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MARYROSE OKEKE -vs- INTERNATIONAL TOBACCO

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

DATE: 11th April 2018                                            SUIT NO. NICN/EN/21/2016

 

BETWEEN

 

MARYROSE OKEKE                                                         …                CLAIMANT

 

AND

 

  1. INTERNATIONAL TOBACCO COMPANY PLC            
  2. ADENIJI ISMAIL NIJI-ADERONMU            …                    DEFENDANTS

                                 

REPRESENTATION:

 

Sir O. A. U. Onyema Esq. with Edith Kelechi Umunna Esq. and Mrs. Sifun Anunta for the Claimant

Olatunbosun Akanmidu Esq. for the Defendants.

 

JUDGMENT

 

  1. By a Complaint filed on 25th May 2016, the Claimant claimed against the Defendants for:

 

  1. A declaration that the termination of the appointment of the Claimant, in the manner it was done, after 8 years of unblemished record, without any reason or notice, and without paying her two [2] months’  salary in lieu, is mala fide.

 

  1. A declaration that the refusal of the 1st Defendant, through the instrumentality of the 2nd Defendant, to pay the Applicant’s entitlement in the midst of their abundant resources, after the Applicant had formally handed over all company’s properties in her possession, is abuse of position and illegal.

 

  1. A declaration that it is an abuse of office, sheer wickedness and intimidation for the 2nd Defendant to blatantly refuse to issue the Claimant a clearance letter with which to claim her full and final settlement of the company’s obligation; despite having been handed over all the company’s property.

 

  1. An order of Court mandating the Defendants to forthwith pay the Applicant’s two [2] months’ salary in lieu; and compute and pay her complete entitlements/terminal benefits calculable from the contract of her employment and previous pay slips, and as reflected in her termination letter without removing a dime.

 

  1. An order of the Honourable Court awarding 10% compound interest-rate per month on the monetary value of the Claimant‘s full and final settlement [terminal benefits] illegally withheld by the 1st Defendant with effect from the 30th day of April, 2016 and the interest to be paid alongside the benefit.
  2. An order of the Honourable Court directing the Defendants to jointly and severally pay to the Claimant a punitive general damages of N10, 000,000 [ten million naira only], for the unmerited wickedness, intimidation, suppression and humiliation meted unto Claimant by withholding her entitlements for no just cause.

 

  1. An order of the Honourable Court awarding the 10% compound interest- rate per month on any judgement sum, from the date of the award till any day the entire sum is liquidated, and acknowledged by the Claimant.

 

  1. Such further order or other orders as this Honourable Court may consider just and appropriate to make in the circumstance for the redress of the infringement of the Applicant’s fundamental rights.

 

  1. The Claimant filed alongside the Complaint a statement of facts, list of witnesses, Claimant’s statement on oath, list of documents and copies of the documents and a motion for interlocutory order. The processes were served on the Defendants on 27th May 2016. The Defendants, through their Counsel, Miss Tomilola Oyesiji, entered a conditional appearance and filed a statement of defence, list of witness, witness’ statement on oath, list of documents and copies of the documents on 6th June 2016 together with two motions, one for stay of further proceedings and the second for an order striking out the name of the 2nd Defendant. The Claimant filed a reply to the statement of defence on 16th June 2016 without an accompanying witness deposition. This Court, in a considered ruling delivered on 22nd February 2017, dismissed the applications and adjourned the case for hearing. Trial commenced in this suit on 25th April 2017 before my learned brother, Hon. Justice Waziri Abali, and started de novo before me on 15th November 2017 and was concluded on 7th December 2017. The Claimant adopted her statement on oath dated 25th May 2016 as evidence in proof of her claim. She tendered 13 exhibits, exhibits A to N. Exhibit A – A1 is her appointment letter, exhibit B is the letter of confirmation of appointment; exhibit C is letter of termination of appointment, exhibit D – D2 is copy of the Service Agreement between the Claimant and the 1st Defendant. Exhibit E – E6 is copy of sworn affidavit by the Claimant and attached documents. Exhibit F is copy of Diamond Bank Plc cheque issued by the 2nd Defendant in favour of the Claimant, exhibit G – G5 is copy of inter office memo addressed to the Claimant with the attachment. Exhibit H – H1 is the Claimant’s request for appointment of an Auditor, exhibit J is 1st Defendant’s response to the Claimant’s request. Exhibit K is copy of Police invitation, exhibit L – L2 is screen shot of text messages between the Claimant and the General Manager of the 1st Defendant, exhibit M – M2 is copy of Claimant’s hand over note to the 2nd Defendant and exhibit N – N2 are Claimant’s pay slips for November 2015, February and March 2016. The Defendants’ witness, Mr. Adeniji Ismail Niji-Aderonmu, adopted his statement on oath dated 6th June 2016 as his evidence in defence of the suit and tendered 5 exhibits, exhibits D1-D5. Exhibit D1 is copy of Zenith Bank Plc teller for N132, 670 deposited by the Claimant, exhibit D2- D2c is 1st Defendant’s Enugu Regional Office Skye Bank Plc statement of account, exhibit D3 – D3g is 2nd Defendant’s Diamond Bank statement of account, exhibit D4 – D4a is petition to the Police and exhibit D5 – D5b is 1st Defendant’s sale invoices. At the conclusion of trial, parties filed written addresses. The Defendants’ final written address is dated 20th December 2017 and filed on 21st December 2017. The Claimant’s final written address is dated 23rd January 2018 but filed on 24th January 2018. The Defendants filed a reply on point of law on 7th February 2018. The case came up for adoption of final written addresses on 21st February 2018. The Defendants adopted their final written address and reply on point of law as their argument in defence of the action and urged the Court to dismiss the suit. The Claimant adopted her final written address and urged the Court to enter judgment in her favour.

