AKPABIO v. UNION BANK (2021)

AKPABIO v. UNION BANK

(2021)LCN/15167(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Thursday, May 06, 2021

CA/C/110/2019

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

NKEREUWEM D. AKPABIO APPELANT(S)

And

UNION BANK OF NIGERIA PLC RESPONDENT(S)

RATIO

WHETHER OR NOT THE RULE OF EVIDENCE REQUIRES DEMONSTRATION OF DOCUMENTS TENDERED IN PROOF OF A CASE

The rule of evidence which requires demonstration of documents tendered in proof of a case arose in the case of DURUMINIYA VS. C. O. P. (1962) NNLR 70 where Bate J. said that, a trial is not an investigation and that investigation is not the function of a Court. That, a trial is the public demonstration and testing of the cases of contesting parties. That, the demonstration is by presentation of evidence and that the testing is by cross examination of witnesses. Since then, trial Judges frown on the dumping of documents as it were in Court without linking same to the particular facts and/or reliefs sought by the parties to the case.
Thus, in the case of OGBORU VS. UDUAGHAN (2011) 2 NWLR (pt. 1232) 538 at 580 – 581, the Court of Appeal held that:
“A party relying on documents as part of his case must specifically relate each of such documents as part of his case in respect of which the document is tendered. The rationale for this judicial attitude is that the Court cannot be saddled with the duty of relating each of the documents or bundles of document tendered in evidence to aspects of the case of a party. This is because, it is the duty of the party to do so for himself.
Moreso, it would be an infraction of the right of fair hearing if the Tribunal, in the ambience of its chambers engages itself to guess which document relates a particular aspect of the case of a party. Such a duty ought to be carried out in the open Court”. PER OWOADE, J.C.A.

WHETHER OR NOT AN EMPLOYER WHO DID NOT PRODUCE HIS LETTER OF EMPLOYMENT AT TRIAL CAN NOT CLAIM WRONGFUL TERMINATION OF EMPLOYMENT

An employer in the situation of the Appellant who did not even produce his letter of employment at trial could not claim wrongful termination of employment and could therefore not be entitled to any claim of damages.
In the case of NIGERIAN ROMANIAN WOOD INDUSTRIES LTD. VS. J. O. AKINGBULUGBE (2011) 11 NWLR (pt. 1257) 131 at 148, it was held that where the Claimant is claiming that his employment was unlawfully terminated, he must plead and lead evidence to establish the following:
a) That he is an employee of the defendant,
b) The terms and conditions of his employment.
c) The way and manner and by whom he can be removed.
d) The way and manner the terms and conditions of his employment was breached by his employer.
The learned Justices of the Court of Appeal in the NIGERIAN ROMANIAN WOOD INDUSTRIES case (supra) went further to fix the burden of establishing the above squarely and fixatedly on the claimant in the following words:
“It is not the duty of the employer to prove any of these facts. In the instant case, the submission of counsel to Respondent that the burden shifted to the Appellant to prove that the termination of the Respondent’s employment was in compliance with the Respondent’s letter of employment has no basis in law. The burden was on the Respondent and remained on him throughout the case. He went to Court to ask for certain declarations and damages for wrongful termination of employment, he surely bore the burden of proving the wrongful termination” per Iyizoba J.C. A. at page 148. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment of the National Industrial Court of Nigeria sitting in Uyo Judicial Division in suit No. NICN /UY/20/2016 delivered on 30th October, 2018 by Hon. Justice M. N. Esowe.

