IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE AKURE JUDICIAL DIVISION HOLDEN IN AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE O. O. OYEWUMI
DATE: 22ND JANUARY, 2019
SUIT NO: NICN/BEN/25/2015
BETWEEN:
GLORIA A. EDIALE
CLAIMANT
AND
1. UNION BANK OF NIGERIA PLC
2.MR. EMEKA EMUWA (GROUP MANAGING DIRECTOR/CHIEF EXECUTIVE OFFICER, UNION BANK OF NIG. PLC)
DEFENDANTS
S.O Eimiuhi for the Claimant
A.A. Sulaiman for the Defendants
JUDGMENT
The claimant was employed as a Confidential Secretary in 1983 and her appointment confirmed. He was at various times promoted after which she was converted to mainstream banking in October, 2006. She was placed on a basic salary of N555, 274.00 and total allowance of N684, 160.00 per annum with effect from 11th October, 2006. She was later confirmed as Officer 1 effective from 25th October, 2007. She stated that she was purportedly dismissed by a letter dated 13th December, 2012 for an alleged gross misconduct, which she said was an authorized debit entries from the salary Account of one Mr. Agomini Martins made by one Bamiyi Dirisu who took advantage of the data crash between April and June, 2008 in the ICT department using her password without her consent. It is the further testimony of the claimant that the said purported dismissal is wrongful, invalid, null and void and a deliberate breach of the provisions of the procedural and main collective agreement 2005 governing the terms and conditions of her service as senior employee as she was not afforded any opportunity to defend herself, she was denied fair hearing, that there is no proven case of misconduct against her, that she was not issued any query for the allegation and that she was not aware that her job was on the line. She pleaded that her annual salary scale as the Chief Marketing Officer (public sector) before her purported dismissal is N4,300,000.00 effective from 1st July, 2010, same was reviewed upward to N5,500,000.00 from 1st June, 2014. That she is entitled to be paid pension and gratuity upon retirement and that her entitlements as salaries and allowances from December 2012 to 22nd September, 2021 is N46,783,326.33 while her retirement benefits (pension and gratuity) is N7,235,000.00.
It is in the light of the above, that the claimant filed a general complaint on the 30th June, 2015 which was amended on 6th October, 2016 claiming the following reliefs against the defendants viz:
1. A Declaration that the purported dismissal of the claimant from her employment, vide letter dated 13th December, 2012 is unlawful, invalid, wrongful, null and void and of no effect whatsoever.
2. A Declaration that the claimant is still a Senior Staff (Officer 1) of the 1st defendant and therefore entitled to her full salaries and allowances from December, 2012 to September 2021, the date of her lawful retirement.
3. An Order reinstating the claimant back to her duty post.
4. An Order directing the defendants to pay to the claimant her entitlements of salaries, allowances and retirement benefits of entitlements of salaries, allowances and retirement benefits of N54,018,326.33.
5. The sum of N100,000,000.00 being general damages for the unlawful dismissal of the claimant from her employment.
In response to the claimant’s statement of facts, the defendants stated in their amended statement of defence filed on the 29th November, 2016 that no one (including Mr. Dirisu) can access the claimant’s password unless she discloses same or colluded with such persons or for being careless and negligence in exposing same. They stated further that there was no data crash in the ICT department and that the claimant has no reason to disclose her password to Mr. Dirisu, also that the claimant is aware that a bank has no right to disclose Statement of Account of a customer to a third party without a Court order to that effect or the customer’s consent. It is further stated that the dismissal of the claimant was in tune and in accordance with her contract of service dated 15th February, 1983 as she was queried and she responded. Her case reviewed by the Staff Disciplinary Committee before the decision to dismiss her was taken. That by the policy of the 1st defendant, the claimant being a dismissed staff is not entitled to payments of gratuity, moreover, that the claimant being dismissed in 2012, is not entitled to further salaries, as such she cannot benefit from salary review thereafter. The defendants therefore urged the Court to dismiss the claimant’s case in its entirety as lacking in merit, frivolous, vexations, gold-digging and an abuse of Court process.