 

CLAIMANT’S CASE

 

  1. The Claimant’s case is that she was a staff of the 1st Defendant and worked directly under the supervision of the 2nd Defendant at the Enugu office. She was employed on 8th October 2008 and confirmed on 1st April 2009. Upon confirmation of her appointment she executed an Agreement dated 1st April 2009 specifying other terms of her employment. It is the Claimant’s case that she served the 1st Defendant with unblemished record until her appointment was terminated on 27th April 2016 without notice and without reason or payment of two months’ salary in lieu. She attributes her termination to the statement she volunteered to the Police investigating a case against an ex-staff, Mr. Chris Mitchell Osazuwa contained in exhibit E-E6. She testified that prior to exhibit E-E6, the 2nd Defendant urged her to lie against the ex-staff but she determined to tell the truth; and based on E-E6 the Police refused to charge the ex-staff for stealing and conversion. She said this enraged the 2nd Defendant who threatened to deal with her. She also testified that the 2nd Defendant made amorous advances to her including giving her exhibit F, a Diamond Bank Plc cheque for N36, 000 which she refused to cash because she did not want to accede to his demand. She testified that based on the foregoing the 2nd Defendant began to set trap for her to portray her in a bad light before the Management. Consequently, three days after exhibit E-E6, on 15th February 2016, the 2nd Defendant connived with Alhaji Abdulazeez Hassan to request for a cross-check of Mrs. Monica Nnabuchi’s stock to confirm any shortfall when she had earlier submitted the status of her stock to the 1st Defendant. She perceived it was a ploy to implicate her in the case against Mr. Osazuwa and so requested for an auditor to verify the account which request was declined. She was arrested on 7th April 2016 and her employment was subsequently terminated without notice or payment of two months’ salary in lieu. She demanded for her terminal benefits but was directed to obtain a clearance letter from the 2nd Defendant who refused to issue it because of her pending Police case. Under cross examination the Claimant confirmed that she met with Alhaji Hassan who is the 1st Defendant’s National Sales Manager and discussed exhibit G-G5 with him. She also confirmed that Mrs. Nnabuchi is one of the 1st Defendant’s distributors and that her salary in lieu of notice was paid after she came to Court. She confirmed that she made refunds to the 1st Defendant but could not recall how much.

 

DEFENDANTS’ CASE

 

  1. The Defendants’ case is that the Claimant had a blemished record while in the 1st Defendant’s employment as shortage of stocks was discovered and admitted by the Claimant and refunds made, exhibits D1, D2-D2c and D5-D5b. It is the Defendants’ case that the Claimant’s employment was lawfully terminated and the two months’ salary in lieu of notice paid to the Claimant but the delay in receiving the funds may be due to glitches in the accounts department of the 1st Defendant or the bank. The 2nd Defendant denied urging the Claimant to lie, setting traps for her or making sexual advances to her and stated that exhibit F was a refund of money borrowed from the Claimant in the course of his trip to Enugu. He acknowledged writing exhibit D4-D4a due to the failure of the Claimant and Mr. Osazuwa to account for the 1st Defendant’s money in their custody. Under cross examination, he stated that he did not report the Claimant to the Police when he discovered loss of funds because when there is a shortage of funds “we give the staff ample opportunity to resolve it, and in her case, the invoices were raised by her”.

 

SUBMISSION ON BEHALF OF THE DEFENDANT

 

  1. The Defendants raised three issues for determination namely:

 

  1. Whether from the evidence before this Honourable Court, the Claimant’s termination of appointment is proper?

 

  1. Whether from the evidence before this Honourable Court, the Claimant has established that she is entitled to any entitlements?

 

  1. Whether from the evidence before this Honourable Court, the Claimant is entitled to other auxiliary reliefs?

 

On issue one, learned Counsel for the Defendants submitted that it is within the 1st Defendant’s right to terminate the appointment of the Claimant with or without any reasons and relied on clause 12[a] of exhibit D-D2 and Shell Petroleum Dev. Co. Ltd v. Chief Victor Sunday Olanrewaju [2008] LPELR-864[SC] at page 103, Simeon O. Ihezukwu v. University of Jos [1990] LPELR-1461[SC] at page 21, Godfrey Isievwore v. National Electronic Power Authority (2002) LPELR- 1555[SC] at page 13, Gabriel Ativie v. Kabelmetal Nig. Limited [2008] LPELR-591[SC] at page 21 and Festus Opeoluwa Daodu v. United Bank for Africa Plc [2003] LPELR-5634[CA] at page 23. It was argued that the Claimant’s claim that her appointment was terminated without payment of the agreed two months’ salary in lieu of notice is unfounded as she confirmed under cross examination that she received the two months’ salary in lieu of notice and relied on Festus Opeoluwa Daodu v. United Bank for Africa Plc [supra] at pages 29-30 and urged the Court to resolve issue one in favour of the Defendants.

 

On issue two, it was submitted on behalf of the Defendants that the contract of employment is governed by exhibit D-D2, the Employee Agreement and by clause 9 the 1st Defendant is entitled to set off against any remuneration or other moneys payable to the Claimant any moneys owing or payable by the Claimant to the 1st Defendant. It was argued that the Police complaint was necessitated by the Claimant’s failure to account for moneys and stock in her custody and until the Police investigations “are concluded or adjudicated by a competent Court the exact/proper remuneration to be given to the Claimant [which include gratuity for eight years and annual leave for 2016] in line with Clause 9 of her Employee Agreement [Exhibit D-D2] cannot be definitive.” It was contended that it is the 1st Defendant’s policy that all staff obtain clearance letters on leaving the company; but none was issued to the Claimant because she has not complied with the terms of her contract of employment. It was also argued that “the Claimant has not established that she is entitled to her entitlements from the 1st Defendant as itemized in her termination letter [Exhibit C] until the pending Police investigation is concluded” and a clearance letter issued to her. It was contended that the Claimant failed to execute her duties properly resulting in shortage of stocks as manifest in exhibits D1, D2-D2c and D5-D5b. It was further argued that the Claimant’s claim against the 2nd Defendant for sexual harassment must fail because the 2nd Defendant has denied making sexual advances to her and exhibit F was a refund of monies borrowed from her as evidenced in exhibit D3-D3g, the 2nd Defendant’s Diamond Bank statement of account and there was no evidence of connivance between the 2nd Defendant and Alhaji Abdulazeez Hassan against the Claimant and urged the Court to resolve issue two in favour of the Defendants.

 

On issue three, learned Counsel submitted that award of general damages is at the discretion of the Court and not at the insistence of the party claiming. It was contended that the Claimant is not entitled to the ancillary reliefs highlighted in her statement of facts especially the claim for 10% compound interest and N10, 000, 000 general damages. It was argued that the claim for N10, 000, 000 as general damages against the Defendants is outrageous and not supported by evidence. He explained that the Claimant has not complied with the terms of her contract to access her terminal benefits. On interest, learned Counsel relied on Farasco Nigeria Ltd & Anor. v. Peterson Zochonis Industries Plc [2010] LPELR-4142[CA] and Himma Merchants v. Aliyu [1994] 5 NWLR [pt.347] 667. On general damages, he relied on the cases of Moghalu v Ude [2001] 1 NWLR page 14 and R.O. Iyere v. Bendel Feed & Flour Mill Ltd (2008) 12 MJSC at 130 and submitted the Claimant has not established any nexus between her claims and the claim for damages and urged the Court to refuse the claim for general damages and interest.

 

SUBMISSION ON BEHALF OF THE CLAIMANT

 

  1. Learned Counsel for the Claimant raised three issues for determination in the final written address to wit:

 

  1. Whether the termination of appointment of the Claimant was mala fide?

 

  1. Whether the Defendants complied with the terms of the appointment letter they gave to the Claimant, their letter of termination of Claimant’s appointment, and employee agreement with the Claimant?

