Fatai Oyekunle -VS- Abell Sell Ltd. & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

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

SUIT NO: NICN/LA/189/2016

DATE: JAN.11, 2019

BETWEEN:

FATAI OYEKUNLE – CLAIMANT

(aka FATAI OYETUNDE)

AND

ABEL SELL LTD
HENRY BOYO ]-DEFENDANTS

REPRESENTATION:

Wale Ogunade, Esq- for the Claimant;

Lolade Opawumi, Esq- for the Defendants

JUDGMENT

The Claimant approached this court vide a General Form of Complaintdated and issued on 18^th March 2016, accompanied with the requisite frontloaded court processes, against his former employer and the Managing Director, seeking for recovery of outstanding owed salaries, entitled gratuity and declaration as unlawful, his dismissal on allegation of crime of stealing which was never proved against him in any court of competent jurisdiction.

The Claimant sought for the following reliefs:

“a. The sum of Forty three thousand nine hundred naira (N43,900) only being the salary due to the Claimant for the months of February and March 2015 which he worked for but he is yet to be paid for.

A Declaration that the dismissal of the Claimant from the 1^stDefendant’s employment on the ground of crime of stealing which was never proved in any court of competent jurisdiction was wrongful and unlawful.
A Demand for the sum of twenty one thousand nine hundred and fifty (N21,950.00) only which is the Claimant’s one month salary as payment in lieu of Notice.
A Demand for the sum of ten million naira (N10,000,000.00) only being amount for diligent service rendered and the Claimant’s final entitlement (gratuity) from the 1^stand 2^nddefendants jointly and severally.
Cost of this suit in the sum of five hundred thousand naira (N500,000.00) only”.

The Defendants entered appearance and reacted with a Statement of Defence, Witness Statement of their sole Witness and other frontloaded defence processes dated and filed on 25^th May 2016, wherein the Defendants denied the Claimant’s claims and joined issues with him on his pleadings. Claimant thereafter responded with Claimant’s Reply to the Defendant’s Statement of Defence dated and filed on 12^th June 2016 along with the Written Statement on Oath thereto. The suit which traversed two courts (before His Lordships O.O Oyewumi and A.N Ubaka) and re-assigned to this court in January 2018 was set down for trial on 24^th April 2018.

At the trial proceedings of 24^th April 2018, the Claimant testified for himself as Claimant’s Witness (CW). Being an illiterate in English Language, he was guided by a Court-appointed Interpreter, Mr. Jaiola Olatunbosun (Clerical Officer1 of the NICN Lagos Div.). CW adopted as his evidence-in-chief, his Yoruba version of the Witness Statement on Oath sworn to on 30^th December 2018 (as translated in the English version sworn on 30^th October 2017 under jurat). CW tendered three (3) sets of documents, described in the Claimant’s List of Documents dated 18^th March 2018, which were admitted in evidence and marked as Exhibits CF1-CF3. CW was thereafter cross-examined by the Defendant’s counsel and re-examined by his counsel, and he closed his case.

From the pleadings and testimony of CW, the case of the Claimant is that he was employed by the Defendant in 1992 as a factory worker and later was converted to a security manand deployed tothe factory sites of the 1^stDefendant. That he was not found wanting in the course of duty and even received long service award sometime in June 2014. However, sometime on 12^th December 2014, some machines were declared missing, of which the Claimant was maliciously accused of masterminding, which led to his detention by the police, but it turned out that it was the 2^nd Defendant’s son (one Mr. Sewo Boyo) who instructed the security supervisor, Mr. Dada to release the machines for sale and he had no reason to doubt the directive, although it later turned out that it was only three machines that were approved instead of five released for sale. And that the said complaint to the police was withdrawn when it became obvious that the 2^nd Defendant’s son was to be indicted. That he was later stopped work on 5^th March 2015.

CW contended that the criminal allegation against him was a ploy to carry out a sinister plan to send him away from the Defendant company empty handed, after working for the Defendant since 1992 up to this this time the company has grown. That such move was earlier made when the Defendant’s Accountant, Mrs. Sonubi, offered him the sum of N250,000 as layoff money , but which he rejected.

