IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE UYO JUDICIAL DIVISION
HOLDEN AT UYO
BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI
DATE: 30TH MAY, 2019 SUIT NO: NICN/UY/18/2017
BETWEEN:
BASSEY MARK AMIANG ..……………………….. CLAIMANT
AND
1. THE CHURCH OF JESUS CHRIST OF
LATTER DAY SAINTS
2. THE INCORPORATED TRUSTEES OF DEFENDANTS
THE CHURCH OF JESUS CHRIST OF
LATTER DAY SAINTS, NIGERIA
REPRESENTATION
Chief Assam E. Assam, SAN with I. I. Mboto and Emma Assam for the Claimant.
Declan Obioma Madu with A. K. Madu for the Defendants.
JUDGMENT
The Claimant was the Facility Manager of the 2nd Defendant until the termination of his employment on 2nd December, 2016. Believing the termination was illegal, wrongful and a breach of his fundamental human rights, the Claimant commenced this action on 31st July, 2017 by filing a Complaint accompanied by Statement of Facts, Statement on oath and List of documents as required by the rules of this court, praying for the following reliefs against the Defendants jointly and severally:
a. A declaration that the dismissal of the Claimant from the service of the defendants is illegal, wrongful and in breach of the employment rights of the Claimant and the age long principles of natural justice, equity and good conscience.
b. A declaration that the defendants violently breached the fundamental human rights of the claimant in acting as the prosecutor and the judge when they accused him of embezzlement, corruption, bribery, money laundering, abuse of office and fraud and without a hearing found him guilty of the said offences and dismissed him from their employment and banned him from ever participating in any commercial activities of the defendants, a privilege he was to enjoy on leaving the service of the defendants, and on the basis of which he is being excommunicated from the Church.
c. A declaration that the dismissal, and the reason adduced for the dismissal of the Claimant, from the services of the defendants was totally unwarranted and without cause, borne out of absolute bad faith and devoid of any merit for which the Claimant is entitled to exemplary damages.
d. An order declaring null and void, the letters of the defendants dated the 2nd of December 2016 and the supervening letter of the defendants dated the 15th of February 2017 purporting to dismiss the Claimant from the services of the defendants.
e. The sum of N2,705,000,000.00 (Two Billion, Seven Hundred and Five Million Naira) being the naira equivalent of $7,213,380.00 (at the exchange rate of N375 to the dollar) which the Claimant is alleged to have embezzled and for which he has been barred from all commercial transactions of the defendants and is being excommunicated from the church, as compensation for the vendor’s rights which he has lost.
f. The sum of N43,125,726.16 being the Claimant’s net salary for the remaining 20 years, 2 months on his contract before his retirement.
g. The sum of N12,814,758.31 being his pension based on his contribution of N4,928,7 53.51 at the rate of 5% of his salary per annum plus employers (defendants’) mandatory contribution of 8% per annum of the Claimant’s salary amounting to N7,886,004.80.
In response, the Defendants by leave of court on 17th January, 2018 filed their Memorandum of Appearance, Statement of Defence together with Witness Statement on Oath, List of Witness and List of Documents dated on the 15th September, 2017. The Claimant by leave of court on 21st March, 2018, filed a Reply to the Statement of Defence. The Defendants also had cause to by leave of court on 9th May, 2018 filed a further Witness Statement of Oath by Joseph Okonkwo.
At the trial, the Claimant testified for himself and called Mr. Oku Okon Essien, the CEO of Cardemman Global Limited, one of the Defendants’ vendors, as witness and tendered 24 documents as Exhibits as follows:
1. Exhibit CW 1 – Appointment Letter dated 28th May, 2014.
2. Exhibit CW 2 –
Confirmation of Appointment dated 17th June, 2015.
3. Exhibit CW 3 – Employment Agreement for Africa West Area Employees.
4. Exhibit CW 4 – Photocopy of Certificate of Incorporation No. CAC/IT/NO. 722.
5. Exhibit CW 5 – Letter dated 23rd December, 2015.
6. Exhibit CW 6 – Diamond Bank Plc Manager’s Cheque no. 08325149 dated 1st December, 2016.
7. Exhibit CW 7 – Letter of Notice of Termination of Employment Agreement dated 2nd December, 2016.
8. Exhibit CW 8 – Electronic Mail dated 31st January, 2017.
9. Exhibit CW 9 – Electronic Mail dated 15th February, 2017.
10. Exhibit CW 10 – Lex Fori Partners Letter dated 17th April, 2017.
11. Exhibit CW 11 – AfterShip Report by DHL dated 25th April, 2017.
12. Exhibit CW 12 – AfterShip Report by DHL dated 12th May, 2017.
13. Exhibit CW 13 – Letter of Invitation to Disciplinary Council Meeting
dated 24th July, 2017.
14. Exhibit CW 14 – Payslip dated 21st July, 2014.
15. Exhibit CW 15 – Letter by the Claimant dated 31st December, 2015.
16. Exhibit CW 16 – Disclosure of Possible Conflict of Interest Form
dated 20th August, 2014.
17. Exhibit CW 17 – Exit Interview Questionnaire Form dated 2nd
December, 2016.
18. Exhibit CW 18 – Anti-Bribery and Related Conduct dated 20th
February, 2015.
19. Exhibit CW 19 – Withholding Tax Report dated 20th December, 2018.
20. Exhibit CW 20 – Withholding Tax Credit Notes No. WHT 0608869243.
21. Exhibit CW 21 – Withholding Tax Credit Notes No. WHT 0608861622.
22. Exhibit CW 22 – Withholding Tax Credit Notes No. WHT 0608869235.
23. Exhibit CW 23 – Withholding Tax Credit Notes No. WHT 0608869236.
24. Exhibit CW 24 – Withholding Tax Credit Notes No. WHT 0607283069.
It should be noted that exhibits 1 to 14 were tendered through CW 1 in Examination-in- Chief, while exhibits 15 to 18 were tendered by Counsel to the defendants through CW 1 during Cross-Examination. Exhibits CW 19 to CW 24 were however tendered through CW 2 during Examination-in-Chief.
At the close of trial on 4th February, 2019, parties agreed to file and serve their respective Final Written Addresses on or before 8th April, 2019. The Written Address of the Defendants was however filed on the 13th February, 2019 while that of the Claimant was filed on the 23rd of April, 2019 by leave of Court on 6th May, 2019. The Defendants filed their reply on points of law on the 6th of May, 2019 thereby paving the way for the adoption of the Final Written Addresses on the same day.