The claimant testified for herself as CW, she adopted her sworn deposition as her evidence in the case and frontloaded some documents which were admitted and marked as Exhibits GA-GA17. One Olatubosun Arowolo gave evidence on behalf of the defendants vide a sworn statement dated the 11th of December, 2017. He tendered a sole document, admitted and marked as Exhibits OA.
In conformity with the rules of the Court, parties filed their final written addresses at the close of trial. Defendants filed theirs on 13th March, 2018 while that of the claimant was filed on 17th May, 2018.
Three issues were framed by the defendants for determination thus:
a. Whether Exhibit ‘GA1′ i.e. the Procedural & Main Collective Agreement between The Nigeria Employers’ Association of Banks, Insurance and Allied Institutions (NEABIAI) and The Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI), 2005 regulates the employment of the claimant and not Exhibit ‘OA’ i.e. Contract of Service dated 15th February, 1983 between Union Bank of Nigeria Plc and Ediale, Gloria.
b. Whether the claimant has adduced sufficient credible evidence to entitle her to judgment on her reliefs before this Court.
c. Whether the claimant’s reliefs are grantable in law, taking into consideration the Master/Servant relationship between the claimant and the 1st defendant.
On issue one, learned counsel submitted that Exhibit ‘GA1′ is not and can never be the contract of service or the conditions of the claimant’s employment as the claimant and the 1st defendant are not parties to the collective agreement. They further argued that assuming the said agreement appears to give the claimant the right to sue or make her liable upon it, the document cannot be enforced by or against a person who is not a party to it since it is the general rule of law that only parties to contract is affected by the contract, this position is supported by the authority of Makwe v. Nwukor [2001] 14 NWLR (Pt. 733) 356 at 372. It is also the submission of learned defendants’ counsel that in 1983 when the claimant joined the 1st defendant, parties would not have intended that the terms of the contract be delayed for over 22 years and that such terms will be based on an agreement between third parties, the Court is therefore urged to hold that Exhibit ‘OA’ is the condition of the claimant’s appointment with the 1st defendant and not Exhibit ‘GA1’.
Learned counsel submitted regarding issue two, that the claimant has not discharged the burden placed on her in respect of declarations in her reliefs (a) and (b) and that once the two reliefs fail, automatically the other three reliefs must fail as they are dependent on the declaratory reliefs. Cited in support is the case of Emenike v. P.D.P & Ors [2012] Vol. 210 LRCN 91 @ 118 – 119. Counsel in buttressing his contention, submitted that the claimant failed to establish in what way and manner the defendants have breached Exhibit ‘OA’ as she has to base her claims on the said exhibit and not Exhibit ‘GA1′. Counsel urged the Court to dismiss the claimant’s case and to also hold that she is only entitled to her accrued salary up to the date of her dismissal if she has not been paid.
Learned counsel submitted on the third issue that the relief of declaring as null and void the dismissal or termination of an employee or an order of reinstatement are not recognized at common law even where such is held to be wrongful, mostly in a master/servant relationship but that the remedy is an award of damages. Furthermore, that the claimant having been dismissed, she cannot be imposed on the 1st defendant. The cases of Ziideh v. R.R.C.S.C [2007] Vol. 145 LRCN @ 530 and Dudusola v. N.G.C. Ltd [2013] Vol. 223 (Pt. 1) 154 @ 168 were relied upon.
The Court was urged to resolve all the issues in defendants’ favour and dismiss the claimant’s reliefs in their entirety as lacking in merit, frivolous and gold-digging.
The claimant formulated three issues before the Court for determination thus:
(1) Whether as a senior staff of the 1st Defendant, Claimant’s conditions of service, discipline or dismissal is guided or regulated by the Procedural and Main Collective Agreement, Exhibit GA1?
