MR. ADIELE UGOCHUKWU -VS- WEAFRI WELL WISHERS COMPANY

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated: 19^th day of September, 2019

SUIT NO: NICN/PHC/91/2018

BETWEEN:

ADIELE UGOCHUKWU CLAIMANT

AND

WEAFRI WELL WISHERS COMPANY LIMITED DEFENDANT

Representations:

R.A. Sokari with P.H. Ohos for the Claimant

C.I. Enweluzo with M.N. Gabriel for the Defendant.

Judgment.

This suit was commenced by way of a general form of Complaint filed on the 31^st of July, 2018 along with a verifying affidavit, statement of claim, list of pleaded documents, list of witnesses, witness statement on oath and copies of documents to be relied upon at trial.

Arising from the statement of claim, the Claimant is claiming against the Defendant the following:

A Declaration that the purported termination of the Claimant’s employment by the Defendant without paying to the claimant one month’s salary in lieu of Notice of termination at the time of the purported termination, in line with the conditions of service is unlawful therefore null and void. That the claimant is still an employee of the defendant and therefore entitled to salaries from the defendant.
A Declaration that the Claimant be paid the sum of N6, 925, 804.21(Six million, Nine Hundred and Twenty-Five Thousand, Eight Hundred and Four Naira, Twenty-One Kobo) only owed him by the Defendant being and representing severance/Terminal benefits for 14(fourteen) years and 11(Eleven) months of service with the Defendant beginning from February 2003 to December 2017, when his employment with the defendant was purportedly terminated.
A Declaration that the Claimant be paid the sum of N2,078,273.73 being and representing his other entitlements for two years from January 2016 to December 2017.
That 10% interest be paid on the judgment sum per annum, until final payment of the said amount.
A Declaration that the “WORDINGS” as used by the Defendant in the letter of termination dated 28/12/2017 severing the employment of the claimant be declared null and void.
The sum of N10, 000, 000.00 (Ten Million Naira) only representing general damages for the emotional and psychological trauma, and unwarranted hardship occasioned by the ‘WORDINGS’ of termination letter dated 28/12/2017 severing the employment of the claimant.
The sum of N1, 000,000.00 (Three Million Naira) (sic) only, being and representing cost of Litigation.

Reacting to the claims, the Defendant on the 22^nd of October 2018 filed a memorandum of conditional appearance along with statement of defence along with a counter-claim, list of witnesses, witness statement on oath, list of documents and copies of documents to be relied upon at trial.

The Claimant upon receiving the statement of defence and counter-claim then filed on the 4^th of April 2019, a reply to the statement of defence and Defence to the Counter-claim which led the defendant to file a rejoinder on the 25^th of April, 2019.

Consequently, trial commenced on the 25^th of April 2019 with the Claimant opening his case. The said Claimant was himself called as the sole witness as CW1 and he adopted his witness statements on oath marked as C1 (a) and C1(b). Through the said CW1, 18 documents were tendered in evidence and admitted as exhibits C2 – C19. Exhibits C4 and C14 were however admitted under protest with the objections over them to be made in the Final Written Address.

Arising from the statement of claim and witness statements on oath, the case of the Claimant is that he started work with the Defendant as a National Youth Service Corp member posted to the Defendant before he was formally employed on 25/6/2003 and later became a Senior staff in the Defendant company and worked as a Service Engineer with the Defendant Company. The Claimant averred that he worked diligently with the Defendant and was commended for same and had his salaries reviewed upward on several occasions. The Claimant averred further that upon attaining the status of a senior staff of the Defendant Company, the Defendant issued a collective agreement operative between the Defendant and the Petroleum and Natural Gas workers (PENGASAN), Weafri Branch, to the claimant and informed the Claimant that the terms and conditions therein shall regulate the employment between the claimant and the defendant as a senior staff. He added that he was also assigned to the Defendant’s Kuwait office and that the Management of the Defendant being pleased and satisfied with his performance thereto, in its evaluation report dated 15/5/2017, commended the Claimant highly.

Claimant posited further that due to some administrative lapses on the part of the Defendant’s affiliate company (SOLIDAIRE GENERAL TRADING AND CONTRACTING EST.) in one of the operations/task, assigned to him and members of his crew, the Defendant through its Kuwait affiliate company caused a letter of termination dated 12/07/2017 to be issued to him, terminating his operations at Kuwait and pursuant to that, the Defendant issued a termination letter dated 28/12/2017 to him terminating his services with the Defendant in its entirety.

Upon the termination, Claimant posited that he was not paid salary in lieu of notice at the time of the termination and that the terminal benefit paid to him ought to be the sum of N 6, 925, 804.21 but the Defendant paid him N3,951,964.77 (Three Million, Nine Hundred and sixty Four Thousand, Seventy Seven kobo). He averred that he vehemently refused this amount as his severance benefit but signed the payoff slip given to him by the Defendant on the condition that the said sum will be reviewed but it was never reviewed. He added that money was only paid when he caused his lawyers to write a pre-action notice to the Defendant. Claimant posited that as a senior staff he was also entitled to other benefits which were not paid and that the total sum he was supposed to be paid was N9, 004, 077.73 (Nine Million, and Four Thousand, and Seventy Naira, Seventy-Three Kobo) as his salaries and severance benefits/entitlements and not N3, 951,964.77 as calculated by the Defendant.

Claimant also contended that the wordings used in the letter terminating his employment has grave consequences on him and his future as a Professional Engineer and same has robbed and denied the him several job opportunities with potential employers.

Upon cross examination of CW1, he posited that he started working as contract staff and that in 2008 he was offered appointment as a confirmed staff. He stated that he was not aware that he was not entitled to severance benefit as contract staff. He also stated that between April – December 2016, he was paid up-to 160 kd. He stated that he was not aware that before he went to Kuwait in 2016, there was a memo to all employees transferred to Kuwait company that their relationship with the Defendant was severed by reason of the transfer. When asked if he signed the document calculating his severance benefit before he went to Kuwait, he posited that the calculation was wrong. He confirmed that the termination letter given to him states that his severance benefit will be paid up-to his take off to Kuwait. He stated that within the period of his employment with the Defendant, no one complained about him and stated that his employment was not terminated because of incompetence and that the management did not look into it very well. He insisted that Exhibit C19 applies to him, that it is valid until re-negotiated and that he was not aware that the new agreement was made in 2014. He admitted that the Kuwait company was paying him salaries while he worked there and after the Kuwait job, he has secured another job and he is doing well.

Upon the discharge of CW1, Claimant closed his case while the Defendant opened theirs by calling one witness in person of Chukwuemeka Barnabas as DW1 who adopted his witness statements on oath which was marked as D1(a) and D1(b). Through the said DW1, 20 documents were tendered which were admitted in evidence as Exhibit D2 to D21 while Exhibit D2, D4,D7,D8,D9,D10,D11,D12, D16, D17 and D21 were admitted under protest with their objections to be addressed in the Final Written Address.