The Case of the Claimant
The Claimant was employed by the Defendants on the 16th day of June, 2014 as the Supervisor, Facilities Associate of 2nd Defendant. The said appointment was confirmed on 17th June, 2015. On the 23rd December, 2015, the 2nd Defendant wrote a letter to inform the Claimant about the anonymous petition alleging the breach of Conflict of Interest Policy in awards of contracts, non-compliance with bidding policy and victimization of those who gave auditors information on the infractions by the Claimant. The letter also demanded a written response to these allegations against the Claimant not later than 4th January, 2016. This is Exhibit CW 5. In spite of not being shown the petition in question, the Claimant responded vide letter dated 31st December, 2015. This is Exhibit CW 15. About one year later and on 2nd December, 2016, the Claimant’s employment was terminated ostensibly under Article 5.2 of the Employment Agreement dated 16th June, 2014 by giving the Claimant a Banker’s cheque of N306,101.00 in lieu of notice. This is Exhibit CW 7.
By the electronic mails of 31st January, 2017 and 15th February, 2017, Adam Garbinski, of the Defendants’ Audit Department, informed the Claimant that the Defendants have obtained new information from multiple vendors that the loss of Defendants’ funds as a result of kick-back to the Claimant was approximately USD 7,213,380.00, which the Defendants intend to set-up as receivable from the Claimant. The said Adam Garbinski expressed believe that the Claimant was not alone in this and demanded more information from the Claimant. He also informed the Claimant that, the Claimant is prohibited from qualifying as vendor/contractor to the Defendants or participating in any of its commercial activities.
According to the Claimant his travails in the service of the Defendants arose as a result of his desire for a transparent and corrupt free service to the Defendants, not just as his employers but also as his church. The Claimant recounted problem areas in the service of the Defendants as the deductions of withholding tax for jobs not awarded, deductions of VAT without remittance to the VAT authorities, the existence of a cabal who acquire properties for the church at inflated rates, the monopoly by one company in the supply of furniture and the breach of the conflict of interest by staff of the Defendants. Upon the advice of his Secretary, Vivian Opah and Paul Oku, auditor, the Claimant made oral submission on these problem areas or infractions to the preliminary audit. This seemed to be the undoing of the Claimant as things began to fall apart leading to the letter of 23rd December, 2015 alleging similar infractions against the Claimant.
To the Claimant, by the conditions of the Defendant’s service contained in the defendants’ general terms of agreement and the Nigerian Laws, except terminated, his employment was to last until his retirement age of 60 years. And at the date of termination of his employment, the Claimant was 39 years, 10 months of age and still had 20 years and 2 months before retirement. According to the Claimant having given the Defendants complete loyal and professional services and upon the successful completion of a tour of service, the Claimant should enjoy the patronage of lucrative contracts as a vendor from the Defendants. This is in line with the custom of the Defendants regarding its retired or former technical staff.
The Claimant through his solicitor, Assam E. Assam, SAN, wrote a letter dated 17th April, 2017 to Bishop Gerald Causse, the Presiding Bishop of the 1st Defendant, listing the foregoing infractions, absolving the Claimant from the allegations and protesting the injustices meted on the Claimant thus:
a) The Claimant was dismissed from his employment and barred from all commercial activities of the Church for life on allegations that he had committed felonious criminal offences, to wit: embezzlement, corruption, bribery, money laundering, abuse of office and fraud, had never been queried, nor was he ever confronted with any allegation of corrupt practices and other forms of criminal conduct while in the employment of the Church.
b) That on receipt of a complaint, a team was sent all the way from the Church Headquarters in Salt Lake City, Utah, and on arriving Nigeria, they set up court, tried the Claimant and found him guilty of multiple criminal offences and dismissed him from the services of the Church, and as a consequence of the severity of his ‘offences’, blacklisted him from participating in any Church project and held him accountable to refund to the Church the sum of $7,213,380.00 which he is alleged to have embezzled, without hearing him.
c) That the “vendors” who are said to have made allegations against the claimant were never named and the claimant was not given the benefit of being heard on those allegations. While he was at work for the Church, the Church was at work in the most surreptitious and fraudulent manner getting people to ‘shave him behind his back’.
d) That the primary duty of each FM Group is the day-to-day operations and maintenance of church owned and rented meeting houses, including other church administrative buildings and facilities located within the boundaries of each of the FM Group and the number of both church owned and rented meeting houses which were within the Claimant’s area of jurisdiction (Uyo FM Group) was 55. While the approved annual budget for operations and maintenance of all these facilities, by the Church, was approximately Two Hundred and Fifty-million (N250,000,000.00) Naira, the total budgetary allocation to the Claimant’s jurisdiction for the period of 30 months for which he worked for the Church was N625,000,000.00 amounting to $1,190,000 at the exchange rate of N525 to the dollar at the material time, yet he is alleged to have defrauded the Church to the tune of $7,213,380 (N3,790,000,000.00).
e) That the official approval limit of the Claimant per project per transaction was between N250,000.00 and N218,000.00 naira only and there was no time the Claimant unilaterally approved projects beyond the said limits. Any maintenance or replacement/improvement project beyond the said approval limit stated above, was forwarded to the next line supervisor (Regional Facilities Manager) for consideration, who in turn moves to his next line supervisor (African-West Area Operations and Maintenance Manager) resident in Accra, Ghana, if such project exceeds the Regional Facilities Manager’s limit of Five million (N5,000,000.00) Naira only.
f) That even the Facilities Management Automation Tools (FMAT), the operating software of the defendants, would not grant the Claimant access for approval beyond his limit. It was therefore absolutely impossible for him to defraud the Church of $7,213,380.00 while his superiors were watching! An amount he had no access to.
g) That the Claimant was never given an opportunity to confront his accusers nor was he ever charged for any criminal offence, nor found guilty of committing any crime, yet he was dismissed and banned from participating in any commercial activities of the Church for life.
It was against this background and in view of the Defendants failure to respond to the Claimant’s demand for an apology and the payment of USD 7,213,380 as damages that the Claimant took out a complaint against the Defendants on the 31st July, 2017.
The Case of the Defendant
By a letter dated 3rd October, 2013 the Claimant applied to be employed by the 1st Defendant through the Area Human Resource Manager, as Facilities Manager. The Claimant was employed by the 2nd Defendant to work as Supervisor, Facilities Associate on the terms and conditions governed by the Employment Agreement executed between the parties on the 16th day of June, 2014. In addition to the said Employment Agreement, the Claimant also signed the Human Resource Policies and Code of Business Conduct; Disclosure of Possible Conflict of Interest form and Anti-Bribery and Related Conduct.
According to the Defendants upon the expiration of the Claimant’s probationary period, the Claimant’s performance was found unsatisfactory leading to the extension of the probationary period by three months.
It was the case of the Defendants that it was after the confirmation of the appointment of the Claimant that they became aware of some unethical practices by the Claimant, after which the Defendants sent the Area Human Resource Manager to interview the Claimant. And it was after the Claimant’s explanations were found unsatisfactory, that a query dated 23rd December, 2015, was issued the Claimant asking him to respond not later than 4th January, 2016 on the following infractions or allegations against him:
i. Non-compliance with the bidding process and guideline, giving advantage to his preferred vendors.
ii. Breach of the rule against conflict of interest by awarding contracts to his family members without disclosure.
iii. Victimizing persons who were perceived by him to be providing information to auditors sent by the Defendants to periodically audit the Uyo Facilities Management Group.
