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Dorothy Adaeze Awogu -vs- TFG Real Estate Limited

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

 

DATE: JUNE 4, 2018

 

SUIT NO. NICN/LA/262/2013

 

BETWEEN

Dorothy Adaeze Awogu-Claimant

 

AND

TFG Real Estate Limited                                          -Defendant

 

REPRESENTATION

  1. A. Salaudeen, for the claimant.

Ismail O. Muftau, with Richmond E. Idaeho, I. A. Koleowo and Miss T. R. Giwa, for the defendant.

 

JUDGMENT

  1. The claimant filed this suit on 21st May 2013 vide a complaint accompanied by other originating processes. By the statement of facts, the claimant is paying for the following reliefs:
  • A declaration that the termination of the claimant’s appointment on ground of her genotype as a Sickle Cell Anemia (SS) patient is discriminatory, illegal, null and void.
  • A declaration that the termination of the claimant’s appointment by reason of her genotype as a Sickle Cell anemia (SS) patient constitutes unfair labour practice.
  • A declaration that the termination of the claimant’s appointment without adequate notice is wrongful and a flagrant breach of contract of employment.
  • An order directing the defendant to pay the claimant N10,000,000.00 (Ten Million Naira) as damages for physical harassment, discrimination at work based on circumstance of her birth and false imprisonment.
  • An order directing the defendant to pay the claimant one month’s salary as damages for breach of contract of employment.

 

  1. In reaction, the defendant filed its statement of defence accompanied by other defence processes, to which the claimant filed her reply to the statement of defence together with a further statement on oath.

 

  1. At the trial, the claimant testified on her own behalf as CW. The defendant had listed 4 witnesses to testify, but called only the 4th listed witness, Onyejekwe Chukwuma, a businessman, who testified for it as DW. The claimant’s exhibits were collectively marked as Exhibits C1 to C18, while the defendant’s were marked as Exhibits D1 to D8; and parties were told that they are at liberty to raise any issue as to the admissibility and/or evidential value of any of the exhibits in their final written addresses. At the close of trial, parties filed and served their respective written addresses. The defendant’s final written address was filed on 5th October 2017, while the claimant’s was filed on 24th January 2018. The defendant’s reply on points of law was filed on 14th February 2018.

 

THE CASE OF THE CLAIMANT

  1. It is the case of the claimant that she was offered employment sometime in August 2012 by the defendant as a property consultant, which employment she accepted to commence from 10th September 2012. That on assumption of duty, she was placed under Gavin Smyth who supervised her activities for the defendant. That Gavin Smyth informed her that the reason she was employed was that she was good-looking; for which she was instructed to flirt with all manners of men in order to convert them to clients of the defendant, which instruction she declined to carry out. That as a result, she suffered constant threats of dismissal on grounds of her medical condition by her superior, relying on transcripts of text messages involving chats between her and her superior. That due to her genotype (being a sickle cell patient), sho often has cause to visit the hospital. That sometime around the first week of March 2013, she fell ill at her workplace and was taken to the hospital for treatment where she was admitted for few days but was discharged on 8th March 2013 with instructions by the doctor to rest for two days to enable her recover fully. That while on her sick bed she received text messages from her superior who threatened to have her dismissed from insisting that being an SS patient, she was always sick, relying once again on the transcript of the text messages. That on 11th March 2013, while yet to fully recuperate, her superior, Gavin Smyth, at close of work, instructed her to proceed to a room for an exit interview. That she asked to know what the interview was for since her employment had not been determined but she was forcefully dragged to the interview room and locked up. That she was held for hours before the interview was conducted without her knowledge and consent. Thereafter, that she was informed by her superior that she has been relieved of her appointment in accordance with the threats he had always issued. To the claimant, she has suffered untold physical harassment due to the fact that she was forcefully restrained, discriminated against based on the circumstance of her birth, with resultant psychological hardship while in the employment of the defendant, hence this suit.

 

THE CASE OF THE DEFENDANT

  1. To the defendant, it offered the claimant employment vide a letter dated 10th August 2012 on terms that she will be required to work 6 days a week in any or all of the defendant’s 4 offices across Lagos, which the claimant agreed to. That the claimant has a proclivity for wearing revealing and improper dresses as well as flirting with prospective clients, and the defendant’s Lagos office Manager, Mt Gavin Smyth, on two occasions ordered the claimant to go back home on account of improper and inappropriate dressing. Also that the claimant was on one occasion seen reading a book titled “The Art of Seduction”, which she claimed she was reading in order to et tips on body eye contact, which she intends to use on clients. That the claimant’s performance during her employment was neither satisfactory nor outstanding. The defendant denied discriminating against the claimant on health or any other ground. In any event, that the claimant did not disclose to the defendant her health condition when she sough employment; and the defendant only discovered the claimant’s genotype as an SS some months into het employment when she started absenting herself from work on health ground. That given her nonchalant attitude to work and absenteeism, her performance was unsatisfactory and she was not meeting her sales targets, for which she was warned. That she did not heed the warnings, for which her employment was ultimately terminated due to poor performance at, and absenteeism from, work.

 

THE SUBMISSIONS OF THE DEFENDANT

  1. The defendant stated off by raising the preliminary point as to whether the claimant’s Exhibits C2, C3, C4, C13, C14A, C14B, C14C, C15, C16, C17 and C18 are competent, relevant and reliable documents that can be acted upon by this Court. To the defendant, Exhibits C2, C4, and C13 are computer generated evidence and as such, are computer generated documents. That the claimant failed to accompany these documents with the requisite certificate or certification in the manner required by law, urging the Court to discountenance the respective exhibits in their entirety, and hold that they are not admissible.In relation to a computer generated document, that the position of the law is that a party who wishes to rely on computer generated evidence, must now do so in line with the provisions of section 84 of the Evidence Act, referring to Kubor v. Dickson[2013] 4 NWLR (Pt. 1345) 534 at 577-578. The defendant acknowledged that this Court has power to depart from the strict application of the Evidence Act but that that would not imply that this Court can admit any form of evidence even in their inadmissible state. For the purpose of admissibility, it is trite that the document must be in its admissible form and there must not be anything that could render such document inadmissible, referring toFawehinmi v. IGP[2007] 7 NWLR 7 (Pt. 665) 481 at 525. In the alternative my Lord, we contend that the exhibits were not properly certified. That certification is such an important aspect of a secondary document;it is not for a party to write at the back of a document that it has certified same. The party must lead evidence in relation to the use of the computer from where it was printed as stated in Kubor. That in this way, such evidence can only be real, documentary or oral;this, the claimant has failed to do. That in addition, Exhibit C4 relates to text messages. That the bare papers brought forward by the claimant as purported evidence of the text messages exchanged between her and her then line manager are only empty papers and highly unreliable. The transcripts of the text messages from the mobile network provider were not provided to this Court.That it is only the transcript as provided by the network provider that can be admitted and relied upon by this Court, urgingthe Court to disregard the said Exhibit C4. That it is unsafe for this Court to rely on Exhibit C4 as there is no proof of its authenticity, which could have been done by the tendering of the transcripts. Also, That the claimant failed to provide this Court with any documentary evidence, as for example the telephone set itself, which could have been used in proof of her assertion. Having failed to so do, the defendant submitted that the claimant has failed to prove her case, urgingthe Court to so hold.Furthermore, that there is no evidence before the Court, whether real or documentary in form of affidavit or the computer item itself, or oral as in the form of the testimony of the claimant fulfilling the conditions set out in the Evidence Act, urging the Court to discountenance the said exhibits.

 

  1. Turning to Exhibits C3, C13, C14A-C14C, C15, C16, C17 and C18, the defendant stated that same are irrelevant to the determination of this suit. That Exhibit C3 is a purported letter addressed to the Minister of Sports.Apart from being irrelevant to the instant suit, that the claimant was neither the maker nor the recipient for the purpose of tendering the document in evidence. That Exhibit C15 (letter from University of Lagos) is a public document which can only be tendered by way of original copy or by certified true copy. That the claimant has thus failed to provide this Court with a certified true copy of same, being a public document.Also, that Exhibit C15 was not certified as a public document by the institution, and same was only addressed to the Director General of the National Youth Service Corp (NYSC) and not to the defendant herein, urging theCourt to reject and discountenance the said document, as it is defective. On the strength of its arguments, the defendant submitted that Exhibits C2, C3, C4, C13, C14A, C148, C14C, C15, C16, C17 and C18 are irrelevant, defective and inadmissible; and that having been admitted by the Court, they should not command any probative value, urging the Court to so hold.

 

  1. The defendant then submitted four issues for determination, namely:
  • Whether the claimant’s witness statement on oath deposed to on 21st May 2013 and the further witness statement on oath deposed to on 23rd October 2013 are competent.
  • Whether the claimant’s originating processes dated 21st May 2013 filed before this Honourable Court are competent.
  • Having regards to the claimant’s claims and the defendant’s defence before this Honourable Court, vis-a-vis the evidence led by the parties during trial, whether the claimant has failed to prove her case against the defendant.
  • If issue No.3 above is resolved in the affirmative, whether the claimant is entitled to the reliefs sought.

 

  1. On issue (1), the defendant submitted that the claimant’s witness statement on oath deposed to on 21st May 2013 and the further witness statement on oath deposed to on 23rd October 2013 (witness statements) are grossly incompetent. That the law requires that for such statement to constitute a witness statement on oath, same must contain the words of swearing and properly sworn to in accordance with the Oaths Act Cap O1 LFN 2004, or of the Oaths Law of a state, as the case may be. That section 13 of the Oaths Act Cap O1 LFN 2004, which is the relevant law in this case provides thus: “It shall be lawful for any commissioner for oaths, notary public or any other person authorised by this Act to administer an oath, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the First Schedule to this Act”.That the form in which a statement on oath should take is prescribed in the First Schedule both for statutory declarations and affidavit on oath as follows:

“STATUTORY DECLARATION

  1. ……………………………… do solemnly and sincerely declare that (set out in numbered paragraphs if more than one matter) and I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act.

 

  1. To the defendant, in the witness statements, the claimant failed to swear to same as required by the law, referring the Court to paragraphs 20 and 26 of the respective witness statements, which in each case was couched thus:“I make this deposition in accordance with the Oath Act in force”. That the witness statements accordingly lack the necessary words of swearing, and as suchcannot qualify as witness statements on oath properly so called, citing GTB Plc v. Abiodun[2017] LPELR – 42551 (CA), where the Court of Appeal held that a witness statement on oath containing these words, “it is made solemnly, consciously believing the contents to be true and correct and by virtue of the Oaths Act”, lacked the words of swearing and so cannot suffice in law as a witness statement on oath as it was not in the form prescribed by section 13 of the Oaths Act 2004, relying on Obed Orlando Ibe &anor v. Nkiru Ugochukwu & 41 ors[2010] All NWLR (Pt. 504) 1590 at 1592 – 1593. Also referred to by the defendant is Chikwelu Chris Obumneke v. Okeke Sylvester &anor[2010] All FWLR (Pt. 605) 1945 CA at 1947. On the effect of noncompliance with the Oaths Act, the defendant referred toGTB Plc v. Abiodun (supra), which held that non-compliance with the provisions of the Oaths Act is a breach of the Oath Act, the consequence of which is that the entire statement of the witness is left bare. The defendant accordingly urged the Court to discountenance the claimant’s witness statements on oath, which means that the claimant’s case fails as there is no evidence to sustain it, citing GTB Plc v. Abiodun (supra).

 

  1. Issue (2) deals with the competence of the originating processes. To the defendant, the claimant filed this suit without an affidavit in verification (verifying affidavit) of her endorsement in the complaint contrary to Order 3 Rule 4 and Form 1 of the National Industrial Court (NIC) Rules 2007, the Rules under which the claimant filed this suit. That this is a fundamental non-compliance with the Rules. That Rules of Court are not made for fun; they must be obeyed as they have the force of law, citingAkanbi v. Alao[1989] 3 NWLR (Pt. 108)118 at 136-137 andSolanke v. Somefun[1974] 1 SC 141. Thus, that the failure of the claimant to accompany her originating processes with a verifying affidavit is not a procedural irregularity but a substantive failure of non-compliance, which goes to the root of the case; as such, this suit is incompetent as, having not been commenced by the due process of law, means that this Court does not have the jurisdiction to entertain same, urging the Court to so hold, and relying onMadukolu v. Nkemdilim[1962] 2 NSCC 374, at 379-380 and Ajagungbade III v. Adeyelu II[2001] 16 NWLR (Pt. 738) 126 at 179. The defendant then urged the Court to dismiss the suit for being incompetent having not been commenced by the due process of law.