The Appellant as Claimant took out a writ of summons dated and filed on 8th September, 2016 against the Respondent. By his Amended Statement of facts of 18th January, 2017 Appellant pleaded in paragraphs 14 – 16 as follows:
14. Therefore, a breach of contract has also arisen and a brazen act of concern by the Defendant is seen to be displayed. The Defendant in all the above deprivations remained unconcerned. For instance, none of the four letters written personally by the Claimant was responded to, and the same treatment was meted to the letters written by the solicitor before the commencement of this litigation. The Defendant was also negligent to the debiting the Claimant’s account twice, and confiscating 7 years outstanding on his contract, and failed to fulfill the conditions agreed in the collective agreement as it pertains to withdrawal of

service/redundancy.
15. Wherefore, great harm has been caused to the Claimant in the above situations, and the Claimant therefore claims as follows:
a. A declaration by the Court that the defendant was wrong to breach its agreed contract terms, with the claimant/employee.
b. In view of this breach, the claimant hereby requests the defendant to pay all salaries, allowances and other benefits due for 7 unexpired years in his service contract this amounts to N35.7 million,
OR IN THE ALTERNATIVE:
c. The claimant claims the sum of N52.8 million being amount due to him on forced withdrawal of service/redundancy. This option would be preferred to the above, but it is subject to the discretion of the Court.
d. The claimant also hereby claims from the defendant, the sum of N20 million only as damages for the forced withdrawal of service/employment as well as psychological and emotional trauma leading to great financial stress and also negligence arising from the defendant’s actions.
e. A declaration that the defendant was wrong to debit the claimant’s loan exposure twice.
f. Refund of N158,998.76 so debited twice, and another

N4,584.57 part of gratuity entitlement short credited to his account as at the date of exit.
10. (Sic) 16 the Defendant is also to pay for the cost of this litigation which is assessed at N500,000.00 only.

Pleadings were filed and exchanged by the parties. The Respondent/Defendant denied any form of liability to the Claimant/Appellant and pleaded particularly in paragraphs 2 – 5 of the Statement of Defence thus:
2. The Defendant admits paragraph 3 only to the extent that the Claimant was employed in 1983 by the Defendant and that, as at the time the Claimant retired from the Bank (Defendant), there was no disciplinary action pending against him. It is however denied that the Claimant’s contract with the Defendant is that he must remain in the employment of the Bank willy –nilly till he attains the age of 60 years or 35 years of service.
3. In further answer to paragraph 3, the Defendant states that by the nature of the contract of employment between the Claimant and the Defendant being that of master/servant; any of the parties could terminate the relationship upon giving of adequate notices or payment of salary in lieu

thereof.
4. The Defendant states in further response to paragraph 3 of the claim that upon issuance of the letter of withdrawal of service pleaded by the Claimant and in conformity with the tenets of the contract of service of the genre held with the Claimant; the Defendant paid the Claimant two months’ salary in lieu of notice on 28th November, 2014. He was further paid all his retirement benefits and entitlements amounting to the sum of N3,664,583.33 less N158,988.76 being the Claimant’s total liability with the Bank broken down as follows:
Break down of Entitlements/Liability Amount
150% Annual Basic N1,472,250.00
150% Annual Housing Allowance 1,132,500.00
150% Annual Transport allowance 566,250.00
150% Annual Lunch Allowance 330,000.00
Total Emolument 3,501,000.00
2 Months Basic Salary 163,583.33
Total Emolument 3,664,583.33
Total Liability 158,988.76
Net/Indebtedness N3,505,594.57
5. The Defendant states that the Claimant was on 9th December, 2014 paid the total sum of N3,501,000.00 as his total entitlements less tax on the two months’ salary in lieu of notice paid to the Claimant.

The learned trial Judge held that, the Claimant’s/Appellant’s claims succeeded in part as he failed to establish that his case falls under any of the exceptions to the unenforceability of collective agreements and therefore not entitled to plead or rely on the provisions of the collective agreement. The Court however ordered a refund of N158,988.76 which amounts to a double deduction in the Claimant’s/Appellant’s entitlements.

Dissatisfied with the unfavourable part of the decision, the Appellant filed a Notice of Appeal containing two (2) grounds of appeal in this Court on 28th January, 2019.