After a thorough review of the response of the Claimant (exhibit 15) and in spite of having found the allegations against the Claimant true, the Defendants chose to issue him a letter of final warning dated 20th January, 2016. According to the Defendants, notwithstanding this warning the Claimant continued in his old ways necessitating the termination of his appointment in accordance with the Employment Agreement by paying him one month salary in lieu of notice as provided by the contract.
This apart, the Defendants denied the case of the Claimants in the following words:
a. That there is no custom expressed or implied, that upon leaving the services of the Defendants, the Claimant will enjoy any business opportunities or patronage from the Defendants as alleged or at all.
b. That the Claimant completed the Exit Interview Questionnaire from the Defendants’ Human Resource Department and never raised any issue of dissatisfaction.
c. That at no time during the course of the Claimant’s employment with the Defendants did he raise any of the allegations contained in paragraphs 8, 9 and 10 of the Statement of Facts and the Claimant is fully aware that the Defendants are very meticulous in obeying and sustaining the law.
d. That the Defendants pay all taxes due to be paid by them and take no steps whatsoever to evade any such payment and rely solely on the voluntary contributions of its members around the world and are mindful of protecting the sacredness of the funds contributed by these members.
e. That it was after the termination of the Claimant’s contract of employment that it was, again decided as is the practice of the Defendant to conduct a post termination audit to determine the extent of loss if any, that the Defendants suffered as a result of the infractions of the Claimant.
f. That at the said post exit audit the Defendants decided to review the procurement policies and interviewed some Vendors who dealt with the Claimant, and it was that audit that determined the amount that was improperly received by the Claimant from the coffers of the Defendants during his employment and that the sum was in naira and not in Dollars.
g. That the Claimant was invited by the auditors severally during this post exit audit exercise to present his own side of the matter but he chose not to attend.
h. That the local ecclesiastical leaders of the Claimant invited him to a Church Disciplinary Council geared towards leading him to the path of repentance, if he did do what was alleged in the said post exit audit exercise, but again the Claimant true to character has refused to honour the invitation.
i. That no decision has been taken in the said Disciplinary Council, and decision is deferred to give the Claimant an opportunity to reconsider his position not to attend the Council and be heard.
j. That the said Disciplinary Council which is a spiritual matter has no bearing whatsoever to the termination of the Claimant’s employment but is only a measure to help the Claimant’s spiritual growth in the event that he was culpable as indicated by the auditors, and wishes to remain in good standing as a member of the 1st Defendant.
k. That should any decision be taken in the proposed Disciplinary Council in the presence or absence of the Claimant, the decision will be communicated to him in writing and his right to appeal against the same to the President of the Defendants will be afforded.
l. That the Claimant is not entitled to any of the reliefs endorsed in the Statement of Facts and at the hearing the Defendants shall urge the Court to dismiss same with substantial costs.
Reply to the Statement of Defence
By way of reply to the Statement of Defence, the Claimant asserted there was no post audit investigation on him and that the entire findings against him was a charade. And whatever investigations undertaken by the Defendants were as a result of Claimant’s complaint to his superiors and the subsequent complaints by the vendors whose names were used to siphon money from the Defendants.
The Claimant reiterated his complaint that there was a cartel in the service of the Defendants’ service involved in property speculation led by Barrister Declan Madu, counsel of the Defendants who prepared all the deeds, his younger brother, Bennelt Madu, the Real Estate Supervisor responsible of all real estate procurements and Engr. Kalu Udensi, the sole landlord of most of the properties procured by the Defendants.
As a fall-out of the complaints of the Claimant and the said vendors, Mr. Benedict Madu was removed from Lagos to Port Harcourt as facility Manager and relieved off his appointment as Estate Supervisor; Mr. Daniel Yirenya-Tawiah, was relieved off his appointment as the Area Physical Facilities Manager but as an ecclesiastical leader was left without any executive position and replaced by Mr. Okechukwu Imo; Mr Pemu, has also had his membership flagged, to indicate that he is being excommunicated for acting against the interest of the Church. Nothing however was established against the Claimant.
The Claimant, relying on Withholding Tax Credit Notes has shown how one of the vendors, Bless Goshua Company Limited’s was used in siphoning N4,842,733.00, six months after the completion of the project and the final bills were paid without the knowledge and consent of the company. An example was also given of Cardeman Global Limited, in which the total sum of N130,167,303.60 was siphoned using the company’s name between 6th of June, 2015 to 1st February, 2017 without the knowledge of the owners of the company and no such monies passing through its account.
Defendants’ Submission
The Defendants formulated two (2) issues for determination, to wit:
a) Whether the Claimant’s employment was duly terminated?
b) Whether the Defendants are liable to the Claimant for any of his Claims?
The Defendants argued these two (2) issues together. To begin with, the Defendants submitted that there is nothing in the Claimant’s pleadings to show that his employment
enjoyed statutory flavour and that since his employment is that of ordinary master and servant, the employer is at liberty to terminate the contract for good, bad or no reason. It is also the further submission of the Defendants that the termination of such appointment, no matter how wrongful, cannot be declared unlawful or null and void and that the intention or motive for the termination are also irrelevant, citing the case of N.R.W. Ind. Ltd. vs. Akingbulugbe (2011) 11 NWLR (Part 1257) page 131 at 153 paragraphs C-D.
The Defendants quoted clause 5.2 of the Employment Agreement (Exhibit CW 3) which according them is of utmost importance in the determination of this suit:
“During the employee’s probationary period, his/her employment may be terminated by either party without notice. After employee’s probationary period, either party may terminate employee’s employment by giving not less than one-month written notice or payment in lieu thereof. ”
Thereafter, the Defendants’ submitted that the termination of the employment of the Claimant is in total compliance with Exhibit CW 3 as the Claimant was issued a cheque for his one month’s salary in lieu of notice. The Defendants argued that since the termination of the employment of the Claimant was in accordance with agreement of the parties, as evidenced by Exhibit CW 3, the fact that the Claimant refused to cash the cheque for his one month’s salary in lieu of notice is not the business of the Defendants, citing Oforishe vs. N.G.C. Ltd. (Supra) at page 62 paragraphs B – C., where it was held:
“By the terms of the agreement, the appellant is entitled to one month salary in lieu of notice. This money according to the available evidence is ready and it is the appellant who refused to collect the money. It therefore not the fault of the respondent that the appellant has not been paid.”
Having noted that none of the reliefs sought by the Claimant can find accommodation in Exhibit CW 3, the Defendant submitted that the hands of the Court and the parties are completely shackled by the Employment Agreement, exhibit CW 3 and it is not the function of a Court to make a contract for the parties or to rewrite one. In support, Defendants cited the case of Obanye vs. U.B.N. Plc (2018)17 NWLR page 375 page 390 paragraph A.
