PROF. OKECHUKWU UGWUEJE VS NIGERIAN COMMUNICATIONS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

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

Dated this 8^th day of January, 2019

SUIT N0: NICN/ABJ/34/2015

BETWEEN

PROF. OKECHUKWU UGWUEJE

CLAIMANT

AND

NIGERIAN COMMUNICATIONS COMMISSION
DIGITAL BRIDGE INSTITUTE

DEFENDANTS

Representations:

Ededem Ani for the Claimant.

Ayoola Babatunde Oke with Nneli Donatus for the 1^st Defendant.

Anuga Audu with Lemuna Iyaji for the 2^nd Defendant.

Judgment.

This suit was originally commenced by way of originating summons filed on the 19^th of February, 2015 and was initially before the Honourable President of this court, Hon. Justice B.A. Adejumo who directed parties to file pleadings in respect of this suit in place of the originating summons and also gave directive as to the consolidation of this suit with NICN/ABJ/51/2015. This suit was later reassigned to this court sometime in October, 2017.

Upon the directive of the Honourable President, the Claimant on the 5^th of April, 2018 filed an amended Complaint along with an amended statement of fact and witness statement on oath. On the 26^th of April, 2018, Claimant filed a list of documents to be relied upon.

Arising from the Complaint and amended statement of fact, the Claimant is claiming against the Defendants jointly and severally as follows:

A Declaration that the Claimant enlisted in the service of the 2^nd Defendant by the 1^st Defendant in 2006 or thereafter is deemed to be entitled to all rights, privileges, emoluments, salaries and all perquisites of office arising from or pertaining to the Staff Conditions of Service warranted by the 1^st Defendant to be applicable to the aforesaid Claimant, at the time of appointment.

A Declaration that the failure of the Defendant to harmonize and regularize the employment status of the Claimants in the service of the 2^nd Defendant with the status of the staff in the service of the 2^nd Defendant without any justification known to law, is unlawful, ultra vires the Offer of Employment dated 1^st April 2008 and the Nigerian Communications Commission staff Conditions of Service being the instruments regulating the employment of the Claimants and is therefore illegal, oppressive unconstitutional, null and void and of no effect.

A Declaration that the termination of the Claimant’s employment by letter dated 26^th February, 2015 without any valid cause or reason related to his capacity, conduct or operational requirements of the 2^nd Defendant is unlawful, illegal, oppressive, unconstitutional, null and void and of no effect.

A Declaration that the termination of the Claimant’s employment by letter dated 26^th February, 2015 without any valid cause or reason related to his capacity, conduct or operational requirements of the 2^nd Defendant constitutes an unfair termination of the Claimant’s Employment, violates international best practices as regards labour matters and is therefore invalid, null and void and of no effect.

An Order of this Honourable Court setting aside the letter of termination dated the 26^th February, 2015 from the 2^nd Defendant terminating the employment of the Claimant same being unfair, contrary to international best practices as regards labour matters, invalid, null and void and of no effect.

An Order of this Honourable Court directing the 2^nd Defendant to take all immediate and necessary steps to harmonize the conditions of service including but not limited to the salaries, allowances and other emoluments payable to the staff of the 2^nd Defendant with the conditions of service (including but not limited to the salaries, allowance and other emoluments) payable to the staff of the 1^st Defendant.

An Order of this Honourable Court mandating the Defendants to pay to the Claimant all his outstanding entitlements, including salaries, allowances and all other employment benefits accruing to the Claimant from the 15^th April 2008 (or as reckoned from any other date relevant to this action) when the offer of employment was signed and delivered to the Claimant till the date of Judgment.

An Order of this Honourable Court reinstating the Claimant to his position as Vice President Academics and Student Affairs in the Defendant the termination of his employment being unfair, contrary to international best practices as regards labour matters, invalid, null and void and of no effect.

In the alternative

An Order of this Honourable Court compelling the Defendants, severally and jointly to pay to the Claimant the sum of N76,326,896.78 being the sum total of his annual salary he would have earned from the 2nd Defendant from the date of the unfair termination of his employment until May 2018 being the date he ought to have retired, as compensation for the unfair termination of his employment with the 2^nd Defendant.

TABLE 3: PARTICULARS OF CLAIM FOR COMPENSATION FOR UNFAIR

1	Basic Salary	N7,120,105.75
2	Rent Allowance	N29,566,667.75
3	Transport Allowance	N6,404,155.00
4	Furniture Allowance	N8,788,603.75
5	Utility	N3,519,841.50
6	Vehicle Maintenance	N2,933,201.25
7.	Entertainment	N2,111,905.75
8.	Education Allowance	N1,877,250.50
9	House Maintenance	N938,625.25
10	Meal Subsidy	N1,161,548.25
11	Domestic Staff	N5,622,673.50
12	Medical Allowance	N2,419,890.50
13	Air Time	N899,515.05
14	Productivity Bonus (13th Month)	N2,239,904.40
15.	Leave Allowance	N712,010.58
16	Total	N76,326,895.78

An Order of this Honourable Court mandating the Defendants to pay to the Claimant all his outstanding entitlements, including salaries, allowances and all other employment benefits accruing to the Claimant from the 15th April 2008 (or as reckoned from any other date relevant to this action) when the offer of employment was signed and delivered to the Claimant till the date of Judgment.

In reaction to the amended complaint and statement of facts, the 2^nd Defendant on the 27^th of April, 2018 filed a statement of defence and accompanied same with a witness statement on oath and list of witnesses. The 1^st Defendant on their part had earlier filed a statement of defence on the 19^th of April, 2016 along with witness statements on oath and list of witnesses without amending same.

In opening his case, Claimant himself, Prof. Okechukwu Ugweje as CW1, adopted his witness statement on oath filed on 5^th of April, 2018 which was adopted as the oral evidence of the Claimant and marked as C1. Through CW1, 3 documents were tendered which were marked as Exhibit CW1 (a) – CW1 (c). Exhibits CW1(c) was however admitted under protest but to be addressed in the final written addresses of parties and later in the judgment.