The relevant briefs of Argument for the appeal are as follows:
1. Appellant’s brief of Argument of 8th July, 2019 was deemed filed on 3rd February, 2021. It is settled by Emmanuel Archibong, Esq.
2. Respondent’s brief of Argument was filed on 25th July, 2019 but it was deemed filed on 3rd February, 2021. It is settled by Fidelis A. Iteshi.
3. Appellant’s Reply brief was filed on 15th January, 2021 and deemed filed on 3rd February, 2021. It is settled by Emmanuel Archibong, Esq.

Learned counsel for the Appellant nominated two (2) issues for the determination of the appeal. They are:
1. Whether the learned trial Judge erred in law when he held that the Claimant/Appellant is not entitled to rely on the provisions of the collective agreement.
2. Whether the learned trial Judge erred in law when he held that the Claimant/Appellant was not entitled to damages for the forced withdrawal of service/employment contrary to its emphasized terms.

Learned counsel for the Respondent adopted the two issues nominated by the Appellant for determination of the appeal.

On issue 1, learned counsel for the Appellant examined through the cases, the general rule as to enforceability of collective agreement and the exceptions to the rule. He itemised the exceptions to the general rule as follows:
1. Where the collective agreement has been adopted as forming part of the terms of employment. See UNION BANK OF NIGERIA VS. EDET (supra) (1993) 4 NWLR (pt. 287) p. 288.
2. Where a party to the collective agreement has already relied on and claimed a right under it. See COOPERATIVE AND COMMERCE BANK (NIG.) LTD. VS. OKONKWO (2001) 15 NWLR (pt.

735) 114 where the Court of Appeal held that, having relied on the collective agreement to dismiss the employee, the employer was estopped from urging that the collective agreement was unenforceable.
3. Where under the Trade Dispute Act, particularly Section 3(3), the Minister orders that a collective agreement or any part thereof be enforceable between employer and employee.

He submitted that, there is no contract of employment that can possibly reduce all its terms in one document or envisage all the terms that should form part of the contract in the future. That, for this reason, in addition to the terms of a contract being expressly stated in an appointment letter, reference may be made to other documents forming an employee’s conditions of service e.g. Handbook, Work Rules/Rules Book, Staff Regulations, Administrative Manual etc.

In further support of the proposition that, the question, whether or not a collective agreement would bind an employer in an individual employee action should depend on a variety of factors, Appellant’s counsel referred to the case of AFRICAN CONTINENTAL BANK VS. NWODIKA (1996) 4 NWLR (pt. 443) 470 at 473-474.

He reasoned that in the instant case, the attention of the trial Court was drawn to the provision of Article 7 of the said collective agreement found in page 58 of the Record of Appeal. The said Article provides for the terms and conditions for the granting of loans to staff of the Defendant/Respondent. He argued that, by the judicious adherence to terms of the collective agreement in granting of loans to its staff including the Plaintiff/Appellant, there is incorporation of the terms of the Collective Agreement into the staff loan scheme of the Defendant/Respondent.

Learned counsel for the Appellant further submitted on the second exception that, in the instant case, the Respondent cannot be allowed to approbate and reprobate in asserting that the collective agreement is unenforceable when she had acted upon it by incorporating its terms into its staff loan scheme in the granting of loan to the Claimant/Appellant.

On this, Appellant’s counsel referred to the cases of CO-OPERATIVE AND COMMERCE BANK (NIG.) LTD. VS. OKONKWO (2001) 15 NWLR (pt. 735) 114; ADEGBOYEGA VS. BARCLAYS BANK OF NIGERIA (1977) 3 CCHCJ 497 and HALSALL VS. BRIZELL

(1957) CH. 197.

Learned counsel for the Appellant concluded on issue 1 that, the Respondent having relied on the collective agreement in her staff loan scheme is estopped from relying on the unenforceability of collective agreements.

He emphasized that by virtue of Article 5 of the collective agreement (page 57 of the Records) which provides for redundancy, the Appellant is entitled to a total of 16 weeks emolument for each completed year of service which after computing, amounts to the sum of N52.8 million which is the third claim of the Claimant/Appellant.