CW went on to testify that since his dismissal on 5^th March 2015, he has not been paid his salaries for the months of February and March 2015, despite his Solicitor’s letter of demand, which was rebuffed by the Defendant. CW believed such act by the Defendant was calculated to cheat him being an elderly illiterate man. He prayed the court to grant his reliefs.

The Defendants opened their defence at the resumed trial proceedings of 6^th June 2018. One Mrs. Shonubi Olubunmi Toyin (who substituted the earlier Defendant’s Witness, one Mr. Kehinde Odugbesan), testified as Defendants’ Witness (DW) and adopted her Witness Statement on Oath sworn to on 5^th June 2018, as her evidence-in chief for the Defendants. DW tendered 7 sets of documents described in the Defendants’ list of documents dated and filed on 25^th May 2016, which were admitted in evidence and marked as Exhibits DF1-DF7.

From the testimonies of DW and the Defendants’ pleadings, the case of the Defendants is that the Claimant was found to have conspired with other staff (inclusive of Mr. Daba Akinjogunla, the security supervisor) to remove and sell the 1^st Defendant’s machines and equipment without any prior written authority and kept the proceeds of the unlawful sale. And that the 1^st Defendant instructed its solicitors to withdraw the case from the police on humanitarian grounds when the 1^st Defendant’s premises were incessantly besieged by family members of the indicted staff.

DW further testified that it is the Defendants’ contention that the Claimant was paid all salaries due to him for the months he worked, except the months of February and March 2015 when he was detained by police. To the Defendants, it was at the time the 1^st Defendant was about to be shut down that the long service award event was held, and the Claimant was presented with a Refrigerator and the sum of N200,000.00. And that the Claimant was later offered the sum of N250,000.00 on humanitarian grounds seeing that he has advanced in age, which would make it difficult for him to secure an alternative job, and also considering his years of service with the 1^st Defendant. DW believes that the Claimant’s case is vexatious, misconceived and urged the court to dismiss the case with substantial cost.DW was thereafter cross-examined by the Claimant’s counsel and re-examined by the Defendants’ counsel, and both parties’ case closed, and Final Written Addresses were ordered to be filed and exchanged between both parties’ counsel.

COUNSEL’S SUBMISSIONS

Submissions by Defendants’ Counsel:

Learned Defendants’ Counsel, Lolade Opawumi, in her Final Written Address dated and filed on 18^th June 2018, raised three (3) legal issues for determination:

Whether the court can rely on the unchallenged or uncontroverted evidence of the Defendants in this case?
Whether the Claimant has been able to establish his claim of wrongful termination?
Whether from facts and evidence before the Honourable Court, the Claimant is entitled to the grant of his claims?

On issue (a)-Whether the court can rely on the unchallenged or uncontroverted evidence of the Defendants in this case: Counsel submitted that the Claimant was a Casual Worker and was paid his entitlements up to the time of his retirement in accordance with the stipulations of the National Minimum Wage (Amendment) Act 2011. Counsel further submitted that the Claimant upon his arrest and detention tendered his letter of Resignation (Exh.DF6).

Relying on Chief Ehikloya Eigbe v. Nigerian Union of Teachers [2008]5NWLR (Pt.1081)604, counsel argued that where an employee is found guilty of gross misconduct (an act defined to be of grave and weighty character as to undermine the confidence which exits between the employee and his employer or working against the deep interest of the employer), such an employer could be lawfully dismissed. He pointed that in the instant case, the Claimant admitted being involved in criminal acts of stealing and the Defendants merely petitioned the police, of which complaint was later withdrawn by the Defendants out of magnanimity of the 2^nd Defendant following several pleas of the employees’ families. Counsel further cited and relied on Ebeinwe v.The State [2011]7NWLR (Pt.1246)402@409; Alh. Jibran Babale v. Mr. Innocent Eze [2011]11NWLR (Pt.1257)48@71; Dr.John Olukayode Fayemi v. Olusegun Adebayo Oni [2010]12 NWLR (Pt.1222)326@342; Ogunleye v. Jaiyoba [2011]? NWLR (Pt.1252)339 @ 345 (sic-incomplete citation), to contend that uncontroverted/unchallenged piece of evidence could be acted on by the court in reaching its decision on an issue in contention.

