IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: MONDAY 24TH JUNE 2019 SUIT NO. NICN/OW/36/2017
BETWEEN:
MR. JOHN CHINEDU ISIODU……………………………..CLAIMANT
AND
WALTERSMITH PETROMAN OIL LIMITED…………DEFENDANT
REPRESENTATIONS:
O.S. AKINOLA FOR THE CLAIMANT.
SIMILOLUWA SOMUYIWA FOR THE DEFENDANT.
NOTA BENE: This case was entirely heard, from the beginning to conclusion, at the Owerri Judicial Division of the Court but judgment delivered at the Enugu Judicial Division, pursuant to Order 62, Rule 12(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017.
JUDGMENT
INTRODUCTION
This suit was commenced via Complaint dated and filed 8th June 2017. It was accompanied with Statement of Facts, wherein the following reliefs were claimed in paragraph 25 thereof:
A Declaration that the Defendant’s sudden termination of the Claimant’s employment without giving the Claimant any opportunity to be heard on any allegation leveled against him is unfair, unjust and a gross violation of the claimant’s right to fair hearing.
A Declaration of Court that the Defendant’s termination of the Claimant’s employment without due compliance with the disciplinary process and procedure stipulated in the Defendant’s Human Resources Manual is unfair, unjust and unlawful.
A Declaration of Court that the Defendant’s termination of the Claimant’s employment which in the circumstances of this case is designed to deprive the Claimant the opportunity of reaching 10 (ten) years in service which would have entitled the Claimant to benefits of disengagement from service in line with the Defendant’s Human Resources Manual is unjust, unfair and unconscionable.
A [sic] Order of Court setting aside the Defendant’s letter of termination of the Claimant’s employment dated 16/3/2017.
The Sums of:-
N545,868.00 (Five Hundred and Forty Five Thousand, Eight Hundred and Sixty Eight Naira),
N1,637,604.00 (One Million, Six Hundred and Thirty Seven Thousand, Six Hundred and Four Naira)’
Due to the Claimant at the time of termination of his employment.
The Sums of:-
(a) Basic Salary – N2,533,086.15 per
annum
(b) Housing Allowance – N1,773,160.31 per
annum
(c) Transport Allowance – N253,308.62 per
annum
(d) Other Allowances – N1,395,377.83 per
annum
(e) Furniture Grant – Three (3) months
Consolidated salary
Every Three (3)
years.
(f) 13th Month Allowance – 10% of Annual
Consolidated Salary.
(g) Leave Allowance – 10% of Annual
Consolidated Salary
(h) Medical – Free for self, Spouse
and Four Children
Representing the Claimant’s monthly pay, from the month of March 2017 till judgment in this suit.
10% interest on the claimant’s total monetary entitlements from the Defendant from March, 2017 till judgment in this suit.
N30,000,000.00 (Thirty Million Naira) Damages against the Defendant.
10% interest on the entire judgment debt until the same is fully liquidated.
The defendant entered appearance on 19th July 2017 by filing conditional appearance. Statement of Defence/Counterclaim was also filed on the same day. The claimant filed Reply and Defence to Counterclaim on 1st February 2018. Later, the defendant filed Amended Statement of Defence on 12th February 2018. The defendant also filed Reply to the Defence to the Counterclaim on 13th February 2018. Thereafter, the claimant filed Amended Claimant’s Reply and Defence to the Counterclaim on 6th April 2018. Subsequently, the defendant filed motion on notice to call additional witness on 24th May 2018. The claimant filed counter affidavit against this on 30th May 2018. The defendant filed, what it called ‘reply affidavit and reply on points of law to the counter affidavit’ on 31st May 2018. The claimant filed motion on notice to compel the defendant to enable the claimant access his contributory retirement savings account on 6th December 2018. The claimant subsequently filed his final written address on 29th January 2019. The defendant filed its final written address on 7th February 2019. The claimant filed reply to the final address of the defendant on 5th February 2019. Later, the defendant filed motion on notice to enable it file another final written address on 20th February 2019; and the claimant filed counter affidavit against this on 26th February 2019 while the defendant filed, what it called ‘reply affidavit to the claimant’s counter affidavit and reply on points of law’ on 1st March 2019. This is all about the major processes filed. I shall move to the proceedings.
PROCEEEDINGS
The matter first came up before Hon. Justice O.Y. ANUWE on 3rd July 2017 and it was adjourned to 9th October 2017 for mention. Before this date, Hon. Justice ANUWE was transferred from the Owerri Division, while I replaced His Lordship, Hon. Justice ANUWE in the Owerri Division. The matter came up before me for the first time on 24th October 2017. It was on this date adjourned to 28th November 2017 for further mention. On this date, the matter was adjourned to 6th February 2018 for hearing of pending applications and the substantive suit. It came up as adjourned. The learned counsel to the defendant: DR. K.U.K. EKWUEME moved the application for extension of time to file the Statement of Defence and other defence processes. The application was granted unopposed. The claimant’s reply to the Statement of Defence and Defence to Counterclaim was consequently deemed as properly filed and served too. The case was thereafter adjourned to 14th March 2018 for hearing. On 14th March 2018, the learned counsel to the defendant informed the Court that, the defendant filed a process on 13th March in the Lagos Division of the Court; and that, it was yet to get to the Owerri Division. On the agreement of counsel, the case was adjourned to 11th and 12th April 2018 for definite hearing.
On the 11th April 2018, the matter came up as adjourned and the learned counsel to the defendant moved the defendant’s application for leave to amend the defence pleadings. This application was granted unopposed. The consequential amended claimant’s reply and defence to counterclaim was also deemed as properly filed and served without opposition. The case was subsequently opened the same date with the claimant as CW1. CW1 informed the Court after affirming that, he made two written depositions; and that the 1st was made on 8th June 2017 while the additional written deposition was made 6th April 2018. CW1 adopted the two written depositions. The learned counsel to the defendant thereafter informed the Court that they had reviewed the documents sought to tender and that, they were not opposed to any of them. Thereafter, nineteen documents were admitted unopposed, and marked as exhibits A – U sequentially. At this point, light went off and the case was adjourned to the following day 12th April 2018 for continuation of trial. It came up as adjourned. At the point of laying foundation to tender a computer-generated document, the learned counsel to the defendant raised objection and the Court ruled against the objection and called on the learned counsel to the claimant to continue with the foundation for its admissibility. The foundation was laid and the document admitted as Exhibit V (1-2).
Thereafter, CW1 tendered a tape recording. On the agreement of counsel to the parties, the tape record was simply marked as Exhibit W with leave to the parties to present arguments on its admissibility at the final address stage. The learned counsel to the claimant thereafter applied to substitute Exhibit T (1-2) with its photocopy. There being no objection, leave was granted accordingly; and the learned counsel to the claimant ended the testimony of CW1. Cross-examination was commenced immediately and also brought to an end the same day. The learned counsel to the claimant did re-examination on the issue of Exhibit J (1-2) and thereafter closed the case of the claimant. The learned counsel to the defendant thereafter made an application for long adjournment, which was refused and the case adjourned to 30th and 31st May 2018 for defence and cross-examination. The case came up as adjourned but could not go on, as the learned counsel to the defendant said he needed time to react to the counter affidavit filed by the claimant. The case was adjourned to the next day, 31st May 2018. The next date, the learned counsel to the defendant informed the Court that, there was an application to call additional witness. Application to make use of the defendant’s copies of the processes, when the file copies had not gotten to the Owerri Division from the Lagos Division, where the process was filed was granted unopposed. The application was moved and opposed; and the case adjourned to 10th July 2018 for ruling. Ruling, refusing the application, was delivered on the said 10th July 2018. The case was adjourned to 27th September 2018 for defence and cross-examination.
On this date, the learned counsel to the claimant applied that the defendant be compelled to allow the claimant to access his pension contributions. The Court refused to take argument on the application and directed that the day’s business be proceeded with. Thereafter, the defence opened with one Mrs. Oluwakemi Banjo [Human Resources Manager], who testified as DW1. DW1 affirmed and adopted her two written depositions both made on 13th February 2018. The learned counsel to the claimant raised objection to the first document DW1 proposed to tender. Ruling was not written on the objection when the case was adjourned, on the application of the defence counsel, to 7th December 2018 for further defence. The Court did not sit on this date, because, before this date, I had been transferred from Owerri Division. The matter came up next on 10th December 2018 and on this date, the Court upheld the objection and marked the document titled “Final Entitlements” as rejected. Thereafter, DW1 stated that, she would like the Court to dismiss the suit and grant the counterclaim. The matter proceeded to cross-examination, which was completed the very day. There was no re-examination and the learned counsel to the defendant closed the case of the defence. The case was thereafter adjourned to 7th February 2019 for adoption of final written addresses.
It however came up on 21st February 2019. On this date, the case was called at 6:26 pm and there was objection from the learned counsel to the claimant to an application filed by the defence, and I observed that, I was still travelling to Enugu that day hence, had no time to take any lengthy arguments on objection, instead of the adoption for which the case was fixed. The case was therefore adjourned to 1st March 2019 for arguments on the motion and adoption of final written addresses. The case came up on 1st March 2019 as adjourned and the learned counsel to the defendant moved his application for extension of time to file final written address. The defendant filed two final written addresses. One was filed on 7th February 2019 while the other was filed 20th February 2019. The claimant filed his written address first and had replied on points of law to the first of the two final written addresses filed by the defendant before the second final written address was filed. The defendant brought application for extension of time to file the second final written address and to deem it, as properly filed and served. This application was opposed; and ruling reserved to 29th March 2019. Ruling was delivered on 29th March 2019 and the final written address of the defendant filed 20th February 2019 struck out, while the one filed 7th February 2019 was deemed properly filed and served. The Court thereafter called on the parties to adopt their existing final written addresses.
The learned counsel to the defendant, yet made another oral application for adjournment, to enable the defendant file a final written address that would react specifically to the final written address of the claimant and substitute it for the extant one. Of course, this application was opposed, as an attempt to reverse the ruling of the Court. The oral application was refused and the Court called on the learned counsel to the parties the second time to proceed to adopt their extant addresses. Thereafter, the learned counsel to the claimant: O.S. AKINOLA, who filed first, adopted the final written address dated 28th January 2019 and filed 29th January 2019 together with the reply on points of law dated and filed 15th February 2019; and urged the Court to grant the reliefs sought. Thereafter, the learned counsel to the defendant: DR. K.U.K. EKWUEME adopted the final written address dated 2nd February 2019 and filed 7th February 2019 and urged the Court to dismiss the case. The case was thereafter adjourned to 10th May 2019 for judgment. Judgment was not ready on this date hence, adjourned sine die till communication of date to the learned counsel to the parties. That is all about the proceedings of the Court. I now proceed to summarise the cases made out in the pleadings of the parties.
CASES MADE BY THE PARTIES IN THEIR PLEADINGS
The claimant pleaded that the defendant employed him with effect from 2/5/2008 as Community Liaison Officer [CLO]; and that the defendant confirmed his appointment after 6 months. The claimant stated that, he rose to the position of Assistant Manager 2 on 1/1/2016; and that, by an internal memo dated 11/7/2016, the defendant redesigned his post, as Health Safety and Environment [HSE]. The claimant also pleaded, the Human Resources Manual [HRM], as regulating his employment. The claimant also pleaded his salary and other financial entitlements. The claimant said his appointment was suddenly terminated on 20th March 2017 by a letter dated 16/3/2017 without query or reason but that, later on 22nd March 2017 he got an internal memo dated 22/3/2017, querying him for dereliction of duty. The claimant pleaded that the allegations leveled against him were false and made to tarnish his image. The claimant pleaded that, his appointment was not terminated in accordance with the HRM; and that, the termination also breached rules of fair hearing. The claimant pleaded that, he was at the verge of marking ten years in service when his employment was determined; and that, had he reached the 10 years length, he would have been entitled to some benefits in accordance with the HRM. The claimant also pleaded that he was entitled to leave allowance. The claimant pleaded that, the manner of termination of his appointment was totally unfair and against international best practices and ILO conventions. The claimant pleaded that, he answered the query subsequently issued him, and caused his lawyer to communicate his reply to the defendant on 3/4/2017; and that, the defendant replied on 21/4/2017, affirming his termination thus, this action.
The defendant reacted in its Amended Statement of Defence and Counterclaim. The defendant pleaded that the claimant was inadvertently issued a query after his employment had been terminated. The defendant also pleaded that, it could terminate the employment at any time under the HRM and that, by the termination letter of 16/3/2017, the appointment had been rightly terminated, as the employment contract and the HRM did not provide for the issuance of query or establishment of gross misconduct before termination. The defendant pleaded too that, even if the HRM set out procedures to be followed in the termination of the claimant’s employment, such could not override the employment contract. The defendant pleaded further that, since the termination, the claimant had not worked for the defendant and that, the termination was not based on any disciplinary action but, on the ground of services no longer required. The defendant also pleaded the sums it agreed that the claimant was entitled to at the point of termination; and that because, the claimant failed to complete the exit form and return the office’s properties with him, his entitlements were been withheld. The defendant pleaded that it was not liable to the claimant, as claimed. The defendant prayed that the suit be dismissed, and moved to the counterclaim.