Learned counsel for the Respondent submitted on issue 1 that, there was no pleading or evidence in place before the trial Court to establish any nexus between the Collective Agreement and the contract of employment between the Appellant and the Respondent.

Respondent’s counsel referred to paragraphs 12 and 13 of the Appellant’s Amended Statement of facts and submitted that the issue of collective agreement was merely dumped at the lower Court without any connection whatsoever linking it with the case of the Appellant.

He submitted that beyond the pleading in paragraphs 12

and 13 of the Appellant’s Amended Statement of facts the Appellant did not throughout the gamut of the pleadings and evidence refer to any of the provision of the collective agreement which either supports his claim of which has been violated by the Respondent in dismissing the Appellant from its service. He submitted that a party who tenders a document before the Court must relate such a document to his case. Where such a document is merely at large, it is not the duty of the Court to comb through the document in search of relevant part to support the party’s claim.

On this, learned counsel for the Respondent referred to the cases of OGBORU VS. UDUAGHAN (2011) 2 NWLR (pt. 1232) 538 at 580 -581.

Respondent’s counsel submitted further relying on the case of NEW (NIG) BANK PLC VS. SOLOMON OWIE (2011) NWLR (pt. 1240) 273 at 292 that:
“Before parties can be bound by the terms of a collective agreement, such terms must be expressly adopted either in the letter of appointment or in a subsequent communication varying the terms of employment.”

He also laid down the exceptions to the general rule of non-enforceability

of collective agreements and submitted that in the instant case, there is nothing before the Court to suggest that the collective agreement was intended to form part of the Appellant’s contract of employment with the Respondent. He referred to a host of cases including the cases of ANAJA VS. U. B. A. (2011) 15 NWLR (pt. 1270) 377 at 393; UNION BANK OF NIGERIA PLC VS. SAMUEL CHINYERE (2010) 10 NWLR (pt. 1203) 453 at 469; ADAMU MOHAMMED GBEDU & ORS. VS. JOHN I. ITIE & ORS. (2010) 10 NWLR (pt. 1202) 227 at 282 – 283; OSOH VS. UNITY BANK PLC (2013) 9 NWLR (pt. 1358) 196; NIGERIA SOCIETY OF ENGINEERS VS. MRS. BIMBO OZAH (2015) 6 NWLR (pt. 1454) 76.

All to buttress the trite position of the law that, a collective agreement on its own does not give an individual employee the right of action in respect of any breach of its terms unless it is accepted to form part of the terms of employment. This is so, as the employer is not privy to such collective agreement.

On the submission by the Appellant that, the Respondent allegedly adhered to certain terms of the collective agreement in granting loans to its staff including the Appellant,

learned counsel for the Respondent said the loan forms tendered in evidence did not even make a scant reference to the said collective agreement. That, it is merely speculative on the part of the Appellant to conjecture that the Respondent adhered to certain aspects of any collective agreement without making reference to it. That even the pleading of the Appellant also failed to link the said loan document with the collective agreement.

It is for the above reason, according to Respondent’s counsel that the case of AFRICAN CONTINENTAL BANK VS. NWODIKA (1996) 4 NWLR (pt. 443) 470 and all other cases referred to by the Appellant in this regard become unhelpful to the Appellant’s case.

While agreeing that the terms of a contract of employment may not be found in a single document, Respondent’s counsel submitted that a party who seeks to establish the existence of any term of contract must put materials before the Court to do so. This, he said the Appellant failed to do.

He referred to the case of NEW (NIG) BANK PLC VS. OWIE (2011) 5 NWLR (pt. 1240) 273 at 292 that:
“to create a binding contract, parties must express their

agreement in a form which is sufficiently certain for the Courts to enforce.”