(2) Whether the Defendants complied with the provisions of the Procedural and Main Collective Agreement, Exhibit GA1 before the purported dismissal of Claimant from her employment?
(3) Whether Claimant is entitled to her claims for salaries, allowances and retirement benefits for her unexpired period of employment?
The contention of learned counsel to the claimant in respect to issue one is that the 1st defendant, by deducting N817.92 from claimant’s salary every month to ASSBIFI as monthly dues in line with Section 17 of the Trade Unions Act, has tacitly recognized the claimant as a member of the Association and by necessary implication incorporated Exhibit GA1 into the contract of service made for members of ASSBIFI. Counsel referred to the authorities of Abalogu v. Shell Petroleum Dev. Co. Nig. Ltd. [2003] 45 WRN page 1 at pages 23-24 (lines 45-5), Olusanya v. UBA Plc [2017] 45 WRN 76 at pg 107 (lines 30-35) and Exhibit ‘GA’. He therefore described the argument of defendants’ counsel that Exhibit ‘GA1’ does not regulate the condition of service of the claimant as untenable, puerile and grossly misconceived. It is further contented that having varied or changed the rules or terms of claimant’s employment from Exhibit “OA” to “GA1” and the claimant having accepted payment of salaries for her elevated or changed position (Exhibits GA16), as envisaged by paragraph 8 of Exhibit ‘OA’; the 1st defendant is bound by the provisions of Exhibit GA1 and that it is estopped from alleging that Exhibit ‘OA’ regulates claimant’s employment as it cannot approbate and reprobate at the same time. He then urged the Court to hold that Exhibit ‘GA1’ regulates the employment of the claimant and not Exhibit ‘OA’.
It is the further argument of learned counsel on the second issue that the dismissal letter (Exhibit GA8) was issued in complete breach of Article 4 (iv) (c) of Exhibit GA1 as the defendants did not issue or give the claimant any written query and did not also afford her any opportunity to defend herself in writing before her appointment was purportedly dismissed, hence, it is null and void and of no effect whatsoever. (Article 4(iv) (a), (b) and (c) pages 24 and 25 of Exhibit GA1)
On the consequence of failure of the defendants to comply strictly with statutory pre-conditions, counsel commended to the Court the cases of Oloruntoba-Oju v. Abdul-raheem & Ors [2010] vol. 178 LRCN 131 at pages 183 (para. JJ) and 184 (para. A.-EE) and PHCN v Offoelo [2013] vol. 218 LRCN (pt. 128) at pg 153 (para. K. U) and urged the Court to declare the purported dismissal of claimant from her employment null and void and that her employment is still subsisting.
On issue three it is submission of the claimant’s counsel that in law, when an employment with statutory flavour, as in the instant case is wrongfully dismissed, the employee is entitled to reinstatement to her office and in addition, damages representing her salaries, allowances and benefits for the period of her purported dismissal. This position was buttressed by the authority of CBN & Anor v Igwillo [2007] 147 LRCN 913 at page 930 (para. F). He therefore urged the Court to resolve this issue in favour of claimant and order payment of her entitlements as claimed.
I have carefully considered the facts of this case as well as the defence thereof, the documents tendered as evidence before this Court, as well as the testimonies of witnesses and the written submission of learned counsel on both sides, it is in my calm view that the lone issue that will best determine the grievance of parties in this suit is;
Whether or not the claimant has proven her reliefs as to entitle him to the claims sought.
It is the grouse of the claimant that the dismissal of her employment by the defendant on the 13th of December, 2012 and with effect from 14th of December, 2012 is wrongful, invalid, null and void and a deliberate breach of the provisions of the procedural and main collective agreement 2005 governing the terms and conditions of her service as senior employee as she was denied fair hearing and that there was no proven case of misconduct against her. The defendants in response stated that the dismissal of the claimant was in accordance with her contract of service dated 15th February, 1983, that she was queried and her case reviewed by the Staff Disciplinary Committee before the decision to dismiss her from its services was taken.