Arising from the statement of defence and statements on oath, the case for the Defendant is that the Claimant was indeed an employee of the Defendant who was first employed as a field Helper by the Defendant and was a provisional contract staff from February 2003 – September 2008. The Defendant posited that it did not make the Claimant’s Pay Slip of November, 2003 as it did not emanate from the Defendant. The Defendant also averred that the claimant was not employed because of his skill, work ethic or dedication but out of compassion and magnanimity engaged him as a Field Helper, a position reserved for S.S.C.E. holders in the oil and gas industry. The Defendant also averred that the Defendant increases the salaries of her staff including the Claimant’s to cushion and reduce the effect of inflation in the Country and to improve the welfare of its employees and not based on the performance of the Claimant and the other staff as alleged or at all. The Defendant averred that it does not issue Collective Agreement to individual staff of the Company as the Collective Agreements are in the custody of the union (PENGASSAN) executives and the Defendant Management and the Defendant neither issued the Current Collective Agreement to the Claimant but however knows that the Collective Agreement regulate the employment the Defendant had with its employees who are members of the Union. the Defendant added that the Claimant accepted to be sent to the affiliate company in Kuwait during Nigeria’s economic recession in 2016 to save the Claimant’s employment and not to maintain and service Oil installations as Companies in Nigeria Oil and Gas industry were unavoidably laying off their employees and the recommendation given of the Claimant was followed by overwhelming negative report which led to the termination of his employment by the affiliate company on 31^st July 2017. There was a plea for leniency and the Claimant was recalled. After he was recalled, he exhibited yet another incompetence leading to the affiliate company terminating his employment finally on 27^th September, 2017 with the end of service benefit duly paid and received by the Claimant and that the delay in payment was due to unavailability of funds. The Defendant posited that the Claimant worked with the Defendant for 13 years and not 15 and that the money paid to him as gratuity was based on a 7 years and 7 months computation being the period of October 2008 – April 2016. The Defendant posited that the Claimant was actually paid N4,000,000 which covers the gratuity and other benefit and that the other benefit being N431,811.78 covers the period of January 2016 – April 2016 i.e. the period before he went to Kuwait. With regards to salary in lieu of Notice, the Defendant posited that the Claimant have been paid two months salaries in the sum of One Thousand, One Hundred Kuwait Dinar (1100 KD) approximately One Million Three Hundred and Fourteen Thousand, Three Hundred and Eighty-Six Naira and Sixteen Kobo (N1, 314, 386.16) in lieu of Notice by the Defendant Affiliate Company as evidenced in the End of Service Benefit and thus the Claimant cannot claim same from the Defendant again. The Defendant urges the court to dismiss the suit of the Claimant as baseless and lacking merit.

Upon cross examination of DW1, he posited that the Defendant gave the claimant a merit award and certificate in 2014 to motivate him. He posited that the Claimant was employed as engineer but he could not meet up with criteria for field engineer that was why he was given field helper. He added that the memo shows that he was performing badly as he was told to wake up. He maintained that the Defendant did not send the Claimant to Kuwait and added that once the Claimant pick up another appointment with the Affiliate company, he ceases to be a staff of the Defendant as he cannot have two employments. He posited that Exhibit D17 is not a salary structure and that it is the Affiliate Company that takes care of transport and upkeep of CW1 as any expense made on behalf of the Affiliate Company are being charged back to the Affiliate Company. He also confirmed that the employment of the Claimant was terminated when he returned from Kuwait as the termination done by the Affiliate company stands.

Upon the discharge of DW1, the case was adjourned for adoption of Final Written Address and on the 3^rd of July, 2019, the Defendant adopted its final address filed on the 30^th of May, 2019.

Arising from the said Defendant’s final address, counsel to the Defendant, C.I. Enweluzo SAN, formulated three issues for determination to wit:

Whether the Claimant was entitled to one month notice of termination of appointment or one month salary in lieu of notice of termination of appointment from the Defendant having severed his relationship with the Defendant by virtue of his appointment with Solidaire General Trad & Contracting Co., Kuwait.
Whether the Claimant was entitled to Severance/Terminal benefits and other entitlements from the Defendant within the period he was employed as a contract staff of the Defendant.
Whether the Claimant is entitled to the general damages sought as per his reliefs in this case.

In arguing issue one, counsel contended that it is trite law that the relationship between an employer and employee is generally governed by the terms of their contract. He cited the case of OSAKWE VS. NIGERIAN PAPER MILL LTD (1998)10 NWLR (PT. 568)1 at 13. He added that the law is settled, that an employer can terminate his contract with his employee at any time and for any reason at all provided it is done in accordance with the contract of employment and cited the case of ODIASE V. AUCHI POLYTECHNIC, AUCFTI (1998) 4 NWLR (PT547) 477 at 492.

Counsel contended that parties are bound by their agreement and cited the case of NEPA VS. ADESAAJI (2002) 17 NWLR (PT 797) P. 605 paras B-G before contending that Claimant cannot go on a frolic on his own to insist that he is not bound by the agreement between the Claimant and Defendant with respect to his severance by virtue of Exhibit D6, the Inter Office Memo clearly showing the severance between the Claimant and the Defendant in 2016 following his contract with Solidaire General Trading & Contracting Est, Co., Kuwait.

Counsel added that Claimant relegated his contract with the Defendant as soon as he took up Exhibit D5 being the appointment letter issued to the Claimant by Solidaire General Trading & Contracting Est Co., Kuwiat with a fresh contract agreement binding on both parties and distinct from his contract agreement with the Defendant. A contract terms that ensured fatter salary and allowances to his satisfaction. He added that it is in evidence, that by the terms of Exhibit D5, the Claimant received his entitlements cum benefits as an employee of the Solidaire General Trading & Contracting Est, Kuwiat as clearly expressed in Exhibit D5.

Counsel added that the termination of the Claimant’s employment in Nigeria and by its wordings, is an affirmation of the Claimant’s termination in Kuwait.

Counsel also referred to paragraph 3 of Exhibit C13 and posits that same goes to show that Exhibit D6 had been in existence prior to the issuance of Exhibit C 13.

He cited the case of TADUGGORONNO V GOTOM (2002) 4 NWLR (PT 757) P. 475 paras F-H to contend that the Claimant has not adduced any evidence to show that he was still an employee of the Defendant within the period he was employed in Solidaire General Trading & Contracting Est, Co. Kuwiat. The mere argument that the said Solidaire General Trading & Contracting Est, Co. Kuwiat is the Defendant’s affiliate Company will not suffice in the circumstance in view of the fact that the contract terms of employment of both companies were distinct.

In arguing issue two, counsel posited that it is trite law that in a contract of employment, the regulation of the relationship between an employer and an employee derives from the contract of employment. In other words, terms in which parties have agreed would bind their contractual relationship. Counsel cited the case of OSAKWE VS. NIGERIAN PAPER MILL LTD (SUPRA) and CALABAR CEMENT CO. LTD VS. DANIEL (1991) 4 NWLR (PT 188) 750 at 760.

Counsel contended that the Claimant remained a contract staff via exhibit D2 from 2003 until 2008 when he was offered appointment as a staff of the Defendant via Exhibit C8. Counsel then contended that by Exhibit D4 and D17 the terms and conditions of employment of the Claimant was provided and the Claimant has woefully failed to prove that he was entitled to the Severance/Terminal Benefits which he seeks as a contract staff as same was not provided by EXHIBIT D4 which was the collective agreement binding on him from 2008 when he was offered an employment in the Defendant Company.

Counsel posited that there is nothing in Exhibit D17 and D3 stating that the said agreement was binding on contract staff as it specifically provided the different categories of Staff to be bound by that agreement and cited the case of IHEZUKWU VS. UNIVERSITY OF JOS (1990) 4 NWLR (PT 146) 598 at 612.

Counsel also contended that by Exhibit D15, Claimant has been issued his severance/ terminal benefit and posited that it is an established principle of law backed by a plethora of decided cases that where an employee receives his terminal benefit after his contract of employment has been brought to an end, he cannot be heard to complain later that his contract of employment was not properly determined. He cited the case of JULIUS BERGER (NIG) PLC VS. NWALIMU (2006)12 NWLR (PT 995) P. 540-541 at paras G-A.

With regards to issue three, counsel submitted that the Claimant has not established any wrongful act against the Defendant, which the Defendant may in law be held liable in damages to the Claimant.

Counsel cited the cases of MOROHUNFOLA V. KWARA TECH. (SUPRA) and IGWILO VS. CENTRAL BANK OF NIGERIA (2000) 9 NWLR (PT 672) P. 333-334 at paras H-A and contended thereon that the Claimant’s claim for damages as per his reliefs cannot be sustained in an action for termination of employment and assuming without conceding to the fact that the Claimant’s reliefs for damages with respect to the wordings used in his termination letter can be sustained in an action for wrongful termination of employment, the said wordings are justified.