Arising from the amended statement of fact and witness statement on oath (C1), the case of the Claimant is that he was invited by the 1^st Defendant for an interview and was on the 1^st of February, 2006 issued with a letter of appointment and condition of service and deployed to the 2^nd Defendant as its Deputy Head, Research, Education and Curriculum Department on Grade Level 16 Step 1, which is equivalent to the position of a Deputy Director in the 1^st Defendant. Later in 2008, 1^st Defendant after several interviews on the 15^th of April, 2008 issued a letter of Appointment and Conditions of Service and appointed him as Vice President, Academics and Student Affairs of the 2^nd Defendant which is equivalent to the position of a Director in the 1^st Defendant. At the induction, the Executive Vice-Chairman of the 1^st Defendant made him to understand that his career path would be guided by the Commission. Upon resumption of duties at the 2^nd Defendant, the Claimant’s salaries and emoluments were equivalent to that of FULL DIRECTORS of the 1^st Defendant and it remained so for a while. But later he noticed some disparities which was contrary to what was stated in his letter of appointment. Several appeals were made for regularization but it yielded no result. Claimant also posited that this suit was instituted against the Defendants on the 19^th of February, 2015 and the processes were served on the Defendants, yet the 2^nd Defendant on the 26^th of February, 2015 terminated his employment without any reason despite having three years of service left before retirement. He added that after terminating his employment, the Defendants have failed, neglected, refused to pay him his salary arrears, severance allowance and entitlements, contrary to international best practices as regards labour matters. He added that as at the time of the termination of his appointment, he was entitled to receive total sum of N17, 959,769.83 (Seventeen Million, Nine Hundred and Fifty-nine Thousand, Seven Hundred and Sixty-nine Naira Eighty-three Kobo) per annum as salaries, allowances and emoluments. He added that in June 2016, the Defendants approved the increase of the gross emoluments of all staff of the 2^nd Defendant by Fifty (50%) Percent and based on this increment, he (claimant) is entitled to receive total sum of N26, 938,904.75 (Twenty-six Million, Nine Hundred and Thirty-eight Thousand, Nine Hundred and four Naira, Seventy-five Kobo) per annum as salaries, allowances and emoluments. He also added that for the remaining period of his employment before he retires he is entitled to N22,449,087.29 for the period beginning in March 2015 and ending in May 2016 based on the salary and emolument scale in force before the unfair termination of his employment while for the period commencing in June 2016 and ending in May 2018 he is entitled to the sum of N53,877,809.50 based on the 50% (Fifty percent) increase in gross emoluments of all staff of the 2^nd Defendant making a grand total of N76,326,896.79.

Upon cross examination, CW1 maintained that he considers himself a staff of 1^st Defendant and that he worked for the 1^st Defendant for 9 years. He also posited that the 1^st Defendant have been paying his salary through the 2^nd Defendant. He asserted that he was issued with staff I.D card of 2^nd Defendant and that his letter of appointment stated that the condition of service of the 1^st Defendant applies. He also maintained that there is no difference between 1^st and 2^nd Defendants while asserting that the board of the 2^nd Defendant terminated his employment.

Upon further cross examination, CW1 posited that the 2^nd Defendant did not approve any other condition of service. He also posited that the 2^nd Defendant was established as a distinct legal personality. He acknowledged that he is aware that the 1^st Defendant is a government body while the 2^nd Defendant was incorporated privately.

Upon re-examination, CW1 posited that he was already working with 2^nd Defendant as a deputy director before his elevation to VP Academics and that it was 1^st Defendant that called him for interview.

In opening their case, the 1^st Defendant called one witness in person of Felix Adeoye who adopted two witness statements on oath filed on 19^th of April, 2016 as his oral evidence in this suit and same was marked as DW1 (a) and DW1 (b).

The adoption of the two witness statement on oath was in view of the consolidation of suits.

Arising from the statement of defence and witness statement on oath, the case of the 1^st Defendant is that the 1^st Defendant made it clear to the Claimant that the 2^nd Defendant was his employer and not the 1^st Defendant. 1^st Defendant also posited that the Claimant’s letter of appointment to which he agreed to be bound contains all provisions as to his salary and other remuneration. Also, the condition of service purportedly given to the Claimant does not guarantee perpetual employment. The 1^st Defendant also maintained that there is difference between 1^st and 2^nd Defendant and that the condition of service of the 1^st Defendant has always been used as reference document for other organizations and that was the case for the 2^nd Defendant. The 1^st Defendant urged the court to dismiss the claims of the Claimant.

Upon cross examination, DW1 posited that he did not participate in the employment of the Claimants and had no first-hand knowledge about his employment. He posited that he does not know the condition of service used by the 2^nd Defendant. he also maintained that he was not aware that the Claimant was given CW1(b).

The 1^st Defendant closed its case with DW1.

The 2^nd Defendant on their part called one witness in person of Tonia Ansa Otubor who adopted her witness statement on oath filed on the 27^th of April, 2018 as her oral evidence in chief and same was marked as D2.

Arising from the statement of defence and witness statement on oath, the case of the 2^nd Defendant is that the Claimant was only in the employment of the 2^nd Defendant in 2008 and that the interview and aptitude test for which the 1^st Defendant invited the Claimant was for employment into the 2^nd Defendant as set out in the Claimant’s appointment letter. The 2^nd Defendant also posited that the Claimant’s employment was based on the 2^nd Defendant’s condition of service. With regards to the suit instituted by the Claimant, the 2^nd Defendant posited that it was not served with any originating process and the employment of the Claimant was terminated because his office was no longer sustainable while the Claimant has been paid all his salary arrears and entitlements due to him. The 2^nd Defendant also maintained that the Claimant ceased to be a staff of the 2^nd Defendant in the year 2015 and is not entitled to increase in gross emolument of the staff of 2^nd Defendant. The 2^nd Defendant prayed the court to dismiss the Claimant’s claim as it lacks merit.

During cross examination, the DW2 posited that she was employed in 2009 and therefore the Claimant was employed before her and she does not have any direct information on the employment of the Claimant. She admitted that the Claimant was in the panel that interviewed her for employment and it was the NCC condition of service that was given to her. She also asserted that between 2008 and 2015 the condition of service that governed the 2^nd Defendant was that of NCC. She maintained that the said NCC condition of service was not binding but merely a reference document. She posited that the termination of employment was to be in line with the appointment letter and condition of service and they were followed. She maintained that the Claimant has not been paid terminal benefit because the matter is in court. She also posited that one process of court was served on the 2^nd Defendant. She concluded by positing that both the letter of appointment and condition of service binds the 2^nd Defendant.

With the discharge of the DW2, Defendants closed their case and matter was adjourned for adoption of Final Written Address.

The 1^st Defendants filed their Final Written address on the 9^th of October, 2018 and adopted same on the 10^th of December, 2018.

Arising from the final written address, counsel to the 1^st Defendant, Ayoola Babatunde Oke formulated two issues of law to wit:

whether he who asserts must prove.

whether a corporate body is liable for the contracts (of employment) of its subsidiary.

With regards to issue one, learned counsel contended that from the review of the facts which he captured in the final written address, the Claimants have failed woefully to connect the 1^st Defendant to their contract of employment. Counsel added that the Claimant have neither shown that the 1^st Defendant is a party to the contract or that it even issued to the Claimants its condition of service. He contended that the 1^st Defendant in paragraph 4, 5 & 6 of its Statement of Claim had specifically denied that it was the employer of the Claimant and challenge the Claimants to show, which of its officers issued its condition of service to him which the Claimant failed to adduce any evidence in this regard.

Counsel concluded on this issue that it is therefore strange why the 1^st Defendant is a party to this suit and cited the cases of NWAWU V. OKOYE (2008) 19 NWLR (PART 1118) PAGE 29 AT PARA B-D and GARBA V. SHEBA INT (MG) LTD (2002) 1 NWLR PT 748 PG 396

On issue two, counsel posited that the connection of the 1^st Defendant is on two levels which are: as owner of the 2^nd Defendant and as being present on the Board of the 2^nd Defendant. However, these do not make the 1^st Defendant liable for the contracts of the 2^nd Defendant. He cited the case of Salomon Vs Salomon and Co Ltd (1897) AC 22 7 At p. 51

Counsel further contended that the presence of the occupant of the office of the Chief Executive of the 1^st Defendant as a Director of the 2^nd Defendant cannot vitiate the rule of separation of Corporate Personality. He in this regard cited the case of Bolton (Engineering) Co. Ltd. v Graham and Sons (1960) 3 ALL E.R 420.