It is obvious as it is clear from the record of this Court that the employment relationship between the claimant and the defendants is one of master and servant relationship. It is trite that in an employment of this nature, the master can terminate the service of the employee and is under no obligation to give reasons for terminating the appointment of his servant. The master can terminate the contract with his servant at any time and for any reason or for no reason. See the cases of Atanda v H. Saffiddine Transp. Ltd [2008] Vol 37 WRN 185 at 199; Ekunola v CBN & Anor [2013] LPELR 20391 SC; Ajuzi v FBN [2016] LPELR 40459 CA; Ojabor v. Hon Minister of Communications & Ors [2018] LPELR 44257 CA. Our case law is also replete with case law authorities on the nature of master-servant relationship, in that an employer has a right to dismiss an employee on an allegation of misconduct but same must be in accordance with the contract of employment. This is in view of the settled position of the law that parties to an agreement are bound by the terms and condition of their agreement and cannot under any guise resile or renege from their agreement as their contract of service is substratum upon which the employment relationship is predicated and the Court will look into the terms only and no any other document to decide any given case before it. See the case of Obanye v. Union Bank of Nigeria Plc[2018] LPELR-44702 SC. Also an employee who complains that his termination/dismissal is wrongful must place before the Court the terms of his employment and in what manner the terms of employment was breached. This is the reasoning of the Court in John Oforishe v. Nigerian Gas Co. Ltd [Supra], Mighty Plastic Industries Limited v. Okeke [2016] LPELR-41034; Ogbonna v. Neptune Software Limited [2016] 64 NLLR (Pt228) P. 518.
The claimant in prove of her contract of employment with the defendants, tendered exhibits GA, GA1 and OA/G15 which are her letter of employment dated 10th of February, 1983, the procedural and main collective agreement between the Nigerian Employers ‘Association of Banks, Insurance and Allied Institutions (NEABIAI) and The Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) and the Contract of service dated 15th of February, 1983 between the claimant and the defendants. The defendants in disagreement to this stated that Exhibit ‘GA1’ is not part of the contract of service or the conditions of the claimant as the claimant and the 1st defendant is not a party to the collective agreement because Exhibit GA1 came into existence in the year 2005 about 22 years when the claimant and the defendant entered into the contract of agreement. However the claimant under cross examination reacted to the assertion of the defendants in the otherwise and posited that the sum of N817.92 is usually/monthly deducted from her salary as check off dues to the ASSBIFI as a member. A keen look at exhibit GA1 reveals that the collective agreement is between the Nigerian Employers ‘Association of Banks, Insurance and Allied Institutions (NEABIAI) and The Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) that is invariably between Banks, of which the 1st defendant is one and its senior staff therein. The defendants in this suit have failed to neither controvert that the claimant is not a senior staff to be part of the ASSBIFI nor denied deduction of the sum of N817.92 from his salary as check off dues. I say so in view of the fact that DW under cross examination admitted that the claimant was a senior staff and also that there is a collective agreement guiding the employment of the claimant that is exhibit GA1. It is the law that admitted facts or facts not disputed require no further proof. Such fact is deemed established. See Section 123 of the Evidence Act, 2011 and the cases of Mba v. Mba [2018] LPELR-44295SC; Pina v. Mai-Angwa [2018] LPELR- 44498SC; Oliyide & Sons Ltd v. OAU, Ile Ife [2018] LPELR- 43711SC; By