On issue (b)-Whether the Claimant has been able to establish his claim of wrongful termination: It is counsel’s contention that since terms and conditions of employment is the bedrock of any case of wrongful termination of employment, and the onus of proof is on the Claimant to lead evidence to show in what manner the wrong was done; he must plead and prove the contract of service and show how it was breached.

Counsel cited and relied on E.P Iderima v. Rivers State Civil Service Commission [2005]16NWLR (Pt.51)378 (sic- wrong citation) and host of other cases. To counsel, the Claimant did not tender any document to prove the fact of his dismissal and no reason for the dismissal could be ascertained without such dismissal document. Counsel further submitted that there is no evidence of the contract of service of the Claimant with the Defendant. That the only documentary evidence tendered is the Claimant’s retirement letter dated 26^th February 2015 (exh.DF6).The claim therefore cannot be sustained, counsel concluded.

On issue (c) – Whether from facts and evidence before the Honourable Court, the Claimant is entitled to the grant of his claims: Counsel’s submission is to the effect that the Defendants have given evidence that the Claimant was employed as a Casual Worker and that he retired from employment voluntarily, and that the Claimant failed to justify his claimed entitlements, as he neither tendered employment documents nor established entitlement to gratuity. To counsel, the Claimant’s failure to discharge the burden would deny him the claimed reliefs, inclusive of the cost of the proceedings.

Counsel finally urged the court to uphold his submissions and dismiss the suit.

Submissions by Claimant’s Counsel:

Learned Claimant’s counsel, Wale Ogunade, Esq., on his part, formulated four (4) issues for determination in his Final Written Address dated and filed on 11^th June 2018, viz:

Whether the Court should rely on the unchallenged and or uncontroverted evidence of the Claimant in this case?
Whether the Defendants were able to prove the crime of stealing against the Claimant?
Whether the Claimant’s employment was wrongfully terminated by the Defendants?
Whether from the facts and evidence before this Honourable Court the Claimant is entitled to the grant of his claim?

On issue 1-Whether the Court should rely on the unchallenged and or uncontroverted evidence of the Claimant in this case: Counsel submitted that had established by uncontroverted evidence the fact that he was employed by the 1^st Defendant and worked for twenty two years, between 1992 and 2015. Relying on S.91 Labour Act, counsel contended that the Claimant could not have been termed a ‘Casual Worker’ since he worked permanently at the 1^st Defendant’s two factory premises.

To counsel, this material facts were admitted by the Defendants , and thus need no further proof, citing and relying on Olagunyi v. Oyeniran [1996]6NWLR (Pt.453)127.

On issue 2-Whether the Defendants were able to prove the crime of stealing against the Claimant: Counsel submitted that the Defendants were not able to prove the theft allegation against the Claimant, which he termed as ‘trump up charge’. Citing Jimoh Kuti v. Adebayo Bakare Alashe (2005) All FWLR (Pt.284)374 and Cadbury Nig. Plc v.Oni (2013)All FWLR (Pt.665)257, counsel urged the court to discountenance all arguments set up about criminality against the Claimant for their failure to discharge their burden of proof in respect of the criminal allegation and that the criminal allegation ought to be dealt with in a court before using it as basis for dismissing the Claimant.