 

  1. Whether the Claimant is entitled to her claim in this suit?

 

On issue one, learned Counsel for the Claimant argued that it is crystal clear from the circumstantial evidence as contained in the combined effect, and holistic analysis of exhibits E–E6, G-G5, H-H1, J and C that the termination of the Claimant’s appointment was not in good faith. It followed the truth she told in the matter between the 2nd Defendant and one Mr. Chris Mitchell Osazuwa and referred to paragraphs 7 – 15 of the statement of facts and paragraphs 9 – 22 of the Claimant’s statement on oath. He therefore urged the Court to find from the circumstances leading to the termination of the Claimant’s employment that it was not done in good faith. He submitted that it is good law that where direct evidence of a fact in issue is not available, evidence of facts surrounding the establishment of the fact is acceptable and is very often the best evidence and relied on Francis Durwode v. The State [2000] 6 SCNJ 33 and Niyi Akinmoju v. The State [2000] 4 S.C. [part 1] 64. 

 

On issue two, learned Counsel contended that the Defendants did not comply with the stipulations in exhibits A–A1 and D-D2 relating to two months’ notice in writing or two months’ salary in lieu of notice. In addition, he explained that the Defendants have up till 22/1/2018 refused to pay the Claimant’s salary and allowances up to and including 30th April 2016, gratuity for 8 years, annual leave for 2016 and 1st Defendant’s pension contribution. He explained that the Claimant’s account was credited on 4th November 2016 while her appointment was terminated on 27th April 2016. He referred to paragraph 4 of the Claimant’s Reply to the statement of defence and argued that the 1st Defendant deliberately, out of wickedness and intimidation, withheld the Claimant’s salary in lieu, pension, and other terminal benefits just to occasion further hardship on her. Hence, the claim for compound interest and relied on G.K.F. INVESTMENT NIG. LTD. v. NIGERIA TELECOMMUNICATIONS PLC [2009] 15 NWLR 344 S.C It was also contended that even if there is an allegation of crime against the Claimant that is not enough reason to withhold her terminal benefits. It was further argued that the rule in Smith and Selwyn has been abolished and the Defendants have no right whatsoever to withhold the Claimant’s terminal benefits after terminating her appointment. He explained that the Defendants relied on clause 9 of exhibit D-D2 without explaining the combined effect of clause 12[a] and contended that clause 9 can only apply if there is a proven non-contentious debt owed to the company and urged the Court to resolve this issue in the Claimant’s favour.

 

On issue three, it was argued that where there is a right, there is a remedy and a worker deserves his wages. It was also argued that the Defendants are not denying the Claimant’s entitlement to the terminal benefits, but placed a lien on it because of a pending Police case. He referred to exhibits A-A1, C, D-D2 and M-M2 and paragraphs 24, 25, 26, 27, 28 and 29 of the Claimant’s statement on oath and contended that the Claimant is entitled to her claims. It was also contended that paying back missing money without an indictment is not a blemished record as claimed by the Defendants and that exhibit G-G5 is not a query. Learned Counsel agreed that award of damages [or compensation, as he described it] is at the discretion of the trial judge but argued that in determining the compensation a judge must make his assessment based on the evidence before him and not make guesses based on matters upon which he has not received specific evidence and relied on Dumez [Nig.] Ltd. v. Patrick Nwaka Ogboli [1972] 3 SC 188. Continuing, learned Counsel referred to exhibit L–L2 and argued that “the benefits and allowances of the Claimant were deliberately withheld, through mischievous machinations of the defendants, just to suffer her.” Relying on Union Bank of Nigeria Plc v. Ajibule: LER [2011] SC 221/2005, he submitted that “in assessing the quantum of general damages, it is settled law that general damages are always made as a claim at large. The quantum need not be pleaded and proved. The award is quantified by what in the opinion of a reasonable person is considered adequate loss or inconvenience which flows naturally, as generally presumed by law, from the act or conduct of the Defendant. It does not depend upon calculation made and figure arrived at from specific items.”

 

REPLY ON POINT OF LAW

 

  1. By way of reply on point of law, learned Counsel for the Defendants submitted that it is trite that the motive which impels an employer to terminate lawfully a contract of employment is irrelevant and relied on Osisanya v. Afribank [2007] 6 NWLR [pt. 1031] 565 and Umoh v. I.T.G.C. [2001] 4 NWLR [pt.281] 300. He therefore contended that based on these authorities the claim that the Defendants acted mala fide goes to motive and motive leading to her termination is irrelevant as the Claimant’s employment was terminated without any reason. Relying on Umoh v. I.T.G.C. [supra] at 301 he submitted that the Claimant is not entitled to compound interest on her entitlements because in “a claim for wrongful dismissal, the measure of damages is prima facie, the amount the plaintiff would have earned had the employment continued according to the contract (see Beckham v. drake (1949) 211 LC 579 at 607. Where, however, the defendant on giving the prescribed notice has a right to terminate the contract before the end of the term, the damages awarded, apart from other entitlements, should be limited to the amount which would have been earned by the plaintiff over the period of notice bearing in mind that it is the duty of plaintiff to minimize the damages which he sustained by the wrongful dismissal.” It was also contended that the time of payment of the two months’ salary in lieu of notice is not an issue before this court and was not pleaded and relied on Chukwumah v. Shell Petroleum [1993] 4 NWLR [pt.512] 562 to the effect that an issue not raised in the pleadings is not properly an issue before the court and needs no consideration.

 

COURT’S DECISION

 