Chemiron (INTNL) Ltd v. Stabilini Visinoni Ltd [2018] LPELR-44353SC; the Court can legitimately act on such undisputed facts. The same position was held by the Court in Atanda v Iliasu [2012] LPELR -19662 SC; Unity Bank Plc v. Akpeji [2018] LPELR- 44995CA; Ajala v. Akande & Ors [2018] LPELR-44869CA; New Nigerian Newspapers ltd v Agbomabini [2013] LPELR 20741 CA; Mbanaso v Offor & ors [2012] LPELR 19683 CA. The defendants having admitted that exhibit GA1 regulates the employment of the claimant as a Senior staff and failed to deny that they deducts check off dues from her salary every months as a member of ASSBIFI, is at this stage estopped from denying that her contract of employment is regulated by exhibit GA1. This is because by E.C.W.A v. Dele [2004]10 FWLR(PT.230)297, where the condition of service applicable at the time of appointment had been amended or replaced, the relevant conditions of service is the one that is applicable at the time of termination/dismissal of appointment. This Court by Section 254C (j) and (i) of the 1999 Constitution as amended, is empowered to the exclusion of all other Courts to exercise jurisdiction in civil causes and matters, as hereunder reproduced for ease of reference thus-
“254C – (1) notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-
“(j). relating to the determination of any question as to the interpretation and application of any
(i) Collective agreement”
The import of the above provision is that this Court is empowered by law to interpret and apply collective agreement between parties. It also donates to this Court the corresponding power to declare as to the nature of rights, privileges and obligations existing in the Collective Agreement. The overall import of which is that Collective Agreement is justiceable and enforceable by this Court. See the cases of Mrs Adeniran Adebukola Olufunmilola v. Union Bank Plc, an unreported suit No. NIC/LA/401/2013, delivered by this Court on the 25th November, 2016; David E. Ukaa & Ors v. Access Bank Plc; Unreported Suit No. NICN/LA/198/2011, a judgment Delivered on the 14th of October, 2015. It is consequent upon all these, that I find that exhibit GA1 regulates the appointment of the claimant. I so hold.
With respect to the claimant’s contention that her dismissal from the employment of the 1st defendant is wrongful, it is apt to state that an employer, before dismissing his employee for misconduct, must fulfill the requisite doctrine of fair hearing by bringing the said allegation against the employee to his/her notice and affording him/her adequate time to respond to same. It is trite that in a master and servant relationship, where a party is given an opportunity to present his case as stipulated in the contract of his employment, he/ she would be said to have been given a fair hearing. See the case of Imonikhe v Unity Bank Plc [2011] LPELR 1503SC.
Having said that, it is appropriate to consider the provisions of the terms and conditions of the contract of service between the claimant and the defendants Exhibits GA15/OA and the Nigerian Employers ‘Association of Banks, Insurance and Allied Institutions (NEABIAI) and The Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) exhibit GA1 on the procedure to take before the defendant can dismiss its employee. A careful examination of Article 4 of Exhibit GA1 particularly at (iv) provides for Summary dismissal thus;
“a. An Employee may be summarily dismissed for certain acts of gross
misconduct. Such acts include proven cases of;
Theft, fraud, dishonesty, defalcations, irregular practices in respect of cash, vouchers, records returns, customer’s account or foreign exchange transaction.
Willful disobedience of a lawful order OR serious negligence.
……….
(c) Before either summary dismissal or warning letter is effected, the employee shall be given a written query and afforded the opportunity of defending himself in writing except where the employee has absconded.”