On issue 3-Whether the Claimant’s employment was wrongfully terminated by the Defendants: Counsel contended that it was admitted by the Defendants that the Claimant worked for the Defendants from 1992 to 2015, a period of 22 years, and even received award of long service, and that the Claimant was once offered N250, 000.00 as retirement benefit which he rejected as too small. He argued that the testimony and pleadings of the Defendants were contradictory, as in one hand they showed that the claimant was entitled to retirement benefit but on another hand took the position that he is not entitled to any benefit.Also, they claimed the Claimant tendered letter of retirement dated 26February 2015(Exh.DF6)but later stated that he was dismissed based on the alleged theft he was involved in,as stated in the 1^st Defendant’s letter of May 25 2015 (Exh.CF3).Counsel further contended that since the Defendants admitted dismissing the Claimant on the basis of the alleged stealing of machine (Exh.CF3), citing Olagunyi v. Oyeniran [1996]6NWLR (Pt.453)127,such admitted fact requires no further proof. It is counsel’s further contention, and he urged the court to hold that since the Claimant is an illiterate the said letter of retirement said to be executed by him (Exh.DF6) did not have the requisite jurat, and therefore of no effect. He referred to Alhaji S.Adetoro v. Union Bank of Nig. Plc (2007) All FWLR (Pt.396)596.

On issue 4-Whether from the facts and evidence before this Honourable Court the Claimant is entitled to the grant of his claim: Counsel submitted that the Claimant has proved his case and urged the court to hold that the Claimant is entitled to his unpaid two months salaries of February and March 2015 and retirement benefit having worked for twenty two years for the Defendants, which he placed at N10,000,000.00, and cost of N500,000.00.

At the resumed proceedings of 23^rd November 2018, both counsel adopted their respective Final Written Addresses, and by way of adumbration reiterated their arguments on the issues submitted for determination and urged the court to uphold their respective submission in favour of the party they represent against the other’s case. The matter was thereafter reserved for Judgment.

COURT’S DECISION

I have reviewed the processes filed in the suit as well as submissions of both counsel filed and exchanged, and duly evaluated evidence tendered at the proceedings and observed the demeanor of witnesses who testified for their respective parties. I will quickly observe that both counsel raised a total of 7 issues (4 by Claimant and 3 by Defendants) on this seemingly straight forward matter, bordering on entitlement to gratuity and outstanding unpaid salaries of the Claimant who worked 22 years with the 1^st Defendant company but abruptly exited the organization after allegation of stealing was leveled against him, but which was later withdrawn by the Defendants/complainants. It has been admonished time without number that undue proliferation of issues doesn’t add value to effective adjudication of dispute in civil trial, and should be discouraged by trial counsel. To that end, I have pruned down the issues and harmonized them into a sole issue, which would comprehensively address the Reliefs sought for by the Claimant and the Defendants’ contention in opposition, since a claim is circumscribed by the reliefs claimed. See: Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] 10 NWLR (Pt. 1095) 399; [2008] 5-6 SC (Pt. II)47(2008)LPELR-591(SC).Accordingly, in my view, the main issue for determination is that which was presented as issue(c) by the Defendant and issue (4) by the Claimant, to wit: Whether from facts and evidence before the Honourable Court, the Claimant is entitled to the grant of his claims?

The Claimant’s Relief (a) is for the sum of Forty three thousand nine hundred naira (N43,900) only being the salary due to the Claimant for the months of February and March 2015 which he worked for but he is yet to be paid for. It is common ground between the parties that there existed an employment relationship between the Claimant and the 1^st Defendant, which lasted between 1992 and 2015 (22 years). However, while the Claimant claims that at the point of exit he was owed two months salaries, covering the months of February and March 2015, the Defendants denied owing him any sum amount. Parties joined issues on this material fact to be resolved. The lingering question is who has the burden of proof to establish this crucial fact?

In my considered view, the issue as to payment or non-payment of salary where employment relationship is already established is a particular fact, which imposes evidential burden of proof on the employer, being a party thoughnot bearing the general burden of proof, but would fail if no evidence is led to establish the controverted fact of payment of salary. See: S.136 (1) (2) EvidenceAct 2011; M.W.T (Nig) Ltd v. PTF [2007]15 NWLR (Pt.1058)CA451@492-493 Para.G-C. On that note, although the Claimant has a general burden of proof to establish his claims, nevertheless, as the burden of proof in civil trial is never static but preponderates, I hold the view that it is the duty of the employer (like a debtor) to establish how a disputed payment of salary was made to an employee who denies receiving due salary at workplace or justify why the salary is withheld.