 

  1. Issue (3) deals with whether the claimant has failed to prove her case.In addressing this issue, the defendant took reliefs (1) and (2) as claimed by the claimant and then submitted that the claimant has not been able to sustain her allegation that her employment was terminated on the basis of her being SS patient or that she was discriminated against while in the employment of the defendant. That it is the law that he who asserts must prove, citingsection 131 of the Evidence Act 2011. That the claimant alleged in paragraphs 7, 10 and 15 of her witness statement on oath, and paragraphs 11 and 25 of her further witness statement on oath that she was discriminated against and relied on a computer generated document which was admitted and marked Exhibit C4 by this Court. That the mere ipse dixit of the claimant without proof cannot sustain the claimant’s allegation, citing UTB (Nig.) Ltdv. Ajagbule[2006] 2 NWLR (Pt.965) 447 at 475-476. To the defendant, Exhibit C4 cannot substitute or take the place of a transcript of the purported exchanges of text messages. That the claimant failed to produce before this Court a transcript (the authenticated log) of the purported text messages, certified by an officer duly authorized to do so from the telecommunication service provider. The defendant thus urged the Court to discountenance the said Exhibit C4 as same is irrelevant, inadmissible and not in its admissibleform, adopting its earlier arguments and objection on this point and further urging the Court not to ascribe any probative value to same.

 

  1. The defendant went on that Exhibits C5 and C6 are purported documents from a medical institute, which documents were not addressed to the defendant. That whereas Exhibit C6 was stamped, Exhibit C5 was not. That the inconsistency of this document raises a doubt on the authenticity of same. Thus, Exhibits C5 and C6 are irrelevant to this suit, and cannot be relied on by this Court. Furthermore, that Exhibits C3, C13, C14A-C14C, C15, C16, C17 and C18, are irrelevant to the determination of this suit. That Exhibit C3 is a purported letter addressed to the Minister of Sports; apart from being irrelevant to the instant suit, the claimant was neither the maker nor the recipient for the purpose of tendering the document in evidence, citing Adelarin Lateef &ors v. FRN[2010] LPELR-9144(CA). That since the claimant was not the maker of these documents, it was wrong in law and irregular to have tendered same through the claimant, who is neither the maker nor the recipient of the same, referring to Wuhay v. Jama’a Local Govt., Kafanchan[2013] All FWLR (Pt. 659) 1171 at 1187, Otunba Samuel v. Mr. Osulade[2010] LPELR-4809(CA),G. Chutex Ind. Ltd v. Oceanic Bank International (Nig.) Ltd[2005] 14 NWLR (Pt. 945) at 392 and NBC Plc v. Ubani[2009] 3 NWLR (Pt.1129) 512 at 541.

 

  1. As for Exhibits C10, C11A-C11C, C15, C17 and C18, the defendant submitted that they are inconsequential and irrelevant documents, because they are not relevant to the fact in issue in this case.Exhibit C10 is the claimant’s secondary school testimonial. Exhibits C11A-C11C, C17 and C18 are documents from a different entity, the claimant’s purported former employer, which is not a party in the instant case, nor called as a witness in this suit. To the defendant, these exhibits are extraneous documents, and same are not relevant to the facts in issue in this case, urging the Court to discountenance same.

 

  1. The defendant continued that Exhibits C14A-C14C and C16 are not the claimant’s documents. That there is nothing to show in proof of the authenticity of Exhibits C14A-C14C. Besides, that Exhibits C14A – C14C as well as 5 sheets (comprised in Priority Travel Reservation Agreement dated 21st September 2012, Investment Finder dated 23rd October 2012, Investment Finder dated 24th October 2012, Investment Finder dated 25th October 2012, and Investment Finder dated 26th October 2012) out of Exhibit C16 were made before the issuance of the warning letter, Exhibit D2. The defendant, therefore, urged the Court to expunge Exhibits C14A- C14C and the 5 sheets (comprised in Priority Travel Reservation Agreement dated 2nd September 2012, Investment Finder dated 23rd October 2012, Investment Finder dated 24th October 2012, Investment Finder dated 25th October 2012, and Investment Finder dated 26th October 2012) of Exhibit 16 made prior to the date of the issuance of Exhibit D2, the warning letter dated 26th November 2012, as same are not relevant to the proper determination of this suit.

 

  1. To the defendant, it is aware that this Court is not bound by the strict rules of evidence. That this, however, does not include acting on a defective exhibit, such as Exhibit C4, which was admitted by this Court in its inadmissible form. That an exhibit must be in its admissible form before same ought to be admitted and acted upon. This principle is to ensure that the other party does not concoct documents for the purpose of the suit. Additionally, that this Court is enjoined to observe the rules of evidence as a first resort, citingsection 12(2) of the NIC Act 2006. Thus, that justice is a two-way traffic. That the departure from the Evidence Act in itself is discretionary. That the justice in this case demands that this Court acts on legally admissible documents. That relevancy is not the only element for admissibility of a document;the document itself must be in its admissible form. That where an objection is raised as to the admissibility of a document, the Court must consider such objection. That even where the defendant does not raise an objection to the wrongfully admitted exhibit, this Court has the inherent jurisdiction to so expunge it from its records, citing Enwerem v. Abubakar &anor[2016] LPELR-40369(CA),IBWA v. Imano Ltd[2001] 3 SCNJ 160 at 177 and Okafor v. Okpala [1995] 1 NWLR (Pt. 374) 749 at 758.

 

  1. The defendant proceed that the claimant had also alleged that her employment was terminated on the basis of her purportedly being a sickle cell anemia (SS) patient, and placed reliance on a purported letter from University of Lagos. To the defendant, the allegation is bereft of any proof at all.That the purported letter from University of Lagos admitted as Exhibit C15 is highly irrelevant to this case and inadmissible and same does not in any way prove that the claimant is an SS patient or that the termination of employment of her employment was due to her purportedly being an SS patient. The defendant then submitted that the said Exhibit 15 is defective on two (2) grounds. First, the claimant is neither the “marker or recipient” of the Exhibit. Also, that the defendant is neither the maker or recipient of the said exhibit. That the exhibit was purportedly issued by the University of Lagos to the Director-General of NYSC;it is not a letter issued to the whole world. It is direct to a specific recipient. It cannot, therefore, apply to the instant case as same is irrelevant to this suit, urging the Court to discountenance the said exhibit and paragraph 12 of the claimant’s further witness statement on oath as same are immaterial to the instant suit. The defendant then referred to section 83 of the Evidence Act 2011.

 

  1. Secondly, that Exhibit C15 is defective on the ground that same is a public document. The said exhibit was purportedly issued by the University of Lagos (a public institute) to the Director-General of NYSC (a public officer/office). That it is trite that a public document can only be admitted in two forms either the original copy or a certified true copy (CTC) of the original, citing Kassim v. State[2017] LPELR-42586(SC), Kwara State Ministry of Agriculture and Water Resources &ors v. Societe Generale Bank Nig. Ltd[1998] 11 NWLR (Pt. 575) 574,Daggash .. Bulama[2004] 14 NWLR (Pt. 892) 144,PDP v. INEC[2014] 17 NWLR (Pt. 1437) 525, sections 88, 89(e) and (f), 90(1)(c), 102, 103 and 104 of the Evidence Act 2011,S.G. (Nig.) Ltd v, Galmas Int’l Ltd[2010] 4NWLR (Pt. 1184) and Ogunleye v. Aina[2011] 3NWLR (Pt.1235) 479 at 586. The defendant the urged the Court to discountenance Exhibit C15 for being irrelevant and inadmissible.

 

  1. Additionally, the defendant submitted that the claimant did not prove the allegation of discrimination, physical harassment and unfair labour practice. That the bare fact of making a claim on those allegations without proving same in evidence renders same abandoned, referring to Cement Company of Northern Nigeria Plc v. Giwa &ors[2017] LPELR-42500(CA) andUBN Plcv. Ayodare[2007] LPELR-3391(SC).

 

  1. The defendant then turned to the question of whether the claimant’s employment was validly terminated in order to show that the claimant failed to prove her entitlement to her reliefs 3, 4 and 5. To the defendant, from Exhibits D4, D5, D5A, and D6, the claimant’s employment was duly terminated and a proper exit interview conducted, which forms were filled and signed by the claimant. That the claimant had the opportunity to state that she was being discriminated against in the forms but did not say so;she voluntarily completed the forms. That the allegation of discrimination by the claimant in her written statements on oath is only an afterthought. The defendant went on that the claimant had alleged that her termination without adequate notice was wrongful. However, that the claimant failed to lead any evidence in proof of this assertion or relief. That it is the law that he who asserts must prove, referring to section 131(1) of the Evidence Act 2011 and Okulaja &ors v. Odubanjo[2017] LPELR-41949(CA) and Hilary Farms Ltd v. MN “Mahtra”[2007] 14 NWLR (Pt.1054) 210 at 236. On the whole, the defendant submitted that the claimant’s employment was duly terminated as per Exhibit D6. That Exhibit D2, the warning letter, shows that the claimant’s performance while in the employment of the defendant was abysmally poor. That purported Investment Finder marked as Exhibit C16 (11 sheets) are irrelevant to this case. That a look at the sheets in Exhibit C16 will show that 5 sheets were made prior to the warning letter dated 26th November 2012, while the remaining 6 sheets do not qualify as AIV bookings. Also that some of the sheets were made in respect of one and the same person, namely, Mr Tolulope Roberts.Therefore, that if the Court is minded to consider the 6 sheets, which were purportedly after the warning letter, then it is clear that the claimant was not able to prove that her performances in December 2012, January 2013 and February 2013 were satisfactory. That the 6 sheets only show that the Investment Finder were 2 in December 2012, 2 in January 2013 as there was a duplication some of the sheets and 1 in February 2013.

 

  1. The defendant continued that the warning letter (Exhibit D2) stated that the claimant should make 3 AIV bookings before 30th December 2012 and failure to so do will mean immediate termination of her employment. The 6 sheets comprised in numbers (f) to (k) of Exhibit C16 do not show that the Claimant made 3 AIV bookings before 30th December 2012, as was required of her the terms of Exhibit D2. From Exhibit C16, there was only 2 records of Investment Finder in December 2012. To the defendant, it is clear, therefore, that the claimant actually could not make 3 AIV bookings as at 30th December 2011. That the Investment Finder, which though would not even qualify as AIV bookings, in itself that were made in December 2012 were only 2. That the claimant’s employment was consequently terminated in March 2013.Furthermore, that the claimant’s statement in paragraph 14 of her further witness statement on oath deposed to on 23rd October 2013 and her reliance on documents from her previous employments are inconsequential to the instant case, urging the Court to discountenance the said paragraphs as well as Exhibits C17 and C18 as same are not relevant to this case. That the documents were not issued by or to the defendant and were not in relation to the claimant’s employment with the defendant.

 

  1. In any event, that the claimant during her testimony before this Court stated under cross-examination that the defendant’s work environment was conducive and that she was provided with the right environment, and was never beaten and that she enjoyed working with the defendant. That contrary to the claimant’s deposition in paragraph 5 of her witness statement on oath, the claimant confirmed under cross-examination that she conducted an interview and was successful at the interview and that it was on the basis of her successful interview that she was given the employment. She further went on to say that there were both male and female employees in her department, which is the sales department.In all of this, that the claimant never mentioned that she was harassed, molested in the form of physical abuse or discrimination of any sorts. That the purported bare allegation of “shouting” or “triggering emotions to cry”, which were even in relation to bookings and not health, do not in their sense amount to molestation or discrimination. That the claimant instead stated that the environment was right for her and that she was happy working with the defendant. The defendant continued that there are apparent contradictions in the claimant’s written witness statement on oath and oral testimony. That where there are contradictions in the witness statement on oath and the oral testimony of the witness, the Court ought to disregard the evidence of the witness, as no such witness is deserving of the honour of credibility, referring to Ezeagu v. Gabizzinlingo Pharmaceutical Co. Ltd &anor[2017] LPELR-42513(CA) andEzemba v. Ibeneme [2004] LPELR-1205(SC). Thus, that the witness having contradicted herself in her written statements on oath to the effect that she was physically abused and discriminated against, and in her oral testimony before this court stated that she was provided with the right environment and enjoyed working with the Defendant, does not deserve any honour of credibility, urging the Court to so hold and dismiss the claimant’s reliefs (1) and (2) in their entirety.