The defendant counterclaimed and asked the Court for order compelling the claimant to return to the defendant the ID Card issued him and the HP Probook 640 GI Laptop with number 5CG54733GR. Thus, ended the counterclaim. I shall move to the reply to the Statement of Defence and Defence to Counterclaim filed by the claimant.
In the Reply and Defence to Counterclaim, the claimant pleaded that the query issued two days after sacking him, was not inadvertent, in that, after service of the query, Head Human Resources kept on pestering him to answer the query via phone calls to his line; and further that, similar query was issued the same day to the Head of Community Relations, while the claimant’s Field Allowance was also paid after service of the said query. The claimant pleaded too that, his termination was borne out of disciplinary actions. The claimant pleaded that, he printed out the query from his HP Printer Deskjet 1510 using USB Cord after accessing it via the defendant’s Laptop HP Pro Book 640 GI with Serial No. 5C954733 GR, which was operating properly at the material time; and that, at the material point in time, this printer and other components were used regularly for this type of information being regularly supplied to these machines. The claimant pleaded that, the employment between the defendant and the claimant had not come to an end by the termination because, the query after termination, superseded the termination; and that; hence, the defendant still regarded the claimant as staff, but prevented the claimant from continuing with his work thereby depriving him of 10 years of service entitlements.
The claimant pleaded too that, his furniture allowance, was more than pleaded by the defendant and that, he was never served with the breakdown of his entitlements through any letter, as pleaded by the defendant. The claimant replied that, he had returned all the items the defendant claimed he had not returned but that, he could not submit the Exit Form as the defendant still related with him by issuing him query, and pestering him to reply and yet to communicate its reaction to his reply to the query. On the issue of remaining in the service of the defendant, the claimant further replied that he was not issued notice or with one month salary in lieu. The claimant replied that he recorded the telephone call of the Head, Human Resources.
In the Reply to Defence to the Counterclaim, filed before the Amended Reply and Defence to Counterclaim, the defendant replied that, paragraphs 4a-4h of the former Reply and Defence to Counterclaim are not relevant to answering the Counterclaim; and that, the HR Manager never phoned the claimant to put pressure on him to answer the query. The defendant replied that, it never prevented the claimant, during the currency of his employment, from carrying out his duties. Thus, ended the summary of the pleadings of the parties. I shall now go on to summarise the final written addresses of the parties.
SUMMARY OF THE FINAL WRITTEN ADDRESSES
A. Final Written Address of the Claimant
O.S. AKINOLA franked the claimant’s final written address. The learned counsel formulated five issues, to wit:
Whether the defendant duly terminated the claimant’s appointment in the light of the peculiar facts and circumstances of this case [sic].
Whether the defendant established a case of misconduct against the claimant before terminating his appointment [sic].
Whether the claimant was given fair hearing in terminating his appointment [sic].
Whether the claimant is entitled to his claim [sic].
Whether the defendant is entitled to it’s counter claim [sic].
The learned counsel argued issues (a), (b) & (c) together and submitted that, the defendant failed to duly terminate the appointment of the claimant because it never established a case of misconduct against the claimant. The learned counsel further submitted that, the rights of the claimant must be determined in accordance with the written contract, as reflected in the letter of appointment [Exhibit A (1-2)], the HRM [Exhibit E] and Exhibit B. The learned counsel submitted that, the attempt of the defendant later, to assign subordinate status to the HRM is an afterthought, and amounts to approbating and reprobating. The learned counsel submitted that, at cross-examination, DW1 admitted that the HRM contained the terms and conditions that regulate the claimant’s employment. The learned counsel cited Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 at 602 to the effect that, where an appointment is terminated contrary to the terms of the contract, the employer must pay damages. The learned counsel submitted that, the HRM and the letter of appointment bind the parties.
The learned counsel argued that, the claimant was never given one-month notice or salary in lieu, as provided in the letter of appointment. The learned counsel submitted that, DW1 admitted this in her cross-examination. The learned counsel submitted that, the implication of all these is that, the appointment of the claimant was terminated for misconduct, as provided in paragraph 6 of the letter of appointment; and that, it amounts to unfair labour practice for the defendant to fail to comply with paragraph 3 of the letter of appointment, which stipulated one-month notice. The learned counsel submitted that, the falsehood of the denial that the termination was based on misconduct was proved by the subsequent issuance of query [Exhibit G], based on misconduct to the claimant, after the termination. The learned counsel submitted that, the implication of issuing query to the claimant after termination was that, he was still been treated as a staff and that the defendant is estopped from contesting this. On this submission, the learned counsel cited UBA Plc v. Johnson (2010) ALL FWLR (Pt. 525) 312 at 336-337, G-C. The learned counsel submitted that, DW1 admitted under cross-examination that, she partly authored the query; and that, dereliction of duty was misconduct but that, the employee must be afforded fair hearing before being disciplined. The learned counsel cited Woyah v. Jama’A LG, Kafancha (2013) ALL FWLR (Pt. 659) 1171 at 1193-1194 on the fact that, a counsel could rely on evidence elicited in cross-examination.
The learned counsel argued that, the attempt of DW1 under cross-examination, to resile from the fact that the claimant was terminated on allegations of misconduct is proved by the concluding paragraph of the query issued the claimant, jointly by the DW1 and another, which gave the claimant till conclusion of business on 23rd March 2017 to answer, as the query was directed to the claimant and not the Relations Manager, whom the DW1 now attempted to blame under cross-examination, as responsible for the acts for which the claimant was sacked. The learned counsel submitted that, it is therefore easy to come to the conclusion that, the claimant’s appointment was terminated for misconduct, notwithstanding that, this was not stated in the letter of termination. The learned counsel cited Chapter 8, page 89 of the HRM to the effect that, disciplinary actions could only be taken against a staff for “justifiable reasons” where “clear evidence exits” and that, this must be “appropriate to the nature of the offence…” and “be fair and consistent with previous action in similar circumstances.” The learned counsel argued further that at p. 91 of HRM, dereliction of duty was listed as part of grievous offences and that pp. 95-96 mandated that query must be issued before sanction could be given. The learned counsel submitted that, it is thus clear and consistent with logic that, the defendant attempted to retrace its steps having realised that, it did not comply with the disciplinary procedure before terminating the appointment for misconduct.
The learned counsel submitted that, the defendant could not even revive infractions it had condoned for years, to justify a query; apart from the fact that, exhibits H (1-12), L, M, N, P (1-2), Q (1-2), R (1-2) showed that the claimant was not even blameworthy on these allegations. The learned counsel cited Ziideeh v. R.S.C.S.C. (2017) 3 NWLR (Pt. 1022) 554 at 578, E-F and Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt. 200) 659 on the significance of fair hearing before sanction could be dished out. The learned counsel submitted that, the right of the defendant to terminate the employment of the claimant for misconduct without notice or salary in lieu thereof is predicated on prior establishment of the claimant’s guilt. The learned counsel submitted that, the failure of the defendant, in the instant case, to follow procedure made it liable in damages. The learned counsel cited Ziideeh v. R.S.C.S.C. supra.
The learned counsel submitted that, in the alternative, the letter of termination had been overtaken by the subsequent issuance of query and payment of field allowance vide exhibit V (1-2); and therefore, the defendant is deemed to have waved the termination. The learned counsel submitted that, by the conduct of the defendant, the claimant had been made to believe that the termination had been waived and thus, the defendant is estopped from resiling from its own creation. The learned counsel cited UBA v. Johnson at 336-337, G-C [supra], to the effect that, a party affected by estoppel is not allowed to plead against it nor adduce evidence in rebuttal. The learned counsel argued that, the Court is also at liberty to draw inferences from the evidence on record and cited Brown v. State (2017) 4 NWLR (Pt. 1556) 341 at 369, A-E.
The learned counsel thereafter turned to the admissibility of ID W [the compact disc] and submitted that, it has satisfied the conditions of admissibility in that, it was pleaded and relevant, while the necessary foundation was laid via oral and certificate of authentication [Exhibit U (1-2)]. The learned counsel cited Dickson v. Silva (2017) 8 NWLR (Pt. 1567) 167 at 203, F-G. The learned counsel submitted that DW1 admitted under cross-examination that she issued the claimant a query on 22/2/2017, and that she was the owner of the GSM No. 08033212446 and that, she normally communicated with the claimant via the phone, e-mail and verbally. The learned counsel submitted that, in the face of these detail pieces of evidence and the efforts the claimant made to cull the transcript of the conversation from the MTN without success, the defendant’s denial couldn’t fly. The learned counsel cited paragraphs 8-9 of the Amended Reply and Defence to Counterclaim on the contents of the compact disc and argued that, the defendant did not deny these and as such, deemed to have admitted them. The learned counsel cited Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583 at 605, A-C and others on the fact that, unchallenged evidence is deemed admitted. Rounding up, the learned counsel urged the Court to resolve issues a, b, & c in favour of the claimant and against the defendant; and moved to issue d.
On Issue D: whether the claimant is entitled to his claim; the learned counsel submitted that, the claimant proved his entitlement by virtue of exhibits A, B, and E and that, the defence has not contradicted the claimant’s deposition. The learned counsel submitted that, once the defence failed to controvert the testimony of the claimant by way of cross-examination, it couldn’t call a witness later to deny such evidence it failed to controvert in cross-examination. On this line of submission, the learned counsel cited Gaji v. Paye [supra] 605, A-C. The learned counsel submitted further that, DW1 admitted under cross-examination that the furniture allowance of the claimant is three-month consolidated salaries once every three years and that, for one year, it would be one month consolidated salary. The learned counsel argued that, the claimant testified that, he was entitled to three-month whole salary every three years as furniture allowance and that this evidence was not controverted; and that, this testimony is in consonance with Exhibits A (1-2) and B. The learned counsel submitted that, consolidated salary means the whole salary without any deduction just as shown on Exhibit C [the pay slip of 17/1/2017], as the total gross salary. The learned counsel argued that, the claimant claimed his March salary because he was on approved annual leave when he received the termination letter and showed that the defendant usually pay his monthly salary on 25th of the month.
The learned counsel argued further that, the claimant also pleaded in paragraph 32 of his Statement of Facts and paragraph 32 of the written deposition and referred to p. 110 of the HRM [Exhibit E], which lists benefits appertaining to an employee of the defendant that clocked 10 years in service before exiting. The learned counsel submitted that, the defendant unlawfully aborted the claimant from attaining this, by the unlawful termination. The learned counsel submitted that, it is unfair labour practice for the defendant to promise the claimant, vides Exhibit E, career progression and unconscionably deny the claimant from benefiting from the severance package contained in Exhibit E. The learned counsel cited Chiagorom v. Diamond Bank Plc (2014) 44 Nigerian Labour Law Reports NLLR 401 at 472-473, G-B on the power of this Court to remedy unfair labour practice. The learned counsel submitted that, the claimant is therefore, entitled to his claim. The learned counsel thereafter moved to the counterclaim [Issue E] on the issue of allegation of failure of the claimant to laptop and identity card [ID].
On Issue E, the learned counsel submitted that, the claimant had already given the defendant the laptop and ID at its Ibigwe Field/Station. The learned counsel argued that, the claimant’s letter of appointment mandated the claimant to report to the Head of Technical Services and that the claimant’s primary place of work would be Ibigwe Oil Field. The learned counsel argued that, the claimant’s testimony that he took the laptop and identity card to the defendant at Ibigwe Oil Field in November 2017, being his primary place of assignment and that, Mr. Odion Jonah of the IT Department took delivery of them and signed Exhibit T (1-2) for him was not controverted. On this, the learned counsel referred to paragraph 7(a) of the Amended Reply to Statement of Defence and Defence to Counterclaim and the accompanying written deposition. The learned counsel submitted that, rather than controvert this, DW1 admitted under cross-examination that the claimant actually had to take Exhibit T (1-2) to different departments for signature after returning the defendant’s property with him and equally acknowledged the signature of Odion Jonah on Exhibit T (1-2). The learned counsel submitted that, it would therefore amount to unfair labour practice and unconscionable for the defendant to insist that the claimant should go to its Lagos office to submit these items to DW1 in person. The learned counsel cited Oniah v. Onyiah (1989) 1 NWLR (Pt. 99) 514 at 517 and urged the Court to believe the claimant’s version of the evidence because it is more probable; and submitted that, since the said Odion Jonah had not been brought to Court to controvert the testimony, the defendant is deemed to have admitted the claimant’s case.
The learned counsel therefore urged the Court to dismiss the counterclaim; and also urged the Court to resolve all the issues in the claimant’s favour and enter judgment for the claimant in terms of his claim because:
the claimant has proved his case on the balance of probability;
the facts and exhibits tendered are in tune with given credibility to the claimant’s case; and
it would amount to unfair labour practice to allow the defendant to deny it has a case of misconduct against the claimant for which the claimant’s appointment was terminated simply because, this was not stated in the letter of termination; but DW1 evidence under cross-examination proved the contrary.