The next rearing question is, has the Defendants discharged the evidential burden of this particular fact? From the pleadings and evidence led, I find that the Defendants merely denied the claim of non-payment of two months’ salary to the Claimant, but did not provide any detailed particulars of the payment or any evidence thereof. In Exh.CF3, the Defendant merely stated”…we want you to know that your client was getting his salary and other benefits timely and accurately, during the period that he worked with us, before the incident of machine theft in which he was involved with three others, occurred..” To my mind, this testimony can be classified as ‘negative pregnant traverse’specie of defence pleading, as it appears ambiguous;the 1^st Defendant generally denied owing the Claimant any arrears of salary but also alluded to not paying after the incident of the alleged theft. The said incident took place on 12^th December 2014 and the Claimant stopped work on 5^th March 2015. The arrears of salaries in issue are for the months of February and March 2015.Defendants later confirmed non-payment of the two months’ salaries to the Claimant when they averred that the Claimant did not work for the months of February and March 2015 as he was arrested then. See: Para.30 Statement of Defence dated 25^th May 2016 and Para.23 of the DW’s Witness Statement on Oath.

What the Defendants’ position postulates is that the Claimant is entitled to payment of salary as a daily worker (perhaps as a casual worker as he has been described) and not as a staff in periodic employment who is entitled to continuous monthly salary unless as excused by law/terms of employment during the life span of the employment relationship. The law is settled that even an employee under suspension is still invariably a staff of the employer. And the suspended employee’s entitlement to remuneration is only dependent on whether the suspension is pending investigation or punishment for alleged infraction- breach of discipline or any other offence. If it is pending investigation,the employee is deemed to be relieved of working by the employer who did not provide him work and is entitled to full remuneration

unless there is an express provision in the condition of service providing that the suspension would be without pay or with half pay. This is the intendment of S.17 (1) Labour Act Cap.L1 Laws of the Federation 2004. I had taken similar position in West African Cotton Co.Ltd v. Oscar Amos (Unreported Suit No. NICN/YL/10/2015, Judgment of which was delivered on June 13 2018). I see no reason to depart therefrom. I adopt same to resolve this nagging issue.

In the instant case, I find that the Claimant was merely said to be arrested and was under investigation by the police during the period of the two months in issue. He was neither relieved of his duties nor could be suspended as punishment by then since investigation was ongoing and later withdrawn. Therefore, in absence of any credible evidence by the Defendants on when and how the claimed salaries were paid to the Claimant or legally acceptable justification for withholding the Claimant’s salaries, I find that the Claimant is entitled to recover the payment of the two months outstanding salaries before his exit from the 1^st Defendantin the sum of N43,900 (forty three thousand nine hundred naira. In the circumstance,Relief (a) succeeds and is hereby ordered accordingly.

Relief (b) is for a Declaration that the dismissal of the Claimant from the 1^st Defendant’s employment on the ground of crime of stealing which was never proved in any court of competent jurisdiction was wrongful and unlawful. Both parties took divergent position on this relief while canvassing arguments on theirissues set out for determination in their respective Final Written Addresses (Claimant’s issues 2and3; Defendants’ issues 1and 2).Claimant maintained that the Defendants did not prove the allegation of stealing leveled against him, and did not subject him to criminal trial but used the allegation as a ploy to get rid of him in the organization without proper settlement with exit package (gratuity). And that the criminal allegation was withdrawn when it turned out that the 2^nd Defendant’s son was to be indicted for his instruction to the Claimant’s security supervisor to release for sale the machines which the Claimant relied on to allow the release of the machines in the factory.