 

  1. On relief (3) i.e. the claim for a declaration that the termination of the claimant’s appointment without adequate notice is wrongful and a flagrant breach of contract of employment, the defendant submitted that as with reliefs(1) and (2), the claimant could not also substantiate her allegation leading to her relief(3). That there is no proof that adequate notice was not given to the claimant. Besides, it is not the law that an employer must give “adequate notice” to an employee. What is required is “notice”. Secondly, that it is not the law that all employment must be terminated with notice. In order words, an employment can be terminated with or without notice. That in the instant case, the claimant had not denied that she was not given notice but that the contention of the claimant is that the notice was not adequate and that the failure to give “adequate notice” was wrongful and a breach of the contract of employment. Now, that the question is whether the defendant was liable in law to provide the claimant with a purported adequate notice.The defendant addressed this in two folds. (1) whether the purported failure to give adequate notice was wrongful; and (2) whether the purported failure to give adequate notice was a flagrant breach of the contract of employment.

 

  1. On whether the purported failure to give adequate notice was wrongful or a flagrant breach of the contract of employment, the defendant submitted that it is not in law or by any stretch of imagination required to give “adequate” notice. That an employer is at liberty to terminate the contract of employment of an employee with or without notice, immediate or otherwise, with or without reason, referring to Osianya v. Afribank Nig Plc[2007] 6 NWLR (Pt.1031) 565SC at 576-577, which held thus: “An employer though not bound to give reasons for terminating the appointment of his employee”. That where the employer, therefore, issues a notice, the guiding principle to determine whether the notice was adequate is a recourse to the terms of the contract of employment.

 

  1. On this note, the defendant proceeded to consider the second point i.e. whether the purported failure to give adequate notice was a flagrant breach of the contract of employment. Here, the defendant submitted that it never failed to give adequate notice to the claimant. Exhibit D6 is the letter of termination of employment dated 13th March 2013 which was the date of the termination of the claimant’s employment. Exhibits D4, D5, and D5A also show that the Claimant’s employment was terminated on 13th March 2013. We submit that this is a fact contained in documentary evidence which cannot be contradicted by oral evidence, referring to section 128(1) of the Evidence Act 2011. That in addition, the claimant tended to suggest that her employment was terminated on 11th March 2013 in paragraph 11 of her witness statement deposed to on 21st May 2013. That this assertion without more cannot contradict the core evidence of Exhibits D4, D5, D5A and D6.

 

  1. Therefore, proceeding to the ultimate question, was the claimant’s employment properly terminated, the defendant answered with a resounding YES. That by virtue of the contract of employment dated 10th August 2012 (Exhibits C1 and D1), the period of notice for termination of the contract was stated as follows: “The notice period required is one month’s written notice from either party. However, during the PROBATION PERIOD the company can terminate your appointment without notice”. That the contract of employment (Exhibits C1 and D1) stated the period of probation as: “You will be subject to a six month probation period”. To the defendant, at the time of the termination of the claimant’s employment, the claimant was still under probation. That during cross-examination, the claimant acknowledged Exhibit D1 and that her contract was not confirmed as she was still on probation. That the implication is that since the claimant was still under probation as at the time of the termination of her employment, she was not even entitled to notice let alone adequate notice as she has contended. The defendant continued that Exhibits C1 and D1 did not also state that the claimant will be entitled to payment in lieu of notice. That it is only upon confirmation that such employee can be entitled to one-month notice of termination. In effect and from the contract of employment, an employee under probation can be terminated without notice.That the law is trite that the Court must give effect to the contract between parties, referring to section 128(1) of the Evidence Act 2011 Aminu v. Nwankwo[2017] LPELR-42502(CA) and Aina &anor v. Dada &anor[2017] LPELR-42553(CA). That the claimant being not entitled to any length of notice as per Exhibits C1 and D1 (the contract of employment) cannot therefore insist on notice or any length of notice.

 

  1. However, the defendant went on that assuming without conceding that the claimant was entitled to any period of notice at all for whatever it is worth, and assuming again without conceding that the claimant was entitled to salary in lieu of notice where notice was not given, then from the said Exhibit D1, it is not possible to compute the period of notice or what the claimant would be entitled to as salary in lieu of notice for termination during probation. In any event, that such salary in lieu of notice would certainly not be one month salary as that will only be due for confirmed employees. That it will only be natural to pay the claimant a prorated salary for the period she has worked prior to the termination; in this case, this was done and even more was paid to the claimant. That as a matter of courtesy and out of generosity, the defendant duly paid the claimant salary in lieu of notice and the receipt of which was admitted in paragraph 24 of the claimant’s further witness statement on oath. That what is admitted needs no further proof, referring to section 123 of the Evidence Act 2011. The defendant ten urged the Court to dismiss the claimant’s relief(3) in its entirety.

 

  1. The claimant’s relief (4) is a claim for damages for physical harassment, discrimination at work based on circumstances of her birth and false imprisonment; while relief (5) is for one month’s salary as damages for breach of contract of employment. To the defendant, having pointed out in the preceding paragraphs that the claimant’s reliefs (1), (2) and (3) are baseless and unsubstantiated, reliefs (4) and (5), therefore, become unsustainable. This is because, the orders for which the claimant is seeking in reliefs (4) and (5) are predicated on her successful proof of the elements and facts leading to her reliefs (1), (2) and (3). The defendant then addressed this issue under four questions.
  • Was the claimant physically harassed at her work place? To the defendant, from the testimony of the claimant, the claimant was happy working with the defendant and she admitted that the defendant provided her with the right environment. That if the claimant had been subjected to physical harassment by the defendant, she would have testified to same at trial, especially during her cross-examination. That during the claimant’s cross-examination, the claimant in an attempt to cover up her allegation of molestation stated that her then line manager purportedly shouted at her, triggering emotions to cry especially in terms of bookings.That this presupposes that the claimant’s performance was regularly poor at work (that is her bookings) and as a consequence attracted the reaction of her line manager, whose only reaction was in respect to her bookings (not health) and nothing more. Also, that “shouting” and “triggering emotions to cry” are not acts of “physical harassment” or “molestation”. To the defendant, there was neither molestation nor physical harassment of the claimant; as such,the claimant has not been able to prove any of these allegations, urging the Court to so hold.
  • Was the claimant discriminated against at work on circumstances of her birth? To the defendant, the claimant was not at any time discriminated against at work on the ground of circumstances of her birth. That if there was any discrimination, the question to be asked is, by who? Her colleagues or superiors?That the claimant stated in her words that her colleagues were not aware of her genotype. The defendant then asked whether the claimant’s colleagues who were never aware of her genotype discriminated against her on the basis of the circumstances of her birth, and answered in the negative. On whether she was discriminated against by her superiors or boss, the defendantalso answered in the negative. That there is nothing in the claimant’s testimony or any valid and relevant documentary exhibit before the Court that shows any form of discrimination against the claimant whether based on circumstances of her birth or otherwise.That the claimant testified before this Court that she was given the right environment to work, a job she loved and was never beaten. That it, therefore, beats sensible imagination that a claimant who claims (in her written witness statement on oath that she was discriminated against by the defendant), would then come before the Court in her oral testimony (in her voluntary and free state while in Court), and present such beautiful remarks about her dThat the claimant had ample opportunity to lie in her written statement on oath (possibly without understanding the implication of same), but could not do so while at the witness box, having been cautioned of the severity of telling a lie on oath.That the claimant also admitted in her testimony on 29th October 2014 that she did not make any sales for the defendant. That this clearly shows the claimant’s awareness of the requirement of her job and the fact that she was not meeting up to her job description as a sales consultant. This is because any booking that did not result in sales is no booking at all. Thus, the termination of her employment was as a result of her poor performance, and same cannot be linked to any form of discrimination as she was not discriminated against by the defendant in any way.
  • Was the claimant falsely imprisoned? To the defendant, the claimant’s allegation here is based on the false premise contained in paragraphs 11, 12 and 13 of her witness statement on oath deposed to on 21st May 2013 that she was held and locked up for hours against her consent by the dThat DW in paragraph 7, 8, 9, 10, 11 and 12 of his witness statement on oathstated his participation in the interview process, and the fact that same was conducted within one (1) hour. Furthermore, that the witness’ evidence shows that the said interview was conducted during office hours, and even after the interview the defendant’s offices were still open for business, as can be deduced from paragraph 12 of the said DW’s witness statement on oath. That from the testimony of DW, the defendant was able to show to the Court that there are always exit interviews conducted for exiting employees, and that same are always done in the most humane and professional manner. That in his evidence before this Court on 1st June 2017, he confirmed that he was called to witness and eventually witnessed the conduct of the exit interview conducted for the claimant by the defendant from the point he was, after he had accompanied the claimant into the interview room, and saw clearly the proceedings of the interview from commencement till the end through the glass cubicle of the office, as he sat beside the interview room.That DW further testified that the claimant was never dragged or forced into the interview room and was never under pressure or threats or assaulted by the defendant, as alleged. That DW remained unshaken in his testimony even under cross-examination.Therefore,the claimant was not falsely imprisoned as the exit interview conducted for the claimant was a necessary consequence of the termination of the claimant’s employment. That there is no evidence before the Court to show false imprisonment, urging the Court to discountenance the claimant’s allegation in this regard.
  • Was there a breach of contract? To the defendant, the terms of the contract between the claimant and the defendant is as contained in the Exhibits C1 and D1. That the contract stated at page 3 under the heading “Notice Period” that the defendant can terminate the employment of the claimant without notice during the period of probation. That as at the date of disengagement of the claimant, the claimant was still under probation. In this situation, that the defendant was entitled to terminate the claimant’s employment without notice. That this means that the defendant was not required to give the claimant one month’s notice or pay the claimant one month’s salary in lieu of notice. Therefore, that this Court is bound to give effect to the contract of the parties duly and freely entered between them, citingNika Fishing Co. Ltd v. Lavina Corporation[2008] LPELR-2035(SC). The defendant contended that the claimant’s employment was duly and appropriately terminated in line with the contract between the parties as there was no breach of the contract on the part of the defendant. However, as a matter of courtesy and generosity, that the defendant paid the claimant her prorated salary and entitlements for the period prior and up till the date of her termination into the claimant’s designated account, and also a further one month salary. That this fact was admitted by the claimant in paragraph 24 of the claimant’s further witness statement on oath. That the case speaks for itself. That, assuming without conceding that the claimant was entitled to any salary or compensation of whatever sort, the claimant has fully and adequately been compensated by the d On the whole, that the claimant’s reliefs (4) and (5) are not only outrageous, but also inglorious and exploitative. That the defendant will be made to suffer double jeopardy and irreparable loss if the claimant’s claims are granted. That the defendant having fully paid the claimant all her entitlements (deserving and otherwise) is not liable to any further debts to the claimant. That where a party has received payment in full and final settlement of an entitlement, such a party cannot come back to claim for same. Also, that where an employer has paid up an employee’s entitlement at termination of the employee’s employment, the employer is free of any liability to the employee, and any further claim by the employee in that regard will be discountenance by the Court, referring to Chief Funso Ologunde v. Carnaudmetal Box Toyo Glass Nigeria Plc[2002] LPELR-12216 (CA). That irrespective of the fact that Exhibits C1 and D1 did not provide for any length of notice for the claimant who was under probation, yet the defendant magnanimously paid the claimant her salary and entitlements. That assuming without conceding that the defendant was required to pay the claimant salary in lieu of notice, the defendant duly paid the claimant her salary. Furthermore, that the claimant is not entitled to her relief (4), which is a claim for damages. That this claim is not grantable in an action such as this, referring to Suit No: NICN/OW/49/2015,Okechukwu Osuji v. Skye Bank Plc, reported in http://nicn.gov.ng/judgmentljudgement-result.php. The defendant then urged the Court to dismiss all the claims of the claimant.

 

  1. Issue (4) arises only if issue (3) is answered in the affirmative. To the defendant, it has demonstrated that the claimant failed to prove all her allegations leading to her claims. In that regard, that the reliefs/claims sought by the claimant are liable to fail and must fail. That it is the trite position of the law that, you cannot put something on nothing and expect it to stand. It will collapse, citing Macfoy v. UAC[1962] AC 152 at 160. That it is the law that an employer is not bound to give reasons for terminating an employment, citing Chief Funso Ologunde v. Carnaudmetal Box Toyo Glass Nigeria Plc[2002] LPELR-12216 (CA). That the claimant succeeds or fails on her case. That it is the claimant’s duty to prove breach of contract of employment and her entitlement to her claims in line with the contractual relationship between her and the defendant as per Exhibits C1 and D1. That the claimant having failed to do so must therefore fail in her case, relying on section 131 of the Evidence Act 2011 and Chief Funso Ologunde v. Carnaudmetal Box Toyo Glass Nigeria Plc (supra). The defendant urged the Court to look at the contract of employment (Exhibits C1 and D1) and the evidence led in this case to determine if indeed the defendant was in breach of Exhibits C1 and D1. That the claimant has not been able to prove the manner the said terms were breached by the defendant. That the claimant’s allegation viva voce cannot take the place of hard evidence, urging the Court to hold that the defendant was not in breach of Exhibits C1 and D1. In conclusion, the defendant urged the Court to hold that the claimant has not proved her case to be entitled to the reliefs sought as presently constituted, and dismiss same with punitive cost.