Similarly, to the Defendants parties are bound by the terms of their contract and that on no account should terms extraneous to the contract or on which there was no agreement be read into the contract referring to Oforishe vs. N.G.C Ltd (2018) 2 NWLR (Part 1602) page 35 at 53 paragraphs D-E.
On the finding that the Defendants suffered loss based on the action of the Claimant, the Defendants posited that it was a matter post the termination of the Claimant’s contract and that that was not given as the reason for the termination, but even if it was so given, the Defendants were not under any obligation to report that loss first to law enforcement agencies before terminating the Claimant’s employment as no crime was alleged against the Claimant in the letter terminating his employment. Citing Uzondu vs. U.B.N. Plc. (2009) 5 NWLR (Part 1133) page 1 at 14 paragraphs C-D, the Defendants submitted that it was absolutely unnecessary to first ensure the prosecution of the Claimant before his employment could be terminated.
As for the complaint of the Claimant that in terminating his employment the rule of fair hearing was violated, the Defendants’ simple answer was the allegation was not made out, asserting the procedure in which the Query (Exhibit CW 5) is issued to the Claimant, and he responded as in Exhibit CW15, is sufficient.
To the Defendants, assuming but without conceding that the Court were to find that the terms of the agreement were not followed, the only remedy available to the Claimant will still be as provided in Exhibit CW 3. For authority, the Defendants cited the case of Obanye vs. U.B.N. (Supra) at pages 390 – 391 paragraphs H-A., where the Supreme Court restated the law in the following words:
“In a claim for wrongful dismissal, the measure of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract. Beckham v. Drake (1849) 2 H. L Cas 579 at pages 607- 608. Where however the defendant, on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded, apart from other entitlements, should be limited to the amount which would have been earned by the Plaintiff over the period of notice, bearing in mind that it is the duty of the plaintiff to minimize the damage which he sustains by the wrongful dismissal. The application of this principle was vividly demonstrated by this court in the case of Western Nigeria Development Corporation v. Jimoh Abimbola, supra, where Ajegbo, JSC (delivering the judgment of the Court), after stating the guiding principles, said at page 382:
The plaintiff was given a letter of appointment (exhibit A)… the Plaintiffs appointment was governed by the contract to which he entered at the time of his appointment. If he had been given one month’s notice before termination of his appointment, he would have had no claim whatever on the corporation. But he was not given notice, and he is entitled to one month’s salary in lieu of notice. That is all he can get as damages. Other matters that the judge considered are irrelevant.”
The Defendants also submitted that no part of Exhibit CW 3 can accommodate the pleadings of the Claimant in paragraphs 3, 7 and 19 of the Statement of Facts in relation to the purported loss of contract patronage by the Defendants and the reliefs sought. As for the averments in paragraph 17 and 18 of the Statement of Facts on the purported investigation into the financial affairs of the defendants, the Defendants dismissed it at best as a futile attempt to blackmail the Defendants as no shred of evidence was tendered in proof thereof. The Defendants invited the Court to note that when confronted under cross-examination, all the Claimant could say was that he instructed his Counsel to write a petition against the Defendants but did not know if his instruction was carried out. Not only that Uko Essien, the second witness of the Claimant tendered documents which did not assist the Claimant as none of the documents bear the name of the Defendants but “The Church of Jesus Christ of Latter Rain” and no explanation was offered for this. Similarly, the same witness according to the Defendants made matters worse when under re-examination he acknowledged that some contracts he performed for the Defendants were contained in the Exhibits.
In conclusion, the Defendants urged the court to dismiss this suit with substantial costs not only because the termination of the Claimant’s employment is in accordance with the agreement between the parties but the reliefs sought are not contemplated by the said agreement.
Claimant’s Submission
The Claimant formulated one issue for determination to wit: “Whether the claimant has made out a case to justify the reliefs sought.”
The Claimant started by responding to the assertion raised in the statement of defence with regards to the legal personality of the 1st defendant, the basis upon which the defendants entered a conditional appearance. To the Claimant it is trite law that the Nigerian Courts recognize corporations established by foreign laws as juristic persons, by virtue of their creation and continuance under and by virtue of that law, citing the case of Bank of Baroda v. Iyalobam Co. Ltd (2009) 13 NWLR (Pt. 985) 531 and Section 60 (b) of the Companies and Allied Matters Act. On these authorities, the Claimant submitted that the 1st Defendant, though an international Religious Body who has its Nigerian Branch as the 2nd Defendant, is a juristic person capable of suing and being sued in its own name particularly when even the Nigerian branch of the Church, the 2nd defendant, is administered from Accra, Ghana.
The Claimant sought to answer the issue formulated from two perspectives. One, from the dismissal of the claimant on grounds of fraud and embezzlement after the termination of his employment and in breach of the principles of fair hearing. Second, from the perspectives of the reliefs and damages claimed.
On the first, the Claimant noted that the nature of the employment between the Claimant and the Defendants in this case, is a Master-Servant relationship for which parties, who had entered into a contract as evidenced in Exhibit CW 3, are bound by the provisions of the said agreement. So, for a termination of employment to be lawful, it must be done in accordance with the terms of the contract of employment. The Claimant posited that where the termination is not in accordance with the provisions of the contract, the termination is wrongful and a claim for breach of contract would be sustained, as bound by the terms. The Claimant submitted that this principle was affirmed by the Court of Appeal in the case of Oak Pensions Limited & Ors v. Olayinka (2017) LPElR-43207 (CA) thus:
“In employment that is purely of a master-servant nature relationship, usually governed and regulated by the terms and conditions agreed to by the parties in a contract, the right and the manner by which the employment is to be brought to an end by way of termination, resignation or dismissal, are ordinarily spelt out in the terms and condition of the contract. The employer and employee are bound by the terms and conditions of the contract in their relationship and each would be liable for any breach thereof as it would be wrongful to the other party. The claim in such case would be wrongful termination or dismissal in breach violation or contravention of the agreed terms and conditions of the employment.”
Similarly, the Claimant referred to Registered Trustees, PPFN v. Shogbola (2004) 2 NWLR (883) 1 and NITEL PLC v. Ocholi (2001) 10 NWLR (720) 188.
It is the Claimant’s case that, shortly after the termination of his employment, the defendants by Exhibits CW 8 & CW 9, notified him that he was being dismissed from his employment, consequent upon an allegation of stealing the sum $7,213,380.00 from the defendants, which acts of embezzlement, fraud and stealing was established by a discreet investigation conducted by the Audit Department of the Church headed by one Garbinski, a Headquarters staff of the defendants in the United States. The earlier termination of his employment was converted to a dismissal and in addition to being asked to refund the said sum said to have been stolen, he was to forfeit all rights and privileges including loss of rights to contracts etc. The claimant was never confronted with any allegations of theft neither was he given an opportunity to defend himself against the allegations. What was stated in the mail for which the defendants’ Counsel in his address misconstrued to mean an invitation to fair hearing was, that he should contact the defendants to disclose other persons who benefitted from the alleged sum he stole from the coffers of the defendants.