On the other hand the Defendant took the hardline position that the allegation bordering on criminality amounts to gross misconduct of which can ground summary dismissal of an employee from workplace, and that the Defendant was entitled to exercise such disciplinary power on the Claimant without subjecting him to criminal trial contrary to the legal postulations by the Claimant’s counsel. The Defendant however pointed that the allegation of stealing leveled against the Claimant and some other security staff was duly reported to the police and investigation reached advanced stage before the Defendants withdrew the complaints with the police after pleas from families of the affected staff.

Going by the evidence adduced and particularly the testimony and pleadings of the Defendants on this issue; that the complaint lodged with the police waslater withdrawn at Defendants’ instance and volition without pressing any charge against the Claimant, a follow-up question is, why did the issue of the alleged criminal act of stealing still formed the basis of relieving the Claimant of his services with the 1^st Defendant?

The relevant portion of exh.CF3 reads: “…The management decided to drop the charges against them after due consideration of the impact of prosecution and conviction would have on their families. Consequently, they were relieved of their duties…”There is no doubt that an employer reserves the right to dismiss an employee on allegation of misconduct involving crime without first subjecting him to criminal trial, provided that such an employee received fair hearing by confronting him with the accusation made against him and requiring him to defend himself. Thus, contrary to the submission of the learned Claimant’s counsel, criminal prosecution is not sine qua non for an employee to be relieved of his services on ground of misconduct occasioning crime. See: Arinze v.F.B.N [2004]12NWLR (Pt.888)663SC;A.T.A Poly v. Maina [2005]10NWLR (Pt.934)487 CA; Musa v. Fed. Min., Tourism, Culture& Nat. Orientation[2013]10 NWLR (Pt.1363)CA556

However, the law is also quite settledthatin a common law rule of master–servant relationship, as in the instant case, an employer can relieve the services of the employee with or without reason, but where a reason is given,particularly based on allegation of misconduct,and is challenged by the employee, the employer has the evidential burdenand duty to justify same, otherwise such employer incurs liability thereto.In Shell Petroleum Co.Ltd v. Olanrewaju [2008]18 NWLR (Pt.1118)SC1@Pp.19-20, Paras. H;A-B, the Supreme Court per Tabai JSC, held :

“The guiding principle which has been articulated and applied in many cases including Olatunbosun v. N.I.S.R Council (1988) 1NSCC (1025)188, is that an employer is not bound to give reasons for terminating the appointment of his employee. But whereas in the case, he gives a reason or cause for terminating the appointment, the law imposes on him a duty to establish the reason to the satisfaction of the court. In the case, the appellant, having given gross misconduct to warrant his dismissal, has the onus to establish that the respondent was indeed guilty of alleged misconduct to warrant his dismissal. And in a case such as this, the court must be watchful to ensure that in the investigations or proceedings of the domestic panel culminating in the employee’s dismissal, the rules of natural justice were not breached”.

The Defendants had hinged the exit of the Claimant on his dismissal based on gross misconduct of involvement in stealing of machines as stated in the 1^st Defendant’s letter of May 25 2015 (Exh.CF3), but still went ahead to state that the complaint was withdrawn, without taking the expected step to pursue the case to a logical conclusion to justify the basis of the alleged misconduct, which the Claimant vehemently denied.

This unexpected step taken by the Defendants by withdrawal of the complaint already under investigation by the police with some headways being made already that would’ve helped to justify the reason for the alleged summary dismissal of the Claimant tends to make the testimony of CW more credible and believable that the Defendants’ withdrawal of the complaint was to prevent the apparent indictment of the 2^nd Defendant‘s son, who allegedly played a key role in the alleged missing machines.

I find also that the Defendants again, at the trial and Counsel’s Final Written Address, dissipated tremendous energy and space to explain the grounds of the misconduct to justify the Claimant’s dismissal, but surprisingly again, left that line of defence, and opened another parallel line of defence and testified that the Claimant resigned his employment by retirement. In support, DW tendered exh DF6 (the Claimant’s purported retirement letter dated 26^th February 2015), of which the Claimant’s counsel urged the court to reject due to the absence of illiterate jurat on it; the Claimant being an illiterate to the knowledge of the Defendants.

