LUCKY ABU ONUMINYA -VS- WORKFORCE MANAGEMENT CENTRE

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE JOS JUDICIAL DIVISION

HOLDEN AT JOS

BEFORE HIS LORDSHIP HON. JUSTICE K.I. AMADI, PH.D

DATED: January 31, 2020 SUIT NO.: NICN/JOS/3/2018

BETWEEN:

LUCKY ABU ONUMINYA —– CLAIMANT

AND

WORKFORCE MANAGEMENT CENTRE LTD. —– RESPONDENT

Representation:

S.T. Ahile for the Claimant

P.H. Hammache for the Defendant

JUDGMENT

INTRODUCTION

The Claimant commenced this case by a writ of summons and Statement of Facts dated 30^th May, 2018 and filed on 8th June, 2018. The claimant claimed against the defendants as follows:

A Declaration that the Respondent’s termination of the Claimant’s employment without notice is unlawful, illegal and unwarranted.
An Order of mandatory injunction compelling the Respondent to pay to the Claimant the sum of N99, 240. 73 (Ninety Nine Thousand Two Hundred and Forty Naira and Seventy Three Kobo only) being his one month salary in lieu of notice of termination of employment.
An Order of mandatory injunction compelling the Respondent to pay to the Claimant the sum of N53, 496. 99 (Fifty Three Thousand Four Hundred and Ninety Six Naira and Ninety Nine Kobo only), being annual leave allowance for the period from 26^th August, 2014 to 11^th August, 2015.
An Order of mandatory injunction compelling the Respondent to pay the sum of N67, 227. 09 (Sixty Seven Thousand Two Hundred and Twenty Seven Naira and Nine Kobo only) to the Claimant being payment in lieu of annual leave.
An Order of mandatory injunction compelling the Respondent to pay the sum of N35, 244. 82 (Thirty Five Thousand Two Hundred and Forty Four Naira and Eighty Two Kobo only) to the Claimant being 13^th Month payment.
An Order of mandatory injunction compelling the Respondent to pay to the Claimant the sum of N99, 240. 73 (Ninety Nine Thousand Two Hundred and Forty Naira and Seventy Three Kobo only) being his one month salary having worked from July 26^th to August 11^th 2015.
An Order awarding general damages in the sum of N2, 000, 000. 00 (Two Million Naira Only) in favour of the Claimant against the Respondent.
An Order awarding exemplary damages in the sum of N2, 500, 000. 00 (Two Million, Five Hundred Thousand Naira Only) in favour of the Claimant against the Respondent.
Cost of this action.

The Defendant filed a Memorandum of Appearance and Statement of Defence dated and filed on 29^thOctober, 2018. The Claimant filed a Reply to the Statement of Defence dated and filed 29^th January, 2019.

Trial commenced on 21^st March 2019; the Claimant testified for himself as CW1 by adopting his witness statement on oath. He tendered seven (7) documents which were admitted in evidence and marked accordingly. He was cross examined by the Defendant’s counsel after which the Claimant closed his case. The Defendant opened his case on 21^st June 2019 and called a sole witness who testified on its behalf and was cross examined. Thereafter the parties filed their Final Written Addresses.

FACTS OF THE CASE

The Claimant was employed by the Defendant vide a letter dated August 7, 2013 with 26^th August, 2013 as effective date. He was posted to Diamond Bank Plc, 34 Ahmadu Bello Way, Jos Branch to work as Secretary vide a Letter of Deployment where he resumed work on the 26^th August, 2013. On the 11^th August, 2015 the Claimant received a letter of termination dated 4^th August, 2015 titled “Withdrawal of Service” which stated that his services with the Respondent were no longer required. It is the case of the claimant that no notice of termination was given to him or one-month salary paid to him in lieu of notice in line with Exhibit “CA”. That he is entitled to 13^th month salary, annual leave allowance, and salary in lieu of annual leave having worked from 26^th August, 2014 to 11^th August, 2015. That he is also entitled to one-month salary for the period of 26^th July, 2015 to 11^th August, 2015 and also entitled to his other claims.

The case of the Respondent is to the effect that the services of the Claimant were no longer required though the Claimant acted in a manner unbecoming of a person in whom such trust was reposed. That it did not breach any term of the contract between it and the Claimant and that the Claimant was aware of his distasteful and irresponsible conduct. That it will be unreasonable to pay one month salary in lieu of notice in the circumstances of his employment and conduct .