 

THE SUBMISSIONS OF THE CLAIMANT

  1. The claimant first addressed the preliminary points of law raised by the defendant. That the defendant made heavy weather of the exhibits tendered by the claimant in this suit alleging and contending that the exhibits being computer generated documents did not conform with the provision of the Evidence Act. To the claimant, a good starting point in reply to the argument and submission of the defendant in the preliminary points of law is section 12 of the National Industrial Court (NIC) Act 2006, which empowers this Court to depart from the provision of Evidence Act heavily relied upon by the defendant in raising this issue in order to ensure that substantial justice is done in this suit. What is more, that the era of technicalities had since gone as theCourt is now more concerned with justice to be done, citingEkpnetu v. Ofegobi[2012] 15NWLR (Pt. 1323) 276 at 310. That the exhibits referred to by the defendant are very relevant to the case of the clamant and will enable the Court to do substantial justice in this case which is the primary objective of the court of law, urging the Court to discountenance the argument of the defendant counsel in this regard.

 

  1. The claimant went on that, assuming without conceding, in response to the judicial authorities cited in relation to Exhibit C4, there is no specific forms or format that the conditions set out in section 84(2) of the Evidence Act 2011 should take. That it has been held in a plethora of cases that it is not necessary that a particular certificate is filed in compliance with section 84. That mere written on the said document that the provisions of the Evidence Act is complied with suffices, citingBlaise v. FRN[2017] 6 NWLR (Pt. 1560) 90 CA. Flowing from this case, the claimant urged the Court to discountenance the arguments of the defendant for the purpose of doing substantial justice in this matter as all the arguments canvassed amounted to technicality which this Court is enjoined to avoid as a court of law is a court of justice and not of technicalities.That Exhibit C4 being attacked on this ground complied with he said section 84 of the Evidence Act going by the decision in Blaise. That in the Exhibit C4, it was written on it all the conditions of section 84 of the Evidence Act. That the defendant’s position that it needs a fanciful certificate has been whittled down in Blaise. The claimant then urged the Court not to be swayed by the argument and dangerous invitation of the defendant from departing from doing substantial justice but technical justice.

 

  1. The claimant then submitted a sole issue for determination, namely: Having regards to the facts, circumstances and the evidence led, whether or not the claimant is not entitled to the reliefs sought. To the claimant, she has successfully discharged the burden placed on her by the law and thus is entitled to the reliefs sought as per the complaint and the statement of fact. That it is trite law that in a civil suit like in the instant case, the burden placed on the claimant to discharge is proof upon the balance of probability, citingOkubule v. Oyagbola[1990] 4 NWLR (Pt. 147) 723.

That the burden of proving a particular facts is on the party who asserts it.That this onus, however, does not remain static in civil cases; it shifts from side to side where necessary and the onus of adducing further evidence is on the person who will fail if such evidence was not adduced and if he fails to prove the assertion the proper order which the Court should make is one of dismissing the assertion, citingIke v. Ugboaja[1993] 6 NWLR (Pt. 301) 539. That it is in proof of her case that the claimant tendered Exhibits C4, C5 and C6, while the defendant failed to canvass any evidence in rebuttal of the evidence and when the burden shifted, the defendant failed to discharge same by failing to call any evidence. To the claimant, she proved her case upon the balance of probability as required under the law. That under the fire of cross-examination, she maintained her stand in proof of her case, urging the Court to grant her reliefs.

 

  1. The claimant continued that in proof of reliefs (1) and (2), she tendered Exhibits C4, C5 and C6, which were rightly admitted by this Court. That it needs be pointed out that these pieces of evidence are unchallenged by the defendant who failed to contradict the testimony and the evidence admitted by this Court even when it was given the opportunity to do so by this Court but they chose to rather attack the evidence by technicality in their final address in order to defeat the cause of justice that this Court is set out to do. The claimant then adopted her argument in response to the preliminary points of law raised by the defendant and urged the Court to evaluate the evidence tendered and admitted in order to do justice in this suit. That it needs be noted thatno matter how brilliant an argument of counsel is, it cannot take the place of evidence.

 

  1. The claimant went on that pursuant to section 42 (2) of the 1999 Constitution, which provides inter aliathat “No citizen of Nigeria shall be subjected to any disability or deprivation, merely by reason of the circumstances of his birth”,the termination of her employment by reason of the circumstances of her birth is/was a direct affront on theConstitution. Accordingly, that the said termination is illegal, unlawful, null and void, and is an unfair labour practice, urging the Court to grant her reliefs. That the evidence before this Court especiallyExhibits C4, C5and C6 give credence to this submission. ThatExhibit C4 is the transcript of text messages between the Claimant and her supervisors, which informed the basis of the termination of her employment by the defendant. Furthermore, that the defendant being fully aware of the claimant genotype before the employment and via Exhibits C4, C5 and C6, still went ahead and terminated her employment via Exhibits C4. That the termination on this ground is unconstitutional and an unfair labour practice. That what is more, Exhibit C4 was between the claimant and her supervisor, which said supervisor was not called in evidence. That eventhough he was listed to give testimony, the defendant failed to call him. That the only evidence that can challenge Exhibit C4 was the evidence of the said Mr Gavin Smyth. That the defendant could not challenge the evidence hence this Court is bound in law to rely on the unchallenged evidence and we urge your Lordship to’ rely on the exhibit and evidence. That even under cross-examination in respect of this exhibit, the claimant stood firm on the allegation and the name of her supervisor who perpetrated the acts. Hence, that the only evidence, that could have challenged the evidence is the evidence of Mr Gavin Smyth who was listed in evidence but the defendant failed to call him.That the only witness that was called by the defendant is not privy to Exhibits C4, C5 and C6 and hence cannot be in a position to react to the piece of evidence.

 

  1. It is the claimant’s contention that failure of the defendant to call Mr Gavin Smyth who was listed as witness and who perpetrated the acts of harassing and discrimination against the claimant amount to withholding evidence, referring tosection 167 of the Evidence Act 2011. That the claimant is not unmindful of the position of the law that a party is at liberty to call any number of witnesses that appears to it that will assist in proving its case. However, that in the instant case, the claimant’s case is of constant harassment and intimidation at the workplace by her supervisor, Mr Gavin Smyth, and under the fire of cross-examination, the claimant maintained this position.

 

  1. The claimant proceeded that in respect of reliefs (3) and (4), the law is settled beyond disputation that a breach of any provision of Chapter IV of the 1999 Constitution, once found by the Court, damages generally and automatically flow from same, citingShugaba v. Minister of Internal Affairs[1981] 2 NCLR 159 and Umar v. Onwudine[2002] 10 NWLR (Pt. 774) 129. The claimant then urged the Court to grant the reliefs she seeks in this suit.

 

  1. The defendant had contended that the claimant’s written witness deposition on oath is incompetent and, therefore, there is no evidence to support the claimant casein the circumstance. That this argument of the defendant did not only stem the law on its head, but is substantially inapplicable in the circumstance, urging the Court not to be swayed by it.It is the claimant’s submission that GTBPlc v. Abiodun heavily relied upon by the defendant’s counsel do not apply to the facts of this case. That in that case, the Court of Appeal was only examining the provisions of the High Court of Ekiti State Rules vis-a-vis the provisions of the Oath Act. Also, thatChikwelu Chris Obumneke v. Okeke Sulvester &anor relied upon by the defendant has become obsolete as the Court of Appeal in Ekpenetu v. Ofegobi[2012] 15 NWLR (Pt.1323) 276 at 310 has departed from Chikwelu Chris on the ground that it amounted to technical justice. In Ekpenetu, that the Court of Appeal per Omoleye, JCA at page 309 held that failure to use the exact words of section 13 of the Oaths Act will not necessarily render a deposition invalid. To the claimant, it is settled that the era of technicalities is gone and substantial justice is the primary objective of the Court, urging the Court to discountenance the argument of the defendant as it amounts to technicalities which can only lead to technical justice as against substantial justice. That this Court by section 12 of the NIC Act is empowered to depart from the provision of any laws in order to do substantial justice, urging the Court to exercise the discretionary power of departing to do substantial justice in this case, relying onEkpenetu v. Ofegobi (supra).

 

  1. The defendant had further argued that the claimant’s general form of complaints and other originating processes are incompetent for failure to accompany the said processes with an affidavit of verification. To the claimant, this argument is not only inconsistent with the Rules of this Court applicable as at the time of the filling of this suit but so fallacious and only exist in the figment of the defendant’s imagination. That assuming without conceding that the submission of the defendant’s counsel is potent, the provision of Order 5 Rules 1, 2 and 3 of the NIC Rules 2007 which was in force as at the time of filing of this suit has provided remedy for non-compliance as alleged by the defendant’s counsel. The Order provides that failure to comply with any of these Rules may be treated as an irregularity and the Court may give any direction as it thinks fit; and that the Court may direct a departure from the Rules where the interest of justice so requires. That flowing from this, the alleged/purported inaction is irregularity which does not go to the root of this suit as to rob this Court of jurisdiction as erroneously argued by the defendant. That the Rules empower this Court to depart from the Rules in the circumstance in order to do substantial justice. Furthermore, that the defendant took steps by filing defence and trial was even concluded;hence the defendant is estopped from alleging non-compliance with the Rules of this Court. Also that the defendant has failed to show this Court how this omission occasioned any miscarriage of justice in this suit, urging the Court to discountenance defendant’s argument. In conclusion, The claimant urged the Court to grant all her reliefs.

 

THE DEFENDANT’S REPLY ON POINTS OF LAW

  1. The defendant presented as its reply on points of law 17 pages of mostly repeated arguments, arguments that it had made in its final written address. This is true regarding its submission regarding section 12 of the NIC Act 2006 (even when it stressed that departure from the Evidence Act is discretionary); the submission that the canon of evidence is relevancy and admissibility; the submission as to section 84 of the Evidence Act 2011; the admissibility of including Exhibits C4 to C6; the submission as to the claimant not being able to prove her case; the submission as to the claimant admitting certain facts; the submission that the termination of the claimant’s employment was valid; the submission that the termination of the claimant’s employment was not based on health grounds and the claimant was never discriminated against; the submission that the claimant is not entitled to damages; the submission that the claimant’s depositions are incompetent; and the submission that a verifying affidavit is a condition precedent and so the claimant’s originating processes are incompetent. The submissions of the defendant in respect of these issues in its reply on points of law are repeated submissions already made and so it will be a waste of judicial time repeating them here.

 

  1. On whether the defendant is bound to call all persons listed as witnesses in its case, the defendant answered in the negative, citing Musa v, Yerima [1997] 7 NWLR (Pt. 511) at 39; as such, it sufficiently called DW as its witness who was able to prove that the termination of the claimant’s employment was lawful. That it is the company that was sued, not Mr Gavin Smyth; and so the defendant was not bound to call Mr Gavin Smyth as a witness. Additionally, that the defendant did not withhold any evidence from the Court in this matter. That the defendant could not call Mr Gavin Smyth as witness because he had left the employment of the defendant and gone back to his country. As for the other witnesses, that the defendant applied for a subpoena against them but could not locate them as they had left the employment of the defendant.

 

COURT’S DECISION

  1. After due consideration of the processes and submissions of the parties, I start off with the defendant’s reply on points of law, which I indicated earlier was in the main a repetition of the submissions of the defendant already canvassed in its final written address. A reply on points of law is meant to be just what it is, a reply on points of law. It is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address. A reply on points of law is thus not meant to improve on the quality of a written address; it is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr Augustine N. Mozie & ors v. Chike Mbamalu [2006] 12 SCM (Pt. I) 306; [2006] 27 NSCQR 425, Basinco Motors Limited v. Woermann Line & anor [2009] 13 NWLR (Pt. 1157) 149; [2009] 8 SCM 103, Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors [2016] LPELR-40220(CA), UBA Plc v. Ubokolo [2009] LPELR-8923(CA) and Musaconi Ltd v. Aspinall [2013] LPELR-20745(SC). In the main, therefore, I shall discountenance the defendant’s reply on points of law to the extent of its repeated submissions.