  1. I have read and understood the pleadings and depositions of witnesses filed by the parties and listened to their testimonies during cross examination. I have also read and carefully evaluated the 18 exhibits and the written addresses filed by learned Counsel on behalf of the parties. Having done this, it is my considered opinion that the issue for determination in this case is whether the Claimant has proved her case on a preponderance of evidence to entitle her to the reliefs sought or any of them. In considering this issue, two sub-issues stand out, namely wrongful termination and sexual harassment. It is settled law that in civil cases the burden of proof is on the person who asserts same. See sections 131[1] and 132 of the Evidence Act 2011 and the cases of Federal Mortgage Finance Ltd. v. Hope Offiong Ekpo [2003] LPELR-5627[CA] 1 at 23-24, Patrick Ziideeh v. Rivers State Civil Service Commission [2007] 1-2 SC 1 and Ebute John Onogwu & 4Ors. v. Benue State Civil Service Commission & 3Ors. [2012] LPELR-8604[CA] 1 at 26. In Calabar Cement Co. Ltd v. Abiodun Daniel [1991] 4 NWLR [pt. 188] 750 at 760 -761, Niki Tobi, JCA [of blessed memory, as he then was] held that: “The onus is on the person alleging wrongful dismissal or termination of appointment to so prove. See College of Medicine v. Adegbite [1973] 5 SC 149. And he has to discharge the onus by relying on the contract of service and the notice of wrongful dismissal and termination. The law will not allow the party to vegetate on general common law provisions which are not contained in the contract or anticipated therein.” Thus, to succeed the Claimant must put forward cogent and credible evidence in support of the reliefs sought. Before I continue, let me make two clarifications. Firstly, the Claimant filed a reply to the statement of defence on 16th June 2016 without an accompanying witness’ deposition. It is settled law that pleadings do not translate to evidence and where there is no evidence to back up the pleadings, such averments are deemed abandoned. See National Electric Power Authority [NEPA] v. Malam Muhammad Auwal [2010] LPELR-4577[CA] at page 24. Consequently, the Claimant is deemed to have abandoned her reply to the statement of defence. Secondly, learned Counsel for the Claimant in paragraph 3.16 page 8 of his written address explained thus: “The Claimant’s two months’ salary in lieu of notice valued N72, 310.34 was paid on the 4th day of November, 2016….” In response, learned Counsel for the Defendants submitted in paragraph 2.8 of his reply on point of law that Counsel cannot give evidence from the Bar. I agree with learned Counsel for the Defendants that the statement in paragraph 3.16 of Claimant’s written address amounts to giving evidence from the Bar. This fact was not pleaded and no evidence was led on it. It is trite law that civil proceedings are conducted on the basis of pleadings and evidence put before the Court. The address of Counsel can never be a substitute for hard evidence no matter how brilliantly couched. See New Nigerian Bank Plc v. Solomon Owie [2010] LPELR-4591[CA] at pages 19-20

 

  1. That having been said, the question is, was the Claimant’s employment lawfully terminated? The answer to this question will depend on interpretation of exhibits A-A1, D-D2 and C. The provision on termination of employment in exhibit A-A1 stipulates inter alia:

 

“The company may terminate your appointment at any time, without assigning any reasons, by giving you two months’ previous notice in writing, or without notice by crediting your account in its books with two months’ salary….”

 

This is repeated in clause 12[a] of exhibit D-D2 thus: “The company may terminate the employment of the Employee without assigning any reason therefor by giving to the Employee two months’ previous notice in writing or without previous notice by crediting him in account in its books with two months’ salary….”

 

It is clear from these provisions that the exercise of the right of termination is conditioned by either notice of termination or payment of salary in lieu of notice. The law is settled that where a contract of employment provides conditions for termination of an employment, those conditions must be strictly observed failing which the termination will be wrongful. In Fiicharles Organ & 14 Ors. v. Nigeria Liquefied Natural Gas Limited & Anor. [2016] 8 ACELR 35 at 52, per Muhammad, JSC, held:

 

“Again it is trite that he who hires can fire. It nevertheless remains the law that an employer must observe and adhere to the conditions under which the employee is hired before such employee can be fired otherwise the employer can ipso facto be held liable for unlawful termination of the services of the employee.” See also P. C. Mike Eze v. Spring Bank Plc [2014] 3 ACELR 39 at 60.

 

Parties are agreed that the 1st Defendant opted for payment of salary in lieu of notice. It is the Claimant’s case that her employment was terminated without notice and without crediting her account with two months’ salary in lieu of notice. See paragraphs 8 and 22 of her statement on oath. The Defendants’ response is contained in paragraph 5 of the Defendants’ witness statement on oath, to wit:

 

“5.      The Claimant’s employment was terminated with payment of two months’ salary in lieu of notice in line with the contract of employment dated October 8, 2008; however, the delay in receipt of the funds by the Claimant may be due to glitches in the accounts department of the 1st Defendant and/or the bank.”

 

This is a recapitulation of paragraph 4 of the statement of defence which was denied in paragraph 4 of the Claimant’s reply to the statement of defence. Since the reply was not accompanied with a witness deposition it is deemed abandoned. However, implicit in paragraph 5 of the Defendants’ witness’ deposition is an admission that as at the date of filing the statement [6th June 2016], the two months’ salary in lieu of notice had not been credited to the Claimant’s account. Undoubtedly, the Defendants know when the salary in lieu of notice was paid but withheld this piece of evidence. In Seagull Oil Limited & 3Ors. v. Moni Pulo Limited & 3Ors. [2011] LPELR-4935[CA] at page 17, Garba, JCA admonished thus:

 

“Litigation is a straight forward legal matter of adjudication which does not, or, better still, should not admit of pretence or tricks. Litigation is not a game of vain rhetoric or insane polemics but one of reciprocal sincerity of the parties by placing their cards openly before the court for adjudication and final decision. The principles of equity and justice will not allow any party to play pranks.”

 

See also the case of Mr. Soji Fagbohun v. Major Ajayi Ogunleye [2014] LPELR-22453[CA] at 17. In this circumstance, section 167[d] of the Evidence Act 2011 will apply and I so hold. The Defendants withheld this piece of evidence because they thought it is against them. It is trite law that where a contract of service gives a party a right to terminate a contract of employment, either by giving notice or payment of salary in lieu of notice and the latter course is chosen, the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice at the time of termination of the contract. It is not enough that in the letter of termination he offers to pay salary in lieu of notice. See Dr. Ben O. Chukwumah v. Shell Petroleum Development Company of Nigeria Limited [1993] LPELR-864 [SC] 1 at 28 and New Nigerian Bank Plc v. Solomon Owie [2010] LPELR-4591[CA] at page 18. It is in evidence that the Claimant’s employment was terminated by letter dated 27th April 2016 effective on 30th April 2016. The Claimant handed over to the 2nd Defendant on 3rd May 2016 and filed this suit on 25th May 2016. Up till that time the two months’ salary in lieu of notice had not been paid. Under cross examination the Claimant said: “My salary in lieu of notice was paid after I came to Court.” It is settled law that a letter of termination takes effect from the date it is served on the employee and there is no evidence before me that the two months’ salary in lieu of notice was paid contemporaneously with the termination of her employment. In the circumstances, I find and hold that the failure by the 1st Defendant to pay the two months’ salary in lieu of notice contemporaneously with the termination of the Claimant’s appointment is in breach of the contract of employment and renders the termination wrongful.

 

  1. The next sub-issue is the allegation of sexual harassment. Order 14 rule 1[1][b] National Industrial Court [Civil Procedure] Rules 2017 provides:

 

“1. [1] Where in an action before the Court, a Claimant alleges sexual harassment at the workplace, the Claimant or the Claimant’s counsel may in the complaint, indicate whether the sexual harassment is:

 

“[b]    A verbal form of sexual harassment: such as unwelcome innuendoes, suggestions and hints, sexual advances, comments with sexual overtones, sex related jokes or insults, or unwelcome graphic comments about a person’s body, unwelcome and inappropriate enquiries about a person’s sex life and unwelcome whistling at a person or group of persons, any document, material or exhibit in further support of the claim;”

 

The evidence in proof of sexual harassment is contained in paragraphs 13 and 14 of the Claimant’s statement on oath and goes thus:

 

“13.    That prior to this, the 2nd Defendant had been making some amorous advances to me which I had severally declined, including his offers; hence, he had been maintaining that he will make me to suffer my ‘disobedience to him’.”