Note that from the records, the Claimant conducted his case through a Court-appointed Interpreter and CW’s Witness Statement on Oath had both Yoruba and English versions with requisite jurat endorsed. I have taken a look at the exh.DF6 and I find that it is a document that requires an illiterate jurat, but no such jurat was endorsed on it contrary to the prescriptions of S.119 Evidence Act. Not fulfilling the prescription of the statutory jurat on the Exh.DF6 invariably robs it of the evidential weight it ought to command. Accordingly, Exh.DF6 is discountenanced, having low evidential weight in the circumstance. I so hold.

Disputing parties are usually enjoined and indeed expected to be and remain consistent in presenting their case before a court of law; a trite litigation principle, of which the Defendants appear to have ignored.In that light, the Defendants ought not to deviate from the line of justification for the dismissal of the Claimant on account of gross misconduct occasioning crime and diverted to retirement of the Claimant, both of which are contradictory exit paths for an employee. Accordingly, I find that the Claimant’s purported dismissal is not justified. The Termination of the Claimant’s employment by the 1^st Defendant is hereby so declared wrongful. Relief (b)therefore succeeds to that extent. I so hold.

Reliefs (c) and (d) are closely associated with Relief (b), and can be taken together as they both deal with monetary Reliefs being sought from the Defendants flowing from the manner of exit of the Claimant from the 1^st Defendant Company, already found and declared to be wrongful termination of the Claimant’s employment in Relief (b). Relief (c) seeks for the sum of N21, 950.00(twenty one thousand nine hundred and fifty naira),being the Claimant’s one month salary as payment in lieu of Notice of the wrongful termination.Relief (d) isfor the sum of N10,000,000.00(ten million naira) being amount for diligent service rendered and the Claimant’s final entitlement (gratuity) from the 1^st and 2^nd defendants jointly and severally.

From a review of the pleadings and evidence adduced at the proceedings, the Defendants appear to have got stuck with the two divergent modes of exit (dismissal and retirement) they presented to justify why the Claimant is not entitled to any monetary reliefs as claimed. The Defendantshad introduced another justification, to the effect that the Claimant was a mere ‘casual worker’ and thus, not entitled to any terminal benefit and indeed challenged the Claimant to produce any Contract of Employment evidencing entitlement to any such benefit/civil treatment at workplace, and even payment of salary in lieu of notice for wrongful termination. To the Defendants, since the Claimant was a casual staff, he was not entitled to letter of employment or contract of service. This aspect of lack of contract of employment and the Claimant being a casual staff formed the crux of the Defendants’ later defence to the monetary reliefs sought for by the Claimant.

Let me quickly again dispel this line of reasoning canvassed by the Defendants and their counsel in a bidto scratch for justification for the denial of Claimant’s perceived benefits. It is my considered view, that the deliberate failure to give an employee a letter of employment which would spell out the clear terms of the employment and conditions of service, and turning around to be branding a Nigerian employee, ‘casual worker’,cannot attract judicial endorsement, but would ordinarily be admonished with exemplary damages for conscious breach of the extant legal regime on the subject. To say the least, the term, ‘casual worker’ is demeaning, otiose and no longer an acceptable terminology of description of any Nigerian worker no matter how lowly placed within the current Nigerian Labour & Employment legal regime. See: S.91 Labour Act; Shena Security Co. Ltd v. Afropak (Nig.) Ltd &Ors. (2008)LPELR-3052(SC).

Having found and declared the Claimant’s employment with the Defendants as wrongfully determined, I find from the records that there was no evidence of any notice or payment of salary in lieu of notice, in respect of the periodic employment between the Claimant and the 1^st Defendant, spanning for about 22 years from 11 August 1992 when the Claimant was employed as a factory worker and later converted to security man in 1994, and continued in service till 5^th March 2015 when he was purportedly dismissed.