 

  1. The defendant called to question the admissibility and/or evidential value of Exhibits C2, C3, C4, C13, C14(a), C14(b), C14(c), C15, C16, C17 and C18 tendered by the claimant. To the defendant, Exhibits C2, C4 and C13 are computer generated evidence and so did not meet the requirements of section 84 of the Evidence Act 2011. The critical issue in terms of the case of the claimant (see paragraphs 7 and 10 of her deposition of 21st May 2013) is actually Exhibit C4, a transcript, the source of which in not known. In response, the claimant submitted that all the conditions of section 84 of the Evidence Act are written on Exhibit C4. I took a closer look at Exhibit C4 and the only endorsement on Exhibit C4 are the words: “Sent from my Blackberry Smartphone, from Etisalat. Enjoy high speed internet service with Etisalat easy net, available at all our experience centers”. Before considering the merit or otherwise of the submissions of the parties on Exhibit C4, I need to dispel an additional argument of the claimant. The claimant had argued especially as regards Exhibit C4 that merely writing on the said document that the provisions of the Evidence Act is complied with suffices for purposes of section 84 of the Evidence Act 2011. This argument is unsupported by the quote the claimant gave fromBlaise v. FRN[2017] 6 NWLR (Pt. 1560) 90; and no other authority was advanced to this Court.

 

  1. Like I pointed out, the defendant made a good deal of the admissibility of Exhibits C2, C3, C4, C13, C14(a), C14(b), C14(c), C15, C16, C17 and C18. Even when the defendant prefaced its address with what it termed preliminary points of law (devoting 4 pages of its final written address to addressing the inadmissibility of these documents), the defendant would devote another 6 pages of its final written address repeating its arguments as to the inadmissibility of these documents, only this time in the pretext of discussing its issue (3). The defendant could easily have either discussed the inadmissibility of these documents in its preliminary issues of law or simply take them up when it was addressing its issue (3). But no, the defendant had to repeat its arguments thus making what should have been a final written address of manageable pages one that ran into pages. The defendant had initially a 41-paged final written address. I had to turn it down and asked counsel to the defendant to re-present his final written address of not more than 35 pages as required under the NICN Rules 2017. What I got as the final written address was a 35-paged final written address of repeated arguments. The mere task of having to read through these repeated arguments (as was the case with the reply on points of law) is just a waste of valuable judicial time that can be put to better use.

 

  1. Given that the defendant’s preliminary arguments as to admissibility of the listed exhibits, the competence of the originating summons and the claimant’s depositions, are central to the very essence of this Court, I need to explain a point or two. The National Industrial Court (NIC) is a special Court, in, and a result of, which it is not a court of technicality as the defendant seems to think. The defendant spent its time in addressing its issues (1), (2) and (3) discussing matters that can at best be regarded as recourse to technicality, some validly raised though. Section 12 of the NIC Act 2006 in its totality enjoins flexibility and informality on this Court before going the extra mile of enjoining this Court to apply the Evidence Act with the leverage to depart from it as the interest of justice may demand. In short, the paramount consideration in the NIC is the interest of justice. The High Courts in Nigeria do not have an equivalent provision in the nature of section 12 of the NIC Act 2006. So cases deciding issues that pertain to the High Courts are not necessarily applicable to the NIC and so must appropriately be distinguished. Why counsel to the defendant cannot appreciate this simple fact is something I have difficulty fathoming.

 

  1. The resolution of labour/employment disputes is the resolution of disputes where the nature of rights is one in personam. This is an area of law where even the identity card of an employee is the property of the employer and must be surrendered immediately the employment relationship ceases or comes to an end. (Exhibit D5 actually demanded that the claimant should surrender any and all correspondences, materials and equipment provided to her by the defendant without retaining copies in any form whatsoever should the claimant discover them in her possession.) This is an area of law where upon the cessation of employment, an employee who hitherto had access (often very limited access) to the documents of the employer immediately ceases to so have simply because the employee’s internet access had been immediately clogged. See, for instance, Exhibit D5 couched as a non-competition term but which threatens the claimant with prosecution should she as much as divulge any information or document through sending such to herself vide her home address or personal email account. There is even the additional threat to the claimant that UAE law recognizes this behavior as theft punishable by imprisonment – this is even aside from the fact the claimant will forfeit any unpaid salary or commission and be liable to be sued for damages. This is an area of law where an employer expected to certify a document will willingly refuse to so certify the document. God save the employee if the employer is a public institution for which the Evidence Act requires certification before any secondary evidence can be rendered.

 

  1. The very first thing a labour court understands is the difficulty of the employee accessing documents to prove his/her case. It is as a result of all of this that the NIC, as a special Court, is permitted under section 12 of the NIC Act 2006 to be flexible, informal and depart from the Evidence Act if the interest of justice so demands. The NIC realizes that section 12 of its enabling Act is not license to act anyhow. So when it comes to admissibility of especially documentary evidence, the NIC insists that once the issue of authenticity is raised, particular care must be taken to admit only documents that are authentic; and in deserving cases the NIC had refused to admit inappropriate documents even when section 12 of the NIC Act was relied on. For instance in Mrs. Titilayo Akisanya v. Coca-Cola Nigeria Limited& 2 ors unreported Suit No. NICN/LA/40/2012, the judgment of which delivered on 7th April 2016, this Court held thus:

…While it is true that this Court can depart from the Evidence Act when the interest of justice demands, this has never been the case where the authenticity of a document is in issue. An unsigned document calls to question its authenticity. The interest of justice in that regard cannot justify this Court departing from the Evidence Act in that regard and in the manner canvassed by the defendants. The authenticity of Document 15 has been called to question. This Court cannot answer that question by jettisoning the Evidence Act and its rules as to authenticity…

No doubt, though the defendant in the instant case raised valid issues as to the authenticity of especially Exhibit C4, the defendant appeared in the main in its final written address to be obsessed more with technicality than the justice of the case. It may be the defendant’s counsel’s style, but pushed to limits it beclouds the reality that as a special Court, the NIC is distinct from the High Courts. The technicality that obtains with adjudication at the High Court is a pertinent factor that called for the creation of the NIC as a distinct special Court just so as to avoid that technicality.

 

  1. Exhibit C4 is a transcript of 3 chat/text messages, all running into 4 pages. The first chat message is between the claimant (Daddy’s Princess) and JT dated 9th May 2013 of 19:00:29 hrs and runs at the first two pages. It is from nawogu2010@yahoo.com to the claimant (Dorothy Awogu nawogu2010@yahoo.com). In other words, the claimant sent it to herself. The second chat message is between the claimant (Daddy’s Princess) and Boss John Thompson also dated 9th May 2013 of 20:12 hrs, and runs at the third page. It is sent to the claimant but has no sender. The third is text messages between the claimant and Gavin Smyth sent to salawukazeemolusola@yahoo.com on 13th March 2013 at 08:36 hrs, and runs at the fourth page. It has no sender and is prefaced by only the following words (nothing else):

…………Original Message………

To: Dorothy Awogu

Subject: Fw: Text messages between I and my boss Gavin Smyth while in hospital

Sent: May 9, 2013 20:05

It is less than clear how text messages sent to salawukazeemolusola@yahoo.comon 13th March 2013, the day the claimant did her exit interview with the defendant and was dismissed vide Exhibit D6, is being sent to the claimant on 9th May 2013. Each of the 3 chat/text messages ends with the words: “Sent from my Blackberry Smartphone, from Etisalat. Enjoy high speed internet service with Etisalat easy net, available at all our experience centres”. I would ordinarily have accepted these words as sufficient to satisfy the requirements of section 84 of the Evidence Act 2011 but Exhibit C4 is composed of unresolved issues as to the sender of the messages already pointed out as well as the fact that the source of the transcript is unknown. For these reasons, I shall discountenance Exhibit C4 for purposes of this judgment. I so hold.

 

  1. Exhibit C2 is a message supposedly from Geoff Hunter to “SalesTeamLagos_Dist” sent on 22nd December 2012 telling Adesuwa, Emmanuel and Dorothy well done for winning prizes in the Xmas Comp and urging them to smash 2013. Exhibit C2 looks like it is an email but does not show the email address it was sent to and the email address it was sent from. In Mrs. Titilayo Akisanya v. Coca-Cola Nigeria Limited & 2 ors unreported Suit No. NICN/LA/40/2012, the judgment of which delivered on 7th April 2016, in determining electronic signature, this Court rejected a document given that it was not an electronic document nor was it an email as there was no email address on it, nor did it indicate that it was an attachment to any email; while in Mr Ahmed Ishola Akande v. Lilygate Nigeria Ltd (The Lilygate) unreported Suit No. NICN/LA/209/2016, the judgment of which was delivered on 16th November 2017, this Court held that a document sent through an electronic channel, and as an attachment to an email remained valid and did not exhibit the character of a document that ought to be signed in the first place. Since there is no email address of both the sender and recipient of Exhibit C2, I have to discountenance it for purposes of this judgment. I so hold.

 

  1. Exhibit C3 is a letter to the Honorable Minister for Sports by Joe McCormack, Business Development Manager – Lagos of the defendant requesting an appointment with the Honourable Minister for 26th February 2013. It is not dated. An undated document has no evidential value. See Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA). Accordingly, Exhibit C3 has no evidential value and so would be discountenanced for purposes of this judgment.

 

  1. Exhibit C13 consists of 2 sheets of 3 pictures and has the following words:

44 likes

msvanila7 Dorothy’s bday.. March born babies

rock #boats #beach #babies #booze

theprincesspolo Ma hottie @msvanila7

killy007 Ff bck

The 3 pictures on Exhibit C13 are not even clear as to discern who are in the pictures. The words on Exhibit C13 are not discernible in terms of the case of the claimant. In terms of evidential value, Exhibit C13 does not disclose any. In consequence, I have to discountenance it; and I so do.

 

  1. Exhibits C14(a), C14(b) and C14(c) are respectively the Guest Information (with identity number 511942) dated 7th November 2012, the defendant’s receipt of N220,000 dated 7th November 2012 in respect of ID 511942 i.e. Exhibit C14(a) and Priority Travel Reservation Agreement dated 7th November 2012. These 3 exhibits relate to Victor Ovia, client of the defendant, with the claimant as the TFG Property Consultant who sourced him. For other customers sourced by the claimant, they are indicated in 11 sheets as Exhibit C16. In the list of additional documents, the claimant gave notice to the defendant to produce the original copies of Exhibits C14(a), C14(b) and C14(c) and the 11 sheets consisting of Exhibit C16. Instead of producing the original copies, the defendant raised an objection as to their admissibility. The only reason the defendant gave in respect of these exhibits is that they are irrelevant to the determination of this suit, defective and inadmissible. The law by Onwuzuruike v. Edoziem&ors [2016] LPELR-26056(SC) is that secondary evidence may be given and admitted of the existence, condition or contents of the original document where the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person legally bound to produce it and does not produce it despite being served with notice. In the defendant refusing to produce the originals of Exhibits C14(a), C14(b), C14(c) and C16, I am satisfied and accordingly hold that they are admissible and so would be considered in terms of this judgment. I so find and hold.

 

  1. Exhibit C15 dated 6th January 2010 is a letter (a medical report of sort) from the Director Unilag Medical Services to the Director General, NYSC, requesting for preferential posting to Lagos State for the claimant on the ground that she has a sickle cell disease with Genotype SS. The objection to this exhibit by the defendant is on the ground that it was not certified as a public document by the institution, and same was only addressed to the Director General of the National Youth Service Corp (NYSC) and not to the defendant herein. A medical report is valid irrespective of who it is addressed to. It tells of the medical status of the person it relates to. Accordingly, the argument of the defendant that Exhibit C15 was not addressed to it is irrelevant and immaterial to what Exhibit C15 stands for. I so hold. As regards the argument that as a public document it was not certified as such, the reaction of the claimant is that this Court in the interest of justice should dispense with the evidential requirement of certification under section 12 of the NIC Act 2006. The defendant is not arguing that Exhibit C15 is not authentic, only that it was not certified. I agree with the claimant that the interest of justice demands that undue technicality should not be adhered to here. Given that this Court is a special Court as the reasons already explained, and for the more detailed reasons given at paragraphs 74 and 75 of Honourable Justice Bassey Tambu Ebuta v. National Judicial Council& 3 ors unreported Suit No. NICN/ABJ/301/2016, the judgment of which was delivered on 13th July 2017 in a similar argument against section 12 of the NIC Act 2006 raised therein, I am inclined to admitting Exhibit C15. Exhibit C15 is accordingly admitted and would be used as such in this judgment. I note here that Exhibit C5 dated 8th March 2013 is a medical report and addressed to whom it may concern indicating that the claimant “is a known HbSS who has been on follow up for recurrent sickle cell crisis for the past one year”, while Exhibit C6 is a sick certificate issued in favor of the claimant; and the defendant did not challenge the admissibility of both Exhibits C5 and C6.