Counsel added that it is in evidence that because of the overwhelming negative reports about the Claimant’s poor service evaluation report, his employment with Solidaire General Trading & Contracting Est, Kuwait was terminated vide Exhibit D8, the first termination letter issued to the Claimant prior to which Exhibit D7 being the reports and emails on Claimant’ s poor evaluation report was issued. He added that the Claimant showed incompetence as shown in Exhibit D11 and the Defendant had initially issued Exhibit D14.

With regards to claim for cost, counsel contended that the Claimant has failed to prove this claim as he has not by any iota of evidence proved that he is entitled to the said amount claimed as the sum only, representing the cost of litigation. He cited the case of AGBOOLA VS. U.B.A PLC (2011) ALL FWLR (PT 574) P. 74 at p.93, paras E-F

He also cited the case of S.P.D.C. V. OKONEDO 92007) ALL FWLR (PT 368) 1104 at 1137 paras E-D, to posit that the Court of Appeal held that it unethical and an affront to public policy to pass the burden of solicitors fees to the other party.

Counsel concluded that in view of the foregoing evidence, the court is urged to dismiss the case of the Claimant and enter judgment in favour of the Defendant.

In reaction to the Defendant’s final address, Claimant filed his final written address on the 21^st of June, 2019 wherein counsel to the Claimant R.A. Sokari Esq, formulated two issues for determination to wit:

(1) Whether the Claimant was an employee of the Defendant from 2003 when he was first employed to 2017 when his employment with the Defendant was summarily terminated by the Defendant.

(2) Whether the Claimant has proved his Claims before this Honourable Court to warrant the grant of same.

In arguing issue one, counsel cited section 91 of the Labour Act on the meaning of contract of employment, employee and worker. He also cited section 54 of the Trade Union Act on the meaning of worker and posited that by virtue of the above provisions of the Laws that regulate the employment of persons as employees, the claimant in this suit is an employee of the Defendant

Counsel further contended that it is trite that where parties have entered into a contract or an agreement they are bound by the provisions of that contract or agreement as this is the whole essence of the doctrine of the sanctity of contract. He cited the case of WEST AFRICAN OFFSHORE LTD VS. ARIRI (2015) 18NWLR (PART 1490) PAGE 177.

Counsel posited that the Claimant led evidence to show that he was employed by the defendant in 2003 via a contract offer of employment dated 25/6/2003 he added that the Claimant in proof of this assertion tendered EXHIBIT C5, the terms of contact of employment embodied in Collective Agreement between the Defendant and the Nigerian Union of Petroleum and Natural Gas Workers (Nupeng) Weafri Branch, the said collective agreement regulates the terms and Conditions of the Claimant’s employment and Exhibits C3 and C4 which is the letter of offer of contract and the Claimant’s Payslips for November and December 2003.

Counsel posited that there was no such stipulation in the Claimant’s contract of employment that he was a contract staff and submitted that parties cannot use parole evidence to alter the terms of written agreements or documents governing the relationship of the parties and cited the case of EGHAREVBA VS. OSAGIE (2009) 18 NWLR (PART 1173) page 299, ratio 3 at page 310, paragraphs D — E.

Counsel added that it is not stated anywhere in any of exhibit C2, C5, C7 and C10 that only confirmed junior staff are entitled to severance benefits at the time of termination of their employment. He added that a contract staff is a temporary worker whose employment is temporary and it also refers to a situation where the working arrangement is limited to a certain period of time based on the need of the Organization. He posited that in the instant case, the employment of the claimant was never temporary in nature, neither was it for a specific need of the company as it is clear from Exhibits C3, C7 and C8 that the Claimant was moved from department to department in the Defendant company. He also contended that contract staffing and casualization of employment contravenes Section 7(1) of the Labour Act, Cap 198, Laws of the Federation of Nigeria, 2004.

Counsel submitted that while the Claimant was working for the defendant’s affiliate company from 2016-2017, he was still an employee of the Defendant and thus the Defendant is liable to pay for the benefits accruable to the claimant for the said period, and urged the court to so hold and resolve issue 1 in favour of the Claimant.

In arguing issue two, counsel posited that it is trite that civil cases are determined on the preponderance of evidence and the balance of probability and cited the case of EYO VS. ONUOHA (2011) 11 NWLR (PART 1257) PAGE 1, RATIOS 1, 2, AND 4 AT PAGES 26 — 27, PARAGRAPH H — A.

Counsel posited that t is the case of the Claimant that the termination of his employment by the Defendant/counter-claimant in December of 2017 without paying to the Claimant one month’s salary in lieu of notice of termination at the time of his termination is unlawful. He added that it is also the case of the claimant that the amount calculated by the defendant as his severance benefits does constitute or represent the amount due him as his severance benefit and that the claimant also claims against the defendant that the words used by the defendant in his termination letter be declared null and void.

Counsel posited that it is settled law that in cases governed only by agreement of the parties and not by statute, removal of a servant by termination or dismissal will be in the form agreed to and any other form of dismissal or termination connotes wrongful termination or dismissal. He cited the case of OBANYE vs. U.8.A. PLC (2018) 17 NWLR (PART 1648) SC 375, RATIO 9, AT PAGES 391, PARAGRAPHS E-F, 392, PARAGRAGH E and posited that in the instant case, the assertion of Defendant that the employment of the Claimant was terminated by the internal memo which stated that the employment of the claimant is terminated if he took up employment with the Defendant’s affiliate company is neither here nor there as the said internal memo is not one of the ways an employee’s services in the company can be terminated. He added that EXHIBIT C5, the terms of contact of employment embodied in Collective Agreement between the Defendant and the Nigerian Union of Petroleum and Natural Gas Workers (Nupeng) Weafri Branch, the said collective agreement is what regulates the terms and Conditions of the Claimant’s employment and nowhere in the said document was it stated that the employment of an employee would be terminated when the employee is sent to another company by the defendant/counter-claimant.

He added that the claimant has proved that while he was working for the Defendant/counter-claimant’s affiliate company, the Defendant was still actively involved in the activities of the claimant and also bore responsibility for the claimant’s accommodation, feeding and transportation to and from Kuwait, which is the country of the Defendant’s affiliate company. He referred the court to Exhibits C12 and C18.

Counsel added also that in proof of the fact that the claimant was never incompetent or unprofessional or not able to execute simple task or work independently without supervision, the claimant tendered Exhibits C12, C18 and D20 to show that at all times material to his employment with the Defendant, he performed spectacularly.

He added that the Defendant’s affiliate company had a right to terminate the employment of claimant for any reason whatsoever whether it be true of false, but the termination of the letter from the defendant’s affiliate company was silent on the alleged infraction but the defendant had no authority to terminate the employment of the claimant based on the said infraction as the said incident never took place in the defendant company. The defendant had never found the claimant incompetent in any of its jobs from 2003-2017 when it terminated the employment of the claimant.

Counsel argued that the case of IGWILO vs. CENTRAL BANK OF NIGERIA, (2000) NWLR (PART 677) is distinguishable from the instant case and urged the court to hold that the claimant can validly make the claims as stated.

With regards to cost of litigation, counsel cited the case of NUADE vs. SIMON (2014) All FWLR (PART) 753 page 1878 at page 190a, where the court held that a successful party is entitled to be indemnified for cost of litigation which includes charges incurred by parties in the prosecution of their cases so far as the amount is not unreasonable and submitted that in the instant case, the claimant has proved that he has incurred expenses in the course of prosecuting this suit and therefore entitled to be indemnified for the said cost.

Counsel concluded that the claimant has proved his claims before this court and urged the court to so hold.

In view of all the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the issues for determination by this court are to wit:

Whether or not in view of the circumstances of this case and the evidence before the court, the termination of the Claimant’s employment was wrongful.
Whether in view of the evidence before the court, the Claimant is entitled to the reliefs sought.

Before I proceed to resolve the foregoing issues, I find it apposite to address the status of the exhibits admitted under protest.

