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Miss Umar Jelilat Odunayo -VS- First Bank of Nigeria LTD & 2 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP:        HON. JUSTICE O. O. OYEWUMI

DATE: 7TH OF FEBRUARY, 2020                        SUIT NO: NICN/AK/50/2018

BETWEEN

MISS UMAR JELILAT ODUNAYO                                                CLAIMANT  

 

AND

 

  1. FIRST BANK OF NIGEIRA LIMITED
  2. WHYTECLEON LIMITED
  3. INSCOURCING LIMITED                                                  DEFENDANTS

 

 

REPRESENTATION:

Bankole Alabi with him A.M Adewole for the Claimant.

Mas-ud Alabelewe with him O. B. Farounbi for the 1st Defendant.

  1. H. Yusuf for the 2ndand 3rdDefendants.

JUDGMENT

By a General Form of Compliant and all its accompanying processes filed on the 6th of August 2018. The Defendants’ equally filed their statement of defence. Claimant’s claims against the defendants are as follows.

  1. A DECLARATION that the Claimant is still in the employ of the 1st defendant and still entitled to all benefits, allowances, bonuses and other emoluments accruing therefrom.
  2. A DECLARATION that the letter of disengagement or withdrawal of the service issued to the claimant by the 2nd Defendant is unlawful, wrongful and a breach of the 3rd Defendant’s policies and procedure as contained in the employee handbook issued by the 3rd defendant to Claimant on resumption of duty.
  3. AN ORDER setting aside the purported withdrawal of service of the Claimant by the 2nd Defendant not being a party to the contract of employment and deployment of service between the claimant and the 3rd defendant on the one hand and between the claimant and the 1st and 3rd defendants on the other hand.
  4. AN ORDER directing the 1st and 3rd Defendants to pay the claimant all her allowances, bonuses, emoluments and other perquisites, of office accruing or due to her from the purported date of termination of her appointment till Judgment is finally entered in this suit.
  5. AN ORDER directing the 1st Defendant to pay the salary of the claimant from the month of August, 2017 until final Judgment is entered in this suit.
  6. The sum of N5, 000,000.00 as general damages for breach of contract.
  7. Cost of this action.

Trial commenced on 20th May 2019. The Claimant testified for herself as CW she adopted her written statement on oath dated 6th of August, 2018 as her evidence in this case she tendered documents which were admitted in evidence and marked as exhibits J-J6 and was cross examined by the defendants. Mrs Adewumi Folake a relationship Manager of the 1st Defendant gave evidence for the 1st Defendant as DW1, also one Yakubu Wuyep, Head of Marketing and service delivery in the 2nd Defendant’s Company gave evidence as DW2. DW1 adopted her witness statement on oath dated 12th of the November, 2018 while DW2 adopted his witness statement on Oath dated 22nd of October, 2018. DW2 tendered documents which were admitted and marked as exhibit WY-WY2. They were equally Cross Examined by the Claimant’s counsel.

The case of the Claimant is that she was employed by the 3rd Defendant and deployed to the 1st Defendant, on the 4th of November 2008 and was posted to Oke-Aro Branch of the 1st Defendant bank and was upgraded to the status of Funds Transfer support officer in November 2015. Thereafter, on the 31st of August 2017 she received a letter terminating her services and written by the 2nd Defendant who is not privy to the contract of service between the Claimant and the 3rd Defendant and therefore not her employer.

The 2nd and 3rd Defendants in their statement of defence dated 15th October, 2018 averred that truly the Claimant was employed by the 3rd Defendant and seconded to the 1st Defendant but at all material time, the 3rd Defendant was taken over by the 2nd Defendant. The 2nd and 3rd Defendant also averred further that the 2nd Defendant took over the 3rd Defendant and all employees of the 3rd Defendant were aware of the take over as the claimant in particular even updated her educational qualification with the 2nd Defendant so as to enable her access more benefits as the 2nd defendant was all out to improve on the welfare of her employees.