Learned counsel for the Respondent has made a two – pronged attack on the Appellant’s issue 1 both of which, though interwoven are in conformity with the conclusion of the learned trial Judge that the Claimant/Appellant did not show that his case falls within any of the exceptions to the general rule of non-enforceability of collective agreements to the terms of individual employer – employee contract.

The first of such attack by the Respondent, which is a matter of pleading and evidence is that the Appellant’s pleading was deficient in relating the documents he tendered to establish a nexus between his individual contract with the Respondent and also failed to demonstrate the documents in open Court to link the said collective agreement and the staff loan agreement in creating the required exception to the general rule as to the unenforceability of collective agreements.

The rule of evidence which requires demonstration of documents tendered in proof of a case arose in the case of DURUMINIYA VS. C. O. P. (1962) NNLR 70 where Bate J. said

that, a trial is not an investigation and that investigation is not the function of a Court. That, a trial is the public demonstration and testing of the cases of contesting parties. That, the demonstration is by presentation of evidence and that the testing is by cross examination of witnesses. Since then, trial Judges frown on the dumping of documents as it were in Court without linking same to the particular facts and/or reliefs sought by the parties to the case.
Thus, in the case of OGBORU VS. UDUAGHAN (2011) 2 NWLR (pt. 1232) 538 at 580 – 581, the Court of Appeal held that:
“A party relying on documents as part of his case must specifically relate each of such documents as part of his case in respect of which the document is tendered. The rationale for this judicial attitude is that the Court cannot be saddled with the duty of relating each of the documents or bundles of document tendered in evidence to aspects of the case of a party. This is because, it is the duty of the party to do so for himself.
Moreso, it would be an infraction of the right of fair hearing if the Tribunal, in the ambience of its chambers engages itself

to guess which document relates a particular aspect of the case of a party. Such a duty ought to be carried out in the open Court.”

Relatedly, the Appellant in the instant case was not able to prove that the terms of the collective agreement he tendered was adopted either in the letter of appointment or in a subsequent communication varying the terms of employment. See NEW (NIG) BANK PLC VS. SOLOMON OWIE (2011) 5 NMLR (pt. 1240) 273 at 292.
In the same NEW (NIG) BANK PLC VS. SOLOMON OWIE case (supra) the Court held further:
“In the determination of whether the terms of collective agreement is applicable to the conditions of service of a particular employee, the basic requirement is that there must be a legal nexus between the conditions of service and the terms of a collective agreement. This legal nexus is the incorporation of the relevant terms of the collective agreement into the conditions of service of the employee. In the absence of clear language of incorporation, the Court have been enjoined to search for the real intention of the parties. In the instant case, item 11 of the collective agreement, exhibit S. O. 16B is clearly not incorporated

in the condition of service exhibit S. O. “8” 1 – 34. Obviously, from the terms of exhibit S. O. 31 on which the trial Court based his judgment, it was not the intention of the Appellant and its employees that exhibits S. O. “8” 1 – 34 and S. O. 16B be read together. [A.C.B. PLC VS. NWODIKA (1996) 4 NWLR (pt. 443) 470 referred to] (p. 292, paras D-H).
Similarly, in the case of ANAJA VS. U. B. A. (2011) 15 NWLR (pt. 1270) 377 at 393 this Court held that:
“a collective agreement on its own does not give an individual employee the right of action in respect of any breach of its terms unless it is accepted to form part of the terms of employment. This is because, the agreement is not between the employer and his employee, a non-party cannot enforce a contract even if it was made for his benefit. Thus, a collective agreement is at best a gentleman’s agreement, an extra-legal document totally devoid of sanctions. In the instant case, there was no evidence on record that exhibit ‘M’, the main collective agreement made between the Nigeria Employers Association of Banks, Insurance and Allied