ADDRESSES OF THE PARTIES

In his final written address the learned counsel for the Claimant raised three issues for determination to wit:

Whether the Respondent has followed due process of law in its termination of the Claimant’s employment.
Whether the Claimant is entitled to recover one month salary in lieu of notice, 13^th month salary, annual leave allowance, salary in lieu of annual leave, and one month salary for the period of 26^th July, 2015 to 11^th August, 2015 from the Respondent.
Whether the Claimant is entitled to general and exemplary damages in his favour against the Respondent.

In arguing issue one, counsel submitted that it is trite, that the relationship between the Claimant and the Respondent (Defendant) is regulated by the letter of Employment (exhibit CA), the conditions of service of the Respondent, and the law including the Labour Act. Counsel referred to the case of U.B.N Plc v Soares (2012) 11 NWLR (Pt. 1312) 550 @ 568 where it was held:

The document which regulates the relationship between an employer and employee is the service agreement or the contract of service… where there Pis no written agreement as to the period of termination of a contract of employment, the notice to be given must be reasonable notice. But where the contract of employment stipulates the period of notice, the contract can be terminated based on such period of notice.

Continuing counsel argued that the learned counsel for the defendant alleged the Claimant was aware of his distasteful and irresponsible conduct. That the Claimant denied the averment by pleading the fact that he never acted in a manner unbecoming of his position but exhibited responsibility in the service of the Defendant.

Counsel submitted further, that neither in the pleadings nor in the evidence of the Defendant was the issue of financial impropriety against the claimant mentioned let alone being established. That the Defendant only made an unsubstantiated statement that “The Claimant was aware of his distasteful and irresponsible conduct” without any particulars whatsoever in its evidence. That defendant’s counsel for the first time brought in the allegation of financial impropriety in his final written address. That it is elementary law, that the submissions of counsel no matter how eloquent cannot take the place of evidence/legal proof. Counsel referred to the case of In Chabasaya V. Anwasi (2010) 42 NSCQR 415 at 450., where the Supreme Court held:

Despite the fact that the appellants did not pay the agreed price for the sale of the house, his counsel embarked upon alluring address in his bid to “tilt the truth” and reality of the matter. He should realize that addresses of counsel are designed to assist the court. No amount of brilliance in a fine speech can make up for the lack of evidence to prove and establish or else disprove and demolish a salient point in issue.

Counsel submitted that contrary to the submission of learned counsel to the Defendant, nothing in the email of 6^th November, 2015 giving authority to the Defendant’s staff to credit Diamond Bank Plc with his funds suggests or indicates the involvement of the Claimant in financial impropriety. That it is pertinent to note the words used by the Claimant in authorizing the staff of the Defendant (Opeyemi Soaga) to credit Diamond Bank Plc with his funds in the mail of 6/11/2015 (at page 4 of Exhibit “CG”). That the Claimant wrote:

“Kindly use this mail as an authority to credit Diamond Bank Plc with the sum of ₦48, 000. 00 for the days I worked before I was asked to stop work, also use this authority to credit Diamond Bank with part of my leave allowance to make up for the difference of what is left for the (sic) the amount claimed by Diamond Bank as lost funds as a result of irregularities in fuel purchase”

Counsel submitted that these words, are far from constituting admission of financial impropriety. That the Claimant simply stated that the credit was to cover “…the amount claimed by Diamond Bank Plc as lost funds as a result of irregularities in fuel purchase”. That the Claimant referred to it as “claim of Diamond Bank. That this does not supply any particulars of the “irregularities in fuel purchase”. That nothing is said about how the claimed lost funds as a result of irregularities in fuel purchase came about. Counsel submitted that this allegation is a mere speculation and courts of law decide matters based on core facts and law and not on speculation. That in Agip v Agip Petroli (2010) 42 (Pt. 1) NSCQR 167 at 238, the Supreme Court held:

“It is trite principle also that a court should not decide a case on mere conjecture or speculation. Courts of law are courts of facts and law. They decide issues on facts established before them and on laws. They must avoid speculation”.