 

“14.    That at one point the 2nd Defendant tried to induce me with a cheque of N36, 000 which I failed to cash, as I do not want to accede to his demand. The said Diamond Bank cheque valued N36, 000 is hereby pleaded and attached as exhibit 6.”

 

The Claimant did not give particulars of the offers made by the 2nd Defendant or the specific things the 2nd Defendant did or said to her. The only evidence of the inducement is exhibit F which is undated. In response, the 2nd Defendant in paragraphs 7 and 8 of his statement on oath stated:

 

“7.      I state that I have never made any advances whatsoever to the Claimant and in addition, the allegation that I issued a cheque to the Claimant in order to realize my sexual advances towards the Claimant is false.”

 

“8.      The aforesaid cheque was issued to the Claimant with a view to paying back monies borrowed from the Claimant in the course of my official trip to Enugu and this has happened on numerous occasions. My statement of Account is attached as Annexure 3.”

 

The statement of account is exhibit D3-D3g. The burden of proof shifted to the Claimant in accordance with section 133[1] of the Evidence Act 2011 to prove that the cheque was not issued in settlement of any debt; but there was no rebuttal of this evidence by the Claimant. I have reviewed exhibit D3-D3g and observe that there were six withdrawals from the 2nd Defendant’s account by the Claimant. In December 2014, the Claimant withdrew a total sum of N268, 190. The question is, was this amount borrowed from the Claimant considering her monthly salary? Put differently, why did the 2nd Defendant find it more convenient to borrow such large sums of money from the Claimant instead of the 1st Defendant or any other staff? Exhibit F was not cashed and there is no evidence of how the alleged loan from the Claimant was repaid. The evidence of the 2nd Defendant in paragraph 8 of his statement on oath when compared with exhibit D3-D3g raises more questions than answers. I find the evidence of the 2nd Defendant in paragraph 8 of his statement on oath improbable. In Dr. N. E. Okoye & Another v. Centre Point Merchant Bank Ltd. [2008] 7-12 SC 1 at 28, Niki Tobi, J.S.C. [of blessed memory] had this to say:

 

“I should also say that affidavit evidence is not sacrosanct. It is not above the evaluation of the courts. Like oral evidence, a court of law is entitled to evaluate affidavit evidence in order to ensure its veracity and or authenticity. While uncontradicted affidavit evidence should be used by the court, there are instances when such affidavit evidence clearly tell a lie and the courts cannot be blind to such a lie.”

 

See also Senator Effiong Bob v. Chief Imeh Albert Akpan & 4Ors. [2009] LPELR-8519[CA] 86-87. I dare to say that this is one of such affidavit evidence. Paragraph 8 of the 2nd Defendant’s statement on oath is a barefaced lie.

 

I also do not believe the testimony of the Claimant in paragraph 14 of her statement on oath that she failed to cash the cheque because she did not want to accede to the 2nd Defendant’s demand. The question is can a person who withdrew N268, 190 in December 2014 refuse an inducement to cash N36, 000? I do not think so. It is my considered view and I so hold that the Claimant who was not induced with N268, 190 cannot be induced with N36, 000. The Claimant is speaking from the two sides of her mouth. I do not find the allegation of sexual harassment proved and I so hold.

 

  1. This leads me to a consideration of the Claimant’s claims in this suit. The first relief is for a declaration that the termination of her appointment, in the manner it was done, after 8 years of unblemished record, without any reason or notice, and without paying her two [2] months’ salary in lieu, is mala fide. The evidence in proof of this claim is in paragraphs 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21 and 22 of the Claimant’s statement on oath. Specifically, the Claimant attributes her sack to her failure to cooperate with the 2nd Defendant in the investigation of one Mr. Chris Mitchell Osazuwa. Learned Counsel for the Claimant in paragraphs 3.5 to 3.9 of his final written address urged the Court to look at the circumstances surrounding the issuance of exhibit C beginning with exhibit E-E6 [the affidavit of fact] and hold that the termination of the Claimant’s employment was not in good faith. The Defendants denied the allegation and in paragraphs 4, 5, 6, 7, 9, 10, 11, 12 and 13 of the 2nd Defendant’s statement on oath denied any ulterior motive in the sack of the Claimant. Learned Counsel for the Defendants argued in paragraph 2.3 of his reply on point of law that “acting mala fide goes to motive and motive leading to her termination is irrelevant as the Claimant’s employment was terminated without any reason.” The word mala fide has received judicial definition in a number of cases. In Chief Edmund I. Akaninwo & 4Ors. v. Chief O. N. Nsirim & 3Ors. [2008] LPELR-321[SC] at page 43, Niki Tobi, JSC [of blessed memory] put it this way:

 

“Mala fide is the opposite of bona fide. It simply means bad faith as opposed to bona fide, which is good faith. Mala fide projects a sinister motive designed to mislead or deceive another. Mala fide is more than bad judgment or mere negligence. It is a conscious doing of a wrong arising from dishonest purpose or moral obliquity. Mala fide is not a mistake or error but a deliberate wrong emanating from ill-will.”

 

See also Egwuuoyibo Okoye v. Independent National Electoral Commission [INEC] & Ors. [2009] LPELR-4727[CA] pages 22-23 and Alhaji A. A. Khalifa v. Mr. Frank Onotu & Anor. [2016] LPELR-41163[CA] pages 19-20. Ordinarily, where a right to terminate a contract of employment exists, the validity of the exercise of that right cannot be vitiated by malice or improper motive. See C. I. Olaniyan & 2Ors. v. University of Lagos & Anor. [supra] at page 38 and Bertram B. Nwajagu v. British American Insurance Company [Nigeria] Limited [supra] at pages 15-17. In Mobil Producing Nigeria Unlimited v. Otoabasi Effiong [2011] LPELR-9055[CA] at page 29, it was held that “a master that has the right to hire has the right to fire. An employer can terminate the employment of a servant notwithstanding the motive for doing so.” Also, in Festus Opeoluwa Daodu v. United Bank for Africa Plc [supra] at page 23, per Adekeye, JCA [as he then was] held:

 

“Under the Common Law, an employer is entitled to bring the appointment of his employee to an end for any reason or no reason at all. So long as he acts within the terms of his employment his motive for doing so is irrelevant.”