Also Exhibit GA15/OA provides at clause 3 that;
“3. In the event of the official being guilty of any breach of the provisions of this agreement or of misconduct of any kind (whether during or out of office hours), of which the Bank shall be the sole judge, or being found by the Bank to be incompetent to fulfill the duties of his office or in the event of his being unable to pay his debts as they fall due, or in the event of his undertaking any financial obligation (other than those relating to his personal or household expenses) without prior authority of the Bank, it shall be lawful for the Bank to determine this agreement at any time without notice, in which case the official shall only be entitled to salary accrued due up to the date of such dismissal”
From a combine reading of both documents, it is deducible that the bank has the right to dismiss the claimant at any time without notice, however, she must be given a written query and afforded the opportunity of defending himself/herself in writing except where she has absconded. A cursory look at the document before the Court reveals that the claimant was dismissed by the defendants on the 13th of December, 2012. I have perused the record and found no single document or any shred of evidence to show that the claimant was issued a written query and afforded the opportunity of defending herself in writing against the alleged misconduct, and what this means to me invariably is that the 1st defendant failed to follow the terms and conditions of its employment in dismissing the claimant and that is wrongful. The law is settled and without paradventure that an employment can be said to be wrongfully terminated/dismissed if it is done in contravention of the terms and condition of service and also in a manner not contemplated by parties in their agreement. See the cases of Obanye v. Union Bank, supra; John Holt v. Nzeribe [2018] LPELR- 44943 CA; Union Bank Plc v. Salaudeen [2017] LPELR- 43415CA; Union Bank of Nigeria Plc v Chinyere [2012] 2 NLLR P.41; Elijah I Ezekwere v Golden Breweries Ltd [2000] 8 NWLR (Pt. 670) 648. Applying the above principle of law to this instance, that I find the dismissal of the claimant from the services of the 1st defendant on the 13th of December, 2012 as wrongful. I so hold.
Having held supra that the claimant’s dismissal is wrongful, what then is the appropriate order to make in the circumstance of this case? It is claimant’s claim that she is still a staff of the defendants and therefore entitled to all remuneration, allowances and promotion and also that he is to be reinstated forthwith. The Law is long settled that the Court cannot foist an unwanted employee on an employer in a private employment as in this case and also there is no general rule in a master and servant relationship which entitles the victim of a wrongfully determined employment to a right to order the Court for reinstatement. In other words Courts cannot order specific performance of the mere contract of service or employment under common law. See the cases of Union Bank Plc v. Emmanuel Soares [2012] LPELR-8018CA; Omidiora v. Fed. Civil. Service. Comm (2007) Vol. 44 WRN 53 at 69-70 lines 40-15 (CA); Nigerian Society of Engineers v. Ozah [2016] 64 NLLR (Part225) 11 CA; Ogbaji v. Arewa Textiles Plc v. Anor [2015] 61 NLLR (Part212)32 NIC; Kuti v NSITFMB [2016] 67 NLLR (Pt. 240) 426. It is clear and devoid of any ambiguity that the defendants are no longer interested in continuing with the employment of the claimant, it is based on this that this Court cannot order for the reinstatement of the claimant. Consequently, in the circumstances of this case, I hereby commute the dismissal of the claimant to termination effective from the 13th December, 2012 the date the purported dismissal took effect, as equity looks on that as done which ought to be done, the maxim “justicia viltus in ut at perfectus quod futures perfectus” applies. Having done so the next question to answer is what is she entitled to. It is the law that in most employment, the contract of service provides expressly that it is terminable by giving the stipulated period of notice the measure of damages recoverable for a wrongful termination or dismissal will be the amount of salary the employee would have earned during the stipulated period. See the cases of Festus Mrakpor & Anor v Police Service Commission [2016] LPELR-40489 CA; Rene Antoun & ors v Benson Oghene [2012] LPELR 8502 CA. In the instant case, Exhibit GA1 at Article 4 particularly at (ii) (d) provides that;
“(d) An employee whose services have been terminated under the provisions of this paragraph shall, nevertheless, be entitled to one month’s notice salary in lieu, in addition to any other terminal benefits that may be due to him”
By exhibit GA16 it is seen that the claimant’s monthly salary as at the 23rd of November, 2012 is in the sum of N237, 182.08. Therefore, claimant’s salary in lieu of notice is N237, 182.08. It is in the light of that, that I find that claimant is entitled to the sum of N237, 182.08 as her one month salary in lieu of notice. I so find and hold.