Counsel also maintained that the special relationship existing between the 1^st and 2^nd Defendant as parent and subsidiary company and the fact that the person and office of the Executive Vice Chairman was playing a dual role as a member of Boards of both organization representing the 1^st Defendant on the Board of the 2^nd Defendant still does not merge the two corporate bodies. He cited the case of Bulet Int’l (Nig.) Ltd & Anor v. Olaniyi & Anor (2017) LPELR-42475(SC).

Counsel concluded that given the facts of this case it is clear that there really is no cause of action against the 1^st Defendant being not a party to the contract and having played no corporate role in the employment.

Counsel urged the court to dismiss this action as it concerns the 1^st Defendant with substantial cost.

The 2^nd Defendant on their part filed their Final Written Address on the 8^th of November, 2018 and adopted same on the 10^th of November, 2018. Arising from the said final address, counsel to the 2^nd Defendant, Audu Anuga formulated two issues for determination to wit:

Whether considering the Claimants’ Letters of Appointment dated 9th May, 2008 and 15th April, 2008 tendered as Exhibits CW2A & CW1A, the conditions of service of the 1^st Defendant are applicable to the Claimants?

Whether the Claimants are entitled to the grant of the reliefs sought?

In arguing issue one, learned counsel contended that it is a fundamental principle of law that a document speaks for itself and no party shall be allowed to add to or remove from the content of a document. He cited the cases of IKEMEFUNA & ORS V. ILONDIOR & ORS (2018) LPELR-44840 (CA) @ PAGE 18 PARAGRAPHS D — E and OZOMARO & ORS V. OZOMARO & ANOR (2014) LPELR22663 (CA) @ PAGE 44 PARAGRAPHS C-D.

Upon citing the authorities, he contended that in the instant case, the Claimants are seeking declarations and orders against Defendants on the misconception that they have the same status as 1^st Defendant’s directors and ought to be paid same remuneration as them. He added that it is not in doubt that the Claimants were employed as staff of the 2^nd Defendant and were issued Exhibits CW2 A and CW1 A. From the Exhibits, the terms and conditions of their appointment were clearly spelt out and there was no portion in Exhibit CW2 A and CW1 A where it was stated that the terms and conditions of 2^nd Defendant are the same as those of Defendant.

Learned counsel further posited that the law is settled that a party who alleges the existence of a state of affair has the burden of proving that state of affairs failing which his claim will fail. Counsel cited the case of DASUKI V. FRN (2018) LPELR — 43897 (SC) @ PAGE 13 PARAGRAPHS D — F and also that of A.C.B Plc. v. Emostrate Limited (2002)8 NWLR (pt 770) 501 at 516 Paragraphs A-B.

Counsel submitted that the Claimants have woefully failed to establish the assertion that the terms and conditions of their employment with the 2^nd Defendant are the same as those of the 1^st Defendant.

With regards to issue two, counsel cited the cases of OKOYE & ORS V. NWANKWAO (2007) PELR — 1738 (SC) @ PAGE 60 PARAGRAPHS B — C and BULET INT’L (NIG) LTD & ANOR v. OLANIYI & ANOR (2017) LPELR-42475(SC) on the nature of declaratory reliefs. Counsel then posited that the Claimants have sought different declaratory reliefs in their Amended Complaint without adducing evidence to establish same. He added that on reliefs d, e, k, l, n & o of one part and reliefs a, b & f of the other, the Claimants did not show by any shred of evidence that the conditions of service for the staff of 1^st Defendant applied to the staff of the 2^nd Defendant. He maintained that they did not tender any document during trial to substantiate the averments in their pleadings and urged the court to discountenance the averments.

Counsel posited that it is the law that pleadings on which no evidence is adduced go to no issue. Citing the case of UBN PLC V. ASTRA BUILDERS (W.A.) LTD (2010) LPELR-3383 (SC) @ PAGES 20-2 1 PARAGRAPHS G-A.

Counsel further posited that by Exhibit CW2C, relied upon by the Claimant in NICN/ABJ/51/2015 to found his reliefs a, b, c, f & I, he argued that while the Claimant is alleging oppressiveness and inducement as a result of the exhibit, the contents of the exhibit did not however support the Claimant’s position. He maintained that the Claimant did not adduce any further evidence to show how he was induced or oppressively compelled to resign his position.

With regards to the termination of the Claimants’ appointment, counsel posited that evidence was led to show that the termination was as a result of redundancy of his office in the case of the termination of Claimant’s employment and reliefs g, h, j, m, n & o in NICN/ABJ/51/2015, while in case of the Claimant in NICN/ABJ/34/2015, evidence was led to prove that the termination was occasioned by the state of 2^nd Defendant at the material time. He added that there is a provision in Exhibit CW2A and CW1A on issue of termination.

Counsel reiterated that the burden is on the Claimants to prove what is alleged and concluded by urging the court to dismiss the claimant’s case.

In reaction to the final addresses of the 1^st and 2^nd Defendants above, the Claimants filed two separate final addresses each in reaction to those filed by the 1^st and 2^nd Defendant. On the 28^th of October, 2018, Claimant filed the first in reaction to that filed by the 1^st Defendant and arising from same, counsel to the Claimant formulated two issues for determination to wit:

Whether the Claimants enlisted in the service of the 2^nd Defendant by the 1^st Defendant are deemed to be entitled to all rights, privileges, emoluments, salaries and all perquisites of office arising from or pertaining to the staff conditions of service warranted by the Defendants to be applicable to the aforesaid Claimants, at the time of their appointment.

Whether the termination of the claimants’ appointments without a valid reason or reasons related to their capacity, conduct or the operational requirements of the 2^nd Defendant was fair, lawful and in line with international best practices?

In arguing issue one, counsel answered the question in the issue raised in the affirmative and referred the court to paragraph 1 of Exhibits CW1-A and CW2-A (the letter of offer of employment of the Claimants). He contended that the Institute’s conditions of service issued to the Claimants, is the Staff Conditions of Service, Nigeria Communications Commission, April 2003 (Exhibits CW1 —B and CW2-B).

Counsel then submitted that the Claimants’ acceptance of the contents of exhibits CW1-A and CW2-A as well as CW1-B and CW2-B, tendered in evidence in this Court by the Claimants, constitute a legally binding Contract of employment between the Claimants and the Defendants.

Counsel urged the court to consider whether parties have concluded a legally binding contract and cited the case of SHELL B.P. PETROLEUM DEVELOPMENT COMPANY v. JAMMAL ENGINEERING (NIG) LTD 1974 4 SC 33 at 72 and LEWIS v. UBA [2016] LPELR-40661(SC).