 

It will be observed that in all the decided cases the motive for termination was irrelevant in so far as the termination is in accordance with the terms of the contract of employment. In this case, I have found that the termination of the Claimant’s employment is in breach of her contract of employment. Having so found, the circumstances leading to her termination and after her termination become relevant. These circumstances are clearly stated in paragraphs 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21 and 22 of the Claimant’s statement on oath including the refusal to issue her clearance letter and pay her terminal benefits. I have reviewed these circumstances and do not believe that they take the termination out of the ordinary to warrant imputation of bad faith. There is nothing wrong in asking the Claimant to cross-check the account of a distributor to ascertain if there are discrepancies. It is within her competence to do so as the Store Keeper. Also, it is within the rights of the Defendants to report the Claimant to the Police if they believed she had committed a crime. In Cosmas Maduka v. Dr. Patrick Ifeanyi Ubah & 4Ors. [2014] LPELR-23966[CA] page 35, Iyizoba, JCA, summarized the position thus:

 

“Indeed, every citizen has a right or even a duty to report to the Police anyone suspected of committing a crime and the Police have a corresponding duty to investigate the report in the course of their statutory function of prevention, detection of crimes and generally preservation of law and order. In the case of Fajemirokun v. Commercial Bank [Credit Lyonnais] Nigeria Limited [2009] 5 NWLR [pt.1135] 558, the Supreme Court held: “Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizen cannot be held culpable for doing their duty unless it is shown that it is done mala fide.”

 

There is no evidence before me that the Defendants’ report to the Police was done mala fide. The only evidence on the Police case is paragraphs 18, 19 and 20 of the Claimant’s statement on oath. It is my respectful view that there is nothing in those paragraphs to infer bad faith. In the circumstances, I find and hold that the termination of the Claimant’s employment was not done mala fide.

 

  1. Relief two is for a declaration that the refusal of the 1st Defendant, through the instrumentality of the 2nd Defendant, to pay the Claimant’s entitlement in the midst of their abundant resources, after the Claimant has handed over the company’s properties in her possession, is abuse of position and illegal. The evidence in proof of this claim is in paragraphs 22, 23, 24, 25, 26, 27 and 28 of the Claimant’s statement on oath. There is nothing in the 2nd Defendant’s statement on oath explaining the 1st Defendant’s delay or refusal to pay the Claimant’s terminal benefits. I find and hold that the Claimant’s evidence on this score remains unchallenged and I accept it as correct. In Julius Berger Nigeria Plc v. Godfry Nwagwu [2006] LPELR-8223[CA] page 28 it was held that:

 

“A terminal benefit being a lump sum of money awarded in contract at the expiration of employment, the employee has earned it. It is accruable to an employee when his services are no longer required. A terminal benefit is readily and easily assessed as it is calculable from the Agreement between parties on terms and conditions of employment, based on specific statute or common law rules.”

 

The Claimant’s terminal benefit is an earned income and this includes her salary and allowances for April 2016. It is her right arising from her employment. The 1st Defendant in exhibit C stated as follows:

 

“The full and final settlement of the company’s obligation to you shall be effected as follows:

 

  1. Salary and allowances up to and including April 30, 2016
  2. Payment of Gratuity for eight [8] years
  3. Payment of two months basic salary in lieu of notice
  4. Payment of annual leave for the year 2016
  5. Company pension contribution [Account A & B]
  6. Less any other outstanding loans and liabilities.”

 

Neither in the statement of defence nor in the 2nd Defendant’s statement on oath is there any averment of any debt owed by the Claimant to the 1st Defendant. Paragraph 3 of the 2nd Defendant’s statement on oath merely stated that:

 

“3.      I state that the Claimant had blemished record during her employment with the 1st Defendant as shortage of stocks were [sic] discovered on numerous occasions which were admitted via various repayments by the Claimant. Copies of the 1st Defendant’s invoices as well as Zenith Bank Teller dated 18/6/15 are hereby attached as Annexure 1. Also are attached as annexure 2 are Skye Bank’s Teller dated 11/1/16 and 1st Defendant’s [Enugu Regional] Statement of Account for 01 November 2015 – 23 February 2016.”

 

Under cross examination, the Claimant said: “Yes, I made some refunds to the 1st Defendant. I can’t recall how much I paid back.” The Claimant was not confronted with exhibits D1 and D2 – D2c. Exhibit D2-D2c contains entries of various lodgements including lodgements by the Claimant. However, there is no evidence before me to show what the lodgements were for. There is nothing tying exhibit D5-D5b in the 2nd Defendant’s statement on oath. The invoices bear the name of Mrs. Nnabuchi with the Claimant’s name in brackets. There is no explanation of what the invoice is about and whether the goods specified therein were supplied and payment received and unremitted by the Claimant. The Court cannot speculate on this. Section 133[1] of the Evidence Act, 2011 provides that “In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side….” In MV Courageous Ace & 2Ors. v. Nigerdock Nigeria Plc [2016] LPELR-40223[CA] at pages 20-21, Oseji, JCA, held “It is an established principle of law that documentary evidence cannot serve any useful purpose in a trial where there is no oral evidence led by any of the parties to explain their essence in the suit. The court cannot be drawn into the arena of litigation to explain the use or relevance of documents dumped on it.”  I hold that the Defendants have failed to discharge this evidential burden. Learned Counsel for the Defendants in paragraph 6.25 argued that “We respectfully submit on behalf of the 1st and 2nd Defendants that the Claimant has not established that she is entitled to her entitlements from the 1st Defendant as itemised in her termination letter [Exhibit C] until the pending Police investigation is concluded then a clearance letter can be properly issued.” This is preposterous and untenable. The Claimant does not have to establish that she is entitled to her terminal benefits. It is an earned income payable upon exit from the company. Learned Counsel for the Claimant argued in paragraph 3.26 of the Claimant’s final written address that “clause 9 [of exhibit D-D2] can only be applicable when there is a proven and non-contentious debt to the company. The company cannot suo motu allude debt, and lien [sic] the benefits of a retired or terminated staff.” I respectfully agree with learned Counsel that clause 9 can only be activated on the basis of a specific amount agreed by both parties as owed by the Claimant to the 1st Defendant. Clause 9 of exhibit D-D2 provides:

 

“9.      The Company shall be entitled to set off against any remuneration or other moneys payable by the Company to the Employee any moneys owing or payable by the Employee to the Company or any of its associated companies or the value or estimated value of any goods or property of the Company or any of its associated companies for which the Employee shall be accountable to the Company or any of its associated companies and for which he shall have failed to account.”