With respect to claimant’s terminal benefits, it is pertinent to state that there is nothing said in that regard in exhibits GA and GA15, however, a careful examination of Exhibit GA8 reveals at Article 8 that;
“Pension and Gratuity Schemes shall be negotiated at Company level between the Domestic Unit of the Union and individual members companies of the Association based on the concept of total emolument”
From the combined reading of Articles 4 and 8 of exhibit GA8, I find that the claimant upon the termination of her employment is entitled to her terminal benefits in pension and gratuity. Claimant’s claims for payment of terminal benefits must succeed having served the defendant. Consequently, claimant is entitled to her terminal benefit upon termination of her employment. I so hold.
It is also claimant’s claims that he is entitled to her full salaries and allowances from December, 2012 to September 2021, the date of her lawful retirement. It is trite law that an employee/labourer is eligible to receive his salary/wages having worked for same and it shall not be so withheld by his or her employer as it is the cardinal obligation of an employer to pay an employee as at when due and failure to so do gives the employee the right of action to recover same. Inversely, no employer is under any obligation to pay salaries and allowances to an employee who has not worked for the period, differently put an employee is not entitled to salaries for work not done. See the cases of Nwafor v Anambra State Education Commission & ors [2017] LPELR 42026 CA; Keystone Bank v Afolabi [2017] LPELR 42390 CA. In the case of Adekola Oluwakemi Funlola v C&M Exchange [2016] 64 NLLR (Pt. 228) 553. The Court held that, “the Court will not order salary to be paid a worker for services not rendered. The claimant’s appointment herein was terminated by a letter dated 21/12/12 with immediate effect. Without much ado, the then existing relationship was effectively brought to an end by that letter. From that date, it is not open to the claimant to regard the relationship as still subsisting. She could also not claim for any salary effective from that date of termination. The reason being that there is no basis for such a claim.” The claimant having not worked for the period she claims salaries for is not entitled to her claim. It is therefore on that premise that I find that the claim of the claimant fails. I so hold.
It is the claimant’s claim that he is entitled to damages in the sum of N100, 000,000.00 (One Hundred Million Naira) being general damages for her wrongful dismissal from the defendants employment. It is the general principle of law that assessment of damages is based on the loss sustained by the injured party, which loss was either in the contemplation of the parties, or is otherwise an unavoidable consequence of the breach. See the case of Elf Petroleum v. Umah & Ors [2018] LPELR-43600SC; Ibrahim & Ors v. Obaje [2017] LPELR- 43749SC; Andrew Osemwengie v Judicial Service Commission Edo State & Anor [2015] 63 NLLR (Pt 221) 1 CA. In the instant case, the issue of an award of damages is hinged on the fact that the claimant was wrongfully dismissed. I have decided supra that the employment relationship between the duo has ended, hence I held it to be termination of employment, consequent upon which I awarded salary in lieu of notice and have equally ordered for payment of claimant’s accrued terminal benefits in pension and gratuity. The act of the defendant is of course an unfair labour practice which this Court abhors, however, the claimant never sought for or pleaded that, I cannot therefore grant a relief not sought as Courts are not father Christmas who doles out gifts to people. It is in this light that I find that claimant’s claim for damages fails.
Summarily, claimant’s claims succeed in part and for the avoidance of doubt, I declare and order as follows:
That the dismissal of the claimant by the defendant by a letter dated 13th of December, 2012 is wrongful.
That the claimant’s dismissal vide a letter of dismissal dated 13th of December, 2012 is hereby commuted to termination of employment.
That the claimant is entitled to his one month salary in lieu of notice in the sum of N237, 182.08.
That the claimant is entitled to her accrued terminal benefits and pension from the defendants.
That claimant’s claim for reinstatement fails.
That claimant’s claim for salaries and allowances from December, 2012 to September 2021, the date of her lawful retirement fails.
I award the sum of N50,000.00 as cost in favour of the claimant.
All the monetary awards are to be paid within 30days of this judgment, failing which it is to attract 10% interest.
Judgment is entered accordingly.
Hon. Justice Oyewumi Oyebiola. O
Presiding Judge