Learned counsel submitted that the 1^st Defendant having not placed any material evidence to counter the Exhibits tendered by the Claimants, what is left before this Honourable Court is the Contract of Service the Claimants as well as the Defendants freely entered into of which the terms are written and expressed as evidenced by Exhibits CW1-A and CW2-A as well as CW1-B and CW2-B tendered in evidence before this Honourable Court.

Counsel further submitted to this Honourable Court that, where the terms of a contract of employment are written and express, the parties are bound by the agreement.

Counsel also referred the court to paragraph 6.01.02, as well as page 23, paragraph 4.2 of Exhibits CW1-B and CW2-B.

With regards to the question of whether A Corporate Body is Liable for the Contracts (of Employment) of its Subsidiary”?, asked by Counsel to the 1^st Defendant, Claimant’s Counsel posited that the answer is simply that there exist a Co-employment or Joint employment scenario between the Claimants and the Defendants.

Counsel also submitted that the 1^st Defendants is estopped from resiling from the provisions Exhibits CW1-A and CW2-A as well as CW1-B and CW2-B as there were no mistakes, fraud or misconceptions when same were freely issued to the Claimants. Counsel cited the case of CBN v. IGWILLO [2007] All FWLR PT. 379, P.1412.1413 paras H.B.

In arguing issue two, counsel posited that the Claimants were Public Servants as they were in service of the Government of the Federation and as such their employment was not ordinarily subject to termination without reason or reasons related to their capacity, conduct or the operational requirements of the 2^nd Defendant. Counsel cited Section 318 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended).

He also posited that the 1^st Defendant is a statutory body and also an Agency of the Government of the Federal Republic of Nigeria, as it was established by the Nigerian Communications Act, 2003. He added that the 1^st Defendant established the 2^nd Defendant and is its sole owner. Going by the provisions of Section 318 of the 1999 Constitution (As Amended) staff of the 2^nd Defendant are deemed to be in public service and their service contract is by implication also deemed to enjoy statutory flavour.

Counsel further posited that section 16 of Part II of the 2^nd Schedule to the Nigerian Communication Act 2003 is the connection and authority, which empowers the 1^st Defendant to make Exhibits CW1-B and CW2-B (conditions of the employment of the 1^st Defendant’s staff).

Consequent upon that, counsel submitted that Exhibits CW1-B and CW2-B have the same force of law as Nigerian Communication Act 2003, which established the 1^st Defendant and the appointment of staff made therein attracts statutory flavor and therefore the termination of the Claimants’ Employment summarily as Evidenced by CW1-C and CW2-D without any reason whatsoever is untenable in law and this Honourable Court is entitled to declare same null and void and pronounce their employment valid and subsisting. Counsel also cited Article 4 of the International Labour Organization Convention 158 Termination of Employment Convention, 1982 and the case of Mariam v. University of Ilorin Teaching Hospital Management Board (2013) 35 NLLR (PT.104) 40.

Counsel concluded by urging the court to discountenance all arguments made in the 1st Defendant’s final address and grant the reliefs sought by the Claimants in their Complaint and Statement of Facts.

In reaction to the 2^nd Defendant’s final address, Claimant on the 29^th of November, 2018 filed its second final written address wherein counsel to the Claimants, Ededem Ani formulated the same issues as in the first final address.

I have perused the content of the second final address and find that the argument therein is the same in every respect with that captured above from the first. I shall, therefore save judicial time by not repeating same.

Upon the filing of the second final address by the Claimant, 2^nd Defendant filed a reply on point of law wherein counsel to the 2^nd Defendant, Audu Anuga contended that issues were joined in relation to the applicability of 1^st Defendant’s Condition of service to the Claimants and cited the case of EDJEKPO & ORS V. OSIA & ORS (2007) LPELR-1014 (SC) @ PAGE 38 PARAGRAPHS D – E.

Learned counsel also posited that it is a settled principle of law that the contents of a document must be read as a whole and not parts in isolation in order to achieve harmony between the different parts of the document. He cited the case of PDP. V. MOHAMMED & ORS (2015) LPELR-40859 (CA) @ PAGES 26 – 27 PARAGRAPHS F — B.

Counsel also posited that there is no evidence on record that the 1^st Defendant is a co-employer or joint employer of the Claimants and that submission of counsel cannot take the place of Pleadings citing the case of AGI V. PDP & ORS (2016) LPELR- 42578 (SC) @ PAGE 41 PARAGRAPH E.

With respect to the employment of Claimants being with statutory flavor, counsel cited the case of BAMGBOYE V. UNILORIN & ANOR (1999) LPELR-737 (SC) @ PAGES 72 — 73 PARAGRAPHS E — B and contended that the Claimant did not establish that the 2^nd Defendant is a statutory body as to confer statutory flavor on their employment. He also posited that the Nigerian Communication Act 2003 as quoted are inapplicable to the Claimants’ case.

He concluded urging the court to discountenance the submission in the Claimants’ final address and dismiss the case with substantial cost.

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 the 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 the respective parties, the issues for determination by this court are to wit:

Whether or not in view of the facts and evidence before this court, the Claimant was employed by the 1^st or 2^nd Defendant.
whether or not in view of the facts and evidence before the court, the Employment of the Claimant was wrongfully or invalidly terminated.
Whether or not in view of the resolutions of issue 1 and 2, the Claimant is entitled to the reliefs sought.

Before I proceed to address the foregoing issues, I find it apposite to address the status of Exhibit CW1(c) which was admitted in protest. In the course of examination of CW1, counsel to the 1^st Defendant, Nneli Donatus contended that the said Exhibit CW1(c) is a public document which ought to be certified and for failure of same offends section 104 of the Evidence Act. On the other hand, counsel to the 2^nd Defendant, Terhemba Gbashima contended that the said Exhibit is a photocopy and runs contrary to section 91 of the Evidence Act as the necessary foundation for tendering a photocopy has not been laid. In response, counsel to the Claimant, Nnaemeka Adiukwu contended that the document was addressed to the Claimant and that it is indeed the original.

In view of the foregoing contentions, I have taken a look at the said exhibit CW1(c). With regards to the contention of the document being a public document, I have taken into account the provision of section 104 of the Evidence Act and also considered in that light the nature and characteristics of a public document which was held in the case of NORTHWEST ENERGY NIGERIA LTD & ANOR v. IBAFON OIL LTD (2014) LPELR-24133(CA) thus:

“… a public document is made by a public officer for the purposes of the public making use of it and being able to make reference to it or a document of public interest issued or published by a political body or otherwise connected with public business. Classification of Public document stands on two conditions which must co-exist – a) its availability must be for public inspection, and; b) the fact that it was made or brought into existence for that purpose. See LIKANA v. C.O.P. (1995) 8 NWLR (Pt. 416) 206; BISCHI TIN CO. LTD v. C.O.P. (1963) ALL NLR 476; NITEOG WHILE v. OTNO (2001) 6 SCNJ 231 AT 256; AYENI v. DADA (1978) 3 SC 35; OKOH v. IGUESI (2009) ALL FWLR (Pt. 264) 891.” Per OBASEKI-ADEJUMO, J.C.A (Pp. 14-15, paras. E-A)

In view of the foregoing authority, Counsel to the 1^st Defendant did not state why he posits that the document is a public document the counsel to the Claimant posited that the document was addressed to the Claimant. A keen look at the document reveals that same was addressed to the Claimant by the 2^nd Defendant. The said document was not made for public inspection nor made for that purpose and consequently lacks the characteristics of a public document and I so hold. The contention of counsel to the 1^st Defendant is therefore overruled.