Counsel argued that exhibit CA is clear on conditions under which the Claimant’s employment may be summarily terminated. That had any of the conditions been met, the Defendant would have been entitled to summarily terminate the contract. That there are no surrounding circumstances that show that the Claimant was summarily terminated and Exhibit “CA” did not state so. Counsel submitted that the law is trite that a document speaks for itself and extraneous evidence cannot be admitted to alter the contents of a document. Counsel referred to the case of Ahmed v Central Bank of Nigeria (2015) All FWLR (Pt. 803) 1807 at 1826 where the Supreme Court held:

It is settled law that a document speaks for itself.

Counsel also referred to the recent authority of Ashakacem Plc v Mubashshurun (2019) 77 (Pt. 1) NSCQR 109 at 126 where the Supreme Court held:

“It is now trite in law that oral evidence is inadmissible either to add to or subtract from the contents of a document as a document speaks for itself with the result that parties cannot give evidence contrary to its contents. It follows therefore that no burden of proof rests on the appellant to discharge on the interpretation of contractual documents since the primary duty in interpretation of documents is placed squarely on the courts and the court discharge their duty without the aid of oral evidence. The task is carried out by the court within the case fought on pleadings supported by documentary evidence which preclude oral evidence beclouding or contradicting the clear terms of the document”.

Counsel submitted that the Claimant has discharged the onus of proof of his wrongful termination as established by the two conditions of wrongful termination, to wit: (1) placing before the court Exhibit “CA”, and (2) proof of failure to give him one month notice of termination or payment to him of one month salary in lieu of notice.

In arguing issue two, that is; whether the Claimant is entitled to recover one month salary in lieu of notice, 13^th month salary, annual leave allowance, salary in lieu of annual leave, and one month salary for the period of 26^th July, 2015 to 11^th August, 2015 from the Respondent. Counsel submitted that the Claimant is entitled to one month salary in lieu of notice, 13^th month salary, annual leave, and annual leave allowance, salary in lieu of annual leave, and one month salary for the period of 26^th July to 11^th August, 2015 from the Defendant.

Counsel submitted that termination of employment would be lawful if the terms of the contract of service are complied with. That in this case, the terms of the contract as contained in exhibit CA is one month notice or one-month salary in lieu of notice. That the parties are agreed that the Claimant was neither given one month notice nor paid one-month salary in lieu of notice of termination of his employment with the Defendant, the termination is therefore wrongful. That the Claimant is therefore entitled to remedy which is one-month salary from the Defendant in lieu of one month notice of termination of his employment. That by exhibit CC, the salary of the Claimant was in the sum of N 99, 240.73 (Ninety-Nine Thousand Two Hundred and Forty Naira and Seventy Three Kobo only). Counsel referred to the case of Oforishe V. N.G.C. LTD. (2018) 2 NWLR (Pt. 1602) 35 at 53 – 54, paras H-A., where the Supreme Court held:

In the case of breach of terms of an employment under common law, the employee’s remedy lies in damages calculated on the basis of what he would have earned during the period of notice agreed for ending the employment.

In response to the submission of the learned counsel for the Defendant that the claimant’s employment was not confirmed and therefore the claimant is not entitled to one month’s notice. Counsel submitted that the confirmation of the claimant is implied by law having continued in the service of the Respondent after the expiration of the probation period. Counsel referred to the case of Reliance Telecommunications Ltd v Adegboyega (2017) 8 NWLR (Pt. 1567) 319, where the court held:

Where an employer keeps his employee in his employment and continues to pay him after the probationary period had expired, he would be deemed by operation of law to have confirmed his appointment and the doctrine of estoppel by conduct would operate to prevent the employer from alleging and treating him as if he was still on probation.

Counsel urged the Honourable Court to find that the law regards the Claimant as having been confirmed and so he is entitled to one-month salary from the Defendant for unlawful termination of his employment and urged the Court to so hold.

On the Claimant’s claim for 13^th month salary, annual leave, and annual leave allowance from the Defendant. Counsel submitted that it is trite that labour relations are governed by terms contained in the contract of employment, conditions of service and the extant laws. That the employer/employee relationship is not only regulated by the letter of employment but also the condition of service of the employer which forms the modus operandi of the employer and the extant laws including the Labour Act.