Against this background, the Claimant contended that the law is trite that, an employee can only be lawfully dismissed for misconduct, which constitutes a criminal offence, only after he has been tried and convicted in the courts. The Claimant cited the cases of Akinwale v. Ondo State Housing Corporation (1992) Vol. 11 ODSLR 210 and Aknakism v. Union Bank Of Nigeria Ltd (1994) 1 NWLR 557 as authorities. To further buttress this, the Claimant quoted the dictum of Fatai Williams, CJN, in the case of Sofekun v. Akinyemi (1980) NSCC 175 as follows:
“It seems to me that once a person is accused of a criminal offence, he must be tried in a court of law where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair hearing as set out in subsection (4) to (10) of section 22 of the Constitution of the Federal Republic of Nigeria.”
This is Section 22 of the 1963 Constitution which is now Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended. On the same principle, the Claimant also cited the case of Federal Civil Service Commission v. Laoye (1984) 2 NWLR (PT 106) 652, per Eso, JSC as follows:
“Once such allegations are involved, care must be taken that the provisions of section 33 (4) of the Constitution are adhered to. It is not so difficult where the person so accused accepts his involvement in the acts complained at and no proof of criminal charges against him would be required. He has, in such a case, been confronted with the accusation and he has admitted it. He could face discipline thereafter”
Applying this principles to the facts of this case, the Claimant submitted that the defendants who has already terminated the employment of the claimant, dismissed him to vitiate the termination on an allegation, against him, of criminal misconduct where the employee was never confronted with, nor given an opportunity to defend himself even before a domestic tribunal.
The Claimant then went on to distinguish between a termination and dismissal in the words of Pats-Acholonu, JSC in Jombo v. P.E.E.M.B (2008) 14 NWLR (Pt. 945) pg. 448 thus:
“Termination or dismissal of an employee by the employer translates into bringing the employment to an end. Under termination of appointment, the employee is enabled to receive the terminal benefits under the contract of employment. The right to terminate or bring an employment to an end is mutual in that either party may exercise it. Dismissal on the other hand is punitive and, depending on the contract of employment, very often entails a loss of terminal benefits. It also carries an unflattering opprobrium to the employee.”
The Claimant also submitted that in the same case (Jombo v. P.E.E.M.B (supra), the Supreme Court equally held that an employee cannot be dismissed after he has been terminated thus:
“It is elementary that an employee, in the instant case the appellant, cannot be dismissed from an employment that had ceased to exist. The Appellant’s dismissal coming after the termination of his appointment, was a futile exercise.”
The Claimant therefore submitted that the dismissal of the Claimant after the said termination and denying him of all rights and privileges to which he is entitled with the threat of excommunication for an unproven allegation of embezzlement, fraud and stealing of over seven million United States Dollars, was not only wrongful and unlawful but a gruesome assault on his person for having to carry a scar of a thief in the midst of his 15 million brethren, not just on himself alone, but on his family. It is the further submission of the Claimant that the law is well settled, that fair hearing within the meaning of Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, requires the observance of the twin pillars of the rules of natural justice, namely audi alteram partem and nemo judex in causa sua. The Claimant argued further that these rules create the obligation to hear the other side and the right of a party in dispute to be heard is so basic and fundamental a principle of our adjudicatory system in determination of dispute, that it cannot be compromised on any ground, citing the cases of Abubakar Audu v. FRN (2013) 53(pt. 1) NSCQR at pgs 471-472; Nwokoro v. Oruma (1990) 3 NWLR (PT. 136) 22. The Claimant also referred to the case of Danmole v. AG Leventis & Co (Nigeria) Limited (1981) 1-3 CCHCJ 219, 227 and quoted the Supreme Court in Bamgboye v. University Of Ilorin (1999) 10 NWLR (PT. 622) pg. 290 at 306 on the fundamental nature of the doctrine of fair hearing as follows:
“The right of a person to fair hearing is so fundamental to our concept of justice that it could neither be waived nor taken away by a statute, whether expressly or by implication”. (P.355, paras F-G).
The Claimant strongly submitted that his dismissal was wrongful, unlawful, violent, and a breach of his fundamental rights to fair hearing having regards to the evidence presented before the Court particularly given the fact that the defendants have not presented any evidence whatsoever to justify their wrongful act. The Claimant also maintained that as manifest in his evidence from cross examination, the sole witness of the defendants, knew absolutely nothing about the claimant’s employment nor the incidence that led to the claimant’s dismissal and only depended on what he was told.
In justifying his entitlement to the reliefs sought, the Claimant submitted that the measure of damages to be awarded to a Claimant whose dismissal has been found to be wrongful and unlawful is prima facie the amount that the claimant would have earned has the employment continued according to contract subject to a deduction in respect of any amount accruing from any other employment which the claimant, in minimizing damages, either had obtained or should reasonably have obtained. For this proposition of the law, the Claimant relied on Beckham v. Drake (1849) 2 H.L.C. 579 at 607-608, Omoudu v. Obayan & Ors (2016) 65 N.L.L.R (PT 231) at Pg 242 and NTC Limited v. William (1995) NNLR 204 at 206.
Applying this to the facts of the instant case, the Claimant claimed the sum of N43,125,726.16 being his net salary for the remaining 20 years, 2 months on his retirement, the sum of N12,814,758.31 being his pension entitlements on his contribution of N4,928,753.51 at the rate of 5% of his salary per annum plus employers (defendants’) mandatory contribution of the 8% per annum of the claimant’s salary amounting to N7,886,004.80. The Claimant submitted that since the number of years left of the Claimant’s contract of service was not contested and no evidence was led to counter the claims of N43,125,726.16 and N12,814,758.31 by the Defendants, the court is urged to award them accordingly.
The Claimant further claims declaration that the defendants violently breached his fundamental human rights in acting as the prosecutor and the judge when they accused him of embezzlement, corruption, bribery, money laundering, abuse of office and fraud and without a hearing found him guilty of the said offences, and dismissed him from their employment and banned him from ever participating in any commercial activities of the defendants, a privilege he was to enjoy on leaving the service of the defendants, and on the basis of which he is being excommunicated from the Church. The Claimant also sought for a declaration that the dismissal, and the reason adduced for the dismissal of the claimant from the services of the defendants was totally unwarranted and without cause, borne out of absolute bad faith and devoid of any merit for which he is entitled to exemplary damages.
On the basis of the above, the Claimant claimed the sum of N2,705,000.00 (Two Billion, Seven Hundred and Five Million Naira) being the naira equivalent of the sum of $7,213,380.00 (at the exchange rate of N375 to the dollar) which the claimant is alleged to have embezzled and for which he has been barred from all commercial transactions of the defendants and is being excommunicated from the church and as compensation for the vendor’s rights which he has lost as a result of the dismissal. The Claimant justified this compensation on the authority N.B.C. Plc v. Edward (2015) 2 NWLR (PT 1443) pg 201 at 205 to the effect that:
“The primary object of an award of damages is to compensate the plaintiff for the harm done to him. A possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such secondary object can be achieved by awarding compensatory damages, damages which go by various names to wit, exemplary damages, punitive damages, vindictive damages, even retributive damages and comes into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like.”