I reject the Defendants’ stance of branding the Claimant as ‘casual worker’ (a term well frowned at in modern employment and labour practice) to the extent of even querying his employment status because of lack of written contract of employment, which was orchestrated by the Defendants.What the Defendants forgot or did not draw their attention to, is the fact that written employment letter is not a sine qua non for establishing employment relationship (see: S.91 Labour Act). The Defendants also seem to have played ignorance of the legal requirement and obligation of every employer of labour in Nigeria to give an employee a Letter of Employment within 3 months of employment (See:S.7 Labour Act).

Accordingly, the Defendants who failed in this regard cannot, in my view, be allowed to benefit from their own wrong by denying the employment status of the Claimant and benefits thereto. I will adopt similar stand I had taken in Johnson Obozowa Acha v.Standard Metallurgical Company Ltd (Unreported Suit No. NICN/LA/536/2017, Judgment of which was delivered on October 12 2018).

In the instant case, due to absence of evidence of conditions of service which would ordinarily provide for period of notice for termination, it is not clear what the length of notice or salary in lieu of notice that is applicable. However, even in 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”. In the circumstance, Relief (c)) succeeds to the extent that the Claimant is entitled to payment of an amount equivalent to his one-month salary, which has been stated to beN21,950.00(twenty one thousand nine hundred and fifty naira). I so hold.

Relief (d)is asking for the sum of N10, 000,000.00(ten million naira) being amount for diligent service rendered and the Claimant’s final entitlement (gratuity) from the 1^st and 2^nd defendants jointly and severally. From the records, I find that both parties share common ground that the Claimant was once offered N250, 000. 00 as pay-off in June 2014 by the Defendants, but that the Claimant reject same as not sufficient. And that parties were then at ad idem on what they really want to achieve- early and smooth exit of the Claimant from the 1^st Defendant Company.

This development in my view draws an inference that there is an intention of entitlement to retirement benefit in the 1^st Defendant Company, though a certain sum or calculation formula was yet to be agreed to when the first sum (N250,000.00) was offered by the Defendants, of which was refused by the Claimant.Consequently, any party who attempts to rescind from the underlining agreement should be stopped and dragged back to honour same. That is the essence of the doctrine of estoppel by contract. See: AG., Nasarawa State v. AG., Plateau State [2012]10NWLR (Pt.1309)SC 419 @Pp.449, paras.E-F, P.450 para.C.

In the circumstance, the Defendants are estopped from denying that the Claimant is entitled to pay-off (gratuity). In the absence of a clear agreeable figure, and no further evidence from the Claimant as to the actual sum he is entitled to and the basis of the assessment, I find that the Claimant having served the Defendants for 22 years as at his exit in 2015, and given his old age, the Claimant would be entitled to a pay-off package in line with the original intention of the parties afore-said. Given the inflation ratefrom the period of about 4 1/2years, the Defendants offered him N250, 000.00 in June 2014,and the current state of the economy, Relief (d) succeeds to the extent that it is hereby ordered that the sum of N500, 000.00 is payable as apay-off package to the Claimant by the Defendants. I so hold.

Relief (e) is for cost of this suit in the sum of N500,000.00. 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.

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 (a) succeeds. Accordingly, it is hereby ordered that the Claimant is entitled to be paid the sum of N43, 900.00(forty three thousand nine hundred naira) being the two months outstanding salaries before his exit from the 1^st Defendant.

Relief (b) succeeds to the extent that the Claimant’s purported dismissal is not justified, and it is hereby declared that the 1^st Defendant wrongfully terminated the employment of the Claimant.

Relief (c)) succeeds to the extent that the Claimant is entitled to payment of an amount equivalent to his one-month salary, which has been stated to be N21,950.00 (twenty one thousand nine hundred and fifty naira)

Relief (d) succeeds to the extent that it is hereby ordered that the sum of N500, 000.00 is payable as a pay-off package to the Claimant by the Defendants

Relief (e) fails, and is hereby discountenanced and dismissed.

The sum of money due and awarded in this Judgment shall be paid by the Defendants 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

11/01/19