 

In my opinion, the key words in this clause are “owing” and “payable”. There is no evidence before me that the Claimant is indebted to the 1st Defendant. The 1st Defendant did not counterclaim against the Claimant. There is no evidence of any query served on the Claimant, or any letter requesting her to account, no evidence of goods which she failed to account for, no audit report showing shortage of goods or money. There is no demand for payment of any specific amount of money and no evidence of any loan. There is equally no evidence of the finding of the Police on the complaint lodged on 29th February 2016 against the Claimant and Mr. Osazuwa. In my respectful view, paragraph 12 of the 2nd Defendant’s statement on oath is merely an allegation and not evidence of liability. This fact was admitted by learned Counsel for the Defendants in paragraph 6.23 of his final written address thus:

 

“The Police investigations are ongoing and until same is concluded or adjudicated by a competent court the exact/proper remuneration to be given to the Claimant in line with Clause 9 of her Employee agreement [Exhibit D-D2] cannot be definitive.”

Exhibit G-G5 does not in any way assist the Defendants. It is not a query and the 2nd Defendant in paragraph 9 of his statement on oath [apparently in response to paragraph 15 of the Claimant’s statement on oath] said: “I state that I have never set any trap whatsoever for the Claimant as all I did was to demand that the Claimant undertook her official tasks diligently and dutifully.” Exhibit E-E6 particularly paragraphs 10 and 11 were not challenged by the Defendants and I accept it as correct having been corroborated in paragraph 28 of the Claimant’s statement on oath. The conduct of the Defendants in this case is reprehensible, oppressive and in breach of the contract of employment. Workers are human beings and deserve to be fairly treated. Salaries and terminal benefits are earned income and not discretionary payments that can be withheld or paid at will. In the circumstance, I find and hold that there is no justification whatsoever for withholding the Claimant’s terminal benefits. Relief two therefore succeeds and is granted.

 

  1. Relief three is for a declaration that it is an abuse of office, sheer wickedness and intimidation for the 2nd Defendant to blatantly refuse to issue the Claimant a clearance letter with which to claim her full and final settlement of the company’s obligation; despite having been handed over all the company’s property. In proof of this claim, the Claimant deposed in paragraphs 25, 26 and 27 as follows:

 

“25.    That I forwarded the same text message to the 2nd Defendant, before calling him on phone for my clearance letter, and he told me that he will not give me any clearance letter, claiming that my case is at the Police station. That this is a deliberate plan to frustrate and dehumanise me because I cannot do them anything.

 

“26.    That I believe that this is also a grand ploy to intimidate, dehumanise, frustrate and cajole me into speaking against Mr. Chris Osazuwa at the Police station, that made the 1st Defendant to tell me [in my termination letter] to collect a clearance letter from the 2nd Defendant before they will pay me my entitlement, knowing full well that the 2nd Defendant is not willing to issue me with that.

 

“27.    That since the 3rd day of May, 2016, as directed in my termination letter, I submitted all the company’s property [sic] in my possession, and also submitted the Enugu Depot Stock Reconciliation sheet as at 3/05/16 to the 2nd Defendant, and he acknowledged same; yet the 2nd Defendant still refused to give me my clearance letter, with which to collect my entitlement. Pleaded and attached copies of my handover notes to the 2nd Defendant dated 3/5/2016 and marked Annex 14 and 15.”

 

The Defendants’ response to this is in paragraphs 14 and 15 of the 2nd Defendant’s statement on oath, thus:

 

“14.    I further state that the Claimant was only directed to obtain a clearance letter from me, that being the long standing policy of the 1st Defendant in respect of clearance for its ex-staff.”

 

“15.    I state that we only reported a case of stealing to the Nigeria Police Force against the Claimant and further state that the Claimant has yet to get the desired clearance as she has not complied with the 1st Defendant’s directives as well as provisions of the contract of employment.”

First, let me state that there is no provision for a clearance letter in exhibits A-A1 and D-D2 which is the bedrock of the contract of service between the Claimant and the 1st Defendant. The requirement of a clearance letter was introduced in exhibit C. Paragraph 2 of exhibit C reads: “You are therefore by regulation required to submit all company property in your possession to your Manager. After this has been accomplished you should request him to issue you a clearance letter that will enable Accounts Department release your benefits.” The regulation was not pleaded or tendered in evidence. Clause 14 of exhibit D-D2 stipulates that “No alteration in the terms of this Agreement shall be binding unless made in writing.” The handover note is exhibit M-M2 which was signed by the 2nd Defendant. In paragraph 15 of the 2nd Defendant’s deposition quoted above, he referred to “directives” and “contract of employment”. The question is, which directives or contract of employment did the Claimant fail to comply with? There is no evidence before me of any directives or contract of employment that the Claimant failed to comply with. There is also no evidence before me that the Claimant is indebted to the 1st Defendant. The 1st Defendant did not counterclaim against the Claimant. There is no evidence of any query served on the Claimant, or any letter requesting her to account, no evidence of goods which she failed to account for, no audit report showing shortage of goods or money. There is no demand for payment of any specific amount of money and no evidence of any loan. There is equally no evidence of the finding of the Police on the complaint lodged on 29th February 2016 against the Claimant and Mr. Osazuwa. Learned Counsel for the Defendants in paragraph 6.25 argued that “We respectfully submit on behalf of the 1st and 2nd Defendants that the Claimant has not established that she is entitled to her entitlements from the 1st Defendant as itemised in her termination letter [Exhibit C] until the pending Police investigation is concluded then a clearance letter can be properly issued.” This, as I said earlier, is preposterous and untenable. Consequently, I find for the Claimant and grant relief three also.

 

  1. Relief 4 is for an order of Court mandating the Defendants to forthwith pay the Applicant’s two [2] months’ salary in lieu; and compute and pay her complete entitlements/terminal benefits calculable from the contract of her employment and previous pay slips, and as reflected in her termination letter without removing a dime. It is in evidence that the two months’ salary in lieu of notice has been paid during the pendency of this action. Flowing from my findings on reliefs two and three above, I find and hold that relief four has been proved and it is accordingly granted. The Defendants shall forthwith compute and pay to the Claimant her terminal benefits as specified in exhibit C in accordance with the terms of her contract of employment.