Institutions and the Association of Senior Staff of Banks, Insurance and Financial Institutions was adopted to form part of the terms of employment of the Appellant. The document did not regulate the relationship between the Appellant and the Respondent, and neither of them could sue on it. [U.B.N. LTD. VS. EDET (1993) 4 NWLR (pt. 287) 288, IKPEAZU VS. A.C.B. LTD. (1965) NMLR 375; SHUAIBU VS. N. A. B. LTD. (1998) 5 NMLR (pt. 551) 582 referred to.] (p. 393, para. B-E)”
The critical test that has been espoused by the Courts for the enforceability of collective agreements of the terms of individual employee contract of service is for the Claimant to discharge the burden of proving that the said collective agreement which is generally seen as an extra-legal document has been incorporated into the terms of the contract of service.
See also UNION BANK OF NIGERIA PLC. VS. SAMUEL CHINYERE (2010) 10 NWLR (pt. 1203) 453 at 469, 471 – 472; ADAMU MOHAMMED GBEDU & ORS. VS. JOHN I. ITIE & ORS. (2010) 10 NWLR (pt. 1202) 227 at 282 – 283.

Still on issue 1, it is easy to agree with the Respondent, that the Appellant in this case did not

bring the case near to the exception of unenforceability of collective agreements applied, for example, by the decision of the Court of Appeal in COOPERATIVE AND COMMERCE BANK (NIG.) LTD. VS. OKONKWO (2001) 15 NWLR (pt. 735) 114.
This is simply because, by pleading and evidence, the Appellant did not even relate the staff loan agreement he relied on with the collective agreement tendered, not to talk of linking or creating a nexus between the documents and his terms of employment with the Respondent.
Indeed, the facts of the case of COOPERATIVE AND COMMERCE BANK (NIG.) LTD. VS. OKONKWO (supra) are glaringly in favour of the Respondent in that case. This is because, the employer in that case relied on the same collective agreement to dismiss the Respondent’s employee, thus, the employer was estopped from denying the applicability and enforceability of the collective agreement.
In the instant case, the learned trial Judge was right to have held that the Appellant who did not tender his employment letter but relied only on a collective agreement is not entitled to plead or rely on the provisions of the collective agreement and therefore failed to establish

that his case falls under any of the exceptions to the general rule of unenforceability of collective agreements. Issue 1 is resolved against the Appellant.

On issue 2, learned counsel for the Appellant submitted that the retirement date of the Appellant as agreed between the parties is 2021 and not 2014. This position said counsel was reiterated by the Respondent even in the Staff Loan Application Form (a subsidiary contract in the course of employment).

He submitted that the said loan contract is binding on both parties and that the Respondent should be estopped from breaching the terms of the contract. He submitted that it was wrongful for the Respondent to unilaterally terminate the Appellant’s employment in breach of the terms of the contract between the parties.

By this, the Appellant said counsel is entitled to damages for the wrongful termination of his contract. He concluded on issue 2 that the quantum of damages is what he would have been entitled to had the terms of his contract been adhered to, which in this case is all salaries, allowances and fringe benefits due for seven years of unexpired service (2014 – 2021) being

the sum of N35.7million.

On issue 2, learned counsel for the Respondent submitted that it is not in controversy that the relationship that hitherto existed between the Appellant and the Respondent was that of master/servant. That being the case, he submitted that the Respondent is at common law, at liberty to dispense with the service of the Appellant with or without any reason. This he said is because, one cannot force a willing servant on an unwilling master.

After referring on the above position of the law to the case of UNION BANK OF NIGERIA PLC VS. SAMUEL CHINYERE (2010) 10 NWLR (pt. 1203) 453 at 469. Respondent’s counsel added that the only qualification to the common law rule is when there is a stipulation in the contract of employment to the contrary, then the employer is bound by the terms of the contract. He referred to the case of ANAJA VS. U. B. A. (2011) 15 NWLR (pt. 1270) 377 at 393 – 394.

Respondent’s counsel noted that in the instant case, the Appellant did not bother to tender any letter or conditions governing his employment with the Respondent. He submitted that by the nature of the Appellant’s

erstwhile employment with the Respondent, the Respondent was not bound to adduce reasons for dispensing with the services of the Appellant.