While Exhibit C4 and C14 which were tendered through CW1 were admitted under protest, Exhibit D2, D4,D7,D8,D9,D10,D11,D12, D16, D17, 20 and D21 tendered through DW1 was admitted under protest as well.

With regards to Exhibit C4, counsel to the Defendant objected and argued that the document does not bear the logo nor letter head of the Defendant Company and neither does it have the name nor signature of the officer who issued it. He added that the Defendant does not know the source of the document. While he contended that C14 does not bear a signature as against exhibit D15 which carries the Claimant signature. He cited the cases of GARUBA V. KWARA INVESTMENT COMPANY (2005) SNWLR (PT 917) 160 @ ratio 5 and OMEGA BANK (NIG) LTD V. O.B.C. LTD (2005) 8 NWLR (PT 928) p. 576 at paras. E-F.

In reaction, counsel to the Claimant posited that that the documents are admissible in evidence and the weight to be attached to the said document is what the court should determine when writing its judgment. He cited the case of Adesola v. Azeez – (2013) 1WRN pp 71-72 lines 40-45.

With regards to the forgoing contention, I must state that relevancy is the hallmark of admissibility of a document and the weight to be attached in terms of probative value is a different issue altogether. The court in the case of HARUNA V. THE AG OF FEDERATION (2012) LPELR-7821(SC) held that:

“Generally admissibility is based on relevance. Once evidence is probative of the fact in issue, it is considered to be relevant and therefore admissible, because relevance determines admissibility. Therefore, once evidence is relevant for the proper determination of any fact in issue, the court is bound to admit it.” Per GALADIMA, J.S.C (P. 15, paras. D-E).

With regards to weight to be attached to admitted evidence, the court in Lawal v. U.T.C. (Nig.) Plc (2005) 13 NWLR (Pt.943) pg. 618 para F-G held that:

“It must be added that courts have always realised a distinction between admissibility and weight attached to admitted evidence. A document for example might in law be admissible in evidence but, upon going through the evaluation process and ascribing the appropriate probative value, might turn out to be of insignificant worthiness.” See IMB (Nig.) Ltd. v. Dabiri (1998) 1 NWLR (Pt. 533) 284 at 295.Per Mohammed JCA.

Consequent upon the foregoing, the contention of counsel to the Defendant touches on the weight to be attached and that, in no way preclude the court from admitting the said document. Consequently, the objection is overruled and the said exhibit C4 and C14 are accordingly admitted in evidence.

With regards to Exhibits D20 and D21, counsel to the Defendant objected and argued that the said documents were not frontloaded. He added that according to ORDER 3 RULE 9(d) OF THE NATIONAL INDUSTRIAL COURT OF NIGERIA (Civil Procedure) RULES 2017, a Complaint shall be accompanied by a list and number of copies of documents and other exhibits to be tendered at the trial.

In response, counsel to the Claimant posited that parties are bound to obey and comply with the Rules of court, however, it is the Evidence Act, and not the rules of Court that governs the admissibility of evidence and there is no provision of the Evidence Act that state a document, which is not frontloaded is inadmissible. He cited the case of DUNALIN INV. LTD V. B.G. L PLC (2016) 18 NWLR (PART.1544) 262 AT 340 PARAS. D-E, 341 PARAS D-E, 342-343, PARAS H-A, RATIO 17.

In addressing the objection, I restate the foregoing position of the law on relevancy and upon a consideration of the exhibits in question, I find that Exhibit D20 is a letter of PERFORMANCE MERIT INCREMENT addressed to the Claimant by the Defendant while Exhibit D21 is a base/office expense report bearing the name of the Claimant and the Defendant. The said documents are found to be relevant and they were tendered through the Defendant’s witness upon examination.

Consequent upon the foregoing finding that the said documents are relevant, the objection on the grounds of frontloading is overruled particularly as the court is allowed to consider the failure to comply with the provisions of the rules of this court as an irregularity. See Order 5 Rule 1. The said Exhibits D20 and D21 are hereby admitted in evidence.

With regards to exhibit D4 which counsel to the Claimant objected to on the ground that the foundation laid is not one of the grounds upon which secondary evidence may be tendered and admitted. He cited section 89 of the Evidence Act.

Counsel to the Defendant responded by citing the said section 89 of the Evidence Act and contending that the section permits secondary evidence where the original of that document is such a nature that it cannot be conveniently brought to court.

In view of the contention, it is clear that a foundation was laid as to the where about of the original of exhibit D4 which is a copy of collective agreement binding on the Defendant. The only issue is whether the said foundation is satisfactory. The said satisfaction is for the court and not the adverse party and I must state that the foundation laid as to the fact that the original is in the archive meets the provision of the Evidence Act which excuses the tendering of originals where such original are cannot be conveniently brought to the court.

Consequently, the objection is overruled and the said exhibit D4 is accordingly admitted in evidence.

With regards to exhibits D7,D8,D9,D10,D11 and D12, counsel to the Claimant contended that DW1 not being the maker of the said document could not tender them as same will amount to documentary hearsay. He cited section 83(1) of the Evidence Act and the case of Ladoja v Ajimobi (2016) 10 NWLR (Pt.1519) 87 at 146-147.

In reaction, counsel to the Defendant cited section 83 of Evidence Act and posited that the documents to be tendered falls under the exception provided by the section. He contended that the said documents are termination letters as well as the reports from Solidaire General Trad & Contracting Co. about the Claimant’s incompetence and poor performance which eventually led to the termination of his appointment at Kuwait. He added that the said documents were issued by one Mr. Ali Rashed Alhajri the Admin Manager of Solidaire General Trad & Contracting Co. and one Mr. Collins Nwabuogor, the Country Manager who are all resident in Kuwait and whose presence cannot be conveniently secured to give evidence in this matter.

In view of the forgoing contention, I have considered the said exhibits and find that rightly so, they are documents related to the Affiliate Company of the Defendant which is based in Kuwait and the Claimant has himself posited that he worked with the said affiliate company in Kuwait.

That said, I have also considered the provision of section 83 (1) (b) of the Evidence Act and find that the circumstance of the instant case fall under the said exception. For avoidance of doubt, the proviso states that:

“Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.”

In view of the forgoing, I find that the documents made by person other than the witness falls within the proviso of the said section 83(1) (b) and the objection of counsel to the Claimant is discountenanced.

With regards to exhibit D16, counsel to the Claimant contended that same is a photocopy and that the original is in custody of the Claimant. He added that no notice to produce was served on the Claimant and moreso, the document being a statement of account cannot be in the custody of the Claimant.

Counsel to the Defendant did not make any address in respect of the exhibit as a statement of account and the record of this court does not show that counsel to the Defendant argued that the original of the document was in custody of the Claimant.

That notwithstanding, I have taken a look at the said exhibit D16 and find that same is indeed a photocopy of a statement of account of the Defendant. While I reckon that indeed the document is a photocopy, I am also mindful of the provision of section 85 of the Evidence Act which states to the effect that the contents of documents may be proved either by primary or by secondary evidence while section 89 states the circumstances under which secondary evidence may be used. That notwithstanding, the foundation for tendering the secondary evidence does not vitiate its admissibility and the failure to lay foundation can be overlooked in the face of relevancy of the said document.

In addition, this court by the provision of section 12(2) (b) of the National Industrial Court Act may depart from the rules of evidence in the interest of justice and I find the instant case to be one of such cases demanding for the departure from the rules of evidence. Consequently, the said exhibit D16 is accordingly admitted in evidence.

No argument was made by counsel to the Claimant in respect of exhibit D17 and his objection is consequently considered abandoned while the said Exhibit D17 is accordingly admitted in evidence.