That by the practice of the Defendant, it pays 13^th month salary to all its servants, including the Claimant, who has served for one year. That in the email correspondences between the Claimant and the Defendant in exhibit CC, the Defendant attached a document in which is contained the “supposed entitlement of the Claimant to include leave allowance in the sum of N32,186.32 and 13^th month in the sum of N21,457.54. Counsel referred to the email of 17 November, 2015 Exhibit CG. That the Defendant stated the ‘entitlement per month up from January, 2015’ as N3,023.56. That the Claimant’s entitlement is however from 26^th August, 2014 and not January, 2015. That the Claimant’s entitlement is thus equivalent to the previous year and not as calculated by the Defendant. That the Claimant was paid his last 13^th month for the period of 26^th August, 2013 to 25^th August, 2014 in the sum of N35,496.19 on the 5^th day of December, 2014. Counsel referred to the entry of the 5^th day of December, 2014 at page 10 of exhibit CC and submitted that it is clear from the foregoing that the Defendant in its practice pays 13^th month salary to its staff and urged the Honourable court to so find and so hold and accordingly order payment of the sum of N35,496.19 as 13^th month salary to the Claimant.

On the issue of annual leave and annual leave allowance counsel submitted that they are provided by statute. That Section 18, of the Labour Act provides that

Every worker shall be entitled after twelve months continuous service to a holiday with full pay of –

(a) At least six working days;

That the law only provides a minimum in compliance with which, servants of the Defendant enjoy annual leave and it pays annual leave allowance thereon. That the Claimant enjoyed his last annual leave for the period of 26^th August, 2013 to 25^th August, 2014 and was paid accompanying allowance in the sum of N53, 244. 28 (Fifty-Three Thousand Two Hundred and Forty-Four Naira and Twenty-Eight Kobo only) on the 5^th day of December, 2014. Counsel referred to the entry of the 5^th day of December, 2014 at page 10 of Exhibit CC.

On the issue of entitlement of the Claimant to wages in lieu of annual leave, counsel argues that the law contemplates exploitation from employers and so the Labour Act provides:

“It shall be unlawful for an employer to pay wages in lieu of the holiday mentioned in subsection (1) of this section to a worker whose contract is not terminated”.

Counsel submitted that the employment of the Claimant has been terminated, it shall not be unlawful but fair and just for him to receive wages in the sum of N67, 227. 09 (Sixty-Seven Thousand Two Hundred and Twenty-Seven Naira and Nine Kobo only) in lieu of the annual leave he was qualified but did not enjoy. Counsel submitted further that the Claimant is by law entitled to annual leave and annual leave allowance from the Defendant for the period of 26^th August, 2014 to 25^th August, 2015. Counsel urged the Court to so find and so hold and accordingly order the Defendant to pay to the Claimant the sum of N53, 244. 28 (Fifty-Three Thousand Two Hundred and Forty-Four Naira and Twenty-Eight Kobo only) being annual leave allowance and wages in lieu of annual leave in the sum of N67, 227. 09 (Sixty-Seven Thousand Two Hundred and Twenty-Seven Naira and Nine Kobo only).

Continuing counsel submitted that the Claimant has established/proved his entitlement to one month salary in lieu of notice, 13^th month salary, annual leave, annual leave allowance, salary in lieu of annual leave, and one month salary for the period of 26^th July, 2015 to 11^th August, 2015 from the Defendant and urged the Honourable Court to so find and so hold.

In arguing issue three; whether the Claimant is entitled to general and exemplary damages in his favour against the Defendant. Counsel submitted that general damages are presumable by the law as the natural and possible consequence of the act complained of. That in British Airways v Atoyebi (2015) All FWLR (Pt. 766) 442 at 468, the Supreme Court held per Kekere-Ekun, JSC, thus:

“General damages are by their very nature, what the law will presume to be the direct natural and possible consequence of the act complained of and need not be strictly proved”.

Counsel submits that the direct natural and probable consequence of termination of the Claimant’s employment without due process, deprivation of a whole month salary and allowances, and refusal to write confirmation to the claimant’s pension fund managers, denial of earned salaries and allowances surely melted out untold hardship on the Claimant to entitle him to general damages.