Thus, the final written address of the claimant was brought to an end. I now move to the final written address of the defendant, which was filed after the claimant had filed and served his final written address at the lapse of time allotted the defendant to file. The extant final written address of the defendant herein summarised, is the one dated 2nd February 2018 [sic] and filed 7th February 2019, the 2nd one dated and filed 20th February 2019 having been struck out by an order of this Court on 29th March 2019.
B. Defendant’s Final Written Address
EMEKA NWANGWU franked the defendant’s final written address. The learned counsel nominated two issues for the determination of the case. They are:
Whether the Complaint is competent; and
Whether the claimant’s case as constituted against the Defendant/Counter-Claimant is lacking in merit, frivolous, and vexatious. [sic]
Arguing Issue 1, the learned counsel submitted that, the complaint is incompetent and therefore makes the whole action incompetent; and liable to be struck out because, the defendant resides outside the jurisdiction from which the complaint was issued without compliance with section 97 of the Sheriffs and Civil Process Act [SCPA]. The learned counsel cited Owners of MV Arabella v. N.A.I.C (2008) 1 NWLR (Pt. 1097) 182 at 207, B-F and Izeze v. INEC (2018) 11 NWLR (Pt. 1629) 110 at 128, A-B on the effect of failure to comply with section 97 of the SCPA. The learned counsel also argued that, a look at the complaint and the pleading shows that, the complaint was one meant for service outside jurisdiction and that this is evident from paragraph 2 of the Statement of Facts, wherein the claimant averred that the address of the defendant was 18, Keffi Street, Ikoyi, Lagos or Ibigwe Oil Field Ohaji/Egbema LGA, Imo State, which is the principal place of business. The learned counsel argued that, this averment was controverted in the Amended Statement of Defence at paragraph 3 thereof which stated that its principal place of business was 18, Keffi Street, Lagos and that, the defendant in the Amended Reply and Defence to Counterclaim did not controvert this thus, signifying admission.
The learned counsel argued that, with the claimant admitting that the defendant is outside the jurisdiction of the Court, the complaint ought to have been endorsed in accordance with section 97 of the SCPA. The learned counsel submitted that, the complaint, being a concurrent one, meant for service outside jurisdiction, ought to have been properly endorsed. The learned counsel submitted that, it filed conditional appearance in obedience to the Supreme Court in Izeze v. INEC [supra], which held that, a defendant could not validly enter appearance in any suit filed against the dictates of section 97 of the SCPA, except entering conditional appearance. The learned counsel submitted that, by filing conditional appearance, it has notified the defendant that, at the appropriate time, it would object to the competence of the suit. The learned counsel submitted that, since the defendant could not enter a valid appearance, this suit is incompetent, and therefore liable to be struck out, with cost. Thereafter, the learned counsel moved to issue 2.
On Issue 2: Whether the claimant’s case as constituted against the defendant/counterclaimant is lacking in merit, frivolous, and vexatious, the learned counsel submitted that, the employment relationship in the instant case, is one of master-servant; and that as such, the defendant could, at any time, do away with the services of the claimant, once the prescribed notice is given or salary in its stead, is paid. On this, the learned counsel cited Idoniboye-obu v. NNPC (2003) 1 SCNJ 87 at 105 and Chukwuma v. SPDCN (1993) 4 NWLR (Pt. 289) 512 at 538. The learned counsel submitted that, where an employer sacked an employee in total disregard of the terms and conditions of service and in mischievous and/or outrageous manner, there is nothing the Court could do, as it lacks the jurisdiction to impose the claimant on the defendant and cited Kwara State Polytechnic, Ilorin & Anor v. Shittu (2012) LPELR-9843 CA), 45-47, F-B. The learned counsel submitted that, the claimant admitted the receipt of letter of termination dated 16/03/17 [Exhibit F] wherein his appointment was terminated with immediate effect. The learned counsel submitted that, inferring from the testimony of the claimant [CW1] on 11/4/18, the appointment was terminated in accordance with the right procedure, as stipulated in paragraph 3 of the Exhibit A (1-2) [Letter of Appointment] and the defendant showed good faith by agreeing, in paragraph 3 of Exhibit E, to pay the claimant his terminal benefits, on the condition that, the claimant returned all the defendant’s property with him, to the appropriate officer and file in Exit Clearance Form attached to Exhibit F.
The learned counsel submitted that, the claimant was not dismissed and that, the claimant admitted this, under cross-examination, on 11/4/18, in addition to the fact that, the defendant had no issue with him for which he could be dismissed. The learned counsel argued that, this was in consonance with the evidence of DW1 in paragraphs 13-15 of her written deposition that, the contract did not provide for the issuance of query or any disciplinary procedure to be followed before the defendant could terminate the appointment of the claimant. The learned counsel submitted that, an employer could validly terminate an employee without reason. On this, the learned counsel cited Texaco (Nig.) Plc v. Kehinde (2001) 6 NWLR (Pt. 708) 224 at 245, C. The learned counsel submitted that, the appointment of the claimant was therefore, validly terminated in accordance with Exhibit A (1-2). The learned counsel cited Fakuade v. O.A.U.T.H (1993) 5 NWLR (Pt. 291) 47 at 58, C-D. The learned counsel submitted that, it was the agreement of the parties, vides Exhibit A (1-2) that, the contract could be terminated with one-month notice or payment of one-month salary instead but that, the claimant had contrarily averred in this suit that, the employment was wrongfully terminated.
The learned counsel submitted that, the Court could not go outside the contract between the parties to determine the rightness or otherwise of the termination. On this, the learned counsel cited Layade v. Panalpina World Trans. Nig. Ltd (1996) 6 NWLR (Pt. 456) 544. The learned counsel argued that, the claimant had not furnished this Court with any evidence of dismissal based on allegation of misconduct, which would have necessitated the disciplinary procedures spelt out in Exhibit H, as such, the claim of the claimant could not succeed, particularly, in view of the position in Texaco (Nig) Plc v. Kehinde (supra), to the effect that, where wrongful termination is claimed, the claimant must adduce evidence to show the terms and conditions that were breached. The learned counsel submitted that, the disciplinary procedures pleaded in paragraphs 29-31 of the Statement of Facts relate to acts of misconducts and that, Exhibit F did not refer to any act of misconduct in terminating the appointment but, just stated that “services are no longer required.” The learned counsel submitted that, this is in tandem with paragraph 3 of Exhibit A1 and the first paragraph of the HRM at p. 107.
The learned counsel submitted further that, the right to fair hearing is only relevant in termination, where the defendant based the termination on an allegation, which would require the claimant to make representation. The learned counsel cited Olatunbosun v. Nigerian Institute for Social and Economic Research (1998) 3 NWLR (Pt. 80) 25 at 52, E-F. The learned counsel submitted that, since the termination of the claimant was not based on allegation of misconduct, the issue of fair hearing would not arise and that his entitlements were not in any way affected. Arising from the foregoing, the learned counsel submitted that, the appointment was not wrongly terminated; and as a result, the defendant did not need to comply with the disciplinary procedures enumerated in the HRM. The learned counsel also submitted that, dismissal should not be confused with termination and that, in the instant case, what happened is termination, since the claimant is entitled to his terminal benefits and the defendant promised to pay the one month salary in lieu of notice, as contained in paragraph 18 of the written deposition of DW1, it is clear that, the claimant was not terminated on ground of misconduct, as ably reflected in Exhibit F. The learned counsel argued that, the termination took effect on 16/3/17 when it was served on the claimant. The learned counsel cited Jombo v. P.K.E.F.M.B. (2005) 14 NWLR (Pt. 945) 443 on the distinction between termination and dismissal and the effects, and Obanye v. Union Bank (2018) LPELR-44702 (SC) on the determination of the effective date of letter of termination.
The learned counsel submitted that, on the effective date of the termination, there is no longer employment contract between the parties, on the basis of which the defendant could issue a query, and for which the claimant had a duty to respond. The learned counsel submitted that, the subsequent query issued to the claimant after termination of his employment was thus, a worthless piece of paper. The learned counsel cited Jombo v. PK.E.F.M.B. [supra] to the effect that, the Court declared a subsequent letter of dismissal after prior issuance of termination letter to the same person, as ineffective because, there was no longer any employment in place to be dismissed.
The learned counsel argued that, DW1 confirmed, at cross-examination, that the said query was issued inadvertently after the termination, which was on the ground that, services were no longer required. The learned counsel submitted that, for the sake of argument, were the query issued during the tenure of employment, there was no assurance that it would have led to dismissal; and that, as a result, the claimant’s attempt to give the circumstances of his termination was unjustified attempt to mislead the Court, which the Court should eschew. The learned counsel submitted that, the behaviour of the claimant showed bad faith and that, there is inconsistency in the testimony of the claimant in that, at one breath, under cross-examination he, as CW1, claimed to have continued work till 22/3/17 when he went to the defendant to collect the query whereas, in Exhibit U (1-2), he claimed to have accessed and printed the query as an email from the defendant. The learned counsel argued that, when this is pieced with the Exhibit T (1-2), which stated that the claimant stopped work on 16/3/17, the mischievous claim of the claimant would be exposed. The learned counsel submitted that, the action of the claimant amounts to an afterthought and attempt to claim what the claimant is not entitled to.
The learned counsel thereafter submitted that, the claimant is not entitled to the claims in paragraph 35(f)-(i) of the Statement of Facts. The learned counsel argued that, the claimant had settled the entitlements claimed as reliefs in paragraph 35(f)-(h), in his paragraph 6 while, he also averred entitlements to leave allowance and others in paragraph 32, which were also claimed as reliefs in paragraph 35(e) of the Statement of Facts; and that, the defendant controverted these in paragraph 12 of the Amended Statement of Defence. The learned counsel argued that, the onus is on the claimant to prove his entitlement to the various sums, by showing how he arrived at the sums claimed and the basis, by virtue of section 131 of the Evidence Act and Awolowo v. Shagari (1979) 6-9 SC 51 and Onyeama v. Ekweremadu (2009) LPELR-4792 (CA) A-C. The learned counsel argued that, the claimant admitted under cross-examination that, he did not show the methodology used in arriving at the sums claimed and admitted also that, he did not tell the Court what he would have benefited if had attained ten years in service. The learned counsel submitted that, without adducing any document showing his entitlement to the sums claimed, it follows that the figures were just thrown up to unjustly enrich the claimant. The learned counsel cited I.B.N. Ltd v. AG Rivers State (2008) 6 NWLR (Pt. 1084) 612 at 653, G.
The learned counsel further submitted that, where a non-statutory employment is terminated without notice or payment in lieu thereof, the employee is only entitled to payment of salary in lieu of notice and the earned entitlements at the time of the termination and never to damages. The learned counsel relied on Ativie v. Kabel Metal (Nig) Ltd (2008) 10 NWLR (Pt. 1095) 399 at 415, C-F; Nigeria Produce Marketing Board v. Adewunmi (1972) 7 NSCC 662; and Olatunbosun v. N.I.S.E.R Council [supra]. The learned counsel submitted that, the employment was lawfully determined and the defendant is willing to pay the claimant’s entitlements, provided the claimant returned the defendant’s property in his possession. That was all about the defence. Thereafter, the learned counsel moved to the counterclaim.
The learned counsel submitted that, the defendant is entitled to the reliefs claimed in that, paragraph 3 of Exhibit F required the claimant to return all company property at exit and fill the attached Exit Form, which must be forwarded to the HR Department, and that, since there is uncontroverted evidence that, the claimant had not returned the property to the HR Manager, the proper person to receive them and sign off the Exit Form, and the claimant admitted under cross-examination that, he had not returned the Exit Form, the Court should not grant the reliefs claimed because, the return to one Mr. Odion Jonah [a staff] but not a member of the HR Department, is wrongful.
That was the end of the addresses on the defence and counterclaim. I now move to the reply on points of law filed by the claimant, who filed written address first.
C. Reply on Points of Law
O.S. AKINOLA franked the Reply on Points of Law. On the objection to the competence of the suit on account of non-compliance with section 97 of the SCPA, the learned counsel submitted that, the section is inapplicable to the NICN in that, the jurisdiction of the Court is nationwide and that, outside jurisdiction, to NICN means, outside the country. The learned counsel cited Order 1, Rules 10(2) of the NICN Rules and CBN v. Interstella Communications Ltd (2015) 8 NWLR (Pt. 1462) 456 at 487, D-F to effect that, section 97 of the SCPA is inapplicable to the Federal High Court and the NICN and Rivers State Government v. Specialist Consult (Swedish Group) (2005) 7 NWLR (Pt. 923) 145 at 167, B-F, 172, F, to the effect that, service on Rivers State, in her liaison office, was good service. The learned counsel also submitted that, the case of Owners of MV Arabella v. NAIC (2008) 1 NWLR (Pt. 1097) 182 at 207, B-F and IZEZE v. INEC (2018) 11 NWLR (Pt. 1629) 110 at 128, A-B cited by the defendant/objector was irrelevant. The learned counsel submitted also that, the alleged non-compliance is a mere procedural irregularity, which has been waived because, the objector failed to raise the objection at the appropriate time. On this, the learned counsel cited Nagogo v. C.P.C. (2013) 2 NWLR (Pt. 1339) 448 at 472, E, 491-492, F-C and Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 195 at 208-209, A-D. The learned counsel subsequently urged the Court to dismiss the objection; and moved to other issues.