The Claimant acknowledged the unfettered discretion of the court in the award of compensatory, exemplary or punitive damages and the fact that the instant case is deserving of such awards and posited that it was not necessary to depend on any calculation or figures arrived at from specific items referring to the case of Ogbonna v. Neptune Software Limited (2016) 64 N.L.LR (Pt. 228) at pg 526:
“In order to justify an award of exemplary damages, it is not sufficient to show simply that the defendant has committed the wrongful act complained of. His conduct must be high handed, outrageous, insolent, vindictive, oppressive, or malicious and showing contempt of the Plaintiffs rights, or disregarding every principle which actuates the conduct of civilized men.”
Finally, the Claimant submitted that the action of the defendants in dismissing the Claimant from the service of the defendants after he had been terminated in his employment and finding him guilty and convicting him for the offence of stealing $7,213,380.00 without any form of hearing and the lost or denial of post service opportunities and excommunication from the church, discloses malice, cruelty, insolence, flagrant disregard of the law to which the Claimant deserves the reliefs sought.
Defendants’ Reply to Claimant’s Address on points of law
In response to the submissions of the Claimant’s final address, the Defendants filed a Reply on points of law on 6th May, 2019. The Defendants asserted that the Claimant deliberately misconstrued the purport of Exhibits CW 8 and CW 9 which cannot accommodate the elaborate submissions of Claimant in the final address or have any bearing on the propriety or otherwise of the termination of the Claimant’s employment. The Defendants submitted that Exhibits CW 8 and CW 9 did not purport to dismiss the Claimant afresh from the employment of the Defendants as that employment had already been terminated by the letter dated 2nd December, 2016 (Exhibit CW 7). It is the further reply of the Defendant that the termination of the Claimant’s contract was neither unlawful nor contrary to his contract of employment. Relying on the case of Onuminya vs. Access Bank Plc. (2015) 9 NWLR (Part 1463) page 159 at 177-178 paragraphs H-B., the Defendants reiterated the legal position that the remedy of an employee wrongly terminated or dismissed is to sue for damages, and the measure of damages is always the salaries for the length of time for which notice of termination could have been given in accordance with the contract of employment. The Defendants therefore urged the court to dismiss the suit with substantial costs.
DECISION OF THE COURT
I have digested the facts of this case as given in the various processes, carefully watch the demeanour of the witnesses and evaluated their evidence as it were, and I think the justice of the case demands that I adopt the lone issue as formulated by the Claimant in the determination of this suit, to wit: “Whether the claimant has made out a case to justify the reliefs sought.” In the treatment of this issue, a consideration of the issue raised by the defendants on whether the Claimant’s employment was duly terminated is inevitable.
Before I delve on the substantive case there is the need to consider an issue raised by the Claimant in his final address, that is, the legal status of the 1st Defendant. This is an issue raised by the Defendants in limine. Although the arguments advanced by the Claimant has put paid to that assertion, it is my considered opinion that the Defendants having failed to bring up the issue subsequently, that issue is deemed abandoned and hereby discountenanced.
In the determination of the issue at hand, I will be guided at all times by the dictates of the Supreme Court in a long line of cases such as Kato v. CBN (1999) 6 NWLR (Pt. 607) 390, Ibama v. S.P.D.C. (Nigeria) Limited (2005) 17 NWLR (Pt. 954) 364 and Ziideel v. R.S.C.S.C (2007) 3 NWLR (Pt. 1022) 554 and Oloruntoba-Oju vs. Abdul-Raheem (2009) 13 NWLR (Part 1157) page 83. The underlining principles in all these cases and many more, is to the effect that an employee seeking the declaration that the termination or dismissal from service is illegal, wrongful and a nullity must plead and prove the following material facts:
The nature of the employment.
The condition of service.
The circumstances under which the appointment can be terminated.
I intend to analyse and evaluate the pleadings and evidence in this case in the light of the foregoing and will only refer to the argument of the parties where necessary.
On the nature of employment, it is not in dispute that the relationship between the parties in this case is one of master and servant. So, the basic principles governing the contract of master and servant will be applicable. In this sort of relationship, it is trite that the employer who hires an employee has corresponding right to fire him at any time even without assigning any reason for so doing. He must, however fire him within the four walls of the contract between them. Where the employer fires an employee in compliance with the terms and conditions of their contract of employment there is nothing the court can do as such termination is valid in the eyes of the law. It is only where the employer, in terminating or dispensing with the services of an employee does so without due regard to the terms and conditions of the contract of employment, that the courts shall declare the determination wrongful and award appropriate measure of damages. See the case of Isheno v. Julius (2008) 2 S.C.N.J. 243, per Walter S. N. Onnoghen, J.S.C. (as he then was).
On the issue of condition of service, it is trite law that a servant who complains that his employment has been wrongfully brought to an end must found his claim on the contract of service and show in what manner the wrong was done. He must plead and prove the contract of service which is the bedrock of his case. It is not the duty of the employer as defendant to prove that the termination was not wrongful: see Amodu v. Amode (1990) 5 N.W.L.R. (pt. 150) 356 at 370; Katto v. Central Bank of Nigeria (1999) 6 N.W.L.R. (pt. 607) 390 at 405; Okomu Oil Palm co ltd v. Isehienrhien (supra) at 673-674, Idoniboye-Oba v. NNPC (2003) 1 S.C.N.J 108-109 and Ziideeh vs. Rivers State Civil Service Commission (2007) All FWLR (Pt. 354) 243 at 258. In other words, the employee has the onus of placing before the court the terms of the contract of employment before proceeding to prove the manner the said terms were breached by the employer. In the case of Bukar Modu Aji vs. Chad Basin Development Authority and 1 Or (2015) 16 N.W.L.R (Pt. 1486) @ Pages 568 – 569, paras, F-B, the Supreme Court in stressing the importance of condition of service in proof of wrongful termination or dismissal held:
“A plaintiff who complains that his employment has been wrongfully terminated is enjoined by law and he has the onus to place before the court the terms of his contract of employment and then go on to prove in what way the terms were breached by the employer. Where he fails on both counts, his case would have no leg to stand on. In principle, it is not for the employer who is a defendant to an action brought by the employee to prove any of these issues. In the instant case, the appellant did not plead or prove the terms of his employment with the respondents and so his case had no legs to stand on”.
The condition of service regulating the employment relationship of the parties in the instant case is undoubtedly the Employment Agreement for Africa West Area Employees, which is admitted as Exhibit CW 3.
As for the circumstances under which an employee’s appointment can be terminated, the recourse had to be made to facts of the case against the condition of service to determine the outcome of the suit. This is the real battle ground for the parties, I must say.