With regards to the document being a photocopy, I reckon that section 87 of the Evidence Act, 2011 outlines categories of secondary evidence. This is in view of the contention that the document in question is a photocopy. I also reckon that it is settled law that documents must be proved by primary evidence except in certain circumstances. Although counsel to the 2^nd Defendant did not expatiate on why he perceives the document as a photocopy, counsel to the Claimant contends that the document tendered is indeed the original as the Claimant does not have any other copy.

On the face of it, the document does not bare any symbol of originality particularly upon consideration for the part signed. That notwithstanding, the incongruity is taken in view of the general circumstance of the case and the provision of section 12 (2) (b) of the National Industrial Court Act 2006 which provides to the effect that this court shall be bound by the Evidence Act but may depart from it in the interest of justice.

In view of the forgoing provision, this court finds it appropriate in the circumstance to depart from the provision of the Evidence Act with regards to the laying of foundation for tendering Exhibit CW1(c) and the admissibility of same.

Consequently, the said Exhibit CW1(c) is admitted in evidence.

I then proceed to resolve issue one which is “whether or not in view of the facts and evidence before this court, the Claimant was employed by the 1^st or 2^nd Defendant”. In resolving this issue, I must state that the issue takes into cognizance the fact that the parties have made a heavy weather of whom the employer of the Claimant is between the 1^st and the 2^nd Defendants. This is despite the fact that this court had in a recent decision dealt with the contention in similar circumstance.

In the instant case however, counsel to the 1^st Defendant contended that the 1^st Defendant is not the employer of the Claimant despite the fact that the Chief Executive of the 1^st Defendant is on the board of the 2^nd Defendant. He added that there is still a separation of corporate personality.

Counsel to the 2^nd Defendant on his part contended more in relation to the fact that the letter of appointment issued to the Claimant speaks for itself, therefore the court can find from same, who the employer of the Claimant is and what condition of service applies to the Claimant.

The reaction of counsel to the Claimant in this regard is that the 1^st and 2^nd Defendants are in co-employment or joint employment of the Claimant.

In resolving the above contention, I dare say that just as it is imperative for one to identify who one’s true father is, in this case, it is imperative for the Claimant to identify who his true employer is.

The claimant himself through his witness statement on oath placed before this court, stated that at all material times, he had been a staff of the 2^nd Defendant recruited by the 1^st Defendant. Although during cross examination he stated that he considers himself a staff of the 1^st Defendant. He also stated that the 1^st Defendant is established under Cap N97, Laws of the Federation of Nigeria while the 2^nd Defendant is incorporated under the Companies and Allied Matters Act, 2004. Parties did not place before this court the certificate of incorporation of the 2^nd Defendant but the fact that same is incorporated under the Companies and Allied Matters Act is not in contention between parties and facts admitted need no proof. See Obasi Bros. Co. Ltd. v. M.B.A.S. Ltd. (2005) 9 NWLR (Pt.929)117

What the Claimant placed before this court, in the face of the contention relating to who his employer is, is Exhibit CW1 (a) which is his letter of appointment. While the Claimant stated through his pleadings that he was appointed first in 2006 and later in 2008, the said Exhibit CW1(a) is dated 15^th April 2008 wherein he was appointed as Vice President Academics and Student Affairs.

What I find incongruent from the evidence before the court which must have been responsible for the above contentions are that firstly, the said letter bears a letterhead with the name of the 1^st Defendant. Secondly, the letter of appointment did not state who exactly was appointing the Claimant as the first paragraph of the letter reads:

“Further to your recent interview with Digital Bridge Institute (DBI) (2^nd Defendant), we are pleased to offer you an appointment as Vice President, Academics and Student Affairs. You will be reporting to the President with effect from 1^st May, 2008”.

In view of the foregoing, it is apparent that there is uncertainty as to who the employer of the Claimant is. That notwithstanding, the Claimant is aware that there is indeed a difference between the 1^st and 2^nd Defendant even though the evidence before this court shows that there is a relationship between the 1^st and 2^nd Defendant. The 1^st Defendant being a creation of statute would bring about a form of employment which is statutory while the other would create a master and servant relationship.

In view of the contention of counsel to the Claimant, I agree that there can be two employers for an employee. Professor Agomo reckoned in her text book titled Nigerian Employment and Labour Relations Law and Practice, page 65, that issues do arise in situations where an employee of Company A is redeployed to work for company B. She referred to it as triangular type of relation. This scenario is not what transpired in the instant case. In the instant suit, the Claimant failed to prove that the 1^st and 2^nd Defendant are parent and subsidiaries hence it is not established and the court cannot hold same. Even where the companies are parent and subsidiaries, the employee of one would not ordinarily be deemed as employee of the other as both companies are distinct entities.

Also, the Claimant has posited that the 1^st Defendant merely carried out his recruitment for his deployment at the 2^nd Defendant and the 2^nd Defendant is headed by a President to whom he (the Claimant) was to report. In view of this, I take into cognizance the resolution of this court in the recent case of Ahamefuna Eusebius Agbo and 16 Ors v Nigerian Communications Commission & Anor (Unreported) (Suit NICN/ABJ/351/2014) delivered on the 11^th of July, 2018, where similar issue arose as to the employer of the Claimants therein, this court held that:

“That notwithstanding, even where the 1^st and 2^nd Defendants are in parent-subsidiary relationship, the employment of the Claimants are apparently a liability of the 2^nd Defendant as expressly stated on the letters of employment”.

This court cited the case of Musa v. Ehidiamhen [1994] 3 NWLR (pt.334) where the court held categorically clear that:

” …a subsidiary company is not an agent of the parent company, but is an entirely different entity. Its acts are not the acts of the parent company and the parent company is not responsible for its acts or defaults in the absence of special provisions in some contract between the parties”.

This court in the same case further held that:

“This principle of separate personality has been long established in the case of Salomon v. Salomon & Co. (1897) AC 22. Our courts have also maintained same as in the case of Gbenga v Maersk Nig, Ltd (2013) 30 NLLR (Pt.87) at 484 where the court held that: A parent company may be treated as a separate and distinct legal entity from a subsidiary company in which case an employee of one company cannot be imputed to another, each must be held accountable for its actions”.

In view of the forgoing, it is the holding of this court that Claimant is an employee of the 2^nd Defendant despite the involvement of the 1^st Defendant in the recruitment of the Claimant.

Consequently, issue one is resolved to the effect that in view of the facts and evidence before this court, the Claimant was an employee of the 2^nd Defendant.