Counsel argued that, on the issue of exemplary damages that exemplary damages are grantable where the defendant is cruel or oppressive in dealing with the claimant and in cases of oppressive, arbitrary, and unconstitutional acts by government servants. That in the case of C.B.N. v Okojie (2015) All FWLR (Pt. 807) 478 at 506., the Supreme Court held per Rhodes-Vivour, JSC, thus:

Exemplary damages are awarded with the object of punishing the defendant for his conduct in inflicting injury on the plaintiff. They can be made in addition to compensatory damages…

That in this case, the Defendant terminated the employment of the Claimant in breach of the termination procedure specified in the service agreement, exhibit CA and withheld the Claimant’s salary and allowances for the period he worked (from 26^th July, 2015 to 11 August, 2015) before his termination, and further refused to pay annual leave allowance and allowances in lieu of annual leave to the Claimant.

That it is in evidence that after the Claimant’s employment was terminated, he approached Trustfund Pensions Plc, his Pension managers, so he could access 25% of the funds in his retirement account held with the said pension managers and invest in a business but the Defendant refused to write the confirmation of savings to Trustfund Pensions Plc. After exchange of several correspondences vides emails, the Defendant made the Claimant to engage solicitors to write to it when it wrote to the Claimant in a mail of 18^th November, 2015 and stated, inter alia: “Kindly inform your lawyer to write formally to the organisation”.

That the Defendant was rather dribbling the Claimant. That in an email of 29^th October, the Human Resources Analyst of the Defendant in writing to the Claimant stated, inter alia, thus:

We will investigate and if it is the case that you were at work till eleventh, it only means that we owe you six working days – 48, 000 Naira.

That the same officer, however, in a summersault stated in a mail of 18^th November, 2015, thus:

Please look though the mails again. Workforce did not communicate N48, 000 to you at any point in time…

Kindly inform your lawyer to write formally to the organisation.

Counsel submitted that the Claimant was compelled to engage his solicitors who wrote exhibit “CF” and incurred additional cost. That it was after the Claimant’s solicitors wrote exhibit “CF” that the Defendant eventually delivered the confirmation to Trustfund Pensions Plc and stated therein that the Claimant resigned from their employment contrary to his termination of employment by the Defendant.

In conclusion, counsel submitted that the Claimant has proved his case by credible evidence to merit judgment in his favour and to be entitled to the grant of all the reliefs sought. Counsel therefore urged the Honourable court to find and grant the reliefs sought by the claimant in this case.

On the other hand, in his own final written address the learned counsel for the defendant raised a lone issue for the determination of this suit thus :

Whether the Claimant has proved his case to warrant the grant of his reliefs as per his complaint before this court.

Counsel submitted that the termination of the Claimant’s employment is not wrongful. This is because the Defendant possesses the right to summarily terminate the Claimant anytime it wishes to do so. That it is more so if the conduct of the Claimant was reprehensible bothering on financial impropriety. That the DW1 testified to this fact and referred to a mail written by the Claimant dated November 06, 2015 contained in exhibit CG, which was tendered by the Claimant himself in which the Claimant has written thus:

Kindly use this mail as an authority to credit Diamond Bank Plc with the sum of N48, 000.00 for the days I have worked before I was asked to stop work, also use this authority to credit Diamond Bank Plc with part of my leave allowance to make up for the difference of what is left for the amount claimed by Diamond Bank as lost funds as a result of irregularities in fuel purchase.

Counsel submitted that the above is an admission against own interest and the Honourable Court is bound to accept and act on it. That the implication is that the Claimant was clearly aware that he was involved in financial dishonesty and had taken a step to compensate the Defendant by giving his authority for his funds to be credited to Diamond Bank. Regrettably, the fund which the Claimant banked on was purported leave allowance which the Claimant was not entitled to.

Counsel submitted that the contract between the Claimant and the Defendant are as contained in his letter of his employment (Exhibit A) and no provision for leave allowance is made in the said letter of employment.

Counsel argued that since it is clear from the above that the Claimant was not the best of staff in terms of probity with financial matters, it therefore follows that the Claimant cannot claim entitlement of payment of one-month salary in lieu of notice. That the letter of employment (Exhibit A) specifically provides for two weeks’ notice or two weeks’ salary in lieu of notice. That the Claimant would have been entitled to only one month if his employment has been confirmed. In this case, the Claimant’s contract of employment was not confirmed before his termination. That the Claimant admitted this fact under cross examination.