Having put the conceptual legal framework in its proper perspectives, it now time to answer the question whether the claimant has made out a case to justify the reliefs sought. The Claimant’s entitlement to the reliefs sought however depends on whether or not that employment was duly terminated.
Since it is trite that the onus is on the Claimant to prove his entitlement to the reliefs, it is imperative to have a re-cap of the case and arguments of the Claimant thereof.
The Claimant’s case is that on the 23rd Day of December 2015, the 1st Defendant sent him a letter informing him of an anonymous petition in which certain allegations against were made against him. The claimant replied the said letter on the 31st December, 2015. The anonymous petition was never shown to the claimant and at no time were these communications made an issue during the employment of the Claimant. On the 2nd December 2016, the defendants issued the Claimant a termination letter dated 16th of June 2014 and a cheque in the sum of N306,101.00 ostensibly under Article 5.2 of the Employment Agreement which clause allowed either party to terminate the contract by written notice. The Claimant also received two electronic mails dated 31st January 2017 and the 15th February 2017 from Adam Garbinski of the Church’s Auditing Department, Salt Lake City. In the electronic mail of 15th February, 2016, the Claimant was informed that the Defendants had obtained further evidence which necessitated a refund of the sum of $7,213,380.00 the Claimant embezzled from the church funds. The consequence of the electronic mail which according to the Claimant supersedes the letter of termination, also informed the Claimant that he is prohibited from qualifying as a contractor to the church, or participating in any of its commercial activities. At the time, the Claimant was 39 years, 10 months of age and still had 20 years, 2 months before retirement and is therefore entitled to pension as he was a contributor to the defendant’s mandatory pension scheme. It is therefore the contention of the Claimant that the conversion of his termination to dismissal consequent upon been found guilty by a discreet investigation of embezzlement, corruption, bribery, money laundering and fraud without being confronted or given an opportunity to defend himself offends the rules of natural justice, rooted in audi alteram partem and nemo judex in causa sua. It also the further contention of the Claimant that before an employee can be dismissed for criminal offences as in the instant case, he must be tried and convicted by a court of law. The cases of Akinwale v. Ondo State Housing Corporation (supra), Aknakism v. Union Bank Of Nigeria Ltd (supra) and Sofekun v. Akinyemi (1980) NSCC 175 (supra) were cited in support.
Now, given the circumstances of this case, are the contentions of the Claimant tenable in law? I think not. On the issue of fair hearing, I agree with the position of the Defendants that the Exhibit CW 5 which is the query issued to the Claimant and his response in Exhibit CW 15 are sufficient. My authority for this are the cases of Ansambe v. BON Limited (2005) 8 NWLR (Pt. 928) CA, Lasisi v. Allied Bank Nigeria Plc (2000) 7 NWLR (Pt. 767) 542 CA and Osakwe v. Nigerian Paper Mills Limited (1998) 10 NWLR (Pt. 568) 1 SC to mention but a few. The common principle in these cases is that where an employee is given an opportunity to be heard by answering a query the issue forming the basis of his termination, he cannot complain of lack of fair hearing.
Similarly, the contention by the Claimant that before he can be dismissed the allegations against him must first be proved before a court of law cannot stand. The cases of Akinwale v. Ondo State Housing Corporation (supra), Aknakism v. Union Bank Of Nigeria Ltd (supra) and Sofekun v. Akinyemi (supra) cited by the Claimant in support, might well be the old dispensation. The current dispensation is well captured by the Supreme Court in Arinze v. First Bank (2004) 5 S.C.N.J. 190, where it was held that an employer can dismiss an employee even where the accusation borders on criminality, and in such a case it is not necessary nor required under section 36 (1) of the 1999 Constitution that an employee must first be tried in a court of law. In that case, S. U. Onu, J.S.C had this to say:
“The Court of Appeal in rejecting this proposition of law cited the Supreme Court in the master and servant case of Yusuf v. Union Bank of Nigeria Ltd. (1966) 6. S.C.N.J. 203 for the view that the prosecution of an employee before the law Court is not a sine qua non to the exercise of the power of summary dismissal by an employer for gross misconduct. As Wali, J.S.C. pointed out at pages 214-215 in the latter case:
“It is not necessary, nor is it a requirement under Section 33 of the 1979 Constitution that before an employer summarily dismisses his employee from his services under the common law, the employee must be tried before a Court of law where the accusation against the employee is of gross misconduct involving dishonesty bordering on criminality………..To satisfy the rule of natural justice and fair hearing a person likely to be affected directly by disciplinary proceeding must be given adequate notice of the allegation against him to afford him opportunity for representation in his own defence. The complaint against him must not necessarily be drafted in the form of a formal charge. It is sufficient if the complaint as formulated conveys to him the nature of the accusation against him”.
See also the Supreme Court case of Olarenwaju v. Afribank Nigeria Plc (2001) 13 NWLR (Pt. 731) 691 SC.
I am therefore in full agreement with submission of the Defendants that it was not necessary to first ensure the prosecution of the Claimant before his employment could be terminated. In any case, I have read the electronic mails in question (Exhibits CW 8 & CW 9) several times and cannot find where words such as stealing, embezzlement, corruption, bribery, money laundering and fraud were used against the Claimant.
Next is the strange and untenable assertion by the Claimant to the effect that the electronic mail (Exhibits CW 9) has converted the termination of the Claimant’s employment to dismissal. The facts of the matter is that Claimant’s employment was terminated on the 2nd December, 2016 while the electronic mails was dated on 15th February, 2017. The pertinent question is can termination and dismissal co-exist at the same time? For an answer I will go no further than the case of Jombo v. P.E.F (2005) 7 S.C.N.J. 264, also cited by the Claimant. In that case, I. C. Pats-Acholomu, J.S.C. answered this question in the following words:
“In other words can termination of appointment and dismissal co-exist at the same time? Termination of appointment is intended always to put paid to any job or assignment one is holding or doing. The issue of whether the person whose service is terminated accepts it or not does not arise. Even if the person whose appointment has been brought to an end by a letter of termination challenges it in court, that does not mean that the employer had any other intention other than to put an end to job description held by the subject of the termination letter”
He further held at page 267 thus:
“By its letter of termination the 1st defendant had brought the employment/services of plaintiff to an end. I think it is elementary that the plaintiff could not thereafter be dismissed from an employment that had ceased to exist. In my judgment, the plaintiff’s dismissal, coming after the termination of his appointment, was a futile exercise.”
On his part, G. A. Oguntade, J.S.C. put the answer in no uncertain terms when he held at page 271:
“The first question that arises is – What is the status of the plaintiff’s relationship with the 1st defendant following his termination vide the letter dated 28/7/98? It seems to me that when an employer brings the contract of employment to an end by terminating it, the employee effectively ceases to be in the employment and his subsisting rights if any, are to make a claim for the terminal benefits as provided in the contract of employment. See Chukwumah v. Shell Petroleum (1993) 4 N.W.L.R. (pt. 287) 512. The employee could not at his option keep alive a contract of employment which has been determined by the employer.”