I will not bother to summarise those areas I consider amount to re-argument. The learned counsel cited Aokeodo v. IGP (1999) 6 NWLR (Pt. 607) 467 at 489, B-C to the effect that, notice of retirement with immediate effect is ineffective without the payment in lieu of notice, and as such, the subsequent dismissal of the employee, that served the notice, five days later, was effective since, he was deemed not to have retired and remained in service. The learned counsel submitted that, the same analogy is applicable in the instant case, to termination with immediate effect, which would be ineffective without the payment of salary in lieu of notice, and the claimant is therefore deemed to remain in service. The learned counsel cited Archibong v. Edak (2006) 7 NWLR (Pt. 980) 485 at 502, A-D and Anthony v. Gov. Lagos State (2003) 10 NWLR (Pt. 828) 288 at 302, D-E to the effect that, however brilliant a counsel’s address is, it cannot substitute for lack of evidence; and that, the defendant has no evidence to controvert Exhibits A (1-2) and E, which it violated in the termination. The learned counsel argued that, no bad faith is proved against the claimant in that, the claimant’s testimony that the termination letter was dated 16/3/17 but served on him 20/3/17 was not controverted and that, the claimant’s further testimony that he went to the premises of the defendant on 22/3/17 when served with Exhibit F on 20/3/17 was not also controverted.
The learned counsel cited Alhassan v. Abu Zaria (2011) 11 NWLR (Pt. 1259) 417 at 467-468, H-E and submitted that, acceptance of salary in lieu of notice would not amount to acquiescence of void and invalid retirement. The learned counsel submitted that, paragraph 5 of the Statement of Facts is the initial entitlement of the claimant before promotion while paragraph 6 is the entitlement after promotion and salary review and that both paragraphs are essentially reproductions of Exhibits A (1-2) and B and that these were admitted by the defendant in paragraph 4 of the Amended Statement of Defence. The learned counsel submitted that, therefore, whether the claimant was unable to explain how he arrived at the calculation under cross-examination would not affect the admission that, had been made; and that, the claimant’s oral evidence could not contract Exhibits A (1-2) and B; and that, the claimant had stated in paragraph 32 of the written deposition what his entitlements ought to be, had he been allowed to attain ten years in service.
The learned counsel submitted that, the defendant cannot contradict its own documents, and that, if done, this would amount to approbating and reprobating. The learned counsel submitted that, though, an employee could not be imposed on an employer in non-statutory employment, but where an employment without statutory flavour is terminated in violation of the contract, the claimant would be entitled to damages. The learned counsel cited Nigerian Bottling Company Plc v. Edward & Ors (2014) 44 NLLR (Pt. 140) 335 at 380-381, F-A and sections 13 and 15 of the National Industrial Court Act 2006 [NICA] to the effect that, the Court is enjoined to apply equity in aid of hapless employee. The learned counsel also cited Chiagorom v. Diamond Bank Plc (2014) 44 NLLR (140) 401 at 462, F. Thus, urging the Court to find for the claimant, the learned counsel ended the reply address.
Having ended the summary of the addresses of counsel, I proceed to give my decision. In doing this, I assure stakeholders that I have painstakingly read all the processes in the file, took note of the relevant ones, digested the addresses of counsel and studied the important authorities [case law and statutes] cited. I have also taken cognisance of the demeanours of witnesses during their testimonies, especially during cross-examinations. I have also carefully studied the evidence in relation to the issues at stake. I have not given the summary of the evidence, but references would be made to the evidence as occasions demand in the course of giving my decision. Let me state too that, in writing my decision, I shall break it into two parts. Part A shall deal with the preliminary objection, while Part B shall deal with the substantive case.
I also wish to state that, my decision would be considered under the two issues formulated by the learned counsel to the defendant. The two issues are concise and cover the breadth of the facts of the case and the arguments canvassed, while those of the learned counsel to the claimant, though relevant, are nonetheless verbose.
But before I go further, let me clear an issue, which ought to be raised by the defendant, but not raised. That is, the issue of the LG CD-R identified as IDW [wrongly tagged ‘Exhibit W’] on which objection was deferred to the address stage. The defendant did not raise any objection in its written address on the item, even though, the learned counsel to the claimant touched this in his final address, urging the Court to admit it because, all requirements for its admissibility had been met. The implications are that: 1. The defendant had abandoned the objection or rather, had no objection against the item, and 2. The address of the learned counsel to the claimant had been conceded on that point. I cite Donbraye & Anor. v. Preyor & Ors. (2014) LPELR-22286 (CA) 70, D-F in support of the law that, a point of law canvassed and not resisted by the opponent, is deemed conceded. I have found that the item satisfied the requirement of the law. It is therefore admitted without objection as Exhibit W.
I also wish to observe the inaccuracy contained on page 1, paragraph 4 [the last sentence thereof] of the final written address of the defendant that, CW1 was not re-examined. CW1 was re-examined by the learned counsel to the claimant on 12th April 2018 on the issue of the covering letter by which the reply of the claimant to the query was sent to the defendant – see tail end of p. 27 of record of proceedings to p. 28. It was also inaccurately stated that the exhibits tendered and admitted for the claimant ended at U (1-2). That is not correct. The exhibits tendered and admitted for the claimant ended at V (1-2) while there was an IDW, on which objection was deferred to final address stage; and just admitted now as Exhibit W. I now move to Part A of my decision. The preliminary objection raised by the defendant to the competence of this suit on the ground the complaint was irregularly issued and served.
COURT’S DECISION
Part A: Preliminary Objection
This deals with issue 1, as formulated by the defence: whether the complaint is competent? The defendant raised the issue of failure to comply with section 97 of the SCPA in issuing and serving the complaint out of the jurisdiction of the Owerri Division and that, service on it in the Owerri Division, is bad. I waste no time in agreeing with the learned counsel to the claimant that, the objection is a share waste of time. First, the objection was argued at the final written address stage. By this fact, the objection, being on procedural issues and not on substantive issue of jurisdiction, has been waived. I rely on the decision of the Supreme Court in PDP v. INEC & Ors (2018) LPELR-44373 (SC) 13-14, E-A, where the law was stated thus:
“When an originating process is served on the defendant and he
has an objection to it, he is expected to either-
enter an appearance on protest, or
enter conditional appearance, and
file a Notice Motion asking the Court to set aside the purported writ and service of same on the ground of the originating process and service being invalid. If the defendant does not follow the above procedure he cannot question the originating process or service on appeal.”
That is the position of law on waival of right to complain on irregular writ/complaint. It is obvious that conditions (a) and (b) as listed above, are alternatives, any of it chosen, must be combined with (c), which is a must. The defendant has failed in respect of condition (c), which is obligatory. Izeze v. INEC cited by the learned counsel to the defendant in support of his objection was also delivered on 13th April 2018 the same day and by the same panel as PDP v. INEC in 2018 LPELR-44373 (SC) 13-14, E-A cited above, and arose from the same facts. It means the authority is even against the defendant. It is obvious too that, the defendant deftly waited till the final address stage to raise this issue. The defendant herein is therefore caught in the web of the above Supreme Court’s decision: PDP v. INEC & Ors [supra]. The ambush set cannot fly in the face of this authority. The reason is very simple. It is to obviate laying ambushes and wasting the time of everybody involved in litigation, and more importantly, to ensure substantial against procedural justice that, such issue must be timeously raised and argued.
The objection was raised timely by filing conditional appearance but was not argued or set down for hearing timely, by way of notice of preliminary objection, as enjoined by rule (c) in PDP v. INEC & Ors [supra], before the suit proceeded to hearing on the merit, adoption of final written addresses and reservation for judgment. It is therefore too late in the day to raise it, as decided in PDP v. INEC & Ors [supra], and I so hold. I also rely on Order 1, Rules 9(2) & (3) and Order 5, Rule 1 of the NICN (Civil Procedure) Rules 2017, which made it abundantly clear that, any of the rules or any technical irregularity occasioned by failure to abide the rules of this Court and which could result in miscarriage of justice, may be disregarded or waived in the interest of justice. The Court is even enjoined to eschew technicality and promote substantive justice – see Order 5, Rules (3) & (4)(a) of the NICN Rules. This objection is thus additionally liable to be disregarded, and it is hereby and accordingly disregarded, in the interest of justice.
Still on this objection, I hold too that, apart from waiver, the objection lacks merit in that, the section 97 of the SCPA cited, is not applicable to this Court, by virtue of the recent decision of the Supreme Court in Akeredolu v. Abraham (2018) LPELR (SC) 54-59, where section 97 of the SCPA was considered. It was held that, the jurisdiction of the Federal High Court encompasses the whole of Nigeria and service of a writ issued in Abuja at Owo was within jurisdiction. But this decision is earlier than Izeze v. INEC cited by the learned counsel to the defendant. Both authorities are on the same issue but with contrary decisions. However, the distinction is that, Izeze’s case was based on a decision emanating from the High Court of Delta State, which truly has limited geographical jurisdiction, while Akeredolu v. Ibraham considered the rules of the Federal High Court, which has nationwide jurisdiction. Hence, Akeredolu v. Abraham is authority for the issue at hand and not Izeze v. INEC, cited out of context. NICN also has nationwide jurisdiction and similar rules on the issue, as that of the Federal High Court.
That put paid to the ranging controversy on what service within jurisdiction in the Federal High Court means; and ipso facto the NICN, which has impari materia provisions, as the rules of the Federal High Court in its Order 7, Rules 15(1) & (2). The rules of the NICN even go further, by specifically providing that, service within any place in Nigeria, regardless of the point of issuance of the originating process, shall not require leave of Court. And what is more, the rules of the Federal High Court considered in Mv Arabella’s case are not coterminous with the present rules of the Federal High Court or those of this Court in issue. So, the objection, is mere technicality, lacking totally in merit, and is accordingly dismissed in its entirety. Thus, issue 1 as formulated by the defence, is resolved against the defendant and in favour of the claimant. Having cleared the way of objection, I move to Part B: the substantive matter, which treats issue 2.
Part B: Decision on the Substantive Case
Part B deals with issue 2: whether the claimant’s case, as constituted against the defendant/counterclaimant, is lacking in merit, frivolous and vexatious? In determining this issue, the focal point is the status of the query subsequently issued after the termination of the appointment of the claimant. Considerable arguments have been made on the effect of the query in relation to the erstwhile termination. While the defence is of the view that, it was issued in error, and as such, it is a worthless piece of paper because, the appointment had already been determined, before its issuance and as such, there was no longer employment relations on which it was based, nor was the claimant obliged to answer it, the claimant is of the view that, the query supersedes the termination, and as such, the employment relation was revived and that, in the alternative, the query shows the reason for the termination, which was not justified, and as such, made the defendant liable.
The first thing to do is to determine whether the query was truly issued in error. It is only after that, that the legal status or effect would fall for consideration. The said query is Exhibit G. For the sake of clarity, I quote the query verbatim:
“INTERNAL MEMO
Date: March 22, 2017
From: ED-VP E&P [signed]
To: John Isiodu
Cc: Human Resources Department [signed]
Subject: Query: Dereliction of Duty
From May 1, 2004 to July 11, 2016 as the Community Liaison Officer an essential part of your mandate was to work with the Manager Community and New Ventures, to oversee the implementation and smooth operation of the Global Memorandum of Understanding that was executed with all impacted communities within the Ibigwe field area.
However, under your management it became apparent that the GMoU failed to bring any significant benefit to the indigenes despite the release of over N200,000,000.00 (Two Hundred Million Naira) to support all the community initiatives. In fact, community restiveness reached such an unprecedented height that two separate attacks were carried out on our facilities in the field leading to the death of two Halogen security personnel; due to the mistaken belief that our Operations in the Ohaji Egbema locality has not benefited them in any way.
In order to ameliorate the situation, the Company had to spend additional sums of money, that were not included in its annual budget to curb that agitation.
Additionally based on all the pending development projects that Company is currently embarking on, your Department was to handle the land acquisition process in Ibigwe Field.
Despite being given a directive in 2014, it took you close to two years to conclude the process, and when eventually you were able to provide figures for the land purchase you produced a cost estimate of over N500,000,000 (Five Hundred Million Naira).
On resumption of a new Community team in September 2016, they were able to close out on the land purchase within two months at significantly lower cost of N289,000,000 (Two Hundred and Eighty-Nine Million Naira).