Continuing counsel argued that, exhibit A has express provision of conditions under which its staff could be summarily terminated and for ease of reference same is hereunder reproduced thus:

… should you at any time be guilty of gross misconduct, refuse to abide by approved policies and due process, disclosure of confidential information, be convicted of a criminal offence, conduct yourself in such a manner as to bring the company into disrepute, or be incapable of performing your duties to the satisfaction of the company, the organization will be entitled to exercise its power to summarily terminate your contract.

Counsel submitted that it is clear from the foregoing that the Claimant’s employment was terminated summarily, even though exhibit CD was not worded so specifically but it can be inferred from the surrounding circumstances that he was terminated summarily, in which case; he was not entitled to the two notice or two weeks’ salary in lieu of notice. He was also, in the circumstance, therefore not entitled to any notice before termination. Counsel referred to Section 11(5) of the Labour Act which provides thus:

Nothing in this section affects any right of either party to a contract to treat the contract terminable without notice by reason of such conduct by the other party as would have enabled to so treat it before making of this Act.

Counsel submitted further that the Claimant has not proved his case to warrant the grant of the reliefs he sought with particular reference to the 13^th month allowance. This is because the Claimant himself has admitted, under cross examination, that the 13^th month he is claiming is not part of the contract of service between him and the Defendant which is exhibit A. That the Claimant also admitted that exhibit A does not have provision for annual leave grant. That the question that begs for answer is, what then is the basis of the Claimant’s relief relating to the 13^th month and fictitious annual leave? Counsel answered that there is not basis.

Counsel submitted further that the Defendant and indeed the Claimant can only be liable to the express terms contained in exhibit A. That this is because parties are bound by their agreement. Counsel referred to the case of Saipem Spa v Tefa [2002] 16 NWLR (Pt 793) Page 410 At 468 Paragraph F-G where the Supreme Court held as follows:

Since it is trite law that parties are bound by the terms and conditions of the agreement they freely entered into, it means that the right of the aggrieved lessee and the quantum of damages recoverable for termination of the agreement is strictly limited to what is provided for in the agreement between the parties and nothing more.

Counsel submitted that by the foregoing therefore, the reliefs the Claimant is seeking are clearly outside the terms of exhibit “A” and the Defendant is not therefore bound by the extraneous claims of the Claimant. That it is also pertinent to note that the Claimant conceded that reliefs (c) and (e) are not part of the terms in exhibit A.

Counsel submitted that the Claimant is not entitled to relief relating to one month in lieu of notice on the basis that exhibit A clearly says it is only when his employment has been confirmed and that the notice he would have been entitled to would have been 2 weeks’ salary in lieu of notice which he is not entitled to as his employment was terminated summarily.

Counsel argued that, with respect to the claim on damages, that the relationship which existed between the parties was a master-servant relationship. Consequently, even where the Claimant’s employment was wrongfully determined, which is not even the case here, all that the Claimant is entitled to is payment in lieu of notice for the period of notice agreed by parties and nothing more. Counsel referred to the case of Atanda v. H. Saffeiddine Transport Ltd [2008] ALL FWLR (PT. 401) 985 @ 995 also Daodu v. UBA Plc [2009] 9 NWLR (PT. 878) 276.

Counsel argued further that from the foregoing, it is therefore clear that the claimant is not entitled to any damages general or exemplary as the Claimant is not entitled to any form of damages howsoever clothed.

In conclusion, counsel submitted that but for the fact that the Defendant did not file a counter claim, the Claimant would have been liable to the Defendant for all the amount he is still owing Diamond Bank Plc where the Claimant worked and the Claimant admitted that there has been financial irregularities to which he was willing to pay if he had money. On the whole, counsel urged the Honourable court to find and hold that the Claimant has not proved his case to warrant the grant of the reliefs sought by him.

COURT’S DECISION.

I have read all the processes filed by the parties in this suit. I have also reviewed the evidence presented by them. I am of the view that from all issues raised by the parties the lone issue raised by the learned counsel for the defendant summarized the issues in controversy between the parties. I hereby adopt it as mine. I shall therefore treat the claims of the claimant seriatim as follows:

Claims 1 and 2; are for a declaration that the termination of the claimant’s employment is unlawful, illegal and unwarranted and for the payment of the sum of N99, 240. 73 (Ninety-Nine Thousand Two Hundred and Forty Naira and Seventy-Three Kobo only) being his one-month salary in lieu of notice of termination of employment.

