment of which was delivered on May 17 2017), to the effect that employment contract of fixed tenure shares common feature with tenancy of fixed term, and does not require Notice or Salary in Lieu of Notice for termination, as such ‘a contract shall be terminated by expiry of the period for which it is made’, which is the intention of S. 9(7) (a) of the Labour Act, cap L1 LFN, 2004.

This unique feature of fixed tenure employment (absence of implied obligation of payment of salary in lieu of notice) is not available for regular/periodic employment, the type of the instant case. Even in regular employment of master-servant relationship governed by common law, as in the instant case, employment is not terminated automatically with immediate effect without a period of notice at all. At common law, where no notice is provided, reasonable notice is implied, and is expected to be granted to an employee whose services are no longer required. At least such an employee can arrange personal belongings and do a handover note of activities he/she is undertaking in the course of employment. In Honika Sawmill (Nig) Ltd v. Holf [1992]4NWLR(Pt.238)CA673, it was held that “where there is no express or specially implied provision for the determination of an appointment by notice, the common law will imply a presumption that appointment is terminable by reasonable notice given by either party”.

Upon review and community reading of the said Termination clause of the exh CA1, I have formed a considered view that both parties can end the employment by actually serving the other party a written notice of termination, which in case of an employee under probation, a week’s notice is required, but in the case of a confirmed staff, one month notice is required. And in either case, failure to give required notice would attract payment of salary equivalent to the period of notice. That is- one week for probationary staff and one month for confirmed staff.

I find also that by exh. CA3 (Letter of Termination of Appointment dated October 30 2015), the Defendant terminated the employment ‘with effect from Friday, October 30, 2015’, that is the same date of the service of the termination notice. This shows that the Defendant exercised its right to bring the employment relationship to an end but failed to follow the procedural requirement of service of notice or payment of salary in lieu of notice. I therefore find that the Defendant is liable to pay one month salary in lieu of notice to the Claimant.

In the circumstance, Relief (2)) succeeds. Accordingly, the Defendant is hereby ordered to pay to the Claimant the sum of N250, 000.00 (two hundred and fifty thousand naira), being payment for one month’s salary in lieu of notice of termination of the employment contract by the Defendant. I so hold.

In Relief (3), the Claimant seeks for “General Damages in the sum of N1, 000,000.00 (one million naira) for emotional distress and financial hardship of the Claimant caused by the actions of the Defendant”. Although General damages is awardable perse upon breach and based on the assessed judicial discretion of the court, the couching of this relief seems to be Special damages as it purports to suggest some other basis anchoring the award for damages other than that the Defendant breached the terms of the contract of employment. No detailed particulars of the state of the ‘emotional distress and financial hardship’ of the Claimant arising from the breach of the employment contract by the Defendant was presented in the pleadings and evidence led at the trial to establish. Accordingly, the Relief (3) fails. It is hereby discountenanced and dismissed. I so hold.

Relief (4) is for “Cost of this suit”. Beyond putting this line in the relief part of the pleadings, nothing was presented to show the entitlement to cost which ought to be treated as special damages and expected to be properly pleaded and credible evidence led to establish at the trial. Having failed to take such desirable step in the proceedings, this relief fails, and is accordingly discountenanced and dismissed. I so hold.

RESOLUTION OF THE COUNTER-CLAIM:

The Defendant’s Counter-Claim revolves around issue (iii)-Whether the Defendant’s Counter-Claim has merit? The Relief (a) seeks for a “sum of one hundred and forty thousand naira (N140, 000.00), being the cost value of her laptop with its accessories which was given to the Defendant for his official assignments but which the Defendant admitted he lost”. Counter-Claimant had tendered and relied on Invoice issued by Bait Solution dated 05/05/2014 (N104,000) and Roselink Nigeria Limited invoice dated 8/2/2014 item tagged 1 Office Home & Business with value of N36,000 (exh. DA9 and DA10).

From the dates of the invoices and the employment letter dated 15th May 2014,I find that the items were already bought before the Claimant/Defendant to the Counter was employed, and the computer was used in the office for the work of the Counter-Claimant in the course of employment for almost over one year. Yet the invoice value of purchase was still the value claimed for the replacement even after over one year of use in the course of duties for the Defendant/Counter-Claimant. That accounted for the Claimant/Defendant to Counter-Claim’s denial of liability of the claimed sum of N140,000.00.