You are therefore required to explain before close of business on March 23, 2017 why disciplinary action should not be brought against you for dereliction of duty.” [Brackets above, mine, to denote signatures]
The query had the full name of the claimant: John Isiodu and the department: Human Resources Department, written. Both the DW1 and another officer signed it. DW1 confirmed this under cross-examination on 10th December 2018. The claimant replied the query vides Exhibit L under the covering letter of Exhibit J (1-2). The claimant did not deny involvement in the issues raised in the query but explained his side and narrated what he thinks exonerated him of any blame. From the above scenario, I am of the considered opinion that, the query was not issued in error. It was a well-orchestrated and deliberate action of the defendant. I could not fathom how the decision to issue a query would be conceived, generated and put into action and signed by two principal officers of the defendant and delivered to the claimant, yet the defendant would claim that, the query was issued in error. In this case, two principal officers of the defendant singed the query in question. At least, one of them ought to have realised the error during its preparation or at least, before issuance. ‘Two heads are better than one’, it is said; and where two heads become worse than one, by claiming error in committing a wrong arising from design [commission], not omission, conspiracy is proved. The details supplied in the query could only be a product of deliberate research and netting-together of facts, which could only be arrived at by design and not accident. The current denial is simply an afterthought. In any case, the second officer that signed the query has not denied that the query was deliberately conceived, designed and issued.
The issues involved, as could be gathered from the body of the query, are ones in which the claimant was involved. The Head of Human Resources, who testified as DW1 and said the query was issued in error, she signed this very query jointly with another principal officer. How this error occurred, the DW1, who signed the query did not explain, yet she wants the Court to believe it was truly issued in error. The story that the query was issued in error should be told to the marines! Logic, facts and demeanour of the DW1 did not support that the query was issued in error. I therefore unequivocally hold that, the query [Exhibit G] was deliberately orchestrated, issued and served on the claimant. That settles the first leg of the query. The next issue is the effect of the query on the prior purported letter of termination [Exhibit F].
In determining this, I would first examine the two focal authorities cited by the opposing parties. The learned counsel to the defendant cited Jombo v. PK.E.F.M.B to the effect that, a subsequent issuance of dismissal letter after a prior termination letter, was declared ineffective because, at the time of the issuance of the dismissal letter, there was no longer any employment to be dismissed. And that, as such, at the time of issuance of the query in issue, there was no longer employment relationship between the parties on which the query could be anchored. The learned counsel to the claimant cited Aokeodo v. IGP, to the effect that, notice of retirement with immediate effect served by an employee on his employer without the payment of salary in lieu of notice, was held ineffective hence, the dismissal of the employee 5 days later was valid. The learned counsel is of the view that, as such, since there was no payment of salary in lieu of notice before the peremptory termination in the instant case, the termination was ineffective, hence, the employment relationship subsists to anchor the query. In Chukwumah v. SPDC [supra] cited by the learned counsel to the defendant, it was held that:
“In the circumstance where parties to a contract, mutually agree that the condition of termination of the appointment is the giving of notice, or payment of equivalent salary in lieu of notice, the only valid notice to discharge a party from his obligation under the contract is the giving of the appropriate notice stipulated or the payment on the effective date of the notice of the salary or other prerequisites, covering the period in accordance with the contract of service.” [(1993) ilaw.com.ng>83, A-C]
The decision in Jombo’s case [supra] cited by the defence counsel presupposes that, the termination was done in accordance with the contract and therefore, valid at the time done. And more so, the principle of law forbidding double jeopardy would have negated the dismissal after the initial termination. So, Jombo’s case was correctly decided on the facts and circumstances of the case. In this particular case, no valid notice or payment in lieu thereof was given before or contemporaneously with the peremptory termination; and even, up till now, so there was no valid termination. The scenario here is therefore more in tune with Aokeodo v. IGP and Chukwumah v. SPDC [supra]. Whatever is good for the goose is also good for the gander. Because, had the defendant dismissed the claimant in the course of this ineffective letter of termination, by this authority, it would have been held that, the dismissal was valid, since there was no termination in place.
If the defendant could take advantage of a defective letter of resignation on the ground that payment of salary in lieu of notice was not made and thereafter effectively dismissed the staff, an employee should also by law, equity and logic take advantage of a defective letter of termination issued by an employer without proper notice or payment in lieu thereof to argue that, the subsequent query issued after the ineffective termination, was issued on the footing that the employment relation still subsists. The defendant itself, without the prompting or coercion of anybody, treated the factually ineffective termination, as truly ineffective and decided to hear the claimant on the allegations against him for the termination, but decided not to the call the claimant back in the meantime, before resolving the disciplinary process set in motion in the query, thereby giving the claimant ray of hope that, he might be recalled, if his explanation were found valid; or sacked, if found culpable.
There being no law that says after termination or dismissal, a defendant cannot nullify the termination by recalling the terminated staff, there logically should be so reason, why an employer cannot decide to issue query after peremptory termination, to hear the employee out before meting out necessary punishment on him, which might be greater or lesser than the initial termination, or even leading to total exoneration and recall with full payment of salary arrears. It takes two to tango. It all depends on whether the employee agrees to answer the query thereby reviving the employment relation, or refuses to answer it, thereby confirming the defective termination. Here, the claimant chose to answer the query and accepted the constructive proposal of the defendant to revive the employment relation. With my finding that the query was deliberately issued and not in error, the necessary implication must follow.
It must follow that the wrongful termination was nullified by the subsequent query, more so, when the claimant treated it as such, and proceeded to answer the query. The defendant created a situation, which the claimant acted upon. The defendant is estopped from resiling from the situation it knowingly created. It cannot fall back on the defective termination it has constructively nullified. The ratio I have just established above is in tandem with inferential estoppel covered in section 169 of the Evidence Act 2011, which the Court of Appeal most recently expounded in Suit No. CA/A/795/2015 – Tukur v. the Kaduna Polytechnic & 2 ors. [delivered by the Abuja Division on 30th July 2018, p. 39] by adopting the ratio of the Supreme Court in Re: Apeh (2017) 11 NWLR (Pt. 1576) 3112 in toto:
“The effect of exhibit CA2, in my view, is that it operates as estoppels by conduct, the type of estoppels contemplated by section 163 [sic], Evidence Act 2011. That is: a party who has, either by his declaration or act, caused or permitted another to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of the thing, he must accept the new legal relationship as modified by his own words or action, whether or not it is supported by any point of law, or by any consideration but only by his word or conduct…These applicants herein, represented by the 2nd set of respondents, in view of exhibit CA2, cannot be allowed to approbate and reprobate at the same time. They are stopped by operation of exhibit CA2.” [Underlines supplied for emphasis]
The defendant is estopped by virtue of Exhibit G [the query], which constructively revoked or nullified the defective termination letter [Exhibit F]. It is the same principle that was applied in CBN & Anor. v. Igwillo (2007) LPELR-835 (SC), 21-23, G-F, where the plaintiff/respondent was employed on probation but subsequently, his previous employer insisted that, he would only be released to CBN on transfer of service, and the CBN agreed and communicated the former employer accordingly, but did not issue another letter of appointment to the plaintiff/respondent showing that he was employed on transfer of service, and his employment was eventually terminated, as one on probation; and thus, subject to two years probation, the Supreme Court held at p. 22, paras. D-F thereof that:
“The contention of the appellants, therefore, that the respondent was to be on probation for a period of two years as contained in the letter of offer (exhibit A) can definitely not stand. I believe and hold that that condition had been varied by the aforementioned exchange of the letters…”
Thus, in the instant case, the letter of termination had been varied, set aside or nullified by the subsequent query and the conducts of the defendant and the claimant, who both treated the termination as ineffective. The defendant ignored the letter of termination, in issuing the query and the claimant ignored it too, and proceeded to answer the query, bringing about a situation akin to the claimant still being in service, albeit on suspension, pending the determination of his reply to the query. Had the claimant not answered the query, the situation could have been different; and it would have been plausible to argue correctly that, he, the claimant, in spite of extension of possibility of recall or dismissal dangled at him by the subsequent issuance of the query after the termination, treated the employment, for all purposes, as having come to an end. It is only if the claimant had behaved in this manner that he could be blamed of blowing hot and cold on the issue of the termination. But with the situation at hand, it is rather the defendant that is approbating and reprobating both, on the issue of the defective termination letter and the subsequent query issued after the defective termination, which once again, it has failed to follow to the logical conclusion. The defendant kicked the sleeping dog into action, and must abide with the consequences.
Let me observe that, up till the claimant went to Court, and even till now, the defendant had not written to the claimant that the query was issued in error and therefore, withdrawn. It has only raised the issue in defence of this case. Even if it had written to withdraw the query at this stage; it would no longer avail because of estoppel, which looks at the conduct of the defendant and the reaction of the claimant and consequential effect on the claimant and thereby forbids the defendant from resiling from the effect of the situation deliberately foisted on the injured party. With this behaviour of the defendant, coupled with the less than reasonable testimony of DW1, both in-chief and under cross-examination, I am inclined to give Exhibit W, the LG CD-R recording weight, as further credible and authentic proof that the defendant, via DW1, actually mounted pressure on the claimant to answer the query, contrary to the feeble and ineffective denial.
Whether or not retraction of the defective termination was mentioned in the query, it does not matter; since both the prior termination and the subsequent query are mutually inconsistent, the latter prevails. The rule of law is that, where there are two processes before a court, one destructive and the other preservative, the constructive one prevails, if the law permits. It is also a rule of law that, a right infringing or onerous provision in either statute or contract, is construed narrowly against the beneficiary – see FCDA v. Sule (1994) LPELR-1263 (SC) 30-32, E-A. Relying on both principles of law, the termination letter must be construed against the defendant and deemed nullified by the subsequent query, while the subsequent query must be construed in favour of the claimant, as preserving the employment till date, albeit on suspension. And I so hold.
The defendant having failed to react to the claimant’s answer to the query till date, the claimant is deemed to remain in service but on suspension, as a staff of the defendant and his services will only come to an end at the determination of this suit. I also so hold. For the present purposes, nobody says the defendant cannot terminate at any time without necessarily complying with the terms, but the finding of this Court is that, the defendant has simply not exercised its right to determine the employment till now, because, with the nullification of the initial defective letter of termination, the employment subsists: period! It has not issued another letter of termination outside the nullified one, so, there is no letter of termination in sight. Hence, nobody is forcing an unwanted staff on the defendant, but the fact is that, it is the defendant-employer herein, who by its conduct is still treating the claimant-employee herein, as its staff: period!
All the authorities cited by the learned counsel to the defendant are therefore totally irrelevant to the facts and issues of this case. The duty of a court is to ascertain the real facts and issues involved in a case. It is only after that, that it examines the nexus between the facts, issues and authorities cited. Where the parties, or one of the parties, failed to appreciate the real facts and issues at stake, it follows that the authorities cited would be totally irrelevant to the issues not properly appreciated. In such instance, the need to ascertain the place of the authorities in relation to the wrongly appreciated facts and issues becomes unnecessary, as the authorities were simply cited off marks. That is exactly what happened in the instant case with regard to the defendant. After all, a case is an authority only for the facts and issues decided.
In fact, in a situation like this, it was expected that the defendant would call the second person that signed the query to testify, as to how it was issued in error, but this was not done. Unfortunately too, DW1 did not also bother to explain how the error occurred. DW1 just stated that the query was issued in error without giving the details of how the error occurred. No court of law would believe such banal denial. In any case, the claimant has convincingly proved how the query was deliberately issued. Arising from the foregoing, I am of the considered opinion that, the defective termination letter had been overtaken by the subsequent query and became nullified thereby and that, the claimant is deemed to remain in service, albeit on suspension, awaiting the determination of the disciplinary process set in motion by the query issued; and I so hold. It should not be forgotten that, the relationship between the parties is contractual, which could therefore be varied and re-varied, as the parties deem fit, either expressly or by conduct or by a combination of both. So, the issue of any law holding fast as immutable does not arise, so far, what is agreed upon or deemed to have been constructively agreed upon, is not illegal, parties could, by conduct, constructively revoke letter of termination and revive the employment relation, as in the instant case, and the Court must give it effect.