 

  1. Exhibits C17 and C18 are respectively a memo and letter from Halogen Security in respect of the claimant before she joined the defendant. Exhibit C17 is a memo dated 4th November 2012, while Exhibit C18 is a letter dated 30th March 2012. By Exhibit C18, the claimant’s appointment was confirmed; and by Exhibit C17, the claimant was recommended for a Graduate Trainee Program. Once again, the defendant is not saying that these exhibits are not authentic, only that they are irrelevant, defective and inadmissible. Only a consideration of the merit of the case will show whether they are relevant or not. Once the claimant cannot show the relevance of these exhibits to her case, the said exhibits will appropriately be discountenanced. Until then, they remain admitted as such. I so hold.

 

  1. The defendant had argued that the claimant’s witness statement on oath deposed to on 21st May 2013 and the further witness statement on oath deposed to on 23rd October 2013 are incompetent because they did not contain the words of swearing and so were not properly sworn to under the Oaths Act or Law, citing section 13 of the Oaths Act Cap O1 LFN 2004. The defendant relied on a number of case law authorities such as GTB Plc v. Abiodun[2017] LPELR – 42551 (CA),Obed Orlando Ibe &anor v. Nkiru Ugochukwu & 41 ors[2010] All NWLR (Pt. 504) 1590 at 1592 – 1593 and Chikwelu Chris Obumneke v. Okeke Sylvester &anor[2010] All FWLR (Pt. 605) 1945 CA at 1947. There is the additional case of Henry Okobiemen v. Union Bnak of Nigeria Plc (Jalingo Branch Taraba State)Legalpedia Electronic Citation: [2018] Legalpedia CA/YL/10/2017, which held that where the witness’s evidence in chief,evidence under cross-examination and re-examination, if any, are founded on a fundamentally defective witness’s statement on oath, it is as if the witness gave no evidence at all, relying on UAC v. Macfoy[1962] AC 152. However, in all of these cases, the equivalent of section 12 of the NIC Act 2006 was not in issue. And before these cases, the Court of Appeal itself had in Okpa v. Irek & anor [2012] LPELR-8033(CA) held thus:

This court has consistently held that a witness statement on oath is different from affidavit evidence. An affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a court Process in writing deposing to facts within the knowledge of the deponent. It is documentary evidence which the court can admit in the absence of any unchallenged evidence. Akpokeniovo v.. Agas [2004] 10 NWLR (Pt. 881) 394.

 

On the contrary a witness statement is not evidence. It only becomes evidence after the witness is sworn in court and adopts his witness statement. At this stage at best it becomes evidence in chief. It is thereafter subjected to cross examination after which it becomes evidence to be used by the Court. If the opponent fails to cross examine the witness, it is taken as the true situation of facts contained therein.

I agree with the claimant that the cases cited by the defendant especially GTB Plc v. Abiodun dealt with issues relating to the High Court, which did not have the equivalent of section 12 of the NIC Act 2006. If an authority such as Okpa v. Irek & anor is coupled with section 12 of the NIC Act 2006, the argument of the defendant as to the claimant’s depositions not being validly sworn depositions then is beyond the pale. I accordingly find and hold that the two depositions of the claimant upon being adopted in Court after the claimant was sworn in as CW became valid depositions and so became the evidence in chief of the claimant.

 

  1. The defendant also contended that the claimant’s originating processes dated and filed on 21st May 2013 areincompetent because they were not accompanied by a verifying affidavit. Once again, here we find the defendant giving undue credence to technicality. When the claimant filed this suit in 2013, it was the NIC Rules 2007 that was the applicable Rules. By Order 4 Rule 1, the complaint to be filed should accord with Form 1 “with such modifications or variations as circumstances may require”. It is Form 1 at the end that enjoined that before the complaint is issued, a certificate must be endorsed on it stating that a sufficient affidavit in verification of the endorsement on the complaint has been produced at the Registry of the Court. What is the penalty for non-compliance of this requirement? The Rules are silent. Even when Order 3 Rule 7 stipulates that the Registry should not accept the originating process, this is only if Rules 2 to 5 are breached. The Rules say nothing of the breach of Rule 1 under which the requirement of verifying affidavit can be founded. Two things are clear here. Even if Order 3 Rule 7 related to Rule 1, the fact that the originating process was accepted by the Registry means that this Court is bound to act on it as such. See Nathaniel Agunbiade & anor v. Busayo Oluwole Oke & 9 ors unreported Appeal No. CA/AK/EPT/HR/68/2015, the judgment of which was delivered on 2nd September 2015 and Honourable Justice Bassey Tambu Ebuta v. National Judicial Council& 3 ors (supra). Secondly, like I pointed out earlier, the Rules are actually silent of what the penalty of breach of Order 3 Rule 1 of the NIC Rules 2007 is. The law is that once a provision of law enjoins the doing of a thing, if sanction for breach is not provided then the doing of that thing enjoined is merely directory, not mandatory. See Bode Thomas v. FJSC unreported Appeal No. SC.228/2013, the judgment of which was delivered on 16th February 2018. In the words of Akaahs, JSC who delivered the leading judgment:

When the learned trial Judge x-rayed Rule 030307(xiii) of the Public Service Rules, there was nowhere it was provided that failure to observe the 60 days period would vitiate the proceedings. The logical conclusion which the court ought to have arrived at is that since the Rules did not provide any sanction for non-compliance, the period stated is directory and not mandatory.

What this means, therefore, is that in the instant case the requirement of verifying affidavit is directory, not mandatory. The originating processes in this suit are accordingly competent. I so find and hold.

 

  1. I now turn to the merit of the claimant’s case. Given the reliefs sought for by the claimant, wherein the claimant claimed that the termination of her employment was because she was an SS patient and so it was discriminatory and an unfair labour practice, the defendant had argued that the termination of the claimant’s appointment was proper and lawful. But was the claimant’s appointment terminated or was she dismissed? Exhibit D6 dated 13th March 2013 is the letter that brought the claimant’s appointment to an end. Note needs to be take that Exhibit D4 (the exit interview form), Exhibit D5 (the one-sided non-competition agreement) and Exhibit D5(a), the employee release form, are all dated 13th March 2013 just like Exhibit D6. Exhibit D6, though has as subject, “Termination of Employment”, has it in the first paragraph the following words: “Further to our discussion today, please accept this letter as formal, written notice of your dismissal from TFG Real Estate LTD, effective 13th March 2013”. The claimant was expected to accept and sign underneath of Exhibit D6, but did not do so because there is handwritten the words: “Refused to sign GS”. GS are the initials of Gavin Smyth, General Manager, who conducted the exit interview as per Exhibit D4, and against whom the claimant largely complained of in both her pleadings and depositions. In Exhibit D4, the claimant entered as the reason for leaving the defendant the word “involuntary”. She also indicated that she would consider returning to the defendant if the conditions were different. What do I gather from all of this? First, that the claimant’s employment was not terminated. She was actually dismissed; and the dismissal was with immediate effect given that the effective date of the dismissal is same with the date of the letter of dismissal. See the first paragraph of Exhibit D6 as quoted above. If the other facts of involuntary departure of the claimant and her refusal to sign and accept Exhibit D6 are added, then I have no doubt whatsoever that the claimant was dismissed from work by the defendant, not terminated. The law is that once an employee is dismissed, the employer must justify the dismissal. The duty to justify the dismissal of an employee lies on the employer, the defendant in the instant case. The attempt to justify the dismissal is the argument of the defendant that the termination of the claimant’s employment was as a result of her poor performance, and that same cannot be linked to any form of discrimination as she was not discriminated against by the defendant in any way. This explanation cannot support the dismissal of the claimant as dismissal connotes gross misconduct, not poor performance. The defendant’s justification is accordingly untenable; and I so find and hold.

 

  1. The defendant had argued that the warning letter (Exhibit D2) stated that the claimant should make 3 AIV bookings before 30th December 2012 and failure to so do will mean immediate termination of her employment. The defendant did not dismiss the claimant until 13th March 2013. What this means is that the dismissal of 13th March 2013 was certainly not based on the warning letter, Exhibit D2, which had indicated that the claimant’s employment will be terminated by 30th December 2012 if she does not make 3 AIV bookings by that date. The language of Exhibit D2 is that of immediate termination if the claimant does not make 3 AIV bookings by 30th December 2012. The argument of the defendant that the claimant’s employment was consequently terminated in March 2013 because she could not meet up with the 3 AIV bookings cannot accordingly stand. It sounds more like an afterthought. I so find and hold.

 

  1. On the argument of the claimant that her employment was terminated without adequate notice, it is the contention of the defendant that the claimant did not supply any proof that adequate notice was not given to her. Besides, that it is not the law that an employer must give “adequate notice” to an employee; what is required is “notice”. Secondly, that it is not the law that an employment must be terminated with notice. In order words, an employment can be terminated with or without notice. Exhibit D6 dismissed the claimant with immediate effect. That is more than sufficient proof that no notice was given to the claimant before she was dismissed. The argument of the defendant that an employer may terminate an employment without notice may be true (although the defendant appears to equate and hence confuse this with the statement of law that an employment may be terminated without reason); but that is at the risk of bearing all the consequences of having to terminate without notice. Also, the argument of the defendant that the law enjoins only notice to be given, not adequate notice, misses the point that in the instant case even the notice that the defendant talks of was not given to the claimant, if Exhibit D6 in dismissing the claimant with immediate effect is anything to go by.

 

  1. The further argument of the defendant that the claimant did not deny that she was not given notice cannot fly in the face of Exhibit D6, a document supplied by the defendant itself, and which in its right acts like an admission on the part of the defendant. A dismissal with immediate effect can never be a dismissal with notice. This is commonsensical. The defendant’s counsel should know this; but it appears that he does not. This is because he argued that the defendant never failed to give adequate notice to the claimant, citing Exhibits D6, D4, D5, and D5A as showing that the claimant’s employment was terminated on 13th March 2013. The defendant’s counsel appears to think that because these exhibits were dated 13th March 2013 and the claimant’s dismissal took effect on same 13th March 2013, that is notice sufficient to excuse culpability. There is no doubt that an employer has the right to dismiss an employee, even if such a right is not specifically written in the contract of service. See Simon Ansambe v. Bank of the North Ltd [2005] 8 NWLR (Pt. 928) 650. However, in especially dismissal cases, this is subject to the employee’s right to be given fair hearing. SeeZiideeh v. RSCSC [2007] LPELR-3544(SC); [2007] 3 NWLR (Pt. 1022) 554; [2007] 1 – 2 SC 1. Of course, by Underwater Eng. Co. Ltd v. Dubefon [1995] 6 NWLR (Pt. 400) 156 SC, an employer cannot dismiss or terminate his employee’s employment with retrospective effect. This led this Court to hold in Mr. Bisiriyu Adegoke Sheu v. Lagos NURTW (First BRT) Cooperative Society Limited unreported Suit No. NICN/LA/532/2013, the judgment of which was delivered on July 1, 2015, that, like dismissal and termination, suspension can be with immediate effect but certainly cannot be retrospective. The case law authorities did not say that termination or dismissal with immediate effect is sufficient notice; and the defendant gave none. When the defendant cited Osisanya v. Afribank Nig. Plc [2007] 6 NWLR (Pt. 1031) 565 SC, this was only in terms of its statement of principle that an employer is not bound to give reasons for terminating an employment. The case did not lay down any rule that an employee is not entitled to reasonable or adequate notice before termination or that termination with immediate effect is such reasonable or adequate notice.