 

  1. Relief 5 is for an order of the Honourable Court awarding 10% compound interest-rate per month on the monetary value of the Claimant‘s full and final settlement [terminal benefits] illegally withheld by the 1st Defendant with effect from the 30th day of April, 2016 and the interest to be paid alongside the benefit. There is no evidence before the Court in proof of the claim for interest. Exhibits A-A1 and D-D2 do not contain provisions for payment of interest for any reason. The submission of Counsel cannot take the place of evidence. It is trite law that the Court can only award pre-judgment interests where there is an agreement for payment of interest or under mercantile custom or principle of equity such as breach of fiduciary duty. In such cases, the pre-judgment interests must be specifically pleaded and strictly proved. See the cases of United Bank for Africa Plc v. Mrs. Doreen Nkolika Oranuba [2013] LPELR-20692[CA] 49 and Olasunkanmi Greg Agbabiaka v. First Bank of Nigeria Plc [2006] LPELR-11756[CA] at page 21. In Berliet Nigeria Ltd. v. Alhaji Mustapha Kachalla [1995] LPELR-775[SC] at page 44-45, Ogundare, JSC held: “There clearly is a difference between award of interest pre-judgment where plaintiff must specifically claim such and prove it and the award of interest on a judgment-debt which is purely statutory and can only be awarded if there are provisions to that effect in the law or rules of the court.” Ordinarily in claims for arrears of salaries and terminal benefits interest is not usually awarded to the successful party because the relationship of employer-employee does not envisage payment of interests on overdue salaries or terminal benefits. I therefore find and hold that the claim for pre-judgment interest fails and it is hereby dismissed.

 

  1. Relief 6 is for an order of the Honourable Court directing the Defendants to jointly and severally pay to the Claimant a punitive general damages of N10, 000,000 [ten million naira only], for the unmerited wickedness, intimidation, suppression and humiliation meted unto Claimant by withholding her entitlements for no just cause. First, let me say that it is a contradiction in terms to take about punitive general damages. Punitive damages are exemplary damages and different principles apply to general damages and punitive damages. In Mobil Producing [Nig.] Unltd & Another v. Udo Tom Udo [2008] 36 WRN 53 at 102, it was held that “Damages means the sum of money which a person wronged is entitled to recover from the wrong doer as compensation for the wrong…. The award of damages is a matter for the trial Court and this court would not ordinarily interfere with it. The quantum of damages recoverable by a party for wrongful termination of his employment will largely depend on whether the wrongful termination of employment was a result of the failure to give the required notice or as a result of an alleged malpractice. If the wrongful termination is as a result of the former, the quantum of damages recoverable may be the employee’s salary for the period of the required notice. But if it is due to the latter, then such a determination carries with it some stigma on the character of the employee for which he shall be entitled to substantial damages far beyond his salary for the period of the requisite notice.” In Kabo Air Limited v. Ismail Mohammed [2014] LPELR-23614[CA] 55, Abiru, JCA, had this to say about punitive damages: “Punitive damages which are also referred to as exemplary damages are intended to punish and deter blame worthy conduct and thereby prevent occurrence of the same act in the future. They are awarded whenever the conduct of the Defendant is sufficiently outrageous to merit punishment as where, for instance, it discloses malice, fraud, cruelty, insolence or flagrant disregard of the law.” Also, in Julius Berger Nigeria Plc & Anor. v. Mrs. Philomena Ugo [2015] LPELR-24408[CA] at 134, it was held that exemplary [or punitive] damages are intended not primarily to compensate the plaintiff but rather to punish the Defendant and to deter him from similar behavior in the future. Exemplary damages are punitive damages and it is awarded where a party to the suit can show or establish by evidence that the injury or loss suffered is due to the malicious act of the party against whom he is claiming damages. In order to justify the award of exemplary damages, it is not sufficient to show merely that the Defendant has committed a wrongful act. The conduct of the Defendant must be high-handed, insolent, vindictive or malicious showing contempt of the Claimant’s right or disregard of every principle which actuates the conduct of a gentleman. I have found above that the wrongful termination in this case arose from a failure to follow the procedure prescribed in the Claimant’s contract of employment and not on account of any misconduct. Consequently, and the measure of damages is the sum of money payable in lieu of notice. In Mobil Producing [Nig.] Unltd & Another v. Udo Tom Udo [supra] at 102, it was held that a servant is generally entitled to damages in the sum of the period of notice. In Gabriel Ativie v. Kabelmetal Nig. Limited [2008] 5-6 SC [pt.11] 47, [2008] LPELR-591[SC] at pages 13-14, Tabai, JSC, held that “It has been settled in a long line of authorities that in cases of ordinary contract of employment where the terms provide for a specific period of notice before termination or salary in lieu thereof, the only remedy available to an employee who is wrongfully terminated is the award of salary for the period of notice and other legitimate entitlements due to him at the time the employment was brought to an end. He gets no more.” There is evidence before me that the two months’ salary in lieu of notice has been paid. The award of general damages will amount to double compensation. The claim for punitive general damages is refused and accordingly dismissed.

 

  1. Relief 7 is for an order of the Honourable Court awarding the 10% compound interest-rate per month on any judgement sum, from the date of the award till any day the entire sum is liquidated, and acknowledged by the Claimant. This Court cannot award compound interest. The Court is empowered in Order 47 rule 7 of National Industrial Court [Civil Procedure] Rules, 2017, to award post-judgment interest. This relief fails and is hereby dismissed.

 

  1. On the whole, the Claimant’s case succeeds in part. For the avoidance of doubt, reliefs 1, 5, 6 and 7 fail and are hereby dismissed. Reliefs 2, 3 and 4 succeed and are granted. Consequently, I find and hold as follows:

 

  1. The refusal of the 1st Defendant, through the instrumentality of the 2nd Defendant, to pay the Claimant’s entitlement after the Claimant has handed over the 1st Defendant’s properties in her possession is an abuse of position and illegal.

 

  1. It is an abuse of office and sheer wickedness for the 2nd Defendant to refuse to issue the Claimant a clearance letter with which to claim her full and final settlement of the 1st Defendant’s obligation in spite of the handover of the 1st Defendant’s property to the 2nd Defendant.

 

  1. The Defendants shall forthwith compute and pay to the Claimant her terminal benefits calculated in accordance with her contract of employment and exhibit C. In addition, the 1st Defendant shall pay interest on the terminal benefits at the rate of 10% per annum with effect from the date of this judgment.

 

  1. Costs follow events. A successful party is entitled to cost. In assessing and awarding cost the Court is to act judicially and judiciously. See Union Bank of Nigeria Plc v. Charles Olusola Toyinbo [2008] LPELR-5056[CA] page 67 and Joseph Dameng Mudun & 5 Ors. v. Monday Hassan Adanchi & 3 Ors. [2013] LPELR-20774[CA] at page 51. Also, Order 55 rules 1, 2, 4 and 5 National Industrial Court [Civil Procedure] Rules, 2017 empowers me to award cost. I found above that the Claimant’s employment was terminated with effect from 30th April 2016 and she handed over to the 2nd Defendant on 3rd May 2016 and, as at that date, she was not indebted to the 1st Defendant. Her repeated pleas for payment of her April 2016 salary and terminal benefits were spurned. She was constrained to approach this Court with the attendant cost and pains of losing her job. In the circumstances of this case, I award N100, 000 [one hundred thousand naira] costs against the Defendants in favour of the Claimant payable within 7 days from the date of this judgment.

 

  1. Judgment is entered accordingly.

 

 

 

 

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

11/4/18

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