I reiterate that the employment between the claimant and the defendant subsists in the circumstance of this case, by the claimant being deemed to be on suspension, and I doubly, so hold. The claimant had answered under cross-examination that answering query was part of work, and that as such, he was still at work on the date the query was answered. This position is undoubtedly correct. A query is only issued to a person, who for all intends and purposes, is still in service, either actively or otherwise: actively in service when not on suspension, and inactively, when on suspension. The issuance of a query after a purported termination nullifies the purported termination. With the setting aside of the defective termination, the claimant is deemed to remain in service; and since he was not allowed to go to office, nor paid his salaries, he is equally deemed to be on indefinite suspension without pay. In Longe v. First Bank Plc (2010) LER SC 116/2007 at 52, the Supreme Court had this to say on the nature and effect of suspension:
“Suspension is usually a prelude to dismissal from an employment. It is a state of affairs which exists while there is a contract in force between the employer and the employee but while there is neither work being done in pursuance of it nor remuneration being paid. Suspension is neither a termination of contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligation of the parties to each other.” [Underline supplied for emphasis]
The learned counsel to the defendant had flippantly submitted that, “even where the master is out rightly mischievous and/or outrageous in the way he sacks the servant, there is nothing the law (and court) can do, in a situation where the service of the servant is no longer required by the master…” – see p. 6, para. 24 of the defendant’s final written address. That might well be the position of law in the past. But such is of doubtful legality in view of the Constitution Third Alteration Act, which amended the 1999 Constitution and revolutionized employment and labour law regime in Nigeria, and which, by virtue of section 254C-(1)(f) of the 1999 Constitution [as altered], placed a duty on this Court, to prevent unfair labour practices. So, if it is the law that employer can terminate at will without giving reason [which is also of doubtful legality now, in view of the current labour regime, as already espoused above] then, this must also extend to an employer’s whims and caprices to recant termination, subsequently issue a query and recall the affected staff and place him on suspension pending the determination of the disciplinary process set in action by the query, and be stuck with the reason given in the query, if not justified, by failure to follow up the query to its logical conclusion [another instance of whims and caprices of the employer]. The employer cannot take advantage of its allowable whims and caprices and refuse to take the burden. The two must go hand-in-hand. That is the nature of things, as it would be inequitable to take advantage and refuse to take the burden of the same action.
By the issuance of the query, the allegations contained in the query now make abundantly clear the details of the reason why the claimant was previously terminated in a peremptory manner, akin to dismissal. The reply of the defendant after the query that, the claimant had been terminated, vides Exhibit S (1-2), wherein, at paragraph 5 thereof, the defendant fell back on the ineffective and constructively recalled and nullified termination letter, is another classic instance of the inconsistencies of the defendant. The defendant is estopped from falling back on this ill-fated letter of termination to prove the termination of the claimant’s employment. If it was an error that a query with the name, designation and job schedules of the claimant and the allegations against him and, which allegations relate to issues in which the claimant was involved and accurately entered, by the same token, by which the defendant now claimed the query was issued in error, it is much more true too that, the termination letter was also issued in error, and therefore, rightly withdrawn by the desire to follow proper procedure in terminating for a reason, by a much more logical but inchoate disciplinary process set in motion in the query, inchoate in that, it was not followed to the logical conclusion thus, making the claimant to remain on suspension for unjustified allegations or reasons.
In view of the finding that the claimant is deemed to be on suspension by virtue of the inchoate disciplinary procedure enacted in the query, to revert to the previous state of termination, the defendant has to issue another letter of termination, the previous one, having been nullified by the subsequent query, and none has been issued yet. Hence, the claimant remains in the employment of the defendant but, on indefinite suspension without pay. To settle the issue that the query was issued, well with the intention that the previous termination letter was withdrawn, and the claimant recalled and treated as a staff, his pleading and evidence that his field allowance was paid vides Exhibit V (1-2) on April O9, 2017 after the said query of 22nd March 2017, was not effectively controverted. The defendant did not cross-examine CW1 on the germane issue that, the money was paid into the claimant’s account by the defendant, but rather, merely raised the issue, under cross-examination that, the name of the defendant did not appear on the exhibit. The claimant answered, “The defendant is not mentioned in Exhibit V (1-2) just like any other payment usually made by the company. This is the document of the bank (exhibit V).”
Clearly, that the name of the defendant did not appear on the exhibit did, not address the issue that, the defendant paid the money into the claimant’s account. It did not mean that, it was not the defendant that paid the money. It means, on this vital point, the claimant was not cross-examined. The effect is admission of the truth by the defendant that it paid the money into the claimant’s account. It is only after proper cross-examination on an issue that, the issue of probative value comes in. It should be noted that, this is a document only pleaded in the reply pleadings of the claimant, to which the defendant did not react. So, for cross-examination to destroy the document, it must be on the very point in issue, and not on peripheral points, and I so hold.
Whatever changed the mind of the defendant to beat a retreat on the query was within its mind alone since, the devil does not know what goes on in the mind of man. But it is sufficiently manifest that, the query was deliberately issued and not in error; and that, the claimant replied it with the hope that he would be exculpated, which hope was further gingered with the payment of the field allowance after the issuance of the query and the pressure put on him by the DW1 to answer the query. It is also sufficiently proved that, the inference from the conduct of the parties and legal effect of the issuance of the query after the initial termination and without being allowed to work was tantamount to suspension. The fact that Mr. Ibe Ene, Head Human Relations, under whom the claimant worked within the period covered by the query, was issued similar query at the same time, as the claimant and put on suspension, is signification of the fact that, the defendant also intended and did actually and constructively placed the claimant on suspension. The claimant testified that Mr. Ibe was subsequently exonerated and recalled, and yet, DW1 placed the whole blame on Mr. Ibe in justifying the error in issuing the claimant’s query! In an unreported decision of this Court, in Suit No. NIC/EN/105/2013 – Enyidede v. Roche Construction Nigeria Limited & Anor [Delivered at Owerri Division February 10, 2015] Per Anuwe J held at p. 18 thereof, and I quote with approval:
“In this case of MOBIL PRODUCING NIG. UNLTD vs. UDO, it was the opinion of the learned Justices of the Court of Appeal that during suspension, the employment continues to subsist and the employee is entitled to his salaries during the period except there is a condition of service which permits the employer to stay payment during period of suspension. In a contract of employment, there is no implied contractual right on the part of employer to suspend an employee without pay on disciplinary grounds. For there to be no pay, it must be expressly stated in the contract of service between the parties… Further more, whether an employer has power to suspend an employee depends on the terms of the contract of employment. Suspension will be wrongful if the employer has no power to suspend given the contract, in such a case, the employee is entitled to wages he lost by being suspended…
In this case, there is no evidence before this court [sic] that there is any laid down condition between the parties stating clearly the right of the defendant to suspend the claimant without pay. The defendant did not tender any such document containing such conditions of service. In the absence of such evidence, the consequence is that the defendants did not possess the right under the contract of employment to suspend the claimant indefinitely without pay…
Without further delay on this issue, it is has been resolved in this judgment that the claimant remains an employee of the 1st defendant till date, his employment not having been shown to have been terminated. It is also my view that the defendant has not proved that they have the power under the contract and in law to suspend the claimant without pay. Consequently, the claimant is entitled to his monthly salaries from the date of his suspension till the date of this judgment.”
I adopt the reasoning and decision of His Lordship, Anuwe J in their entirety as expatiated above in toto. The defendant did not place before me any evidence for justification of suspension without pay and did not point me to any such evidence. I hold therefore that, the claimant having been deemed to be on constructive suspension without pay, remains in the services of the defendant, and is therefore entitled to payment of his salaries till judgment in this case. Let me observe too that, the query after the initial termination, gives reasons or rather raised a lot of damaging allegations against the claimant, which are left hanging, by the now notorious lackadaisical attitude of the defendant in the matter of employment relations, by failing to follow it up to conclusion and at the same time, failing to withdraw the said query, it means the reasons or allegations contained in the query were not justified by the defendant, as alleged and hence, the posthumous reason for the nullified termination of the claimant’s employment, was not proved.
Let me observe on an aspect of the case that is not apparent to the parties, especially the defendant. It is correct, under the old legal regime and to some doubtful extent, in the current legal regime of employment relations in Nigeria that, an employer may terminate without giving reason. But, it should be remembered that, even under the old regime, once the employer gives a reason though, not obliged, the employer remained stuck to that reason; and must justify it to escape liability – see SPDC Ltd v. Olarewaju (2008) LPELR-3046 (SC) 19, E-G. It must be pointed out that, the principle that the employer can terminate without reason only holds; if the employer keeps his mouth shut forever, by making sure that no reason is ever subsequently offered to justify the termination. Once, the employer gives reason to justify the termination, even posthumously. The right of the employee to challenge this sprigs up, for: the reason why employer must justify the allegations offered for termination, springs from the law of defamation; and anytime defamatory imputations are made against a person, the person has the right to challenge such calumny against his person, especially when in written or permanent form, as in the instant case.
In the instant case, the posthumous allegations against the claimant in the query had not been justified, in that, for reasons best known to the defendant, the query has not been pursued to its logical conclusion and has been abandoned. It follows that, had the termination even been originally valid, with the reason posthumously offered, the termination becomes invalid, as the posthumous reason offered for it, had not been justified. Let me mention too that, the invalidity of the letter of termination arose also from another prior source, apart from issuance of subsequent query and its effect. It also arose from the fact the one-month salary in lieu of notice was not paid before the purported peremptory termination hence, making it invalid too, for that reason. In essence, there was no letter of termination in place.
I want to draw attention to the fact that, the issue was raised that, even the allegations raised in the query related to events that happened years past and had been condoned; and only being revived for malicious reasons, to justify the purported termination. This argument was not resisted in the address of the defence. It is therefore deemed conceded. It was also stated that, the other person involved in this allegations, who, even the DW1 admitted, is principally responsible for the faults on which the query was issued to the claimant, had been tried and recalled. It should also be pointed out that, the defence did not also resist the case of the claimant that he was exculpatory of all the allegations. In fact, the testimony of DW1 under cross-examination, which exonerated the claimant and put the blame Mr. Ibe, under whom, the claimant worked at the material time, supports the exculpatory stance of the claimant on the query. It follows that these allegations were truly unfounded and remained unproved to justify any termination. This Court in Suit No. NICN/AB/03/2012 – Omoudu v. Obayan & Ors (Delivered 8th October, 2014) pp. 20-21, Per Adejumo, PNICN, held in similar situation that:
“The law has moved from the narrow confines of common law in master/servant relationship, to a more proactive approach that secures the rights of both parties to an employment contract. Thus, the attention has shifted, to protection of employees in cases of unfair labour practices, in tandem with what obtains in the comity of nations. The conduct of the defendants, in this instance, clearly amounts to unfair labour practice. Thus, Prof. O.D. Amucheazi and P.U. Abba adumbrated correctly, in their excellent book: The National Industrial Court – Law, Practice and Procedure, Wildlife Publishing House, UK, 2013, pp. 301 – 302, when they stated that:
‘The practice of relying on general principles of best practice in international labour in the domestic forum is not unique to Nigeria, since it is employed in other countries similarly set up with respect to labour relations as in Nigeria. In Botswana, the Industrial Court stated, in the case of Thandi Marope v. Botswana Diamond Valuing Co. [PTY] Ltd:
As the industrial Court is not only a court of law but also a court of equity, it applies rules of natural justice or rules of equity, as they are sometimes called, when determining trade disputes. These rules are derived from the common law as well as from the conventions and recommendations of the ILO.
Also, in Trinidad and Tobago, the Industrial Court, in the case of Bank and General Workers’ Union v. Public Service Association of Trinidad and Tobago, held that the right of an employee to be heard was “fundamental principle of natural justice” reaffirmed by relevant ILO instruments and thus representing best international labour practice. On this note, the Industrial Court held in the instant case that an employee in private service is entitled to avail himself of right to a prior hearing before being dismissed, despite the absence of such requirement in the domestic labour statute in the country and in his contract of service…
The Termination of Employment Convention requires a valid reason for termination of employment by the employer; this practice is generally applied in most jurisdictions the world over where improper motives for termination of an employee’s service render such termination unfair dismissal.”
This Court also held in Suit No. NIC/ABJ/47/2011 – Onah v. NLC
& Anor. (Delivered at Abuja Division 28th February, 2011) 32, para. 2 Per Adejumo PNICN that:
“This Court held, in Industrial Cartons Ltd v. NUPAPPW (2006) 6 NLLR (Pt. 15) 258, a case of wrongful termination of employment, that one month salary in lieu of notice would not meet the justice of the case. The Court frowned at the peremptory manner by which the Claimant’s appointment was terminated which the Court believed had the effect of suggesting that the Claimant did something wrong. The Court awarded six months salaries as meeting the justice of the case.”
It was not in doubt that the appointment of the claimant was initially terminated in a most preemptory manner without the payment of salary in lieu of notice thus, suggesting that claimant did something highly reprehensible against the interest of the company. Thus, it is clear that, the termination was done under clause B(6) of the letter of appointment, which states that termination without notice and without payment of salary in lieu thereof is meted out only to a staff terminated for being guilty of gross misconduct calculated to bring the name of the company into disrepute, though, the learned counsel to the defendant unsuccessfully sought to hide under clause B(3). I reproduce the said clauses B(3) & B(6) of the letter of appointment for the sake of clarity:
“B(3) While you are on probation, either party may terminate this appointment by giving one (1) month’s notice or one month’s salary in lieu of notice to the other. After the confirmation of your appointment, termination of your appointment shall be by either party giving to the other, one month’s salary in lieu of notice.