In resolving issue two which is “whether or not in view of the facts and evidence before the court, the Employment of the Claimant was wrongfully or invalidly terminated”, I must start by stating that this issue was formulated in view of some of the reliefs sought, particularly reliefs c, d, e and h, and the contention relating to the termination of the employment of the Claimant which is evidenced by exhibit CW1 (c), a letter of termination of employment dated the 26^th of February 2015.

Counsel to the 1^st Defendant made no submission whatsoever in this regard while counsel to the 2^nd Defendant contended that the Claimant’s employment was terminated due to the state of the 2^nd Defendant at the material time and there is a provision for termination of employment in Exhibit CW1(a). He said nothing about whether that provision was complied with or not but he posited that the Claimant is required to show that the termination is outside his condition of service before the issue of malice or oppressiveness can arise.

Counsel to the Claimant on his part formulated issue two for the purpose of the termination of the Claimant’s employment and contended that the Claimant is a public officer whose employment enjoys statutory flavor owing to the connection his employment has with the 1^st Defendant. Counsel posited that the Claimant’s employment is higher than that of master-servant. He contended that the procedure laid down in Exhibit CW1(a) as well as CW1(b) were not complied with and also submitted that the termination of the Claimant’s employment without valid reason was not only unfair and unlawful but not in line with international best practice.

That said, it is noteworthy that the resolution of the above contention will flow from the resolution of issue one, which is to the effect that the 2^nd Defendant is the Claimant’s employer. Going by the processes and pleadings before the court, it is acknowledged by all parties that the said 2^nd Defendant is not a creation of statute but it is questionable whether the procedure for the appointment and termination of the employment of its employee is regulated directly by statute. It is imperative to determine the nature of employment in order to ascertain whether or not the termination of employment is merely wrongful or null and void. The distinction between a termination that is wrongful or null and void was made clear in the case of ESIEVWORE v. NEPA (2002) FWLR (Pt. 124) 398 at 408– where the court held that:

“Employment with statutory backing must be terminated in the way and manner prescribed by the relevant statute and any manner of termination inconsistent therewith is null and void and of no effect. But in other cases governed by only agreement of parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed. Any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void. the only remedy is a claim for damages for wrongful dismissal… for this wrongful act, he is only liable in damages and nothing more.”

The effect of the above decision of the apex court is that if the employment of the claimant is by statute and its termination failed to comply with the procedure laid down in the said statute, such termination can be declared null and void. However, where the employment is not by statute and the procedure for its termination is not by statute but any other form of agreement, such termination is to be declared wrongful with the remedy being damages.

In view of the forgoing, it is imperative to establish what a statutory employment is. The court in the case of AUDU V. PETROLEUM EQUALISATION FUND (MANAGEMENT) BOARD & ANOR. (2010) LPELR-3824(CA) held that:

“An employment is said to have statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant.” Per Odili, JCA (P. 17, paras A-B)

While I reckon the contention made by counsel to the claimant in attempt to posit that the Claimant is a public officer with a statutory employment, I must state that it is simply a matter of evidence rather than argument, to establish the nature of employment and how the employment has been wrongfully terminated. In other words, the burden is on the Claimant to prove how his employment has been wrongfully terminated. The court in AJI v. CHAD BASIN DEVELOPMENT AUTHORITY & ANOR (2015) LPELR-24562(SC) held that:

“For emphasis, the Plaintiff/Appellant is enjoined by law when he complains that his employment has been wrongfully terminated, he has the onus of placing before the Court the terms of contract of employment and then go on to prove in what way the said terms were breached by the employer”.

The effect of the above is that a Claimant who alleges unlawful dismissal from employment must plead and prove the following facts to succeed in his claim:

That he or she is an employee of the Defendant,
Place before the court the terms of his or her employment and the terms and conditions of the employment,

iii. State who can appoint and who can remove him,

In what circumstances his or her employment can be determined, and
In what manner the said terms of the employment were breached by the Defendant.

See OLORUNTOBA-OJU vs. ABDUL-RAHEEM (2009) All FWLR (Pt. 497) 1 at 42; IMASUEN vs. UNIVERSITY OF BENIN (2011) All FWLR (Pt.572) 1791 at 1809. See also. OKOH & ORS. v. UNIVERSITY OF LAGOS & ANOR. (2010) LPELR-4719(CA) and WAEC & Ors v. Mrs. Nkoyo Edet (2011) LPELR -5098 (CA).

In view of the forgoing authorities, while this court had earlier resolved that the Claimant is an employee of the 2^nd Defendant and the court had found that the 2^nd Defendant is a registered company, it is the position of this Court that the Claimant has not placed any evidence before this court to establish the fact that his employment is created and regulated by statute. The said Nigerian Communications Commission Act referred to by counsel to the Claimant establishes the Nigerian Communications Commission (1^st Defendant) and not Digital Bridge Institute (2^nd Defendant). It is for the Claimant to prove the condition of service regulating the contract in question. It is also for the Claimant to plead and prove in what way the condition of employment gave his employers a restricted right of termination over him.

In addition to the above, Exhibit CW1(a), which is the Claimant’s letter of appointment clearly stipulates a condition of service for the Claimant which can be referred to as terms of employment. The said letter of appointment, not derived from a statutory provision, cannot generate in itself a statutory employment for the Claimant.

It is also significant to state that the said Exhibit CW1(a) is what stipulates how the employment of the Claimant can be determined rather than an enabling statute. Paragraph 17 of Exhibit CW1(a) provides that:

TERMINATION OF APPOINTMENT

Notice of termination of Employment will be one month on your part and one week per year of service, subject to a minimum of one month and a maximum of twelve weeks on the part of the Institute.

The procedure for termination of employment having been stipulated therein the letter of appointment rather than a statute buttresses the characteristic of the employment as one that is not of a statutory flavour but rather one of master and servant relationship. This fact ought to have been known to the Claimant since 2008 that his employer could terminate his employment by giving him periodic notice. A failure to comply with the term stated in the said paragraph 17 will merely make the termination wrongful rather than being null and void.

For want of clarity, the summary of what I have found so far, in view of the authorities binding on this court and the evidence available to this court is that, the employment of the Claimant is one of master-servant relationship and its termination which if it fails to comply with the terms stipulated will merely be declared wrongful and I so hold.

Consequent upon the above, the Claimant has tendered exhibit CW1(c) before this court to establish the fact that his employment with the 2^nd Defendant was terminated and posited that the said termination which was without reason was unfair and therefore invalid, null and void and of no effect.

I have taken a keen look at the said Exhibit CW1(c) and find that same is dated the 26^th of February, 2015 and same is for the Termination of the Claimant’s employment.

Paragraph 2 and 3 of the said exhibit CW1(c) reads:

“You are hereby informed that the board of Directors of the Digital Bridge Institute at its 41^st Board Meeting held on the 26^th of February 2015 passed a resolution terminating your appointment as Vice President Academics and Students Affairs effective from Thursday, 26^th February, 2015.

All your allowances and benefits will be paid in line with your terms of agreement.”