Having said that, I now turn to the resolution of issue one. In resolving the said issue which borders of the termination of the Claimant’s employment, I find it apposite to first narrow the areas of accord between the parties in view of the facts before the court. Foremost, I find that the parties are in accord with regards to certain facts which includes the fact that the Claimant was first engaged by the Defendant under the National Youth Service Corp (NYSC) scheme before he was employed sometime in 2003. Parties are also in accord as to the fact that in April 2016, the Claimant was appointed to work for an affiliate company of the Defendant in Kuwait and the said affiliate company terminated the Claimant’s employment sometime in 2017 before the Defendant followed the termination up with another letter of termination in the same 2017.

To also narrow the areas of conflict, I find that the Claimant alleged that the termination by the Defendant is wrongful as he was not paid salary in lieu of notice and his severance/terminal benefit paid to him was not complete as he was supposed to be paid for 14 years and 11 months while the Defendant also owes him certain amount of money as other entitlement from January 2016 to December 2016.

The Defendant on the contrary is of the position that the Claimant was a contract staff from 2003 to 2008 when he was formally employed as a staff and by 2016 when he was appointed by the Affiliate company in Kuwait, his employment with the Defendant was severed. By that turn of event, his severance benefit cannot be for 14 years and 11 month but rather for 7years and 7 months and the money paid to the Claimant covers the said period including his other entitlement for the period of January to April 2016 before he left for Kuwait. The Defendant added that the moment the Claimant was appointed by the affiliate company, he earned all his salaries and entitlements from the said company and the company also paid him salary in lieu of notice.

It is in view of the forgoing areas of conflict that the said issue one is formulated and will be resolved. To carry out the resolution, a good starting point is to state that it is trite that the party alleging wrongful termination bears the burden to fulfill certain conditions. The court in the case of U.T.C. NIGERIA LTD. v. PETERS (2009) LPELR-8426(CA) held that:

“It is a fundamental and well settled principle, that the terms and conditions of employment is the bedrock on which any claim predicated thereupon ought to squarely rest. Thus, where an employee as in the instant case, complains of a wrongful termination of his employment, he has the onus-

(i) To place before the trial court the terms of the contract of employment;

(ii) To prove the manner in which the said terms were breached by the employer thereof.

See GARUBA V. KIC LTD (2005) s aft e17) 160; JOMBO V. PEFM (2005).14 NWLR (part 945) 443; AKINFE V. UBA PLC (2007) 10 NWLR (Part 1041) 185 at 196 paragraph H; 199 -200 paragraph G-C.” Per SAULAWA, J.C.A (P. 41, paras. A-D)

In fulfilling the first condition, Claimant tendered exhibit C3 which is a letter titled CONTRACT OFFER addressed to the Claimant and dated the 25^th of June 2003. He also tendered exhibit C8 which is a letter of OFFER OF APPOINTMENT dated 30^th September, 2008. With regards to terms and condition, Claimant tendered exhibit C5 and C10 which are collective agreements between the Management of the Defendant and the NUPENG and PENGASSAN respectively. Claimant posited that C5 was issued to him and told that same would regulate the employment between himself and the Defendant while C10 was issued to him upon becoming a senior staff.

While the foregoing seem a fulfillment of the first condition, the Claimant did not specifically state what provision of the terms and condition of his employment as captured in the letters of employment or in the collective agreement was breached other than the fact that the computation he made for his severance benefit was in line with the collective agreement.

That notwithstanding, I find that clause 54 of Exhibit C10 which is a collective agreement between the Management of the Defendant and PENGASSAN provides with respect to termination of appointment/resignation to the effect that same shall be preceded by one month notice or one month basic salary in lieu of notice and same is without prejudice to the payment of full benefits as described under end of service benefit scheme.

With regards to severance benefit, I find that clause 42A provides for end of service benefit which is put at 2.25 consolidated monthly salary per year of service. Parties are in accord with this computation as well.

What has come into contention is as regards the number of years used in the computation. While the Defendant has computed using 7 years and 7 months, the Claimant computed 14 years and 11 months.

It is based on the forgoing contention that I have to review the evidence before the court in relation to the nature of employment of the Claimant. Upon the said review, I find that by exhibit C3, the Claimant was offered in June 25, 2003, a contract appointment. The relevant part of the said exhibit reads:

Dear Adiele,

CONTRACT OFFER,

We are delighted to notify you of our decision to offer you a contract appointment as field Helper in our Port Harcourt base effective February, 2003.

Your monthly salary would be Ten Thousand Naira (10,000.00) only.

Claimant himself knew the nature of appointment that he was offered from that very point as he admitted during cross examination that it was in 2008 that he was offered appointment as a confirmed staff.

By exhibit C8, Claimant was offered staff appointment, the said staff appointment came with its own probationary period and for the sake of clarity, I find it appropriate to reproduce the relevant portion of the said letter.

Sir,

OFFER OF APPOINTMENT

We are pleased to inform you that your position in the company has been reviewed by the Management. You are hereby offered a staff appointment in our company, effective October 2, 2008. This is sequel to your hard work, commitment and devotion to duty as a contract staff and moreover, recommendations from our annual evaluation. The appointment has a probationary period of twelve (12) months and confirmation would be based on performance evaluation.

Position: Equipment Operator 2

Remuneration: Salary Grade Level 5:1

Arising from the foregoing, there is no gainsaying that it was in 2008 that the Claimant was formally employed as a regular employee of the Defendant as he was offered appointment in clear and unambiguous terms to that effect. He also from that point started to enjoy the benefit of a full time employee in view of exhibit C9 which was issued to him on 10^th October, 2012 promoting him from his initial position in 2008 to Service Engineer and placing him on salary grade level 6 step 1.

In view of the foregoing, I must state that where the wordings of an agreement reached between parties are clear and unambiguous, same would not require much of the court other than to pronounce on same. The court in WILLIAMS v. WILLIAMS & ORS (2014) LPELR-22642(CA) held that:

“The point should however be further stressed that, an agreement voluntarily entered by parties such as in this case, must of necessity be honoured in good faith, in the absence of fraud or mistake because the court does not engage itself in the act of writing and rewriting agreements for parties, it must therefore avoid being branded as a meddlesome interloper. Where therefore the words in an agreement are clear, precise and unambiguous, the court shall without much ado expound those words in their ordinary and natural sense in order to give a true and genuine effect to the intention of the parties. See ZENITH BANK PLC V. EGBE (2003) 10 NWLR (PT 827) 1.

While the essence of the foregoing finding and holding is that exhibit C8 marks the beginning of formal appointment of the Claimant with the Defendant with the date 2^nd October, 2008, the next question is when did the appointment come to an end for the purpose of computing end of service/severance benefit. In doing so, I take into cognizance the fact that the Claimant posited that his appointment with the Defendant was terminated via exhibit C13 dated 28^th December, 2017 although he posited prior to the termination that he was sent by the Defendant to its affiliate company in Kuwait to service and maintain oil installation. He tendered exhibit C11 which is an employment contract between him and one Solidaire General Trading and Contracting Est.

At this point, I must mention that the Defendant stated that the Claimant was sent in order to have his employment saved in the face of recession in the country rather than lay him off. The Defendant also posited that upon the Claimant taking up the employment, he severed his relationship with the Defendant as the said affiliate company was paying his salaries and other entitlements. The Defendant also posited that there was a memo informing all staff sent to Kuwait of the severance of their employment and the computation of their severance benefit for those who were entitled. The Defendant in this regard tendered exhibit D6.

In view of the forgoing, I have taken a look at exhibit C11 which I find to be an employment contract between the Claimant and one Solidaire General Trading and Contracting Est. dated the 18/04/2016. The document is written in both English and Arabic language and I find therein that the Claimant as the second party was offered to be paid gross salary of KD950 which details include: Basic salary, housing allowance, Transportation allowance, Mobile Phone, Rotation Ticket, Medical insurance and Life Insurance.