‘B(6) The company reserves the right to terminate this appointment if you are guilty of gross misconduct calculated to bring the name of the company into disrepute, without notice or salary in lieu of notice. The termination of this appointment shall not affect any accrued rights of the employee to the extent that the company does not suffer any immediate or future financial losses.” [Underlines supplied for emphasis]
From the above, it is irrational to argue that, once a termination is carried out under this provision, especially because of the first underlined part, a reason was not stated for the termination. A sweeping reason without details was definitely stated. The evident reason is that, the employee is terminated for being “…guilty of gross misconduct calculated to bring the name of the company into disrepute…” I wonder what amounts to giving a reason than this. The argument that the termination did not state any reason other than services no longer required, flies in the face of the implication of clause B(6) of the letter of appointment, as quoted above, taking into account that, this termination was done peremptorily, without notice and without payment of salary in lieu just, as therein provided in clause B(6); notwithstanding that, the termination letter promised that, the final entitlements of the claimant would be paid after completion of exit procedures. This promise does not satisfy the need to pay salary in lieu of notice when an appointment is terminated for services no longer required, as required by clause B(3) of the letter of appointment. And even if the promise to pay were fulfilled, as provided in clause B(6), it would still not take the sting from the provision; because, to hold so, would amount to supporting a policy of ‘destroy his career and pay him off’ – see Olatunbosun v. Nigerian Institute for Social and Economic Research 52, E-F [supra] cited by the defence counsel, where it was held:
“In every case of dismissal or termination of appointment, which may vitally affect a man’s career or his pension in such a case it is equally vitally important that the appellant is afforded ample opportunity to defend himself.” [Underline supplied for emphasis]
Clearly, clause B(6) does away with hearing before termination on gross misconduct. The termination envisaged is instantaneous. What clause B(6) called termination is, in actual fact, dismissal. The defendant simply ingeniously tried to cloak dismissal as termination, by the promise of payment of retirement benefits, but deftly inserts a pre-condition that, these retirement benefits may not be paid, where the dismissed staff puts the company into present or future losses, an amorphous condition to be subjectively determined by the defendant alone! It would shortly be seen how this malevolently cloaked seemingly altruistic pre-condition for payment of retirement benefits under clause B(6) played out, to the detriment of the claimant in the instant case. Till then, be that as it may. The reason for the dismissal was therefore clearly supplied by clause B(6) of the letter of appointment and which reason, is a very damaging one, which is sure to affect the future work-career of the claimant, and the provision completely ignored the rule of fair hearing, by not providing that the claimant would be heard before termination.
The appointment was terminated for being ‘guilty’ of “…gross misconduct calculated to bring the name of the company into disrepute, without notice or salary in lieu of notice”. For, in future, no employer would likely hire a prospective staff terminated in his previous place of work for being guilty of gross misconduct for bringing the name of its previous employer to disrepute. Clause B(6) of the letter of appointment makes a complete mincemeat of the need to hear an employee before dismissing him for gross misconduct. I don’t know how a person could be found guilty without being served with notice of the allegations against him and without being heard! This clause, in the letter of appointment, is plainly unlawful because, no agreement could be lawful, which its performance, violates positive principles or provisions of law, or public policy – see O.J. Bamgbose, Digest of Judgments of the Supreme Court of Nigeria, Vol. 1 [Safari Books Ltd, Ibadan], pp. 86-87, paras. 965-976.
Clause B(6) of the letter of appointment clearly allows the defendant to commit crimes/torts of defamation against its employees and to violate the right of fair hearing secured by the Constitution. It allows the defendant to barber a person’s head in his absence! This is a strange and malevolent provision. I make haste to state that, whenever any appointment is terminated under the said clause B(6) of the letter of appointment, just as done with the claimant herein, without hearing, the defendant cannot escape liability for termination with an unjustified reason. This is because, immediately such letter of dismissal disguised as termination is issued under clause B(6), it activates the reason provided in clause B(6); and it springs alive and gives effect to the reason therein contained, thereby attaching the claimant with the calumny implied therein and the defendant with the consequential liability of unjustified reason since, the clause precludes fair hearing before issuance of such damaging letter; except, if there is proof that, the employee was caught red-handed in committing a heinous misconduct against the employer, could his right to fair hearing be possibly dispensed with by the employer without liability. The said clause B(6) is dismissal disguised under the cloak of termination. It is clause B(3) that covers termination without giving reason simpliciter; and since the purported termination was not in compliance with clause B(3), and it had all the trappings of clause B(6), it could not be successfully argued that, it was done under clause B(3). No notice was given, and up till now, payment in lieu of notice has not been made.
For all intents and purposes, the claimant was initially dismissed without justification. The said clause B(6) is classical recipe for the defendant to impugn an unwary staff, ostensibly under guise of termination of appointment without reason. I think it was the futility of this that dawned on the defendant or for whatever motive that, it recanted the initial letter of dismissal disguised as termination, by the issuance of the query which, after the claimant took it in good faith and replied it, instead of following this process to the logical conclusion, the defendant decided to retrace its steps once again, in its now very notorious habit of approbating and reprobating. But, it is sufficient that, the defendant had exposed its fangs, by revealing the details of the reason for the disguised dismissal, in the query before, retracing its steps once again. The implication is that, in whatever way one looks at it, the defendant failed woefully to justify either the disguised dismissal for alleged gross misconduct calculated to bring the defendant into disrepute or the detailed reasons subsequently stated in the query; and failed to follow the query to an end or reissue another letter of termination, when it again beat a retreat on the query after recanting the initial letter of dismissal cloaked as letter of termination thus, leaving the claimant on indefinite suspension. The defendant has failed too, to recall the query after beating another retreat thus, leaving the claimant on indefinite suspension without pay.
Now, I return to the incongruity of the well-fenced and hedged around promise to pay retirement benefits after the disguised dismissal under clause B(6) of the letter of appointment. No wonder that the defendant are creating all hurdles for the claimant to even have access to the final entitlements incongruously promised a supposedly dismissed staff, even when the claimant had submitted the counterclaimed property of the defendant in its possession, to the defendant to its knowledge, the defendant still continues to insist that the items must be submitted in Lagos to the DW1 in person before the claimant could access the final entitlements. It shows that, the defendant never really intended to honour the promise made there. It only intended to dismiss a staff for damaging reason and cleverly prevents the staff from challenging the dismissal, with the bait of or in the hope of, getting illusory retirement benefits. Yet, the letter of appointment did not provide that the items in issue be submitted in Lagos or to DW1 or anything of such, nor did the defendant point to any document that says these items must be submitted to the DW1 personally in Lagos; and that the exit form be signed by DW1 personally, to complete the exit processes.
When it is realised that the claimant no longer have access to these items, which are already in the possession of the defendant, the malevolent motive of the defendant would be clear that, it is not even ready to pay any final entitlement to the claimant in consonance with the disguised dismissal provided in clause B(6). If it is ready, it would not have insisted that the claimant, whom it had stopped from coming into its premises, should still go and do the impossibility of accessing its office to retrieve these items, duly submitted to its officer, and re-submit them from Imo State, in far away Lagos, when the claimant never worked in Lagos and that, until the exit form is signed by the DW1 personally, he cannot access the final entitlements, it would be clear that, the defendant is not ready to pay any final entitlements but, is just trying to craft a seeming justifiable reason for refusing to pay. For all intents and purposes, it is now clear that clause B(6) is all about dismissal without benefits cloaked as termination with conditional benefits. Let me pose, without the ID Card, how does the claimant access the defendant’s office to retrieve the items and re-submit them in the Lagos Office? He would simply get to the gate and be stopped from entering the premises, while the defendant would still continue to insist on submission in Lagos for him to be entitled to the terminal benefits! This less than ingenious design does not take in the Court. The Court has seen through it.
When it is also understood that the DW1 did not even deny the fact that these items were submitted to Mr. Odion Jonah [an officer] of the IT Department of the defendant and who signed Exhibit T (1-2) for the claimant, and whose signature was confirmed by the DW1 and Mr. Odion Jonah was not called to testify to deny the receipt of the items, I cannot find the rationale why the defendant could not collect these items from its Ibigwe Office, where they were submitted, if they are needed in Lagos, if it is not that, they want to continue to subject the claimant to needless suffering and ignominy, such that when the claimant is tired, he would abandon the promised but illusory final entitlements. If Mr. Odion Jonah did not have prior authority to take delivery of the items, he would not have taken the delivery. In any case, the defendant has not disputed this and if it has, it has not shown the authority for this; and has not shown that, it queried the said Mr. Odion John for exercising a duty not assigned him. That the said Mr. Odion Jonah took delivery of these items in the course of his normal duties to the defendant raises the presumption that, he had prior authority to take delivery of such company properties from exiting staff. To dislodge this presumption, the defendant needs very cogent contrary evidence, which is totally absent in the instant case. The attitude of the defendant in this instance is a classic case of insensitivity to fellow human being and display of very crude vestige of employer’s power over employee.
This is reverberating example of unfair labour practice, as ably submitted by the learned counsel to the claimant; and I so hold. This Court has a duty under the 1999 Constitution [as altered] not to allow this type of maltreatment and unfair labour practice. The defendant claimed it sacked an employee peremptorily without pay or notice, and yet is insisting that such employee should proceed to Lagos from Imo State to re-submit items he had duly submitted in his last place of primary assignment! At the end, I hold that the properties of the defendant with the claimant had been submitted to the defendant to the defendant’s knowledge and that, the submission of these items in the defendant’s Ibigwe Office in Imo State satisfied completely the requirements of submission of the defendant’s employment properties in possession of the claimant. The counterclaim fails and is accordingly dismissed, as totally lacking in merit.
I also wish at this stage, to address the argument of the learned counsel to the defendant that, the letter of appointment is superior to the HRM and that, where there is conflict between them, the letter of appointment prevails. In the first place, the issue over which this argument was canvassed is in relation to the argument that, the appointment was terminated in accordance with the letter of appointment and that, any term in the HRM inconsistent with the letter of appointment, would give way on the termination. It has been shown above that, the purported termination was dismissal in disguise and that, clause B(6) is the clause covering the disguised dismissal and not clause B(3), as claimed by the defence, and that, the said clause B(6) gives unjustified reason for the unjustified and disguised dismissal and thus, antithetical to fair hearing hence, the reliance on the letter of appointment to escape the harmer of the Court is zero. Because, the clause B(3) relied on in the letter of appointment is not the clause under which the appointment was purportedly determined but clause B(6), as ably shown above.
It is clear from clause B(6) that, a reason was given for the purported termination, and that, the reason was not justified, in that clause B(6) did not allow the claimant to be heard, and thus, conflicts with the rule of natural justice prescribing that a person must be heard before being damnified. So, even without reference to the HRM, the purported termination, which in real fact, is dismissal, remained indefensible. Therefore, whether or not the HRM is inferior to the letter of appointment is nonstarter, more so, in view of the finding of the Court that, even the so-called letter of termination had been overtaken by the event of the subsequent query issued and served on the claimant, and replied by the claimant, by which effect, the claimant is now deemed to be on suspension.
But, I wish to observe that, the argument that, the HRM is inferior to letter of appointment is not true in law. It is part of the contract between the parties unless the agreement provides that the letter of appointment would supersede, where there is conflict – see Baba V. N.C.A.T.C. (1991) 5 NWLR (Pt. 192) 388 at 413, B-F, [supra] cited by the learned counsel to the claimant. Where there is no such clause, the HRM, which gives more details of the contract, is even supposed to be superior to the letter of appointment, in giving flesh and meaning to the letter of appointment. It is no wonder that, the learned counsel could not even cite an authority in support of this strange proposition of the law. But one thing I found is that, the letter of appointment did not, directly or indirectly, incorporate the HRM in this case. The intendment of the letter of appointment seemed to be that, it contains all the terms and conditions of the contract of employment between the claimant and the defendant. Maybe, this is another design by the defendant to escape liability in its relations with its staff. It might be the gestative fulcrum of the inchoate argument of the learned counsel to the defendant that the letter of appointment is superior to the HRM, but this argument was not driven to the logical conclusion. Good enough, both in the pleadings and submissions before this Court, the defence did not remember to explore this loophole.
Fortunately too, the parties, especially the defendant, have not disputed that the HRM formed part of the contractual documents, both in their pleadings and evidence-in-chiefs; and DW1 admitted that the HRM is part of the contract under cross-examination. So, that settles the issue of failure of the letter of appointment to directly incorporate the HRM. Otherwise, the failure of the letter of appointment to incorporate the HRM, is another attempt of the defendant herein, to escape its responsibilities and liabilities to its staff but, good enough, it would not be necessary to delve into this, in this instance, since both parties did not deny that the HRM forms part of the contractual documents of the parties.