A consideration of the forgoing paragraphs vis-à-vis the provision of paragraph 17 of Exhibit CW1(a) shows that the Claimant was not given any notice as to the termination since the termination took effect on the same day the notice was issued to the Claimant. This in itself means that the 2^nd Defendant failed woefully in complying with the terms as stipulated in Exhibit CW1(a) and that makes the termination wrongful.

That notwithstanding, I must state that the 2^nd Defendant has exercised its right in terminating the employment of the Claimant and there need not be a reason for same in view of the nature of contract of employment existent between both parties. The court in the case of NEPA vs. ENYONG (2003) FWLR (Pt.175) 452 at 469 held that:

“A master can terminate the contract of employment with his servant at any time for any reason or for no reason at all, provided the terms of the contract of service between them are complied with. The motive which led an employer to lawfully terminate the servant’s employment is not normally a relevant fact and the court will not have business with such motive but will only give effect to the contract of service between the parties”

That said, while this court cannot prevent the employer from exercising its right under the contract of employment, the court can declare the manner in which the right was exercised wrongful, where same is not in accord with the terms agreed. In the instant case, this court finds that the termination of the contract of employment of the Claimant was wrongfully terminated having failed to comply with the terms stipulated in the condition of service incorporated in Exhibit CW1(a) (the letter of Appointment).

In view of foregoing, issue two is resolved to the effect that in view of the facts and evidence before the court, the employment of the Claimant was wrongfully terminated.

I therefore proceed to the resolution of issue three which is whether or not in view of the resolutions of issue 1 and 2, the Claimant is entitled to the reliefs sought. The resolution of this issue shall address the reliefs sought by the Claimant consequent upon the finding that he is an employee of the 2^nd Defendant and that his employment has been wrongfully terminated.

Reliefs ‘a’ and ‘b’ are declaratory in nature and as the counsel to the 2^nd Defendant rightly contended, a Claimant seeking declaratory reliefs has the burden to establish that he is entitled to such relief. The position has been settled in plethora of authorities and one of such is the case of IKUMA v. CIVIL SERVICE COMMISSION BENUE STATE & ORS (2012) LPELR-8621(CA) where the court held that:

“Declaratory reliefs are not granted as a matter of course but on credible evidence lead. This is so even where the other partly admits the claims. See David Fabunmi Vs Agbe (1985) 1NWLR (pt.2) 316.”Per TSAMIYA, J.C.A.(P. 22), para. A.

In other words, the court in the case of STANDARD MANUFACTURING COMPANY LTD & ANOR v. STERLING BANK PLC (2015) LPELR-24741(CA) held that:

“It is trite that a declaratory relief will not be granted automatically without adducing convincing evidence; it cannot be determined on admission summarily, the grant of which the court in my view exercised judicially with caution. See ABAYE v. OFILI [1986] 1 S.C. 231; SIJUADE v. OYEWOLE [2012] 11 NWLR (PT. 1311) 310; MOTUNWASE v. SORUGBE [1988] 5 NWLR (PT. 92) 90; AYANRU v. MANDILAS LTS. [2007] 10 NWLR (PT. 1043) 462; OZOWALA v. EZEIHESHIE [1991] 1 NWLR (PT.170) 699.” Per OBASEKI-ADEJUMO, J.C.A. (Pp. 46-47, paras. E-A).

Guided by the above authorities, I take a consideration of reliefs ‘a’ and ‘b’ which are:

A Declaration that the Claimant enlisted in the service of the 2^nd Defendant by the 1^st Defendant in 2006 or thereafter is deemed to be entitled to all rights, privileges, emoluments, salaries and all perquisites of office arising from or pertaining to the Staff Conditions of Service warranted by the 1^st Defendant to be applicable to the aforesaid Claimant, at the time of appointment.

A Declaration that the failure of the Defendant to harmonize and regularize the employment status of the Claimants in the service of the 2^nd Defendant with the status of the staff in the service of the 2^nd Defendant without any justification known to law, is unlawful, ultra vires the Offer of Employment dated 1^st April 2008 and the Nigerian Communications Commission staff Conditions of Service being the instruments regulating the employment of the Claimants and is therefore illegal, oppressive unconstitutional, null and void and of no effect.

With regards to relief one specifically, I observe Firstly, that the letter of appointment placed before the court as exhibit CW1(a) shows that the appointment of the Claimant took effect in 2008 hence there is a want of proof that the 1^st Defendant enlisted the Claimant in the service of the 2^nd Defendant in 2006. Secondly, while I reckon that the Claimant tendered exhibit CW1(b), a condition of service of the 1^st Defendant which perhaps was issued to the Claimant in the course of his appointment, I also take cognizance of the fact that exhibit CW1(a) also specifies a condition of service. The condition of service in Exhibit CW1 (a) regulates specific matters including salary, accommodation, transport, furniture, utility allowance, working hours and termination to name a few. The last paragraph states that “in all other aspects, the general conditions of service as approved by the institute for staff will apply”. During cross examination, DW2 testified that Exhibit CW1(b) i.e. condition of service of the 1^st Defendant was the condition of service guiding the 2^nd Defendant but she does not have direct information on the recruitment of the Claimant. Nonetheless, Exhibit CW1(a) tells the court what transpired during recruitment which DW2 was not aware of and that is, the fact that there is first a condition of service in the letter of appointment of the Claimant before same was complemented by the condition of service of the 1^st Defendant. The said letter of appointment is a document incorporating the terms and condition of the Claimant’s appointment and same deserves recognition as binding on the parties.

In the case of Frank JOWAN & ORS. v. DELTA STEEL COMPANY LTD. (2010) LPELR-4377(CA), the court held that:

“It is trite law that where there is a document or series of documents incorporating the terms and conditions of an employment, a Court of law should not look outside those terms in deciding the rights and obligations of parties thereto.” Per GUMEL. J.C.A (P. 10, para. C)

I must also state that I recognize the significance of condition of service in an employment relationship as the court in the case of DANIEL M. OGBAJE V. ABUJA INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED (2007) LPELR-11855(CA) held that:

“…They are bound by those Conditions of Service. Either party cannot waive or resile from the conditions by merely wishing them away or shoving them away by a wave of the back hand. See the case of: N R. C V. Umero Supra at pgs, 277 – 278. The only way there can be a waiver is by subscribing again to another written contract with new set of conditions and terms. See the case of: Prof S. O Abdulraheem & 3 Ors. V. Prof B. J Olufeogba & 43 Ors. (2006) 17 NWLR (Pt. 1008) p. 280 at p. 325” Per OMOLEYE, J.C.A (P. 45, paras. B-E).

Consequently, arising from the available evidence, it safe to conclude that the condition of service stipulated in Exhibit CW1(a) which is the letter of appointment to the Claimant takes precedence in view of the specific content and in other aspects or for any other matter which the said letter of appointment fails to provide, Exhibit CW1(b) which is the condition of service of the 1^st Defendant takes effect and I so hold.

Consequent upon the forgoing holding, there is no credible and convincing evidence before this court to warrant the declaration that the Claimant is entitled to all the rights, privileges, emoluments, salaries and perquisites of office arising from the Exhibit CW1(b), the condition of service of the 1^st Defendant which was issued to the Claimant in the course of his employment.