 

  1. Now the law which enjoins that termination or dismissal cannot be retrospective means that it can be with immediate effect; but this must be subject to the consequences that follow – consequences that follow termination without reasonable or adequate notice. The common law enjoins that even where the contract of employment does not stipulate a notice period, one that is reasonable must be read into the contract of employment. See Akumechiel v. BCC Ltd[1997] (Pt.484) 695 at 703 and Emuwa v. Consolidated Discounts Ltd [2000] LPELR-6871(CA);[2001] 2 NWLR (Pt.697)424. The Supreme Court in Olayinka Kusamotu v. Wemabod Estate Ltd [1976] LPELR-1720(SC); [1976] 9-10 SC (Reprint) 254 stated the law thus:

The law is that, generally, the length of notice required for termination of contracts of employment depends on the intention of the parties as can or may be gathered from their contract and in the absence of any express provision, the courts will always imply a term that the employment may be terminated by a reasonable notice (from either of the parties); and even where (as clearly provided in clause 21(c) of “Exhibit “B” for persons still under probation) the employer has power to terminate the contract in his absolute discretion, the law enjoins the employer to give reasonable notice to the employee (see Re-African Association and Allen (1910) 1 KB 396).

 

  1. It is the contention of the defendant that given Exhibit C1/D1, since the claimant was still under probation as at the time of the termination of her employment, she was not even entitled to notice let alone adequate notice as she has contended. This argument cannot stand Olayinka Kusamotu v. Wemabod Estate Ltd just cited. Clause 21(c) of Exhibit B referred to in Olayinka Kusamotu provides thus:

(c) TERMINATION OF APPOINTMENT FOR GENERAL INEFFICIENCY

Before the appointment of a confirmed officer is terminated for general inefficiency, he should have received at least two written warnings stating in what respects his work or conduct has been found unsatisfactory. The appointment of an officer on probation may however be terminated at any time during the probationary period (the emphasis is this Court’s).

Interpreting the italicized portion of clause 21(c), the Supreme Court held in Olayinka Kusamotu that “even where…the employer has power to terminate the contract in his absolute discretion, the law enjoins the employer to give reasonable notice to the employee”. In like manner, in the instant case, Exhibit C1/D1 in giving the defendant absolute discretion to terminate during probation the claimant’s appointment without notice, cannot take away the requirement enjoined by law that reasonable notice must at least be given the claimant. This being so Exhibit C1/D1 in providing that the defendant can terminate the claimant’s appointment during probation without notice amounts to an unfair labour practice provision; and I so find and hold.

 

  1. The argument of the defendant that in effect and from the contract of employment, an employee under probation can be terminated without notice is accordingly and hereby rejected. It needs to be noted that in James Adekunle Owulade v. Nigeria Agip Oil Company Limited unreported Suit No. NICN/LA/41/2012, the judgment of which was delivered on 12th July 2016, this Court held that the spirit and letter of section 254C(1)(f) of the 1999 Constitution and section 7(6) of the NIC Act 2006, as well as the intendment of same, is that they operate to create and set a standard as a benchmark against which labour and industrial relations in Nigeria are to be measured. And this Court has not shied away in declaring offending clauses in conditions of service or common practices of employers as such and striking them out especially given the fact that they are one-sided provisions or practices (impositions by the employer, in fact) having not been actually negotiated with the employee at any given negotiating table. See, for instance, Mr. Olabode Ogunyale & ors v. Globacom Nigeria Ltd unreported Suit No. NIC/LA30/2008, the judgment of which was delivered on 13th December 2012), which struck down the practice of an employer compelling an employee to bank with a specified bank chosen by the employer; Aghata N. Onuorah v. Access Bank Plc [2015] 55 NLLR (Pt. 186) 17, which struck down the practice of an employer dictating to an employee where to invest his/her computed gratuity benefit; Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt. 103) 40 NIC, which struck down a vindictive suspension and/or vindictive denial of promotion;James Adekunle Owulade v. Nigeria Agip Oil Company Limited (supra), which struck down a provision in the conditions of service which regarded as voluntary retirement the employer retiring the employee; andIneh Monday Mgbeti v. Unity Bank Plc unreported Suit No. NICN/LA/98/2014, the judgment of which was delivered on 21st February 2017, which struck out a clause in the Employee Handbookwhich provided, inter alia, that Management reserves the right to reject a notice of resignation or payment in lieu from an employee if it is seen as a strategy to cover up a fraud or misconduct to avoid disciplinary action.

 

  1. It must be noted that section 11 of the Labour Act Cap L1 LFN 2004 is conscious of all of this. In subsection (1) it makes it clear that either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so. In subsection (2), it states that the notice to be given for the purposes of subsection (1) shall beone day, where the contract has continued for a period of three months or less;one week, where the contract had continued for more than three months but less than two years;two weeks, where the contract has continued for a period of two years but less than five years; andone month, where the contract had continued for five years or more. Subsection (3) provides that any notice for a period of one week or more shall be in writing. And by subsection (4), the periods of notice specified in subsection (2) of this section exclude the day on which notice is given. These are general principles applicable to workers as defined under section 91 of the Labour Act, but they provide useful insights as they codify the general principles of even the common law as ordinarily would apply in the instant case given that the claimant was employed as a Property Consultant and so may not come within the definition of the term “worker” under section 91 of the Labour Act. In paragraph 12 of the claimant’s further statement on oath, she referred to University of Lagos as her “alma matter”, and Exhibit C15 in requesting for NYSC preferential posting to Lagos State for the claimant, all of this presupposes that the claimant is a graduate and so is not a worker within the definition of the term under section 91 of the Labour Act. The claimant started work with the defendant on 10th September 2012 and the employment was determined on 13th March 2013. This means that the claimant put in 6 months of service with the defendant. So, even under the Labour Act, the claimant is entitled to at least one week’s notice. This is the minimum enjoined for workers. The claimant as a Property Consultant certainly ranks higher than the worker as defined under section 91 of the Labour Act. What all of this means is that in the instant case, termination (dismissal in fact) with immediate effect, which is what Exhibit D6 did, is not the reasonable notice enjoined on the defendant by law. I so find and hold. Contrary, therefore, to the argument of the defendant that the claimant being not entitled to any length of notice as per Exhibits C1 and D1 (the contract of employment) cannot insist on notice or any length of notice, it is my holding that she can insist on, and is entitled to, reasonable notice.

 

  1. The defendant also argued that even if the claimant is entitled to any period of notice (which I have held she is she entitled to) or salary in lieu of notice, that from Exhibit D1 it is not possible to state or compute the notice period and hence the quantum of the payment in lieu of notice. This should not be a problem. The common law enjoins a reasonable period; as such, the sum in lieu of notice would be the sum in lieu of whatever period taken as the reasonable period. The defendant had argued (see paragraphs 6.72 – 6.74 and 6.102 of the defendant’s final written address) that as a matter of courtesy and generosity, it paid into the claimant’s designated account her prorated salary and entitlements for the period prior to and up till the date of her termination, and also a further one month salary. That this fact was admitted by the claimant in paragraph 24 of the claimant’s further witness statement on oath. Now, in paragraph 29 of the statement of defence, the defendant pleaded that it offered one month salary in lieu of notice to the claimant upon the termination of her employment, but which she declined. In reply, the claimant averred in paragraph 24 of her further witness statement on oath that she was not offered one month’s salary by Mr Gavin Smyth. That it was after her exit interview that he specifically told her that he will only pay her for a few days in March, which was paid into her Guaranty Trust Bank account. That she was only offered one month’s salary after she decided to seek legal advise. The evidence of the claimant that Mr Gavin Smyth paid some money into her account is not an admission/acknowledgment that one month’s salary in lieu of notice was paid into her account as the defendant’s counsel argues. The sum referable to, which was paid into her account is the payment for a few days in March she spoke of in same paragraph 24 of the her further written statement on oath. It is thus incorrect for the defendant’s counsel in his written address to come to the conclusion that the claimant was paid one month’s salary in lieu of notice as he had done. I so find and hold.

 

  1. The claimant’s employment was terminated on 13th March 2013. For the 13 days she worked, she is entitled to her salary as may be prorated. The payment in lieu of notice is separate and distinct form this salary; and the onus that payment was made lies on the defendant, not the claimant. See Honika Sawmill (Nig.) Ltd v. Holf [1992] 4 NWLR (Pt. 238) 673 CA, which held that as between an employer and an employee, the onus is on the employee to prove that the employer employed him on a stipulated salary and that he worked for the employer during the relevant period;it is for the employer to prove not only that he paid the employee his salary for work done by the employee in the relevant period but also how much the salary that he paid the employee was. The defendant must thus be joking when it submitted that it paid the claimant salary for the period she had worked prior to her termination; as such, the defendant has fully and finally paid the claimant whatever salary she would have been entitled to in lieu of notice, if any. The argument by counsel to the defendant that the defendant magnanimously paid the claimant her salary and entitlements is accordingly not only false but it is also patronizing. The duty is on the defendant to show that it paid the one month’s salary in lieu of notice to the claimant. What the defendant’s counsel calls an admission by the claimant is not an admission at all. I so find and hold. In consequence, I also find and hold that the claimant denied receiving one month’s salary in lieu of notice; and the defendant did not prove that it paid her the said salary in lieu of notice.

 

  1. I am accordingly satisfied that the claimant’s appointment was determined without reasonable/adequate notice and so is wrongful as it is a breach of the contract of employment. To this extent, the claimant’s relief (3) succeeds; and I so find and hold. By relief (5), the claimant is consequentially claiming for one month’s salary as damages for breach of contract of employment. Exhibit C1 stipulates that “the notice period required is one month’s written notice from either party” although the defendant can terminate the claimant’s appointment without notice. I have already ruled as wrong this provision entitling the defendant to terminate without notice. This means that since the notice period remains one month’s notice, the salary in lieu must be one month’s salary in lieu of notice. Exhibit C1 puts the annual gross salary of the claimant as N600,000, which if divided into 12 months gives us a monthly gross salary of N50,000. This is the sum the claimant is entitled to from the defendant as per her reliefs (3) and (5); and I so order.

 

  1. Subject to the exceptions I indicated earlier, the law is that it is he/she who asserts that must prove. In the instant case, therefore, the burden is on the claimant to prove her case, which is that her termination was discriminatory, illegal, null and void, an unfair labour practice, and was without adequate notice. For all of this, the claimant seeks damages as well as one month’s salary for breach of contract. Has the claimant proved her case to warrant these reliefs? A case is proved by either oral evidence or documentary/real evidence or a combination of all of this. It is not the quantum of evidence/witnesses, but the quality of the evidence/witnesses that matters. See Onwuka v. Ediala [1989] 1 NWLR (Pt.96) 182 at 187 and Lafarge Cement WAPCO Nigeria Plc v. Owolabi [2014] LPELR-24385(CA). As the Supreme Court per Tobi, JSC puts it in Nigerian Army v. Major Jacob Iyela [2008] LPELR-2014(SC);[2008] 7-12 SC 35; [2008] 18 NWLR (Pt. 1118) 115:

A case is not necessarily proved by the quantity of witnesses. A case is proved by the quality of the witnesses in the light of either inculpatory or exculpatory evidence, as the case may be. And so, it does not necessarily follow that because the respondent called four witnesses, they rebutted the evidence of the two witnesses of the appellant.

The argument of the defendant that the mere ipse dixit of the claimant without proof cannot sustain the claimant’s allegation is misplaced and untenable; and so is hereby rejected.

 

  1. What then do we have in the instant case? The claimant deposed to the facts as known to her. In the process she identified Mr Gavin Smyth, her superior and supervisor (Exhibit C1 is very specific in providing that the claimant is to report to Gavin Smyth), as the key culprit in all she complains of against the defendant. For instance in paragraphs 4 to 7, 10 to 12, 14 and 16 of he deposition of 21st May 2013 and paragraphs 3, 6, 10 to 12, 15 to 17, 20 to 22, 24 and 25 of her further deposition of 23rd September 2013, the claimant in her evidence in chief (the depositions are tantamount to oral testimonies) testified as to direct acts (including words) of harassment, threats and discrimination by Mr Gavin Smyth against the claimant. Under cross-examination, the testimony of the claimant is that two days into her employment, she informed her Line Manager (Mr Gavin Smyth) of her genotype; and that she told him this orally and gave him a copy of her medical report from the University of Lagos. She added that the forms she filled had no column for genotype, only blood group. Still under cross-examination, the claimant testified that she was molested by her boss in the form of shouting thus triggering emotions to cry especially in terms of booking. She identified her boss as Gavin Smith, who was Line Manager. She went on that she cannot remember the exact words her boss used on her. She testified that she was not treated with courtesy by her colleagues and superiors; and was disrespected by Gavin Smith, who once called her stupid. She continued that she was once manhandled i.e. was once dragged by Gavin Smith, who forcefully took her hand and took her to a room, although she was not pushed. She further testified that after the exit interview, she cannot remember exchanging pleasantries with Gavin Smith; and also that she did not shake hands with Gavin Smith. All of this is additional to the claimant’s averments in her sworn depositions.