Based on the foregoing, I have no option but to consider the electronic mails and all other events after 2nd December, 2016 between the parties as post termination matters and therefore not relevant to the determination of the Claimant’s employment.
The question still however remains, is the employment of the Claimant terminated wrongfully to entitle him to reliefs sought? The law is that the contract of service is the pivot or foundation upon which an aggrieved employee must found his case. He succeeds or fails upon the terms thereof and the court will not look outside the terms stipulated and agreed therein in determining the respective rights and obligations of the parties. This is the Supreme cases of Ibama v. Shell Petroleum (2005) 10 S.C.N.J. 23
and Bukar Modu Aji vs. Chad Basin Development Authority and 1 Or (2015) 16 NWLR (Pt. 1486) @ p. 574, paras. G-H. Luckily in the instant case, we have a written condition of service in exhibit CW 3 (Employment Agreement for Africa West Area Employees).
There is a consensus between the parties both in their pleadings and evidence that exhibit CW 3 is the condition of service regulating their relationship. The bone of contention is however in the applicable or relevant document used to effect the determination of the Claimant’s employment. While the Claimant insisted on exhibit CW 9, the Defendants maintained the vehicle through which the employment of the Claimant is determined is exhibit CW 7. Since the issue of exhibit CW 9 has been rested, there is no need flogging a dead horse. I am only left with exhibit CW 7 (the termination letter dated 2nd December, 2016). My task is therefore simply to see if exhibit CW 7 is consistent and issued in accordance with the dictates of exhibit CW 3.
The pertinent paragraph of CW 3 is paragraph 5. In paragraph 5.2, it provides:
“During the employee’s probationary period, his/her employment may be terminated by either party without notice. After employee’s probationary period, either party may terminate employee’s employment by giving not less than one-month written notice or payment in lieu thereof. ”
It is obvious from exhibit CW 7 that the Defendants have taken the option of payment in lieu of notice thus:
“Pursuant to paragraph 5.2, I hereby notify you that your employment with the Incorporated Trustees of the Church of Jesus Christ of Latter-day Saints in Nigeria (the “Employer”) is terminated effective on the date of this letter. In lieu of notice, you will be paid one month’s salary plus all accrued leave, unreimbursed expenses, and any other accrued but unused benefit owing to you.”
The Defendants have also made good the payment in lieu of notice vide Banker’s cheque of N306,101.00 as in exhibit CW 6. The fact that the Claimant neglected or refused to cash the cheque is immaterial. It suffices to say that the case of Oforishe vs. N.G.C. Ltd. (Supra) cited by the Defendants is most apposite.
This simple exercise leads to only one conclusion and that is the termination of the Claimant’s appointment was done in accordance with the dictates of the employment contract and I so hold. I am further fortified in this regard by the fact that apart from the effort to override exhibit CW 7 with exhibit CW 9, which did not succeed, there was nothing in the pleadings, evidence or even address of the Claimant to impeach the sanctity of exhibit CW 7.
It is in the light of the foregoing that I find and hold that the termination of the employment of the Claimant is not wrongful same having been done in strict compliance with terms and conditions of the contract of employment. Having so found, the argument that the termination was borne out of absolute bad faith and devoid of any merit is of no moment. See the case of Ajayi v. TEXACO Nigeria Limited (1987) 3 NWLR (Pt. 62) 577 SC, where it was held that if a party exercises his right to terminate a contract of employment as stipulated in the contract, such right cannot be vitiated by malice or improper motive.
What is then the fate of the Claimant’s reliefs in this case? Relief a) is for a declaration that the dismissal of the Claimant is illegal, wrongful and in breach of the employment rights of the Claimant. This relief cannot stand in view of my holding that the determination of the employment was not wrongful. The same is true for reliefs b), c) and d) which are founded and dependant on the outcome of the principal relief (relief a). See the case of Awoniyi v. Reg. Trustees of Amorc (2000) 10 NWLR (Pt. 676) 522 at 539, where it was held that a consequential order must be founded on the claim of the successful party, and that it is difficult to conceive how a positive consequential order can arise from a claim which has been dismissed. See also the case of Hemason (Nigeria) Ltd v. Pedrotech (Nigeria) Ltd (1993) 3 NWLR (Pt. 283) 548, where it was held that where the principal order is refused an incidental order cannot be made thereof.
The claim for N2.7 Billion is a monetary relief which requires the prove by the Claimant on two (2) fronts: the proof of entitlement to the claims, and the proof of the quantum of the sums claimed. To prove an entitlement to a claim, the Claimant must place before the court the instrument, agreement, collective agreement or any other document that confers the entitlements. See Oyo State v. Alhaji Apapa & ors (2008) 11 NLLR (Pt. 29) 284 and Mr. Mohammed Dungus ors v. ENL Consortium Ltd (2015) 60 NLLR (Pt. 208) 39. And to prove the quantum of the sums claimed, the rule regarding proof of special damages must be adhered to. This is because, the claim for monetary sums as entitlement(s) is a claim for special damages. See NNPC v. Clifco Nig. Ltd (2011) LPELR-2022(SC), Mr Ignatius Anyanwu & ors v. Mr Aloysius Uzowuaka & ors (2009) 13 NWLR (Pt. 1159) 445 SC, Christopher U. Nwanji v. Coastal Services Nig. Ltd (2004) LPELR-2106 (SC) and Marine Management Associates Inc & anor v. National Maritime Authority (2012) LPELR-206 (SC). Having failed to provide any evidence on both fronts, the Claim is at best speculative and a conjecture, which cannot be the basis for monetary award in this quantum.
The relief of N43,125,726.00 being the Claimant’s net salary for the remaining 20 years, 2 months on his contract before his retirement does not represent the state of the law and therefore not grantable. Two cases are instructive. The first one is the case of Spring Bank Plc v. Babatunde (2012) 5 NWLR (Pt. 1292) 83 CA which says a servant who has been unlawfully dismissed cannot claim wages for services not rendered. The second is the case of Okeme v. Civil Service Commission, Edo State (2000)14 NWLR (Pt. 688) CA. which is most apposite. In that case it was held that an employer does not guarantee a job to an employee until the employee’s retirement age and the time stipulated for retirement only set out the maximum duration possible for the employment under the existing contract. Consequently, the Court will not grant a claim for payment of salary up to the retirement age of the employee. See also the Supreme Court case of Obot v. C.B.N. (1993) LPELR 2192, per Uwais, J.S.C. (as he then was) @ page 36, paras. Relief (g) in the sum of N12,814,758.31 being expected pension cannot also be granted for the same reasons.
From all I am saying the Claimant has failed to prove his case to be entitled to any of the reliefs sought. The case is therefore hereby dismissed for lacking in merit and this without prejudice to the payment of the in lieu of notice due to the Claimant. I make no order as to cost.
Judgment entered accordingly.
…………………………………………….
HON. JUSTICE M. A. NAMTARI