I have also taken a look at exhibit D6 which is an internal memo dated April 26, 2016 and addressed to all employees deployed to Kuwait. The relevant portion of the memo reads:

Effective April 26, 2016, all Nigerian Employees deployed to Kuwait to work with Solidaire General Trading and Contracting Est. Kuwait (A Weafri Affiliate) shall upon acceptance and signing of the employment contract with Solidaire cease to be employees of WEAFRI well services Co. Limited, Nigeria.

However, for confirmed junior, senior and management staff involved in the set category and who by virtue of their years of service are entitled to various degrees of payoffs (gratuity/entitlement)benefits, the Account Department shall compute their benefits and schedule their payment periods.

Thank you.

Claimant posited that he was invited to sign the payoff schedule and he vehemently refused due to the fact that the computation was computed solely by the Defendant and the sum was put at a paltry sum of N3,951,964.77. He claimed that he signed on the condition that the said sum be reviewed. Claimant himself tendered the payoff advice prepared in April 2016 as Exhibit C14 which does not bear the Claimant’s signature.

The Defendant on its part tendered the same pay off advice bearing the Claimant’s signature as exhibit D15. From the said pay off advice, I find that the Claimant’s consolidated salary was put at N206, 309.33. His gratuity computed based on 7 years (October 2008 – September 2015) and 7 months (October 2015 – April 2016) was in total put at N3,520,153,00. The pay advice all bore other entitlements including Xmas bonus for 4 months (which must be January – April 2016), one month salary in lieu of notice (which must be for severing his employment as he leaves the Defendant for Kuwait) put at N102,519.33, Leave allowance for 4 months (January – April 2016) put at N68,346.22 and Housing for 4 months (January – April 2016) put at N192,600.00 . The total of the foregoing sum was put at N3,951,964.77 and same was tagged as amount payable.

The Defendant perhaps did not pay the said monies in April 2016 when the computation was done but the Claimant knew from then that his severance benefit had been computed and his employment with the Defendant had been severed. This finding is concretised by the fact that assuming the Claimant was not aware of the internal memo of April 26, 2016, he must have seen the part of the Payoff advice which puts salary in lieu of notice as one of the items computed in his severance benefit which he claimed was not correct.

In addition to that, if the Claimant’s employment was not severed with the Defendant in April 2016, on what basis did he sign an employment contract with the Affiliate company in Kuwait and why was he earning salaries and allowances from the said company? While I reckon the contention that the Defendant took responsibility for his expenses in going to Kuwait, it must be noted that DW1 posited that the expenses were incurred on behalf of the Affiliate company and same was charged back. I reckon that even if same was not charged back, it does not change the fact that as at April, 2016 the Claimant was no longer under the direct employment of the Defendant.

To finalize on the appropriate period for the computation of the severance benefit, I find that while the Claimant admitted that he went to work with the affiliate company in Kuwait, he added that his employment with the said company was terminated on 12^th July 2017 and pursuant to that, the Defendant served him a letter of termination on the 28^th of December, 2018. Claimant did not state that he was re-employed at any time back to the employment of the Defendant. Perhaps, he conceives the idea that his employment with the Defendant was subsisting.

Notwithstanding, the Defendant put up a clearer narrative of what transpired between the Claimant and the Kuwait affiliate company by stating that the Claimant’s employment was first terminated by the affiliate company on the said 12^th of July 2017 but the Defendant pleaded on behalf of the Claimant and the Kuwait company recalled the termination by reinstating the Claimant before his employment was eventually terminated in September, 2017. The Defendant tendered exhibit D7 and D8 which are letter of termination of the Claimant’s employment as at July 12, 2017. The Defendant also tendered exhibit D9 which is the letter dated the 31^st of July, 2017, recalling the claimant’s termination letter dated 12^th July 2017 and informing the Claimant that he has been reinstated effective 1^st August, 2017. On the same 31^st of July, 2017, he was issued exhibit D10 which is a letter notifying him of a change in his position from Pumping Supervisor to Bulk Plant Supervisor. The Defendant then tendered exhibit D12 which is the last letter of termination issued to the Claimant on the 27^th of September, 2017. The Claimant was by the said letter informed that he will be paid terminal benefits. Upon the termination, the defendant tendered exhibit D13 which is the computed end of service benefit to be paid by the Kuwait affiliate company.

In view of the foregoing, it is evident that the Claimant was with the Kuwait company till September, 2017 and was to be paid salary in lieu of notice by the said company for three months according to Exhibit D12 and D13.

The foregoing clearly means that the Claimant did not work with the Defendant before he was issued the termination letter by the Defendant on the 28^th of December, 2017 and the last time he worked with the Defendant was 26^th April, 2016 when the Defendant issued the memo severing his appointment with the Defendant.

The Defendant stated that the termination letter issued to the Claimant merely confirmed the position of the affiliate company. While I am to return to address the content of the letter, I must however state at this stage that the said letter does not changed the fact that the Claimant’s employment with the Defendant was severed in April, 2016 and same was not reinstated as the Claimant spent the rest of the period he put in the computation of his severance benefit with the Kuwait company who has also accordingly computed the Claimant’s end of service benefit for the period he spent with them.

The foregoing in unequivocal terms means that the Claimant’s severance benefit was rightly computed by the Defendant to cover a period of 7 years and 7 months i.e. from October 2008 – September 2015 and October 2015 – April 2016. It is sheer case of double portion for the Claimant to attempt to enjoy severance benefit from both the Defendant and the affiliate company from April 2016 to December 2017 and equity leans against double portion. See MAINSTREET BANK LIMITED v. UNITED BANK FOR AFRICA PLC (2014) LPELR-24118(CA).

I must then add that I find from the evidence before this court that the computation made by the Defendant in terms of the Claimant’s severance benefit is correct and same included salary in lieu of notice. In addition, I have taken a keen look at the exhibits tendered in terms of payments made in respect of the computed sum. Although the Claimant contended that the payments were not done until a pre-action notice was issued on the Defendant, I also reckon the defence put up by the Defendant that the delay in payment was due to unavailability of funds. I must state that what is most important is to determine whether the said sum has been paid in full.

In this regard, the Claimant averred that he received credit alerts for the sum of N1,500,000 on 15/5/2018 after pre-action notice was served on the 30^th of April, 2018, then another sum of N1,000,000 on 18/5/18 and then another N1,000,000 through his lawyer. The total sum from the averment is N3,500,000.

The Defendant on the other hand contended that it paid a total sum of N4,000,000 by paying N1,500,000 on the 29^th of April, 2018 before they received a pre-action notice but same reflected on the 30^th of April, 2018 in their bank statement. Then another deposit of N1,500,000 paid on 15/5/2018 and then a third payment of N1,000,000.00.

In view of the foregoing, I have taken a look at the statement of account tendered by the Claimant which covers the month of May, 2018 and reflects the receipt of the sum of N1,500,000 paid by the Defendant while another payment on N1,000,000 was received on 18^th of May, 2018. That corresponds with the debits made on Exhibit D19 which is the GTbank statement of account of the Defendant.

Arising from exhibit D16 which is the Diamond Bank statement of account of the Defendant, the transaction of 30^th April, 2018 shows that the sum of N1,500.052.50 was withdrawn from the account with the narration Part Pmt-Pay offr. The narration does not make it certain that the said sum was paid to the Claimant, however, the Claimant through his reply to the statement of defence, particularly paragraph 14 which was in response to paragraph 27, 28,29 and 30 of the statement of defence, did not state that he was not paid the said sum on the 30^th of April, 2018 but generally stated that the Defendant never communicated to him that it lacked funds and that the part payment was made 5 months after the termination. The court in the case of OGU v. MANID TECHNOLOGY & MULTIPURPOSE CO-OPERATIVE SOCIETY LTD. (2010) LPELR-4690(CA) posited with regards to such general traverse that:

“it is a known cardinal principle of pleadings that before an issue of fact can be said to have been joined by the parties in their pleadings, there must be proper and specific traverse of the fact/s contained in the pleadings. Where a positive and specific allegation or statement of fact was made by a party in his pleadings, there must be express and specific traverse of such allegation of statement of fact for an issue to be properly joined by the parties on such fact…” Per GARBA, J.C.A.(P. 41, paras. A-F).