 

  1. Now, who can refute all of this? Only Mr Gavin Smyth! No other person! The defendant listed Mr Gavin Smyth as its 1st witness, but did not call him as a witness, arguing that it reserves the right not to call him. The defendant instead called Onyejekwe Chukwuka Nkem, listed as the 4th witness, to testify for it as DW. DW cannot contradict the direct evidence of the claimant against Mr Gavin Smyth; only Mr Gavin Smyth can. The defendant no doubt reserves the right not to call Mr Gavin Smyth and instead call whoever it wants but it must note that cases have been lost in this Court given the quality of the witness called by an employer i.e. the fact that an employer called the wrong witness to contradict the evidence of the employee; and this Court has always cautioned on that strategic choice of the employer. Two cases stand out here. In Mr Charles Ughele v. Access Bank Plc unreported Suit No. NICN/LA/287/2014, the judgment of which was delivered on 10th February 2017, this Court intoned at paragraph 56 as follows:

I have often lamented and cautioned employers for refusing to call as witnesses those who were actually involved in the facts leading to the dispute in issue. No doubt, an employer reserves the right to call whoever it wants as a witness. However, an employer who simply calls anyone to testify stands the risk that if the claimant’s testimony is more believable, that defence witness who was not involved in the facts leading to the case but is called as a witness, would end up an unbelievable witness. This is exactly the scenario  playing out in the instant case.

 

  1. In Ughele, the evidence in issue of the claimant was oral; and it was that he was verbally invited to a meeting with the outgoing and incoming Group Managing Director of the defendant bank, and that the meeting held between the three of them with no other person in attendance. The rebuttal evidence of the defendant, which was also oral, was given by its witness, Olakunle Olashore (DW), who works for the defendant as Bank Manager in Human Resources Department. Counsel to the defendant then submitted that the evidence of DW must equate with that of the claimant as to make the word of the claimant to be that against the defendant’s. In other words, the claimant’s oral evidence cannot be held to have sufficiently proved the assertion that he was orally invited to a meeting and the meeting held. Now, DW was not at the meeting and was not held to be one of those invited for the meeting as to categorically know whether the meeting held or not. In reviewing the evidence, I held thus at paragraph 56:

For the argument of the counsel to the defendant to hold ground that it is the word of the claimant against that of the defendant, the evidence of the defendant must be in equal stature and quality as that of the claimant. Only the outgoing or incoming GMD can testify orally denying what the claimant said before the denial argument of the defendant can hold sway. Someone (DW in the instant case) who was not at the meeting, who in one breath categorically said there was no invitation to a meeting and no meeting held but changed to say he is not aware of any meeting, cannot supply the quality of evidence needed to make the oral testimony of CW to be one of his word against that of the defendant…I believe the testimony of the claimant that they were invited to a meeting and the meeting held with the outgoing and incoming GMDs and that in that meeting they were asked to resign. The evidence of CW is more qualitative than that of DW who was not said to be invited to the meeting as to be at the meeting and who himself testified that he is not aware of any meeting held between the claimants and the GMDs.

 

  1. The second case is Pastor (Mrs) Abimbola Patricia Yakubu v. Financial Reporting Council of Nigeria & anorunreported Suit No. NICN/LA/673/2013, the judgment of which was delivered on 24th November 2016,a sexual harassment case was that came before Her Ladyship Hon. Justice Oyewumi, Her Ladyship’s holding typifies the point being made. In her words:

…the 2nd defendant Mr. Jim Osanyande Obazee failed or refused to file a written statement on oath or appear in person to traverse the allegation of sexual harassment leveled against him by the claimant, rather he relied on the testimony of  DW1 and DW2 respectively, who testified on behalf of both the 1st and the 2nd defendants. It is however, obvious from the evidence before the court that none of the defence put up by the two defence witnesses was able to defend/controvert the allegation of sexual harassment against the 2nd defendant, the allegation which is personal against him and he is required in law to personally and specifically defend same. What both defence witnesses stated in Court are if anything at all, repetition of what the 2nd defendant stated at the Finance and General purpose committee, the proceeding of which has been set aside by this Court in this judgment. DW1, Mrs Shibigem, stated under oath that she is not in a position to tell the Court that the 2nd defendant never made sexual overtures to the claimant. She confirmed that she was aware that the 2nd defendant keeps the claimant in the office up till 10p.m, instead of the 5pm being the official closing hour of the 1st defendant. She admitted that it is not proper in the rules of service for a Senior officer to report to a grade level 8 officer, a junior officer and that she was only called upon in her official capacity to come and sign the witness statement on oath. It is plain from the testimony of DW1 on record that she was in Court to give evidence for the 1st defendant as its staff and not for the 2nd defendant who is equally an officer of the 1st defendant. DW2 equally agreed under cross examination that the issues bordering on the 2nd defendant’s sexual inclination and overtures towards the claimant is personal to him and that he would never discuss such issues with him. He admitted that his office is on the 4th floor, while the 2nd defendant’s office is on the 3rd floor and thus he would not hear him talk while in his office. While he told the Court that the claimant’s office is very close to that of the 2nd defendant and would not know what transpires between the duo. DW2 stated that the claimant is supposed to close at 5pm, and aware that the 2nd defendant keeps the claimant in the office up till 10p.m. It is apparent that the testimonies of both DW1 and DW2 did not help the 2nd defendant’s case, given that they did not in any way controvert or challenge the allegation of sexual harassment leveled against the 2nd defendant. 2nd defendant admitted at the committee that he sent text messages to the claimant. He could not also deny visiting the claimant late in the night in her hotel room. It is in consequence that I find and hold that the 2nd defendant did not controvert or challenge the evidence of the claimant bordering on sexual harassment against him. It is obvious that the 2nd defendant, Mr. Obazee has no defence to the allegation of sexual harassment leveled against him by the claimant, hence he refused or chose not to specifically challenge it, but chose to rather file a joint statement of defence, thus hiding under the cloak of the 1st defendant, his employer. He did not also specifically deny the allegation of sexual harassment levied against him by the claimant, except the general traverse made in the joint Statement of defence filed by both the 1st and 2nd defendants.

 

………………………………….

 

It is from all stated above that I find that the 2nd defendant failure to testify in defence of the grievous allegation of series of sexual harassment against him is fatal to his case… I find and hold that the 2nd defendant, Mr. Jim Osanyande Obazee, sexually harassed the claimant by his unwelcome utterances/conduct of a sexual nature which detrimentally affected the work environment, it also gave the claimant reasonable grounds and fear for believing that an adverse reaction to his conduct would occasion a disadvantage to her in connection with her employment or work, and she suffered some tangible job detriment leading to the oppressive transfer of the claimant to Kaduna to take orders from her subordinate, thus adversely affected her dignity and self worth. It is indeed an abuse of power, an affront to the dignity of the claimant who was forced to endure it…The termination of the claimant’s employment, simply because she refused to succumb to sexual harassment from 2nd defendant constitute a violation of her human dignity and freedom from discrimination as protected by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, ditto against the claimant’s fundamental human right under the 1999 Constitution…

 

  1. In the instant case, therefore, the direct evidence of the claimant as to her superior Mr Gavin Smyth instructing her to flirt with potential clients, Mr Gavin Smyth espousing her good looks as an asset to the defendant, the constant threats and harassment by her superior of dismissal on grounds of her medical condition, scolding by Mr Gavin Smyth, Mr Gavin Smyth asking the claimant to work even when sick, the fact that two days into the claimant’s employment she orally told her line manager of her genotype, the fact that Exhibit C15 was submitted to Mr Gavin Smyth by the claimant, the fact of Mr Gavin Smyth forcefully dragging the claimant to a room which he locked (it remains false imprisonment even if for a very short period so long as the imprisonment was total – see Adeyemo& anor v. Akintola[2003] LPELR-10905(CA); [2004] 12 NWLR (Pt.887)390), etc all having not been contradicted by a more believable witness/evidence, is more believable and so preferable for present purposes than the evidence of DW; and this remains so despite that I discountenanced Exhibit C4. Under cross-examination, DW testified thus:

Yes, an exit interview was conducted for the claimant on 13th March 2013.  No, I was not part of the exit interview but I was sitting beside the office where it took place.

While I did not hear what was being said at the exit interview, I could, however, see what was going on.The office I stayed had glass cubicle.

Yes, all though the exit interview I was stationed in the office I said I was in. No, this does not mean that all through the exit interview I abandoned my duty as Head of Security.  The exit interview lasted for one hour.

DW was not part of the exit interview. DW did not hear what transpired at the exit interview. As such, DW could not be categorical in his testimony as to what transpired between the claimant and especially Mr Gavin Smyth. In any event, DW was not privy to all that transpired between the claimant and especially Mr Gavin Smyth prior to the date of the exit interview. For all these and other reasons already given, I believe the oral testimony of the claimant in preference to DW’s testimony and so find and hold that by her oral evidence, the claimant proved her case against the defendant.

 

  1. The defendant’s counsel had given as the reason why the defendant did not call Mr Gavin Smyth as a witness the fact that Mr Smyth had left the employment of the defendant and so travelled back to his country. This is counsel giving evidence in a written address, something the defendant’s counsel knows pretty well is not allowed in law. The law is that evidence given which is not in line with the facts pleaded goes to no issue and so is of no help to the party that produces it. See The Shell Petroleum Development Company of Nigeria Limited v. Kwameh Ambah [1999] LPELR-3202(SC); [1999] 3 NWLR (Pt. 593) 1; [1999] 2 SC 129. The further argument of the defendant that it could not locate the other witnesses listed even when it applied for a subpoena for them is wishful thinking and an afterthought. The law is that even where a subpoena is issued against a witness who does not show up in Court, nothing favorable, as a result of the failure to appear in Court, is to be read in terms of the case of the party who applied for the subpoena. In other words, the effect of failure to answer the subpoena does not lead to an adverse finding against the defaulting party. See Buhari v. Obasanjo[2005] 7 SCNJ1 and Lawal v. Magaji&ors[2009] LPELR-4427(CA). So having to give the failure to locate the other witnesses as an excuse by the defendant is unhelpful to the defendant and does not change the fact that it called only one witness, DW, in defence of its case.

 

  1. The claimant is claiming N10 Million Naira in terms of her reliefs (1), (2) and (4). I held that the claimant proved her case in terms of the harassment and discrimination she was put through by the defendant. The actions of the defendant via Gavin Smyth were not only dehumanizing but went against the grains of dignity of labour. The actions of the defendant are sufficient to ground actions in fundamental right infringement as well as in tort. The claimant is no doubt entitled to recompense. The only question is: what quantum of damages is she entitled to then? Section 19(d) of the NIC Act 2006 provides that this Court “may in all other cases and where necessary make any appropriate order, including…an award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear”. By B.B. Apugo& Sons Ltd v. OHMB[2016] LPELR-40598(SC):

The object of an award of damages is to compensate a person for the injury he has sustained by reason of the act or default of another, whether the act or default is a breach of contract or tort. The measure of damages on the other hand, is an amount that would reflect what would put the injured party in the same position as he would have been had the injury not occurred.

In Alhaji Ibrahim Abdulhamid v.Talal Akar& anor[2006] LPELR-24(SC); [2006] 13 NWLR (Pt.996)127; [2006] 5 SC (Pt. I) 44, the Supreme Court affirmed the award of a quarter of what was originally claimed by the applicant for“harassments, intimidation and degrading treatment”. The claimant in the instant case is claiming for N10 Million. A quarter of this sum is N2,500,000.00. This is the sum I will award against the defendant in favour of the claimant in terms of her reliefs (1), (2) and (4). I so order.

 

  1. On the whole the claimant’s case succeeds in terms of the following orders:
  • The defendant shall pay to the claimant the sum of Fifty Thousand Naira (N50,000.00) only being one month’s salary in lieu of notice for breach of the contract of employment.
  • The defendant shall pay to the claimant the sum of Two Million, Five Hundred Thousand Naira (N2,500,000.00) only being damages for physical harassment, discrimination at work based on circumstance of her birth and false imprisonment.
  • Cost of this suit is put at Three Hundred Thousand Naira (N300,000.00) only payable by the defendant to the claimant.
  • These sums indicated in orders (1), (2) and (3) above are to be paid to the claimant by the defendant within 30 days of this judgment, failing which they shall attract 10% interest per annum until fully paid.

 

  1. Judgment is entered accordingly.

 

 

 

……………………………………

Hon. Justice B. B. Kanyip, PhD

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