I also find that the issue of payment for replacement of the lost office laptop computer only arose in the pleadings in this suit. There is no evidence of previous request by the Counter-Claimant for the Defendant to replace the said lost office tool. It seems to me, as canvassed by the Claimant/Defendant to Counter-Claim, that such request at the stage of the suit is another ploy by the Defendant/Counter-Claimant to avoid its liability for breach of the employment contract. The basis for asking for replacement of the working tool by the employer was not provided, even as the tool was earlier used to discharge duties to the benefit of the employer. I find also that the issue of replacement of the laptop as a disciplinary measure was not contained in the correspondence relating to the query issued to the Claimant (exhs. DA4, DA5 and DA6). In that light, I find no basis to grant this claim. It therefore fails and is accordingly dismissed. I so hold.

Relief (b) seeks for the “Sum of one million naira (N1M) being general damages”. General damages are awardable by court based on proven breach of contract/injury as a discretional compensatory measure in favour of the victim. Where no breach/injury is established, as in the instant case, it cannot be awarded. Consequently, this relief fails and is hereby dismissed. I so hold.

Relief (c) is for the “sum of five hundred thousand naira (N500,000.00) being the embarrassment which the defendant suffered by the defendant’s taking her to Office of Public Defender when she has not done anything wrong”. From the records, I find nothing proved wrong by the act of reporting a matter of this nature to the Office of the Public Defender (OPD) of the Lagos State Ministry of Justice for legal assistance and the OPD’s subsequent assistance by inviting the Defendant/Counter-Claimant for a meeting which eventually could not resolve the matter amicably but which culminated in the OPD rendering legal services for the Claimant in this suit. I find nothing wrong that could amount to an embarrassment by such an approach contrary to what the learned Defendant/ Counter-Claimant would want the court to believe. Rather, such approach is commendable, as it tends to strengthen public trust in rule of law and judicial due process for ventilation of grievances and resolution of disputes. In the circumstance, this relief fails and is hereby dismissed.

Relief (d) is for the “sum of three hundred thousand naira (N300,000) being cost of this action”. At the trial, the Counter Claimant tendered the Receipt issued by Tunde Abioje, Esq to the Counter-Claimant as his professional fees for defence and prosecuting the counterclaim in the sum of N300,000 (exh. DA11). The general rule of award of cost is that cost follows an event, such that cost is usually awarded to the successful party to the proceedings, as indemnity for the actual expenditure for prosecution/defence of a suit.

Cost is seldom awarded in favour of a losing party who ought to bear the entire cost of the proceedings on the basis of the principle of cost follows event. Although the Defendant/Counter-Claimant made efforts to present the relief for cost as special damages, yet the basis for the award of cost in judicial proceedings was not met by the Counter-Claimant, being the losing party and not the successful party in the proceedings. I therefore find no basis to grant this relief. Same fails and is hereby dismissed. I so hold.

On the whole, I find no merit in the Counter-Claim. Accordingly, same is hereby dismissed in its entirety. I so hold.

For clarity and on the basis of the reasons so advanced in the body of the Judgment, the terms of the Judgment are as follows:

Relief (1) succeeds. The Defendant is hereby ordered to pay the Claimant his October 2015 salary in the sum of N250, 000.00 (two hundred and fifty thousand naira).

Relief (2)) succeeds. Accordingly, the Defendant is hereby ordered to pay to the Claimant the sum of N250, 000.00 (two hundred and fifty thousand naira), being payment for one month’s salary in lieu of notice of termination of the employment contract by the Defendant.

Reliefs (3) and (4) fail. Same are hereby dismissed.

The Counter-Claim fails. Accordingly, same is hereby dismissed in its entirety.

The sum of money due and awarded in this Judgment shall be paid by the Defendant to the Claimant within One (1) month of this Judgment. Otherwise, 10% interest per annum shall accrue on the sum due until finally liquidated.

Judgment is entered accordingly. I make no order as to cost.

HON. JUSTICE N.C.S OGBUANYA

JUDGE

30/04/19