In the absence of a traverse in relation to the payment claimed to have been made to the Claimant by the Defendant on 30^th of April, 2018, it is taken that the Claimant admits the said payment and that makes the total sum of monies paid to the Claimant by the Defendant to be N4,000,052.50 and the said sum is rightly above the total sum computed by the Defendant as Claimant’s severance benefit.

In view of the foregoing, it is safe to come to the irresistible conclusion that the Claimant has failed to prove that he was not paid salary in lieu of notice in the termination of his employment and consequently has failed to establish how the termination of his employment is wrongful and issue one is accordingly resolved against the Claimant and in favour of the Defendant.

With regards to issue two which touches on the reliefs sought, I must posit that the resolution of same requires the determination of each of the reliefs sought. To start with, I reckon that the Claimant is seeking for four declaratory reliefs and the law is trite that the Claimant bears the burden to proof that he is entitled to the declaratory reliefs. The court in the case of EMENIKE V. PDP & ORS. (2012) LPELR-7802(SC) the Supreme Court , PER FABIYI, J.S.C at P. 27, Paras. D-G, asserted with authority that:

“I need to state it clearly at this point that since the appellant claimed seven (7) declaratory reliefs, the law places a legal burden on him to establish his claim. His three (3) injunctive reliefs are predicted on the success of the declaratory reliefs. To that extent, they are consequential reliefs. In Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (pt. 119) 361 at 373-374 this court pronounced with force that the burden of Proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence.”

Relying on the forgoing authority, i then consider the first three declaratory reliefs thus:

A Declaration that the purported termination of the Claimant’s employment by the Defendant without paying to the claimant one month’s salary in lieu of Notice of termination at the time of the purported termination, in line with the conditions of service is unlawful therefore null and void. That the claimant is still an employee of the defendant and therefore entitled to salaries from the defendant.
A Declaration that the Claimant be paid the sum of N6, 925, 804.21(Six million, Nine Hundred and Twenty-Five Thousand, Eight Hundred and Four Naira, Twenty-One Kobo) only owed him by the Defendant being and representing severance/Terminal benefits for 14(fourteen) years and 11(Eleven) months of service with the Defendant beginning from February 2003 to December 2017, when his employment with the defendant was purportedly terminated.
A Declaration that the Claimant be paid the sum of N2,078,273.73 being and representing his other entitlements for two years from January 2016 to December 2017.

Without a doubt, the success of the foregoing declaratory reliefs are dependent on the determination of issue one wherein I have considered whether or not the Claimant’s employment was wrongfully terminated and whether the Claimant was paid salary in lieu of notice. To that end, I have found that the Claimant’s employment was not wrongfully terminated. The Claimant having been paid all his entitlement including salary in lieu of notice.

Also, I have found that the computation made by the Defendant in respect of the Claimant’s severance benefit was accurate as it covers the 7 years and 7 months for which the Claimant was an appointed staff of the Defendant whereas, he was also out of the employment of the Defendant in April, 2016 and ceased to enjoy salaries and other entitlements from the Defendant in the said month of April, 2016 having been paid for the period of January – April, 2016.

Consequently, the Claimant failed to prove that he is entitled to any of the foregoing declaratory reliefs and same are accordingly dismissed.

That said, I find it apposite to treat reliefs 5 and 6 together. Relief 5 is also for a declaratory relief to the effect that the Claimant seeks ‘A Declaration that the “WORDINGS” as used by the Defendant in the letter of termination dated 28/12/2017 severing the employment of the claimant be declared null and void’. If the court makes the declaration sought in relief 5, the Claimant by Relief 6 then seeks for the sum of N10, 000, 000.00 (Ten Million Naira) only representing general damages for the emotional and psychological trauma, and unwarranted hardship occasioned by the ‘WORDINGS’ of termination letter dated 28/12/2017 severing the employment of the claimant.

The said relief 6 being for general damages, I must state that by the nature of general damages, the sum claimed need not be specifically pleaded and proved, however, the basis upon which the general damages is claimed must be established since same is dependent on the success of the declaratory relief sought in relief 5. The court in the case of EFCC v. INUWA & ANOR (2014) LPELR-23597(CA) posited that:

“General damages is the kind of damages which the law presumes to be the consequence of the act complained of and unlike special damages a claimant for general damages does not need to specifically plead and specially prove it by evidence, it is sufficient if the facts thereof are generally averred.” Per AKEJU, J.C.A. (P. 18, paras. A-B).

In view of the foregoing, the complain of the Claimant is that the wordings used in his letter of termination of employment issued to him by the Defendant caused him untold hardship as he has lost two viable employment opportunities with two potential employers in the oil and gas industry.

The Claimant tendered the said letter of termination as exhibit C13. He claimed that he had been diligent in his employment and had several recommendations, awards and promotions. All which he proved by tendering several exhibits including exhibit C12, C18, and D20.

The Defendant however contended that the wordings used in the letter were the true state of affairs as the affiliate company in Kuwait terminated the employment of the Claimant on ground of incompetence and giving the Claimant second chance after first terminating his employment in July, 2017. The Defendant tendered exhibits D7 which was the email narrating the report of the Kuwait Company with regards to Claimant’s Gross Incompetence as a Pumping Supervisor which was addressed to the Claimant. Also, the Defendant tendered exhibit D11 which is another incident report bearing the name of the Claimant as the employee reporting and in the said report, Claimant was recommended for termination of his employment. The Defendant tendered exhibit D12 which was the letter of termination issued by the Kuwait company and the Company stated therein that the Claimant have again demonstrated incompetence to work as a bulk plant supervisor by his inability to execute a simple task of blending treatment fluid for two jobs and that he has shown that he cannot work independently but has to be supervised.

It was upon the content of exhibit D12 that the Defendant served the Claimant exhibit C13 as a follow up on the said D12. For sake of clarity, the said exhibit C13 is the basis of the Claimant’s claim for general damages and I find it apposite to reproduce the content of same thus:

December 28, 2017

Mr. Ugochukwu Charles Adiele

26, Station Road, Elelenwo

Port Harcourt, Rivers State

Nigeria.

Dear Mr. Adiele,

RE-TERMINATION OF APPOINTMENT

Sequel to the letter of termination from SOILDAIRE General Trading & Contracting Co./ WEAFRI Well Services Co. Ltd, Kuwait dated September 27, 2017, the Management of WEAFRI Well Services Co. Limited, Nigeria has examined the circumstances surrounding your termination of employment from Kuwait operation, which are stated as follows:

Technical incompetence on the job and position as Pumping Supervisor or Bulk Plant Supervisor.
Failure to execute simple tasks of pumping operations or blending of treatment fluids for which you were engaged.
Inability to work independently and unsupervised to get tasks accomplished as a Supervisor.
Unprofessional disposition to work that has cost the Company operational failures and red money in Kuwait.

Based on the aforementioned reasons, the Management hereby affirms the termination, and regrets to inform you that your services are no longer required in Nigeria.

However, WEAFRI Well Services Ltd, Nigeria, Accounts Departments will calculate your severance benefits in accordance with the CBA in force and made available to you (up to the month preceding your take off contract / salary payment in Kuwait), as the Kuwait Office has already informed you that they will pay all your entitlements in accordance with Kuwait Labour Law.

We thank you for your previous years of service to the Company and wish you all the very best on your future endeavors.

Yours Faithfully,

The foregoing makes it clear to all and sundry that the Defendant in the instant case is merely affirming what the Kuwait Company had done and no part of the statement is untrue to warrant being declared null and void in view of Exhibits D7, D11 and D12.

In addition, I must state that all the previous recommendations made of the Claimant by the Defendant does not change the fact that the Kuwait company considered him incompetent as it is not the Defendant who made the statement in relation to the incompetence of the Claimant in the letter of termination, it was merely a report of what the Kuwait company had said. The Claimant being found incompetent was also not in relation to the jobs he had previously done but on the basis of the new tasks assigned to him by the Kuwait company.