Another point I need to address is that, the claimant needed to place before the Court the terms and conditions breached when pursuing a case of wrongful termination. Let me say this is very correct position of the law. But I dare opine that, like all principles of law, this principle is not without its exception. When the allegation is that, an employment was terminated, by giving a reason and that, the reason was not justified, the claimant only needs to place before the Court the letter of appointment, and especially, the letter of termination containing the reason for the termination, which is alleged not to have been justified, and any other documents where such reason was offered; and not necessarily the terms and conditions of service, except such reason was therein contained. For the terms and conditions of service would not normally contain factual reason given for termination but, would normally only contain grounds, for which an appointment could be terminated. It on this ground that, the reason for the termination, would be tested and anchored. The letter of appointment too, would not normally contain the reason for termination, except in an abnormal situation like in the instant case. I think the classical statement of the law on, who shoulders the burden of proof, where a defendant offers reasons for dismissal, was stated in SPDC v. Olarewaju [2008] LPELR – 3046 [SC], where the Supreme Court opined that:
“The guiding principle which has been articulated and applied in many cases including Olatunbosun V. N.I.S.E.R. Council [1988] 1 NSCC 1025; [1988] 3 NWLR [Pt. 80] 25, is that an employer is not bound to give reasons for terminating the appointment of his employee. But where, as in this 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”. [See p. 19 paras E – G]
The burden is on the defendant to prove any reason offered for termination. So, even if the claimant did not tender the terms and conditions of service, it would not have been fatal to proving unjustified reason offered for the purported termination, once the documents containing this allegedly unjustified reason, are before the Court via the claimant. The claimant having tendered the purported termination letter and the letter of employment containing the reasons for the termination; he has done all that is required by law. It is plainly unlawful to tarnish any person’s image without justification, and no contract can lawfully provide for a party to terminate employment with an unjustified reason. Let me state here that, the need for fair hearing before an appointment could be terminated for reasons, as in the instant case, is external to the contract between the parties and imposed by law – SPDC v. Olarewaju [supra].
So, if the HRM was not even tendered, the defendant could not have wriggled out of the snare of the law for terminating with unjustified reasons, ably provided in clause B(6) of the letter of appointment and activated in the purported letter of termination. Clause B(6) and the purported letter of termination construed together completes the wrongfulness of terminating for unjustified reason. In any case, the claimant herein ably tendered the HRM and pleaded Chapter 8, p. 89-97 thereof, as containing the provisions relied upon in proof of the conditions breached and testified to that effect – see para. 29-30 of the Statement of Facts and para. 30 of the written deposition. And these pages contained well thought-out misconducts and procedures to secure fair hearing before termination for gross misconducts, which the defendant truly breached. It follows that, in either way, the defendant is not exculpated of blame in the purported termination. It is not in doubt now that the appointment was determined for reasons bordering on gross misconduct and ought to have been tried in accordance with the provisions of the HRM relied upon.
I wish too, to make my views known on the argument on the alleged inconsistency said to be inherent in that the claimant allegedly claimed under Exhibit U (1-2) that, he printed out the query from his email and later under cross-examination stated that, he went to the premises of the defendant on 22/03/17 to collect the query and hence, continued to work till that date. I have checked the said Exhibit U (1-2) and could not find what justified this imputation. What the claimant said under the exhibit was that, emails relating to or ‘in respect of’ the query and condolence message on the death of the Halogen Security Staff were printed out from his email. This does not in any way mean that, it was the query itself that was so printed out and even if it meant so, it does not mean that, the claimant did not also proceed to the premises of the defendant on the said 22/03/17 to collect it. In fact, part of the emails said to have been printed were the ones relating 26th March 2016. The worst that could be attributed to these two sources mentioned by the claimant is ambiguity and not contradiction. In any case, it is not all contradictions that are material in the determination of a suit – see In Mohammat Sele v. The State (1993) LPELR-3030 (SC) 13-14, paras. E-A, the Supreme Court stated the law on the effect of contradiction in evidence in the following words:
“Contradictions, to be fatal to prosecution’s case, must go to substance of the case and not be of a minor nature. If every contradiction, however trivial to the overwhelming evidence before the court will vitiate a trial, human faculty to miss some minor details due to lapse of time and error in narration in order of sequence will make nearly all prosecution fail. Thus if the contradiction do not touch on a material point or substance of the case it will not vitiate a conviction once the evidence is clear and believed or preferred by the trial court.”
If the court could waive minor contradictions in the prosecution’s case in criminal trial, where the standard of proof, is beyond reasonable doubt, how much more, in civil cases, where standard of proof, is by balance of probability. The purported contradiction did not affect the substance of the case. The substance is the effect of the subsequent query issued after the purported termination of the appointment of the claimant; and the claimant has adduced other pieces of evidence in consonance with the theory that the purported letter of termination had been jettisoned and the claimant constructively placed on suspension, from which he is yet to be recalled nor the appointment re-terminated by another letter of termination; nor, the query allegedly issued in error, recalled till now. If the claimant was issued query after the purported termination; and given till 23rd March 2017 to answer it, it is a misnomer to continue to argue that, the query had not nullified the purported termination and the claimant recalled, as a staff, albeit, on suspension because, he was not allowed to continue work, just like his colleague issued similar query, was placed on suspension.
This purported contradiction has no effect on this finding. And I am not convinced that, there was even any contradiction. To deny that the claimant did not step into the premises of the defendant on 22/03/17, the defence needs a categorical denial; and not to place reliance on unfounded contradiction allegedly inherent in the evidence of the claimant, to deny what it ought to specifically deny.
Finally, I am convinced that, the reason why the defendant decided to treat the claimant the way it did was truly because, it did not want the claimant to clock ten years in its employment, so that, he would not enjoy the benefits accruing thereby. And I so hold. The claimant was employed on 29th April 2008; and deemed suspended on 22nd March 2017, when the query was issued on him after the initial service of letter of dismissal, disguised as letter of termination, on 20th March 2017. From April 2008 to March 2017, is one month less 9 years, meaning that, the claimant had just 13 months [just about or approximately a year] to clock 10 years in the service of the defendant, when he was unceremoniously and constructively suspended without pay till date.
Following my reasoning from the beginning to this point, it is clear that, the case of the claimant, as constituted, is not frivolous or vexatious but has substantive merit. In that event, it is clear therefore that, Issue 2, as formulated by the defendant, must be resolved in favour of the claimant. Issue 2 is hereby resolved in favour of the claimant. Having resolved both Issues 1 & 2 against the defendant, and having equally dismissed the counterclaim, the claimant’s case succeeds in its entirety. The claimant must therefore be entitled to some remedy: some relief(s) because; the maxim is ‘ubi jus, ibi remedium’. The next thing is now to consider which relief(s) is grantable in the instance of this case, taking into consideration, the reliefs framed by the claimant.
The claimant pleaded in paragraphs 6, 32 and 35 of the Statement of Facts his entitlement and led evidence thereto in paras. 3, 4, 5, & 6 of the written deposition. The claimant tendered HRM [Exhibit E], the letter of promotion dated 13th January 2016 [Exhibit B] and his pay slip of 17th January 2017 [Exhibit C] to buttress his pleadings and viva voce evidence. The defence controverted these in their para. 12 of the Amended Statement of Defence, by saying the claimant was entitled only to prorated allowances and prorated salary of March 2017; and a month salary in lieu of notice. The defendant also pleaded in para. 14 of the Amended Statement of Defence that it had a laptop allegedly with the claimant, which the claimant allegedly had not turned over to the defendant, is worth, written in words, as Three Hundred and Twenty Thousand Naira but in figure, as (N320,000,000.00)? I take the view that, the defendant meant Three Hundred and Twenty Thousand Naira, in both words and figure because, I take judicial notice that, there could be no personal laptop sold at the huge sum of N320Million. There is no need to go further than this on the discrepancy in words and figure regarding the amount in issue. But now, whether this amount was deducted from the calculation in paragraph 12 of the Amended Statement of Defence is not known. The defendant led evidence via DW1 on prorated entitlements of the claimant in para. 19 of the written deposition of 13th February 2018. 10% post-judgment interest claimed though, not covered by the contract between the parties, is grantable as a matter of course – see Order 47, Rule 7 of the NICN Rules.
It is clear that, the entitlements of the claimant conceded by the defence are based on the supposition that, the employment ended on 16th March 2017 and not continued till the moment. For that reason alone, the calculation is obviously wrong, considering the fact that, the claimant has been adjudged to still be in the employment of the defendant till the date of this judgment. Secondly, if the defence reckoned with the N320,000.00 put on the laptop, the calculation would be wrong too, for this reason in that, the Court had found that, the laptop and the ID had been returned to the defendant. In all these, I also found that, the defendant did not challenge the documents tendered in support of the claimant’s entitlements that, they were not genuine or did not make provisions for these entitlements. I cannot appreciate the argument that the claimant did not tender any document in proof of the entitlements claimed. The claimant tendered his letter of appointment and the last promotion letter, which both contained the salaries and allowances of the claimant and how they are to be calculated.
Even without doing more, sufficient materials had been placed before the Court to order the defendant to calculate and pay the claimants his salaries and allowances in accordance with these documents. And the claimant went further to show the consequential financial implications of these in his written deposition. Definitely, since the claimant was not in control of the Court, he could not have known when the case would be decided, to include the financial implications in the calculations submitted. It is for the Court to direct the defendant to calculate the arrears till date of this judgment and pay accordingly. The claimant is not expected to start reeling out figures and calculations by heart under cross-examination. Once these had been done in tabular form that is clear, the percentage bases and the documents containing these had been pleaded and tendered, the claimant has satisfied the requirements of the law in proving how he arrived at his entitlements. The documents speak for themselves. The defendant has not shown to the Court that, the calculations therein pleaded and tendered are not correct according to the arithmetical bases used.
I also cannot equally fathom the argument that the claimant did not tell the Court what he would have gained had he reached ten years in service. Para. 32 of both the Statement of Fact and the written deposition of the claimant sworn 8th June 2017 and adopted in this Court contained the same pleading and evidence on this. The claimant referred to page 110 of the HRM as his authority. The objections of the learned counsel to the defendant to the reliefs claimed by the claimant in this suit are therefore totally unfounded. The only grouse of the defendant is that, the appointment of the claimant was determined on 16th March 2017; and as such, he is not entitled to these claims. Once, the Court finds to the contrary and holds that, the employment continues till now, by reason of the claimant constructively being on suspension without pay, the claimant must be granted all the reliefs claimed, except as noted immediately below.
However, I agree that the defendant is correct that, the claimant is not entitled to pre-judgment interest because, the claimant did not tender any document in support of this claim nor did he point to any portion of the contract that provides for this, nor is it a liquidated claim in the form of debt owed in the course of business over a long period unpaid. Pre-judgment interest is only granted on proof of right to it by contract or custom of the trade in issue and not easily granted, as a matter of course, except the circumstances are totally incontrovertibly supportive of granting same equitably, which is not the case here – see NPA v. Aminu Ibrahim & Co. & Anor (2018) LPELR-44464 (SC) 39-40, C-B; 66-68, D-E. Therefore, relief 35(g), relating to 10% pre-judgment interest is not grantable. I will not also grant relief 35(h), relating to 30Million Naira general damages though, claimant is eminently entitled to general damages under the current employment relations’ regime, contrary to the submission of the learned counsel to the defence because, this Court has consistently granted damages in master/servant relations, where unfair labour practice is proved in cases of termination – see Industrial Cartons Ltd v. NUPAPPW [supra]; Onah v. NLC [supra]; and Omoudu v. Obayan & Ors [supra].
I will only not grant it in the instant case because, the letter of dismissal cloaked in the robe of letter of termination had been constructively set aside by the subsequent query and the claimant deemed to be on suspension till this judgment hence, entitled to full salaries and attendant allowances and benefits, till date. Thus, these other reliefs granted, sufficiently satisfied all the claims of the claimant, inclusive of relief 35(h) refused. Relief 35(h) therefore appears to amount to double compensation, if granted. I also refuse relief 35(f)(h) relating to free medical for the family because, it appears the family would only enjoy it, when and if, any of the members falls sick. There being no proof that anybody fell sick and the amount expended thereof, the claimant is not entitled to it.
Now that I have held that the claimant is entitled to all the reliefs claimed except as otherwise stated in this judgment, I must proceed to make the necessary orders and grant the necessary reliefs, as adjudged above, to bring this judgment to a conclusive and fitting end.
CONCLUSION
Relying on section 14 of the NICA and all other powers conferred on this Court, I hereby grant all the reliefs claimed by the claimant in paragraph 35 (a), (b), (c), (d), (e)(i) & (ii), (f)(a)-(g), and (i) of the Statement of Facts. I award cost of N200thousand [Two Hundred Thousand Naira Only] against the defendant in favour of the claimant. The counterclaim of the defendant is dismissed in its entirety, as totally unfounded, very oppressive and utterly vexatious. The defendant is giving a grace of 30 days from the delivery of this judgment within which to comply with the reliefs granted in this judgment. I refused reliefs: 35(f)(h), 35(g) and 35(h).
Before I sign off, I commend the industries of the learned counsel to the parties in their final written addresses, in marshaling thought-provoking arguments in support of their respective theories of the case, on this obviously novel and recondite issue of the law. Novel and recondite, such that, none of the counsel and the Court, could fish out an authority directly on the effect of subsequent query after an initial purported termination. Their arguments, no doubt, enriched the horizons of the Court, in arriving at this decision. I commend them. It is a battle well fought on both sides.
Judgment is entered accordingly.
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HON. JUSTICE O.O. AROWOSEGBE
JUDGE
NATIONAL INDUSTRIAL COURT OF NIGERIA