In the first place, the relationship between the parties herein is an employment relationship under the common law often referred to as a master and servant relationship. It is trite that the agreement of the parties determines the length of notice where the relationship is reduced into writing as in this case. Therefore, the letter of employment herein (exhibit A) is the operative agreement. The said exhibit provides that the claimant shall be on probation for 6months during which period to terminate the employment relationship two weeks’ notice or payment for two weeks in lieu of notice. After confirmation, termination of appointment will be subject to one month’s notice or one month’s basic salary in lieu of notice. There is no dispute that the claimant was not given any notice of termination neither was he paid any money in lieu of notice of termination. The defendant justified the termination without notice nor payment in lieu of notice on two grounds. The first being that the claimant was still under probation. By exhibit A, he was employed by a letter dated 7^th August 2013 effective on 26^th August 2013. Six months from that date is 25^th February 2014 that is length of the probationary period. However, the claimant worked till 11^th August 2015 when his employment was terminated, I therefore hold that the claimant’s employment was confirmed by conduct in that he was retained beyond the probationary period. See the case of Reliance Telecommunications Ltd v Adegboyega (2017) 8 NWLR (Pt. 1567) 319. Secondly, it is the contention of the defendant that the Claimant’s employment was terminated summarily, even though exhibit CD was not worded so specifically but it can be inferred from the surrounding circumstances that he was terminated summarily.

Again, exhibit CD is very clear and categorical on the reason for the termination of the claimant’s employment to be that his “services with workforce are no longer required”. Therefore, the theory of summary termination here is a ruse. Consequently, from the foregoing, I find and hold that the claimant is entitled to one month’s salary or payment in lieu of notice. Since he was not given any notice and was not paid any month in lieu of notice his termination is wrongful. He is entitled one month’s salary in lieu of notice which is hereby granted.

Claims 3, 4 and 5 are for the sum of N53, 496. 99 being annual leave allowance for the period from 26^th August, 2014 to 11^th August, 2015, the sum of N67, 227. 09 being payment in lieu of annual leave and the sum of N35, 244. 82 to the Claimant being 13^th Month payment. These heads of claim were not provided for in exhibit A, and the claimant did not provide any other document showing his entitlement to them. Not only that, the claimant was employed as a secretary and certainly outside the definition of a worker by section 91 of the Labour Act. The said provisions of the Labour Act heavily relied upon by the claimant are therefore in applicable to the claimant as he was not employed in the category of workers covered by the Labour Act which are limited to workers engaged in manual and clerical work, see the case of Evans Brothers (Nig.) Publishing Ltd v Falaiye (2003) 13NWLR(Pt.838)564. They are consequently refused.

Claim 6 is for the sum of N99, 240. 73 (Ninety-Nine Thousand Two Hundred and Forty Naira and Seventy-Three Kobo only) being his one-month salary having worked from July 26^th to August 11^th 2015. The defendant did not dispute the fact that the claimant worked from July 26^th to August 11^th 2015 which is 15 days. He is entitled to his salary for that month prorated that is 50% amounting to the sum of N49,620.365 which is hereby granted.

Claims 7 and 8 are for general damages in the sum of N2, 000, 000. 00 (Two Million Naira Only) and exemplary damages in the sum of N2, 500, 000. 00 (Two Million, Five Hundred Thousand Naira Only) in favour of the Claimant against the Respondent. Having granted the claimant his one month’s salary in lieu of notice I hold that he is not entitled to further payment of damages; these claims are therefore refused.

Claim 9 is for the cost of this action. Cost follow events. The claimant has been in court since 2018, I hold that he is entitled to cost which I assess as N200,000.

In all I make the following orders:

The defendant shall pay the claimant the sum of N99, 240. 73 (Ninety-Nine Thousand Two Hundred and Forty Naira and Seventy-Three Kobo only) being his one-month salary in lieu of notice of termination.

The defendant shall pay the claimant the sum of N49,620.36 being his arrears of salary from July 26^thto August 11^th 2015 prorated.

3.The defendant shall pay the claimant the sum of N200,000 being the cost of this suit.

4.The defendants shall pay all monetary awards in this judgment within 30 days from the date of this judgment failing which they shall attract 10% interest per annum until fully liquidated.

Judgment is entered accordingly.

……………………………………………

Hon. Justice K. I. Amadi, Ph.D.

(Judge)