On this, Respondent’s counsel referred to the case of NIGERIAN ROMANIAN WOOD INDUSTRIES LTD. VS. J. O. AKINGBULUGBE (2011) 11 NWLR (pt. 1257) 131 at 153. He concluded that in the instant case, the Appellant has not shown that the Respondent terminated his employment unlawfully and as such he is not entitled to any damage or any head of claim in the suit.

He further referred to the case of U. B. N. VS. CHINYERE (2010) 10 NWLR (pt. 1203) 453 at 469 where it was held that, an employment can only be said to have been wrongfully terminated if it was done contrary to the conditions governing the particular contract of service or in a manner not contemplated by the stipulations in the condition of service.

He submitted that in connection with the damages claimed which fell within the gamut of special damages, the Appellant failed to plead and prove special damages as stipulated by law. He referred on this to the cases of UNION BANK OF NIGERIA PLC. VS. ALHAJI ADAMS AJABULE & ANOR. (2011) 18 NWLR (pt. 1278)

152 at 174; BENJAMIN AGI VS. ACCESS BANK PLC (2014) 9 NWLR (pt. 1411) 121 at 158; UNION BANK PLC VS. MR. N. M. OKPARA CHIMAEZE (2014) 9 NWLR (pt. 1411) 166 at 185.

Learned counsel for the Respondent submitted further on issue 2 that, since the contract between the Appellant and the Respondent is that of master/servant relationship, the quantum of damages which the Appellant would have been entitled to assuming his employment was not lawfully terminated would have been the length of notice required in his terms of employment. This, said counsel is because, there is no evidence on record to show that the Appellant could as of right, remain in the Respondent’s employment till retirement age.

He concluded on issue 2 that, having failed to establish the terms and conditions that governed his employment with the Respondent and having accepted his severance benefits including two months’ salary in lieu of notice, the Appellant is not entitled to any damages for wrongful termination of employment.

Appellant’s issue 2 indeed borders on the question whether the Appellant’s employment was wrongfully terminated by the Respondent. The

answer to this important question is in the negative.

burden shifted to the Appellant to prove that the termination of the Respondent’s employment was in compliance with the Respondent’s letter of employment has no basis in law. The burden was on the Respondent and remained on him throughout the case. He went to Court to ask for certain declarations and damages for wrongful termination of employment, he surely bore the burden of proving the wrongful termination” per Iyizoba J.C. A. at page 148.

In the instant case, the question of damages does not arise as the Appellant failed to prove unlawful termination of employment. The suggestion by the learned counsel for the Appellant that the Staff Loan Agreement Form created a subsidiary contract between the Appellant and the Respondent fixing the Appellant’s retirement as year 2021 rather than year 2014 is misleading and misconceived.

The Appellant’s staff loan agreement which was in fact not demonstrated in evidence is not a substitute for the Appellant’s letter of employment and/or terms and conditions of service so as to bind the Respondent in a master/servant relationship to be bound to retain the services of the

Appellant to year 2021.

The Appellant is not entitled to any damage(s) since the termination of his employment was not unlawful.
Issue No. 2 is resolved against the Appellant.

Having resolved the two (2) issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed.
Parties to the appeal are to bear their respective costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read before now, the draft of the judgment just delivered by my learned brother, Mojeed Adekunle Owoade, JCA. I agree that this appeal has no merit and should be dismissed. For the detailed reasons in the judgment of my learned brother, I too dismiss the appeal. I abide by all other orders in the judgment including the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, Mojeed A. Owoade, JCA, I agree with the reasoning contained therein and the conclusion arrived thereat.

I also find the appeal lacking in merit and same is accordingly dismissed.

Appearances:

Emmanuel Archibong, Esq. For Appellant(s)

Fidelis A. Iteshi, Esq. For Respondent(s)