The 1st defendant on the 12/11/18 filed its statement of defendant and objecting that this suit is incompetent against it on the following grounds;

  1. The claimant affirmed repeatedly in her pleadings that she was at all times material an employee of the 3rd defendant.
  2. The 3rd defendant as the employer of the claimant deployed her to work with the 1st defendant.
  3. The 1st defendant is not a privy to the master servant relationship between the claimant and 2nd and 3rd defendants.
  4. This suit have not disclosed any reasonable cause of action against the 1st defendant and this Honourable court lacks the jurisdiction to entertain this suit for being incompetent and an abuse of his court processes.

It pleaded that the claimant was deployed to its services and worked in various branches. That it is privy to the employment relationship between the 3rd defendant and the claimant. That the 2nd and 3rd defendants are registered limited liability companies with separate legal personality and that the 3rd defendant was never its subsidiary but that of First Nominees Ltd. That the claimant was employed, deployed, confirmed, remunerated and promoted by the 3rd defendant and subsequently had her service terminated by the 2nd defendant.

Pursuant to the rules of this Court at the end of trial learned counsel on either side filed their respective final written addresses.

The 1st Defendant filed their final written address dated 10th June, 2019 wherein counsel on its behalf formulated a sole issue for the Court’s determination viz.

            “Whether she has discharged the burden on her and thereby entitled to the

               Reliefs sought”

On this sole issue, learned counsel submitted that the answer to this poser is surely in the negative since the Claimant has the burden to establish the terms and conditions of her employment and demonstrate by cogent credible and relevant evidence the manner in which the employer breached the terms counsel argued that the Claimant put in evidence Exhibit J1, the Employee Hand book which contains the terms and conditions of her employment as well as Exhibits J2 her letter of offer of Employment, She added that she was entitled to one month notice or one month salary in lieu of such notice as provided by section 1.3 at pg 9 and 2.2.3 at page 13 of Exhibit J1, she went on the admit under cross examination that she received the sum of N84, 593.75 dated 18th August 2017 being her salary for the month of August 2017 when her employment was withdrawn and the sum of N94,428.17 as Exit benefit.

Learned counsel submitted that rather than prove the breach of terms and conditions the evidence before the Court she showed that the second and third defendants have complied with the terms and conditions to validly terminate the Claimant employment by paying her one month salary in lieu of notice in the payment termed as Exit benefits. He cited the cases Julius Berger Nigeria plc. v. Godfrey Nwagwu [2006] 12NWLR (pt 995), Page 518 at page 540 paragraph H; Dr. O. Ajolore v Kwara State College of Technology[1986] 2 SC, page 277.

Leaned counsel further submitted that the Claimant claims for unlawful termination of her employment contained in paragraph 28(a, c, d, and e) which are dependent on the success of the claim in paragraph 28(b) are bound to fail. This is because these claims runs against the trite position of the law that the Court will not force an employer to retain the services of an employee especially where as in this case the employee’s employment was validly and legally terminated see the case of S.O Ilodibia v Nigeria Cement Company Ltd [1997] 7NWLR (Pt, 512), 174 at page 187 paragraph G.

Finally counsel submitted that the Claimant claim of N5, 000,000.00 of damages for alleged breach of contract is also bound to fail as the law is trite that damages are a form of financial reward for a plaintiff who has suffered a wrong cause or participated by the wrongful conduct of the defendant. He stated that the defendants did not in any way breach any conditions to entitle her to the claim. He urged the Court to dismiss the Claimant’s claim in its entirety as being frivolous, vexations and an abuse of Court process.

The 2nd and 3rd Defendant Jointly filed their final written address dated 20th September, 2019 wherein the Defendant counsel raised two issues for determination.

  1. “Whether the Claimant’s employment with the 2nd and 3rd Defendants was wrongfully terminated thereby entitling her to the reliefs sought”
  2. “Whether an employee who accepts a payment in lieu of notice and take benefit of same can turn around to challenge His/her termination as wrongful”

Learned counsel submit on behalf of the 2nd and 3rd Defendants that the Claimant has not satisfied the burden placed on her by law to entitle her to the reliefs sought before the Court counsel contended that the Claimant has struggled without conviction during the trial to establish that the 2nd Defendant who terminated her employment is not privy to the contract between herself and the 3rd Defendant who is the her sole employer. It is instructive to state that the 3rd Defendant originally employed the Claimant until the 2nd Defendant took over the 3rd Defendant thereby absolving all her employees, duties, right and liabilities, it’s trite law that when a Company takes over another, the acquiring Company take over all the assets and liabilities of the other Company and the rights of the employees of the Company take over become subsumed with the acquiring Company. The 2nd and 3rd Defendants have been able to establish during cross examination that the Claimant was well aware of the take over as she also partook in the educational qualification upgrade exercise which the 2nd Defendant introduced to all her employees to increase their welfare package, under cross examination, the Claimant confirmed her participation in the said exercise via exhibit J5 (E-mail forwarding Claimant’s Additional qualification) to establish the fact that the Claimant recognizes the 2nd Defendant as her employer, the Claimant’s salaries and pensions were remitted by the 2nd Defendant until her employment was terminated in proof of this the claimant’s Retirement saving Account Statement was tendered and admitted as exhibit J6. The said exhibit J6 indicates the name of employer of the Claimant to be “Whytecton Limited” (2nd Defendant in this suit).

Learned Counsel submitted that the common law right of every employer to hire and fire without adducing a reason is a long settled principle in the Nigerian Labour and Employment Jurisprudence. It is also trite that motive is an irrelevant consideration in termination cases, see the case of Olaniyan v University of Lagos [1985] 2 NWLR (Pt 9) 559 at 612, his lordship, Oputa Jsc (as he then was) had this to say on the power of hire and fire by the master.

            “The law regarding master and servant is not in doubt.

 There is also no doubt that the contract of master and servant is subject to both statutory and the common law rules. By the large, the master can terminate the contract with his servant at any time and for any reasons or for no reason at all”

He also cited the cases of Osisanya v. Afribank plc [2007] 4 MJSC 128, Olanrewaju v Afribank [2001] 13 NWLR (Pt 731) at 691.

Learned counsel also posited that it’s a settled law that for an employment to be held as wrongfully terminated, such termination must have been carried out without conformity with the terms of employment between the parties see the case of Okobi v Sterling Bank Plc [2013] 30 N.L.L.R (pt 86)

Counsel further submitted that the 2nd and 3rd Defendants contended that they duly complied with the terms and conditions of employment between them and the Claimant in terminating her employment. Under cross examination, the Claimant was requested to read paragraph 2. 2. 3 of the employee handbook tendered by the claimant and marked as exhibit J3 which provides the procedure for termination of employment and she further confirmed to the Court that she was called on phone by Whytecleon Limited that her employment has been terminated and she was equally served with a letter to that effect (exhibit J2)

On issue, two, the learned counsel submitted that assuming without conceding that the termination of the employment of the Claimant by the 2nd Defendant is held to be wrongful, an employee who accepts salary in lieu of notice cannot say that his termination was wrongful. See Agoma v Guinness (Nig) Ltd [1995] 2 NWLR (pt. 380) P. 672, Odiase v Auchi Polytechnic [1998] 4 NWLR (pt 547) p 477 at 490.

Learned counsel also submitted that the Claimant also sought for an order of this Court directing the 1st and 3rd Defendants to pay her all salaries allowances, bonuses, emolument and other perquisites of office accruing or due to her. Counsel submitted that this relief fails as it is trite and an elementary principle of our labour and employment law jurisprudence that no employee is entitled to be paid for work not done. Cited in support is the case of Tenumah v. Owelle Global Service Ltd & Ors (2013) 34 N.L.L.R (pt 98).

The Claimant has also sought for damages for breach of contract, the learned counsel submitted that the Claimant has not mark out a case for herself to entitle her to Damage’s is baseless as no wrong has been done to her to warrant same see the case of Okobi v. Sterling Bank plc  supra

Finally, learned counsel submitted that from the totality of evidence before the Court, it has been establish that the Claimant recognized the 3rd Defendant as her original employer and subsequently recognized the 2nd Defendant as her subsequent employer following the takeover of the 3rd Defendant by the 2nd Defendant who continued to act as her employer before her employment was terminated.

Having carefully read the processes filed by the parties, documents tendered as well as the arguments of counsel for the defendants, it is in my humble view that the issue that will determine this suit is whether or not the claimant has proven her claims as to entitle her to the reliefs sought.

I need to decide on a certain preliminary issue, 1st defendant has argued that the claimant has no reasonable cause of action against it and as such this Court lacks the jurisdiction to entertain this suit for being incompetent and an abuse of the process of this Court. To address this issue will amount to a mere academic exercise as this issue has been put paid succinctly in my Ruling dated 28th March, 2019. I therefore, adopt my ruling of the 28th of March, 2019 respecting the issue of whether or not there is a cause of action against the 1st defendant in this case. I wish to reiterate that by the statement of facts and claims endorsed on the general Form of Complaint, there is a reasonable cause of action against the 1st defendant in this case. I so find and hold.

It is noteworthy that the claimant in this suit did not file her final written submission in this case. On record is the fact that learned claimant’s counsel on the 23/10/2019 prayed the Court to invoke the provision of Order 45 Rule 7 to allow him file the claimant’s final written address within 7days and to deem it as having been adopted. This prayer was granted and the Court urged counsel to file the address, advance a copy to the defendants who are at liberty to reply to same. The matter was then adjourned for judgment in Abuja by consent of all counsel in this case. I found that the claimant has since failed to file her final written address in this suit and there is no communication to the Court explaining her action. It is obvious that the claimant no longer intend to file her final address. Having failed to take advantage of her right to file which was granted her, she cannot turn round and complain that she was denied fair hearing by this Court. This is because in law fair hearing is for the parties and the society at large. Ngwuta JSC in Mfa & Ors v. Nnonga[2014] LPELR-22010SC; beautifully captured the essence of fair hearing thus- “The process of fair hearing is a two-edged sword and it cuts both ways – appellants have a right to a fair hearing and fair hearing implies also that the respondent as plaintiff is entitled to have his case determined within a reasonable time. The right of the two parties must be balanced; one cannot be sacrificed to the other without perverting justice…” Also in  INEC v MUSA [2003] 3 NWLR (Pt. 806) 72 where the apex Court held thus: “Fair hearing in essence means giving equal opportunity to the parties to be heard in the litigation before the Court. Where parties are given opportunity to be heard, they cannot complain of breach of fair hearing principles”. Placing reliance on these apt and sound reasoning of the apex Court, I find that the claimant in this case was given fair hearing and she cannot therefore, turn back to say that she was not. The Court, will inspite of the absence of the claimant’s final address, decide her case on the facts and evidence before the Court.

The crux of this suit is that the claimant claims that the 2nd defendant has no privity of contract with her as to terminate her employment. It is her averment that she was employed by the 3rd defendant and seconded to the 1st defendant to work for it and the 2nd defendant without being a party to her contract wrongfully terminated her employment. The 1st defendant admitted to the extent that the claimant was outsourced to it by the 3rd defendant and denies that there was really an employment relationship between it and the claimant as the basis of her employment relationship with it is regulated by the 3rd defendant. The claimant admitted to this fact when she stated by paragraph 12 of her statement of fact that “… all through the years she recognized only 3rd defendant as her employer and the 1st defendant as the company she was deployed to which enjoys her services.” The 2nd and 3rd defendants have stated by paragraph 5 of their statement of defence that sometimes in 2016 the 3rd defendant was taken over by the 2nd defendant and consequently all the rights and liabilities of the 3rd defendant has been taken over by the 2nd defendant. By paragraph 17 of their defence, they averred that by virtue of the takeover, they inherited the 3rd defendant’s staff, a matter which was of common knowledge to member of staff of the 3rd defendant. It is of note that the 2nd and 3rd defendants are limited liability Companies registered under the relevant laws of the Federation, a corollary of this is that the defendants have separate legal entity different and distinct from each other, see the notorious English case of Salomon v. Salomon [1897] AC 22. The germane question to ask is has the 2nd defendant proven on a balance of probability that it took over the 3rd defendant to vest on it the requisite right to fire the claimant as it is settled law that he who has the right to hire has the corresponding right to fire. From the documents tendered by the claimant it is seen that the 3rd defendant on the 20th of November, 2015, vide Exhibit J offered the claimant an employment with it as a Fund Transfer Support Officer (Step 1) effective from December, 1st 2015 and vide a letter dated August, 31 2017 the 2nd defendant terminated her employment. The 2nd and 3rd defendants in a bid to establish that there was an actual take over listed in their list of documents to be tendered as evidence, “Documentary evidence of takeover of the 3rd defendant by the 2nd defendant.” They however, failed or refused to tender any document in that regard. The import of which is that they do not actually have such documents in existence, or even if they do, it will work against their interest if tendered, hence they withheld it. See Section 167(d) of the Evidence Act supra. By paragraphs 11 and 18 of 2nd and 3rd defendants’ statement on oath, they pleaded that all the staff inclusive of the claimant was aware of takeover of the 3rd defendant by the 2nd defendant. That after the take over the 2nd defendant requested that any staff whose educational qualification has been upgraded to HND/BSC should notify it which the claimant benefitted from. The claimant stated under cross-examination that she was requested to send in her qualification to the 2nd defendant, but did not agree that the 2nd defendant is known to her or that she did infact obtained any benefit from the 2nd defendant. Now, can the mere assertion by the defendants that claimant benefited from the 2nd defendant simplicter without more, in the absence of a document evincing a takeover suffice as sufficient proof of a takeover of the 3rd defendant by the 2nd defendant? I do not agree so, as evidence must be credible, viable and cogent to substantiate the case of a party. The legal burden of proof is on the 2nd and 3rd defendants to so prove because the acquisition and takeover of one Company by another are matters regulated by the Company’s and Allied Matters Act Cap. C20 LFN, 2010. The transfer of shares or allotment thereof must be registered and appropriate papers filed. It is not just a question of removing one company’s signboard and replacing it with another or asking staff of the 3rd defendant to upgrade their qualification for a salary review whatsoever by the 2nd defendant. This is because by exhibit J5 the Email sent by one Onoriode was not addressed to the claimant and did not introduce the 2nd defendant either. The content of exhibit J5 is ambiguous and cannot be relied upon by this Court to establish the take over of the 3rd defendant by the 2nd defendant. It was to be expected that documents from the Corporate Affairs Commission would be placed before the Court to enable it determine whether or not the 3rd defendant had been acquired by the 2nd defendant. Mere assertion of facts without more cannot be accepted as establishing the truth of that assertion. See the case of A.O Afolabi & ors v Western Steel Works Limited & ors [2012] LPELR 9340SC. The 2nd and 3rd defendants have failed woefully to discharge the evidential burden of proof placed on them by law. What this means is that the claimant and the 2nd defendant have no privity of contract to vest in the 2nd defendant the right to terminate her employment as it did. In effect, the act of the 2nd defendant terminating the employment of the claimant is wrongful because it has no power to determine her employment. I so find and hold.

It is reliefs 2 and 3 of the claimant that she is still in the employ of the 1st defendant, and that the letter of termination should be set aside and the Court should order for payment of all her entitlements, allowances, bonuses and other emoluments accruing therefrom. As stated earlier, the claimant has admitted by her statement of fact that she recognizes the 3rd defendant as her employer and that the 1st defendant was the company she was deployed to work. The principle of privity of contract which is part of our corpus juris postulates generally and to the effect that only parties to a contract can enforce the agreement or maintain an action there under. Puts simply, a stranger to a contract cannot gain or be bound by it even if made for his benefit see the cases of Aondo v. Benue Links Nig. Ltd [2019] LPELR-46876CA; Maiturare v. Sa’adu [2018] LPELR-46510 CA; John Davids Construction Co ltd v Riacus Co. Ltd & Anor [2019] LPELR -47588 CA; Ebhota & Ors v. Plateau Investment & Property Development Co. Ltd [2005] LPELR-(SC). A perusal of exhibit J reveals that the claimant was employed, paid salaries and entered into a contract of employment with the 3rd defendant and not the 1st defendant, what transpired amongst the trio of the claimant, the 1st and 3rd defendants is what is recognized in the modern world of work as triangular employment relationship, where a person called labour contractor recruits personnel and deploys them to a client company on a needs basis. There is usually as in this instant an employment contract between the employee and the labour contractor, but no such contractual relationship exists between the employee and the client/user as they are called, even though the employee works directly for the client/user company. The claimant in this case is not in doubt about her employer, her only grouse is that, the Court should hold that her employment with the 1st defendant subsists. I find from the evidence and facts of this case that the power to retain the claimant in her employment is not in the 1st defendant but with the 3rd defendant who it has been held out in this judgment to be her employer. It is without paradventure that the services of the claimant is no longer required by either the 1st or the 3rd defendant. By Texaco Nigeria Plc v. Alfred G. Adegbite Kehinde [2001] 6 NWLR (Pt.708) P.224; this Court is estopped from imposing a willing employee on an unwilling employer as in this case, It is in consequence that I hold that claimant’s employment is constructively terminated by the 3rd defendant. The letter of withdrawal of service issued by the 2nd defendant is set aside. I so find and hold.

The claimant also claim that the 1st and 3rd Defendants are liable to pay her all allowances, bonuses, emoluments and other perquisites, of office accruing or due to her from the purported date of termination of her appointment till Judgment is finally entered in this suit. The 1st Defendant argued that claimant was not its employee even though she worked with it, submitted that she cannot claim the payment of her allowances bonuses, emolument and other perquisites from it. In the same vein, the 3rd Defendant contended that having established that they have been acquired by the 2nd Defendant, it has no business in paying such allowances, bonuses, emolument and other perquisites accrue or due to her. Now, the law is of common that the remedy available to an employee who had been dismissed or terminated wrongfully is an action for damages and the normal measure of damages is the amount the employee would have earned under the contract for the period the employer could lawfully determine it. See the cases of Isong Udofia Umoh v ITGC [2001] 4 NWLR (Pt. 703) P. 281; Beckham v Drake [1849] 2 HCC 579 at 607; Denmark Production Ltd v Boscobel Productions Ltd [1968] 1 ALLER 513; It is clear that the claimant’s employment was determined on the 17th of August, 2017. A scrutiny of exhibit J3 discloses at clause 1.3 Termination of Appointment. that;

“During the probation period, employment may be terminated by either party upon giving fourteen (14) working days’ notice in writing or payment of fourteen (14) working days basic salary in lieu of notice.

After confirmation, employment may be terminated by either side giving the other, one (1) month notice or payment of one (1) month 22 working days basic salary in lieu of notice. In addition, a proper handover note must be submitted to the Head of department, Branch Service Manager, Business Development Manager or Business Manager”

Clause 2.23 Termination Procedure and Payment of Entitlements that;

“Once approved, the decision to terminate employment is communicated to the employee both verbally and in writing.

The service delivery unit will then prepare a letter of termination detailing the terms of separation and entitlements

The outgoing employee is usually invited for an exit interview, and provided the employee does not owe money to the company, or has not been summarily dismissed, he/she may be given a Certificate of Service”

It is apparent that the claimant worked from November, 2015 to August, 2017 hence she is deemed to be a confirmed staff and upon termination of employment, she is entitled to be paid one (1) month 22 working days basic salary in lieu of notice. By exhibit WY2 it is seen that the claimant was paid the sum of N97, 429.17 which she admitted to have received under cross examination. It is trite that admitted facts needs no further prove. See the case of Emeka v Okoroafor & Ors [2017] LPELR 41738 SC. There is nothing in her contract of employment showing that she was to be entitled to any more allowances except that which she was paid. It is in this light that I find that claimant’s claim for damages in form of salary in lieu of notice fails.

Claimant claims her salary from the month of August, 2017 until final Judgment. The claimant’s employment was determined on the 17th of August, 2017 and since then has not worked for the defendants. It is trite and an elementary principle of labour and employment Jurisprudence that no employee is entitled to be paid for work not done. No employer is under any obligation to pay salaries and allowances to an employee who has not worked for the period; differently put an employee is not entitled to salaries for work not done. See the cases of Nwafor v Anambra State Education Commission & ors [2017] LPELR 42026 CA; Keystone Bank v Afolabi [2017] LPELR 42390 CA. In the case of Adekola Oluwakemi Funlola v C&M Exchange [2016] 64 NLLR (Pt. 228) 553. The Court held that, “the Court will not order salary to be paid a worker for services not rendered. The claimant’s appointment herein was terminated by a letter dated 21/12/12 with immediate effect. Without much ado, the then existing relationship was effectively brought to an end by that letter. From that date, it is not open to the claimant to regard the relationship as still subsisting. She could also not claim for any salary effective from that date of termination. The reason being that there is no basis for such a claim.”  The claimant admitted on record that she stopped work since August upon receipt of the termination letter, having not worked for the period she claims salaries for is not entitled to her claim. It is therefore on that premise that I find that the claim of the claimant fails. I so hold.

She equally claims the sum of N5, 000,000.00 as general damages for breach of contract. In a master servant relationship, it is trite that where the parties have agreed that the contract of employment may be terminated by either party upon the giving of notice or the payment of the equivalent salary for the period of notice, the measure of damages for wrongful termination or dismissal is the amount the servant would have earned over the period of notice. The situation in this case is however, different as the action of the defendants ran afoul of the terms of the contract. Hence, the termination of the claimant’s employment was held in this judgment to be constructively determined. What is then the consequence of that action against the legal right of the claimant by the defendants? The evergreen doctrine of law that comes to mind here is ubi jus ibi remedium; meaning where there is right there is a remedy. The right of the claimant to have her employment determined in accordance with her contract of employment is sacrosanct, any contrary action by her employer is an infringement on that right. She is therefore entitled to be remedied for that infringement. The mischief perpetrated by the defendants especially the 2nd and 3rd defendants against the claimant should not be overlooked by the Court, the consequence of their action should be borne by them. This will serve as a deterrent to other employers. They will learn to abide by their terms of contract.  See the case of Promasidor (Nig). Ltd & Anor v. Asikhia[2019] LPELR-46442CA; It is in the light of the reasoning earlier coupled with the extant position of the law, as well as the provision of Section 19(d) of National Industrial Court Act 2006, that I find that Claimant is entitled to damages/compensation for the mischief perpetrated by the 2nd and 3rd defendants against her. Accordingly, I award the sum of N1, 014,525.00 to the claimant as her one year salary, this is computed with her last salary on 18th of August 2017 vide exhibit J4. I so find and hold.

On the whole, it is obvious that the claimant claims succeed in the most part, For avoidance of doubt, I declare and Order as follows;

  1. That the claimant was not employed by the 1st and the 2nd defendants.
  2. That the letter of disengagement issued by the 2nd defendant to the claimant is wrongful and same set aside.
  3. That the claimant’s employer is the 3rd defendant.
  4. That claimant’s employment was constructively terminated by the 3rd defendant.
  5. That claimant is entitled to be paid damages in the sum of N1, 014,525.00 by the 2nd and 3rd defendants.
  6. I make no order as to Cost.

Judgment is accordingly entered

 

Hon. Justice Oyewumi Oyebiola O.

P residing Judge

 

The resolve of the Department of Private and Property Law of the National Open University of Nigeria (NOUN) to widen the scope and frontier of academic research and contribution to knowledge and intellectual discourse led to the publication of the maiden edition of this journal.

volume one covers wide contemporary areas of Law like Donald Trump’s ‘America First’ Policy and Nigeria Concern in the patenting of the Human Genome; a case for International legal reform, Renewable Energy, Water and Sanitation, pollution, Sustainable development Goals, An insight into the Freedom of information Act, Intervention in Arbitration Awards in Nigeria, Climate change, essential facilities doctrine and intellectual property rights. All these topical issues are well articulated in this journal for the benefit of mankind in general and particularly for the development of our jurisprudence.

With the assemblage of academic giants who have contributed to the topical issues, I have no hesitation in wholly and warmly commending this journal not only for academics and researchers but also for students, legal practitioners, judges and all who seek knowledge. This journal has tremendously added to the growing literature on all the topical issues. I heartily congratulate the editorial Board and all contributors to this Journal for the excellence and brilliance put into the work.

 

Hon. Justice Oyewumi Oyebiola.

Judge of the National Industrial Court of Nigeria,

                                         Abuja Division.  

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