With regards to whether the said statement had caused the Claimant any hardship to be entitled to general damages, Claimant posited that he had lost two job opportunities but failed to present any evidence in relation to how he was denied employment on the basis of the said letter. Also, in the course of cross examination, Claimant posited that after the Kuwait job, he has secured another job and he is presently working and doing well.

In view of all the foregoing, the Claimant has failed to establish any wrong on the part of the Defendant with respect to the wordings used in his letter of termination of employment. Consequently, relief 5 and 6 lacks merit and same are accordingly dismissed.

With regards to relief 7 which is for the sum of N1, 000,000.00 (One Million Naira) only, being and representing cost of Litigation, the court cautioned in AFRICAN CONTINENTAL BANK LTD. & ANOR. v. IFEANYI AJUGWO (2011) LPELR-3637(CA) that:

“”It is worthy of note that costs are not imposed as a punishment on the party who pays them, neither are they awarded as a bonus to the benefiting party. The party entitled should only be indemnified for his out of pocket expenses and be compensated for the true and fair expenses for the litigation. See BUHARI VS OBASANJO (2005) All FWLR (PT 258) 1604; KUKOYI VS ODUFALE (1965) 1 All NLR 300 and OLASOPE VS NATIONAL BANK OF NIGERIA (1985) 3 NWLR (PT 11) 147.” Per OSEJI, J.C.A. (P.43, Paras.A-C)

How cost is to be factored was stated by the court in AKINRELE & ORS. v. YAGBOYAJU (2011) LPELR-3686(CA) when the court held that:

“Costs are meant to meet the actual and legitimate expenses of the successful party incidental to or necessarily connected with the case. The successful party, except in cases the costs are statutorily fixed like in this Court and the Supreme Court, for example, must itemize his realistic or necessary expenses arising from the suit in the request for costs and the awarding authority shall assess the appropriate quantum to award as costs against the unsuccessful party based on the itemized request. – see Akinbobola v. plisson Fisco Nigeria Ltd. (1991) 1 NWLR (Pt. 167) 270 followed in Layinka and Another v. Makinde and Others (2002) 5-6 SCNJ 77 at 92; and Order 53 rule 7 of the Rules of the court below (supra).”Per IKYEGH, J.C.A. (P. 27, paras. C-G)

In the instant case, it is crystal clear that the Claimant is not the successful party in view of the consideration that the reliefs sought lacks merit and have been dismissed and by that token, he is not qualified to be entitled to cost. Consequently, relief 7 is accordingly dismissed.

Relief 4 is an order of this court that 10% interest be paid on the judgment sum per annum, until final payment of the said amount. The success of the said relief is dependent on the court making an order for the payment of the sums claimed by Claimant or any sum howsoever. In the absence of such order for the payment of any sum, it is axiomatic that the said relief fails and same is accordingly dismissed.

Upon the foregoing, it is without doubt that issue two is resolved against the Claimant and in favour of the Defendant to the effect that in view of the evidence before the court, the Claimant is not entitled to the reliefs sought.

In the final analysis, I find the Claims of the claimant being totally devoid of merit and same is accordingly dismissed in its entirety.

Judgment is accordingly entered with respect to the substantive suit.

I then turn to the counter-claim of the Defendant and I must state that same is deserving of attention in view of the position of the law that a counter claim is an independent claim. The court in this regard posited in the case of Jeric (Nig.) Ltd. v. U.B.N. plc (2000) 15 NWLR (Pt.691)447 that:

“It is trite law, that for all intents and purposes, a counter-claim is a separate, independent and distinct action and the counter-claimant, like all other plaintiffs in an action, must prove his claim against the person counter-claimed against before obtaining judgment on the counter-claim. PER KALGO J.S.C. (P. 25, Paras. C-E)

That said, the Defendant through the statement of defence counter claimed against the Claimant thus:

(a) An Order that the Claimant/Counter Defendant has been fully paid his entitlements in the Defendant/Counter Claimant’s Company.

(b) The sum of Five Million Naira (#5, 000, 000.00) being and representing the cost of defending this suit.

In establishing the counter claim, the Defendant placed reliance on all the averments made in the statement of defence while in reacting to the counter-claim, the Claimant filed a defence along with the reply to the statement of defence wherein he denies the counter claim, relies on paragraph 1 – 20 of his statement of claim and posits that the Defendant is not entitled to any of the claims in the counter claim.

In resolving the counter claim, I must state that it is dependent wholly on the resolution made in the substantive suit and the sole issue for the determination of the counter claim is to wit:

Whether or not the Defendant is entitled to its counter claim in view of the resolution of the substantive suit.

In resolving the sole issue, I find it apposite to address the reliefs seriatim.

With regards to relief (a), I must for the sake of emphasis reiterate that this court has resolved in the substantive suit that the Claimant’s severance benefit was rightly computed by the Defendant to cover a period of 7 years and 7 months i.e. from October 2008 – September 2015 and October 2015 – April 2016. I also resolved in the substantive suit that the computed sum of N3, 951,964.77 has been paid by the Defendant to the Claimant in view of exhibits C15, D16 and D19 (being the bank statements of account of the Claimant and the Defendant).

Consequently, the Defendant/Counter-Claimant is deserving of the order sought in relief (a) and same is granted as prayed.

With regards to relief (b), wherein the Defendant seeks an order for the sum of N5,000,000.00 to be paid as cost of defending this suit. For sake of emphasis, I shall reiterate that the court in EMPERION WEST AFRICA LTD v. AFLON LTD & ANOR (2014) LPELR-22975(CA) cautioned that:

“…although a court has the sole discretion to award cost, such award should not be made to serve as a punitive measure or as punishment. Rather it should merely serve as indemnity or to compensate the wronged party on the out of pocket expenses he/it incurred in the prosecution or attendance of the suit or to cushion the cost of litigation incurred by the successful party in the suit. See PSO Olasipe vs. National Bank of Nigeria Ltd & Anor (1985) 3 NWLR (Pt. 11) 147 at 152 para B.” Per SANUSI, J.C.A. (P. 73, paras. D-F).

Although the Defendant/Counter-claimant is the successful party in the substantive suit, award of cost to the Defendant on the basis of success in the said substantive suit by way of counter-claim would also be to punish the Claimant.

Furthermore, in view of the condition stated by the court in AKINRELE & ORS. v. YAGBOYAJU (2011) LPELR-3686(CA) where the court held that:

“Costs are meant to meet the actual and legitimate expenses of the successful party incidental to or necessarily connected with the case. The successful party, except in cases which the costs are statutorily fixed like in this Court and the Supreme Court, for example, must itemize his realistic or necessary expenses arising from the suit in the request for costs and the awarding authority shall assess the appropriate quantum to award as costs against the unsuccessful party based on the itemized request. – see Akinbobola v. plisson Fisco Nigeria Ltd. (1991) 1 NWLR (Pt. 167) 270 followed in Layinka and Another v. Makinde and Others (2002) 5-6 SCNJ 77 at 92; and Order 53 rule 7 of the Rules of the court below (supra).”Per IKYEGH, J.C.A. (P. 27, paras. C-G).

I must state that the Defendant has failed to establish that the sum sought for as cost is the actual and legitimate sum expended in the defending of the substantive suit.

Consequently, the relief two is refused on the basis that the cost of defending is not proved and the court does not find it worthy to award cost as a punitive measure on the Claimant/Defendant.

In view of the foregoing, the sole issue for the determination of the counter-claim is partly resolved in favour of the Defendant/counter-claimant

In the final analysis, the Counter-claim is partly meritorious to the extent at which relief (a) has been granted while it fails to the extent at which relief (b) has been refused.

Judgment is accordingly entered in respect of the Counter-claim.

Parties are to bear their respective costs.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.