The said relief ‘a’ is consequently refused.

With regards to relief ‘b’ which I reckon to be incongruent, I find that exhibit CW1(a) placed before this court says nothing about harmonization and regularization of the employment status of the Claimant. Claimant has also failed to establish how the failure to regularize his employment status is unlawful, illegal, unconstitutional or null and void. Consequently, relief ‘b’ is also refused.

Reliefs ‘c’ and ‘d’ are also declaratory reliefs relating to the termination of the employment of the Claimant which this court in issue two had declared wrongful.

The said reliefs are:

A Declaration that the termination of the Claimant’s employment by letter dated February, 2015 without any valid cause or reason related to his capacity, conduct or operational requirements of the 2^nd Defendant is unlawful, illegal, oppressive, unconstitutional, null and void and of no effect.

A Declaration that the termination of the Claimant’s employment by letter dated 26^th February, 2015 without any valid cause or reason related to his capacity, conduct or operational requirements of the 2^nd Defendant constitutes an unfair termination of the Claimant’s Employment, violates international best practices as regards labour matters and is therefore invalid, null and void and of no effect.

In the course of resolving issue two, this court posited that the Claimant’s employment is not one with statutory flavor and consequently the Defendant has a right to determine the employment with or without reason. For the lack of cogent and convincing evidence to establish the fact that the employment of the Claimant is one with statutory flavor, the termination of which must be in accordance with the provision in an enabling statute and with valid reason, reliefs ‘c’ and ‘d’ are accordingly refused.

Relief ‘e’, ‘f’ and ‘h’ are for orders dependent on the declaratory reliefs sought in reliefs a-d.

The reliefs read thus:

An Order of this Honourable Court setting aside the letter of termination dated the 26^th February, 2015 from the 2^nd Defendant terminating the employment of the Claimant same being unfair, contrary to international best practices as regards labour matters, invalid, null and void and of no effect.

An Order of this Honourable Court directing the 2^nd Defendant to take all immediate and necessary steps to harmonize the conditions of service including but not limited to the salaries, allowances and other emoluments payable to the staff of the 2^nd Defendant with the conditions of service (including but not limited to the salaries, allowance and other emoluments) payable to the staff of the 1^st Defendant.
An Order of this Honourable Court reinstating the Claimant to his position as Vice President Academics and Student Affairs in the Defendant the termination of his employment being unfair, contrary to international best practices as regards labour matters, invalid, null and void and of no effect.

In view of the refusal of the declaratory reliefs in reliefs a – d, this court cannot set aside the letter of termination as the contract of employment gives the Defendant the right to terminate the employment. The court in the case of ADEWUNMI v. NIGERIAN EAGLE FLOUR MILLS (2014) LPELR-22557(CA) held that:

“the law is now settled that the court cannot impose a servant on an unwilling master and the court is without power to grant the plaintiff in a master and servant relationship a declaration that his employment with the defendant was still subsisting after his dismissal” Per DONGBAN-MENSEM, J.C.A. (Pp. 29-30, paras. G-A).

In the case of Rivers Vegetable Oil Company Ltd. v Mrs. Mercy Egbukole (2009) LPELR-8379 (CA) the court also held that:

“The law is settled that an employer may terminate the contract between it and its employee for good or bad reason or for no reason at all”. Per Kekere Ekun JCA (as she then was).

Thus, where there is a right to terminate, it is unnecessary to prove any reason given for the termination. In addition, it should be reiterated that the remedy such employee will be entitled to is the salary in lieu of notice.

“It has been settled in a long line of authorities that in cases of ordinary contract of employment where the terms provide for a specific period of notice before termination or salary in lieu thereof, the only remedy available to an employee who is wrongfully terminated is the award of salary for the period of notice and other legitimate entitlements due to him at the time the employment was brought to an end. He gets no more” Per Tabai JSC in Gabriel Ativie v Kabelmetal Nig. Ltd. (2008) LPELR-591 (SC). See also NITEL & Anor v. Mr. L.D. Akwa (2005) LPELR -5971 (CA).

Consequently, relief ‘e’ which is for an order setting aside the letter of termination and relief ‘h’ which is for an order of reinstatement are accordingly refused.

Relief ‘f’ also lacks any basis in law and evidence and in view of the refusal to make the declaration sought in relief ‘b’, the said relief ‘f’ also fails and same is accordingly refused.

Relief ‘g’ is for An Order of this Honourable Court mandating the Defendants to pay to the Claimant all his outstanding entitlements, including salaries, allowances and all other employment benefits accruing to the Claimant from the 15^th April 2008 (or as reckoned from any other date relevant to this action) when the offer of employment was signed and delivered to the Claimant till the date of Judgment.

In consideration of this relief, I have reviewed the evidence before this court in respect to this suit and I find that there is nothing to show that the Claimant is owed any salary, allowance and any other employment benefit. However, I reckon that DW2 in the course of cross examination posited that the Claimant have not been paid his terminal benefit because this suit is pending in court.

Consequent upon this piece of admission, I find it apposite to grant this relief to the extent that this court makes an order that the terminal benefits of the Claimant which can be considered as employment benefit be paid by the 2^nd Defendant.

Reliefs ‘i’ and ‘j’ are alternative reliefs sought by the Claimant.

Relief ‘i’ is for an Order of this Honourable Court compelling the Defendants, severally and jointly to pay to the Claimant the sum of N76,326,896.78 being the sum total of his annual salary he would have earned from the 2^nd Defendant from the date of the unfair termination of his employment until May 2018 being the date he ought to have retired, as compensation for the unfair termination of his employment with the 2nd Defendant.

While Relief ‘j’ is for an Order of this Honourable Court mandating the Defendants to pay to the Claimant all his outstanding entitlements, including salaries, allowances and all other employment benefits accruing to the Claimant from the 15^th April 2008 (or as reckoned from any other date relevant to this action) when the offer of employment was signed and delivered to the Claimant till the date of Judgment.

With regards to relief ‘i’, this court had resolved that 2^nd Defendant, in view of Exhibit CW1(a), i.e. letter of appointment dated the 15^th of April, 2008 issued to the Claimant, possesses the right to terminate the Claimant’s employment and upon the said termination the Claimant from 26^th February 2015 ceases to be an employee of the 2^nd Defendant and no longer enjoys the benefit of earning salaries. Consequently, relief ‘i’ is accordingly refused.

With regards to relief ‘j’, I find that the said relief is a repetition of relief ‘g’ that is already resolved above and consequently discountenance same.

In view of the forgoing, issue three is resolved to the effect that in view of the resolution of issues one and two, the Claimant is not entitled to the reliefs sought except for the payment of his salary in lieu of notice in accordance with paragraph 17 of Exhibit CW1(a) upon the termination of his employment.

In the final analysis, I find that the claimant’s case generally lacks merit.

While the order of this court in relation to the payment of terminal benefits to the Claimant must be complied with within 30 days of the delivery of this judgment, the rest of the claims of the Claimant is accordingly dismissed.

Judgment is entered accordingly.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE