MR. ANTHONY B. LORKI -VS- SPRINGVIEW SERVICES LIMITED

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated: 18^th day of October, 2019 SUIT NO: NICN/PHC/17/2015

BETWEEN

ANTHONY B. LORKI———————————–CLAIMANT

AND

SPRINGVIEW SERVICES LIMITED—–———————-DEFENDANT

Representations:

E.S. Orhiunu with M.O. Egware for the Claimant.

Akinyemi Afuye for the Defendant.

Judgment.

This suit was commenced by way of a general form of Complaint filed on the 8^th of April, 2015 along with a statement of facts, list of witnesses, witness statement on oath, list of documents and copies of the listed documents to be used at trial.

The suit was originally before Hon Justice J.T. Agbadu-Fishim before it was assigned to this court sometime in January, 2019.

Arising from the Complaint and Statement of fact, the Claimant’s claims against the Defendant are:

Payment of the sum of N5,088,111.30 (Five Million, Eighty-Eight Thousand, One Hundred and Eleven Naira, Thirty Kobo) (being) monies lawfully due to the Claimant which represents the balance sum of terminal benefits of the Claimant, due and payable under Clause 30 (A) of the “Springview Staff Conditions of Service” which came into effect on the 1^st day of February, 2014 and which the Defendant has blatantly and unlawfully refused to pay despite demands on her to do so, having terminated the Claimant’s employment.

Payment of Ex-gratia and Reparation entitlements under Clause 30 (A) of the Conditions of Service applicable to the Claimant’s employment.

The sum of NGN20,000,000.00 (Twenty Million Naira) being damages by the Claimant as a result of the Defendant’s breach of the Staff’s conditions of service when the Defendant unlawfully and willfully failed to pay the Claimant’s full terminal benefit to which the Claimant is lawfully entitled on the termination of Claimant’s employment with the Defendant, thereby putting the Claimant to grave financial distress.

In reaction to the claims, the Defendant entered appearance on the 8^th of May, 2015 and on the 29^th of June 2015, filed a statement of Defence along with list of witnesses, witness statement on oath, list of documents and copies of the said documents.

The Claimant reacted to the statement of defence by filing a reply to the statement of defence on the 6^th of October 2015.

Trial commenced before this court on the 8^th of April, 2019 with the Claimant opening his case. The said Claimant was himself called as the sole witness as CW1 and he adopted his witness statements on oath marked as C1 (a) and C1(b). Through the said CW1, 8 documents were tendered in evidence and admitted as exhibits C2 – C9.

Arising from the statement of facts and witness statements on oath, the case for the Claimant is that he was employed by the defendant on the 15^th day of June 2009 as a Derrickman vide a letter of offer of contract employment and the employment was regulated by the terms contained in the letter and the Collective Bargain Agreement between Springview Services Ltd and Nigeria Union of Petroleum and Natural Gas Workers (NUPENG) of Springview Services Limited Employees seconded to Oando Energy Services Limited which is also known and referred to as the Staff Conditions of Service. Claimant averred that his employment was terminated by the defendant when his services were no longer required vide a letter of termination of employment dated the 10^th day of February 2015. Claimant added that he worked for the defendant for a continuous period of about 5 years and 10 months before his employment was terminated and that from the 1^st day of January, 2015 till when his employment was terminated, his monthly Gross Salary was N426, 848:57. Claimant averred further that prior to the termination of his employment, he was neither warned for any infraction and/or breach of rules and regulations nor was he found guilty of gross misconduct and the disciplinary procedures of clause 31 of the conditions of service was neither commenced nor enforced against him. He added that the loss of his employment is involuntary and permanent and through no fault of his and as such, he is entitled to Redundancy benefit under clause 30(A) of the Staff Conditions of Service which the Defendant did not pay. He added that out of the total sum of N7, 310,095.55 (Seven Million, Three Hundred and Ten Thousand, Ninety-five Naira, Fifty-five Kobo), the defendant paid only N2, 221, 984.25 (Two Million, Two Hundred and Twenty-one Thousand, Nine Hundred and Eighty-four Naira, Twenty — five Kobo) leaving a balance of N5,088,111.30 (Five Million, Eighty-Eight Thousand, One Hundred and Eleven Naira, thirty Kobo) and he incurred N1, 330, 000 as solicitor’s fees.

Upon cross examination of CW1, he posited that Exhibit C3 came into force in February 1, 2014 and affirmed that he was only warned once. He admitted he received 10 queries but was warned once. He admitted his employment was terminated on 10/2/15. He posited that clause 28,31 and 32 does not apply to the termination of his employment. He admitted that he received gratuity but he is asking for Redundancy benefit under clause 30 of Exhibit C3. He posited that he was victimized as he put in 5 years and 10 months of employment while others put in 5 years and 11 months.

Upon the discharge of CW1, the Claimant closed his case while the Defendants opened theirs by calling one witness in person of Dr. Olaposi Oluwole as DW1 who adopted his witness statement on oath marked as D1. Through the said DW1, 18 documents were tendered and admitted in evidence as Exhibit D2- D19.

Arising from the statement of defence and witness statement on oath, the case for the Defendant is that while the Claimant was indeed an employee of the Defendant, the said Collective Bargain Agreement between Springview Services Ltd and Nigeria Union of Petroleum and Natural Gas Workers ( NUPENG) of Springview Services Limited Employees seconded to Oando Services Limited came into force or operation on February 1, 2014. The Defendant added that apart from the warning letter issued to the Claimant which did not expire as claimed by the Claimant, the Claimant also received many queries. The Defendant also denied that the termination of the Claimant’s employment on the 10^th of February, 2015 was due to acts of victimization of the Claimant. The Defendant added that the termination of the employment of the Claimant was not as a result of unavailability of work and that as such Redundancy Benefits under Clause 30(A) of the said Staff Conditions of Service is not applicable to the Claimant’s case as was the case of other employees and upon the said termination, he had been paid his terminal benefit. The Defendant denied owing the Claimant the sum of N7,310,095.55 (Seven Million, Three Hundred and Ten Thousand, Ninety Five Naira, Fifty Five Kobo.) being claimed by the Claimant as redundancy benefits or any sum at all, including the sum N5, 088,111.30 (Five Million, Eighty-Eight Thousand, One Hundred and Eleven Naira, Thirty Kobo), and/or the alleged solicitor’s fees of N1,330.000 (One Million, Three Hundred and Thirty Thousand Naira).

Upon cross examination of DW1, he posited that he had been Assistant Manager with the Defendant since 2013 and that the Claimant was truly an employee of the Defendant for about 5 years. He admitted that the letter of employment and collective bargaining from NUPENG regulated his employment. He admitted that he authorized the letter of termination and he was one of the makers of the collective agreement and therefore conversant with the content. He stated that he cannot recollect the amount of written warnings given to the Claimant. He admitted that the warnings given to the Claimant expired before termination. He admitted the issuance of Exhibit C5 to the Claimant. He admitted the letter of termination was authorised on the basis that the service of the Claimant was no longer required. He posited that in redundancy, the Claimant loses his employment involuntarily and also in termination. He also stated that the Claimant was not paid redundancy benefit because his employment was terminated before redundancy was declared.

Upon discharge of DW1, the Defendants closed their case and matter was adjourned for adoption of final written address. Consequently, the Defendants filed their final written address on the 12^th of September, 2019 and arising therefrom, counsel to the Defendant Akinyemi Afuye Esq. formulated two issues for determination to wit:

Whether the Claimant is entitled to a balance sum of terminal benefits from the Defendant under Clause 30 (A) of the Springview Staff Conditions of Service?
Whether the Claimant is entitled to an Ex-gratia, Repatriation, damages, including his Solicitor’s fees?

In arguing issue one, counsel posited that the Claimant’s employment was validly and properly terminated by the Defendant in accordance with the provisions of the Letter of Employment dated 15^th day of June, 2009 and additionally the Collective Bargain Agreement Between Springview Services Limited and Nigeria Union of Petroleum and Natural Gas Workers (NUPENG) of Springview Services Limited Employees seconded to Oando Energy Service Limited which ostensibly governed the Claimant’s appointment. Counsel referred to the Collective Bargain Agreement, especially Clause 28 thereof on Termination/Resignation; Clause 31 thereof which provides for Disciplinary Procedures; and Clause 32 which governs Summary Dismissal.

Counsel argued that it is an established principle of law that an employer can fire his employee for any reason or for no reason at all. Hence, the Claimant’s contention that he was not subjected to the requisite disciplinary action before termination of his employment holds no water at all and is totally irrelevant. Counsel cited the cases of Chukwuma v. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512 @ 560; Samson Babatunde Olanrewaju v. Afribank Nigeria Plc (2001) (Pt.731) 691 @ 705; Babatunde Ajayi v. Texaco Nigeria Ltd & Ors. (1987) 3 NWLR (Pt. 62) 577 and Francis Adesegun Katto v. Central Bank of Nigeria (1999) 6 NWLR (Pt. 607) 390 @ 394.

Counsel submitted further that by virtue of Exhibits D19 A and B, the Defendant effectively and validly terminated the appointment of the Claimant and thereafter paid in full the Claimant’s terminal benefits. In this regard, he submitted that the Claimant is aware that he is not entitled to receive any redundancy benefits, even if he was so entitled, his collection of his terminal benefits amount to a waiver of his right in law or his entitlement to receive redundancy benefits. He cited the case of Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514.

In arguing issue two, counsel submitted that the Claimant is not in any form or manner, entitled to an award of Ex-gratia, Repatriation and damages at all against the Defendant.

Counsel added that the Claimant made several unsubstantiated allegations against the Defendant in paragraphs 14, 15, 17, 20, 23 and 31 of the Claimant’s Statement of Facts which were not proved at the trial of this suit by the Claimant and therefore, do not ground the grant of Ex-gratia, Repatriation, damages, including his Solicitor’s fees and must be accordingly discountenanced by this Honourable Court. He cited the case of Isong Udofia Umoh v. Industrial Training Governing Council (2001) 4 NWLR Pt. 703 pg. 281 @ 300-301.

Counsel posited that the Defendant by cogent and credible evidence adduced by its sole witness, that it has fully paid the Claimant’s entitlements and as such the Claimant is not entitled to the payment of Ex-gratia, and repatriation entitlement as part of redundancy benefits. He cited the case of Guinness Nigeria Plc v. Emmanuel Nwoke (2000) 15 NWLR (Pt. 689) 135 to posit that it is unethical and an affront to public policy to pass on the burden of Solicitor’s fee to the other party.

Counsel concluded by urging this Honourable Court to dismiss this suit with substantial cost for being vexatious, frivolous and grossly lacking in merit.

In reaction to the final address of the Defendant, Claimant filed his final address on the 18^th of September, 2019 and arising therefrom, counsel to the Claimant, E.S. Orhiunu Esq. formulated three issues for determination to wit:

1) Whether from the unambiguous provisions of Clause 30(A) of Exhibit C3 the claimant is entitled to the payment of Redundancy benefit and Ex-gratia and repatriation entitlement at the termination of his employment.

2) Whether by failure to pay the Redundancy and Ex-gratia and repatriation entitlements to the claimant, the defendant has not breached the contract of employment of the claimant

3) Whether the defendant is liable in damages to the claimant for breach of the terms of employment

In arguing issue one, counsel posited that under the provisions of clause 30(A) of Exhibit C3 the claimant is entitled to redundancy benefit and ex-gratia and repatriation entitlements at the termination of his employment and reproduced the provisions of the said Clause 30(A).

Counsel argued thereon that the term “REDUNDANCY” applies to the employment of the claimant in a situation in which involuntary and permanent loss of employment through no fault of the employee occurs.

Counsel added that in construing, interpreting and defining the word “Redundancy” and how it applies to the claimant’s employment, this Honourable court cannot go outside the express words and definition of the term “Redundancy” in Exhibit C3. Counsel cited the case of SAMUEL ISHENO Vs JULIUS BERGER (NIG) PLC [2008] ALL F.W.L.R PART 415 page 1632 to 1653-1654 part H-A.

Counsel argued further that the letter of termination was extremely clear to the effect that, “The Claimant’s services was no longer Required” and it went further to thank the claimant for services rendered. He added that this was involuntary and permanent as is shown by the fact that, one month salary in lieu of notice and other terminal benefits were paid with the exception of the redundancy benefit.

Counsel posited that having taken advantage of her prerogative to terminate the employment of the claimant permanently and without any reason as evidenced by Exhibits C4 and C8 the defendant cannot at the stage of trial reprobate to say that the claimant was at fault and proffering reasons for the termination of the claimant’s employment.

In arguing issue two, counsel contended that an employer who employs an employee under common law, has the right to fire that employee without furnishing any reason, however he must do so in line with the terms of contract, failing which, he shall be liable for breach of contract. he cited the case of ISHENO Vs JULIUS BERGER (NIG) PLC (2008) ALL F.W.L.R Part 415 Page 1632 at 1654 Paras A – D especially at Page 1636 ratio 6.

He added that the defendant has the right to dispense with the services of the claimant but in doing so, he must comply with Clause 30(A) of Exhibit C3 since the claimant’s loss of employment is permanent, involuntary and through no fault of his. He added that the defendant’s failure to do this is a clear breach of Exhibit C3 the contract of employment.

Counsel concluded on the issue that by failing to pay the claimant’s redundancy benefit and Ex-gratia and Repatriation entitlements, which shall be negotiated between the company and the union as per Clause 30(A)(C), the defendant has breached the terms of employment that existed between the parties.

In arguing issue three, counsel posited that the extant principle of law in this regard is that where an employer breaches the contract of employment in terminating the employment of an employee, he is liable in damages to the employee. He cited the case of GARUBA Vs KWARA INVESTMENT Co. LTD (2005) ALL F.W.L.R Part 252 Page 469 at 481 Para F-G especially at Page 472 Ratio 5

Counsel contended that the claimant’s claims for damages are expressly pleaded in his pleadings and supported by unchallenged oral and documentary evidence and added that the formula used by the claimant in calculating the sum claimed was never challenged by the defendant neither did the defendant challenge the amount of Redundancy benefit claimed. Counsel posited that all the defendant did in paragraph 16, 17 and 18 of the statement of defence is a mere denial that the claimant is not entitled to redundancy benefit because clause 30 (A) of Exhibit C3 does not apply to him and the effect of this is that the defendant admits that the calculation and the amount stated by the claimant is right, correct and true even though according to the defendant, the claimant is not entitled to this amount. Counsel cited the cases of AMRITA HOLDINGS LTD Vs BITASK VOA LTD (2015) ALL F.W.L.R Part 774 Page 78 at 81 ratio 5; KOPEK CONSTRUCTION LTD Vs EKISOLA (2010) ALL F.W.L.R Part 519, Page 1035 at 1039 Ratio 5 and OZIGBU ENGR. CO LTD Vs IWUAMADI (2011) ALL F.W.L.R Part 553 Page 1975 at 1979 Ratio 6 to posit that evidence unchallenged should be accepted by the court.

With regards to claim for the sum of N1,330,000 (One million, Three Hundred and Thirty Thousand Naira) being the cost he incurred as solicitor’s charges and fees, counsel posited that the Claimant tendered Exhibit C9 which is the Solicitor’s letter to the claimant dated 20/02/2015 proposing and outlining the charges/fees and the claimant’s acknowledgement and consent to charges/fees thereon with the attached solicitors receipt for the payment of the charges/fees. He cited the cases the cases of AMRITA HOLDINGS LTD Vs BITASK VOA LTD (Supra); KOPEK CONSTRUCTION LTD Vs EKISOLA (Supra); OZIGBU ENGR CO LTD Vs IWUAMADI (Supra) and IYERE Vs BENDEL FEED AND FLOUR MILL (Supra).

Counsel posited further that the defendant is also liable under the sacrosanct provisions of clause 30(A) and (C) of Exhibit C3 to pay to the claimant Ex-gratia and repatriation entitlements as part of his Redundancy benefits. He added that the provisions of this clause are unequivocal to the effect that when the situation of Redundancy occurs, Ex-gratia and repatriation entitlements shall be negotiated between Company and Union and paid to the employee.

Counsel submitted in addition that general damages is lawfully considered as the loss or inconvenience which flow naturally and generally from the act or conduct of the defendant and a claim for general damage is made at large. He cited the case of UNION BANK OF NIGERIA PLC . Vs. AJABILE (2012) All F.W.L.R part 611 page 1413 at 1416-1417 ratio 3.

Counsel made riposte to the arguments of the counsel to the Defendants and concluded that the claimant has successfully proved his claim on the balance of probabilities and successfully discharged the burden of proof placed on him by law.

Counsel urged the Court to enter judgment in favour of the Claimant as per the reliefs claimed in his statement of fact.

In view of all the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted in evidence.

Arising from the facts and circumstances of the case and the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the sole issue for determination by this court is to wit:

Whether or not the Claimant is entitled to the reliefs sought in view of the facts and evidence before this court.

In resolving the sole issue, I must start off by reckoning that both parties are in accord in respect of some facts and circumstances of this case and facts admitted need no proof. See CHUKWU & ORS v. AKPELU (2013) LPELR-21864(SC).

The area of accord between both parties is that the Claimant was employed by the Defendant on the 15^th of June, 2009 and that the employment of the Claimant was brought to an end on the 10^th of February, 2015. The Claimant tendered the letter of employment as Exhibit C2 and letter of termination of employment as Exhibit C4. While the Defendant tendered same documents as Exhibit D12 and D19 respectively.

Parties are also in accord as to the fact the Claimant is not contending that the termination of his employment was wrongful as the Defendant paid certain sum to the Claimant as terminal benefit which included salary in lieu of notice.

The area of contention between the parties is however in respect of the sum paid as terminal benefit as the Claimant contended that the terminal benefit paid to him excluded redundancy benefit and that he is entitled to same under Clause 30(A) of the Condition of Service applicable to his employment in view of the fact that his employment came to end involuntarily and at no fault of his. The Defendant on the other hand contended that the Claimant is not entitled to redundancy benefit as the employment was terminated under Clause 28.

The foregoing makes it imperative for the court to take adequate consideration of the provision of the contract of employment and to determine the rights and liabilities of the parties within the framework of same.

It is also in view of the foregoing contention that I find it expedient to intimate parties on the status of their condition of service which operates alongside the terms of employment captured in the offer of employment.

The court in the case of SEVEN-UP BOTTLING COMPANY PLC v. AJAYI (2007) LPELR-8765(CA) posited with authority that:

“It is well stated in many authorities that a condition of service is the bed rock upon which an aggrieved employee must found his case. Therefore in a matter of contract of service the court will not look outside the terms as stipulated or agreed to therein to decide the rights of the parties. KATTO v. CBN (1999) 5 NWLR PT. 607, 390.” Per SHOREMI, J.C.A (P. 25, paras. A-B)

In addition, the court in ANIFOWOSHE v. WEMA BANK PLC (2015) LPELR-24811(CA) held that:

“Terms and conditions of contract of employment are the bedrock of any case where the issue of wrongful termination of employment calls for determination and should therefore be pleaded by the employee who is aggrieved. The contract is personal to the employee. See NITEL Plc vs. Akwa (2006) 2 NWLR Pt 964 pg.391, Nig Gas Co Ltd vs Dudusola (2005) 18 NWLR Pt.957 pg.292, Amodu vs. Amode (1990) 5 NWLR Pt.150 pg 356”. Per NDUKWE-ANYANWU, J.C.A. (Pp. 20-25, paras. B-G).

In the instant case, both parties are in accord that the condition of service that regulated the Claimant’s employment with the Defendant was the Collective Bargain Agreement Between Springview Services Ltd and Nigeria Union of Petroleum and Natural Gas Workers (NUPENG) of Springview Services Limited Employees seconded to Oando Services Limited which the Claimant and Defendant tendered as Exhibit C3 and D13 respectively.

In view of the accord that Exhibit C3/D13 is the condition of Service that regulated the employment of the Claimant, it is consequently expedient to take a look at the provisions in contention. In this wise, Claimant relied on Clause 30(A) of the Condition of Service to posit that he is entitled to redundancy benefit while the Defendant contended that the Claimant’s employment was terminated under Clause 28 and therefore the Claimant is not entitled to redundancy benefit.

Clause 30(A) of the said Condition of Service (Exhibit C3 and D13) provides thus:

REDUNDANCY BENEFIT

For the purpose of this agreement, the term redundancy shall apply to a situation in which involuntary and permanent loss of employment through no fault of the employee occurs. Should the company declare any employee in service redundant, after consultation with the Union, he will be entitled to the following redundancy benefits.

After confirmation of employment, one (1) month gross salary in lieu of notice will be paid to the employee.
Two (2) months gross pay of each completed year of service for all categories of employees. Employees with less than one year of service will have their benefits pro-rated according to the period of service.
Ex gratia and repatriation shall be negotiated between Company and Union.
For the purpose of this agreement, Gross as it applies to redundancy and terminal benefits shall be all monthly fixed allowances plus Basic Salary
Monthly allowances fixed includes:
Day Overtime/14 days
Weekend Overtime/14 days

iii. Utility

Housing
Transport

vi Hazard

vii. Child Education

viii. Furniture

Swamp
Security
Shift

xii. Field allowance

xiii. Sanitation

Redundancy will be on the principle of “last-in, first out” depending on merit and the following conditions will be considered.
Employees shall be recalled to work in accordance with their seniority and merit.
The recalled employee shall have seven (7) days from the date of notice, which would be delivered to his/her last known address or his/her representative.

iii. The Company agrees to notify the union within 14 days of any anticipated large-scale redundancy.”

Clause 28 on the other hand provides in part thus:

Either party (the Company or employee) to this agreement can terminate the contract of employment at the expiration of the period of notice given by him or her of his or her intention to do so.

In view of the foregoing, the impending duty of the court is to consider the provision vis-à-vis the letter of termination of employment issued to the Claimant to determine whether or not the Claimant is entitled to redundancy benefit stipulated under Clause 30(A) above or whether the termination of his employment falls under Clause 28.

Before I take a look at the letter of termination however, I find it apposite to state that the foregoing provision in Clause 30(A) is clear and unambiguous to the effect that the grant of redundancy benefit is upon the Company declaring an employee in service redundant after consultation with the Union.

It must also be stated that where the words of an agreement are clear and unambiguous, all the court has to do is to give effect to same without more. The court in WEMA BANK PLC v. OSILARU (2008) 10 NWLR (Pt.1094) 150 at 177, paras. F-G (CA) held that “It is trite that where the language of an agreement is clear and unambiguous, the only interpretative jurisdiction of the court is to make pronouncement on the clear and unambiguous agreement and agree with them. The court is not to interfere at all. See First Bank of Nigeria v. Songonuga (2007) 3 NWLR (pt. 1021) 230.” Per OKORO, J.C.A. (Pp. 28-29, paras. D-A).

Having said that, I then turn to the letter issued in the termination of the Claimant’s employment. The said letter was tendered by both the Claimant and the Defendant as Exhibits C4 and D19(A) respectively. The said letter of termination which is dated the 10^th of February, 2015 reads thus:

Dear Anthony B Lorki,

Termination of Employment

We regret to inform you that your service are no longer required by the company with immediate effect.

In compliance with the conditions of service, accounts have been directed to pay you the following:

One (1) month salary in lieu of notice
Pro-rated safety bonus for 1^st quarter of 2015,
Pro-rated leave bonus for 2015,
Pro-rated leave not taken for 2015,
Pro-rated Christmas bonus for 2015,
Gratuity.

You are please required to hand over all company properties in your possession including your identity card to the undersigned.

On behalf of the management and staff, we wish to thank you for the services you have rendered to this company and wish you success in your future endeavors.

Yours faithfully,

Signed.

A careful perusal of the content of the letter of termination of employment issued to the Claimant clearly shows that there is no mention of the Claimant being declared redundant. He was simply informed that his services are no longer required.

In the absence of the mention of ‘redundancy’ in the letter of termination or vide any other piece of evidence before this court, there is no basis upon which the court can come to a conclusion that the Claimant is entitled to redundancy benefit.

I reckon that counsel to the Claimant argued that the phrase ‘service is no longer required’ used in the letter of termination amounts to an involuntary termination of the Claimant’s employment and at no fault of his. The argument presupposes that the phrase can be equated to mean that the Claimant had been declared redundant and that is by far a misconception which this court cannot uphold.

In this regard, I must state that the phrase ‘service is longer required’ mean nothing more than that and the court in UNION BANK V SALAUDEEN (2017) LPELR-43415(CA) affirmed this position of the law when it held that:

“The question that now agitates my mind is, whether the words “for services no longer required” qualify as a reason as to require the Appellant to establish by evidence. This scenario occurred in the case of NITEL Plc v. Akwa (2006) 2 NWLR (pt.964) 391, where My Lord, Sanusi, JCA (as he then was) said: The effect of the judicial decisions, some of which I cited above, which stated that an employer needs not give reason for termination simply means that the master or employer needs not give a catalogue of allegation or accusation(s) of any wrong doing, or offence committed by the employee in terminating his appointment. In other words, even if the employee was never involved in any wrong doing, misconduct, fraud or any act that smacks of criminality, his employment can still be terminated. In my view, to say that the phrase “your service is no longer required” amounts to “giving reason” for the termination which requires the employer to justify, is stretching the meaning too far.” “Per TSAMMANI, J.C.A. (Pp. 33-34, Paras. B-E).

Arising from the foregoing, the phrase ‘service no longer required’ stated in the letter of termination of appointment does not amount to declaring the Claimant redundant to entitle the Claimant to redundancy benefit. In other words, I find that the provision stated in Clause 30(A) only applies to employees declared redundant and not the employees whose employment was terminated under clause 28 and I so hold.

The foregoing position of the court on the effect of the phrase ‘service no longer required’ also makes it needless to consider the issue of queries and warnings served on the Claimant in view of the fact that his termination letter has no reference to any wrongdoing or reason for termination. Consequently, all the contentions and arguments relating to issuance of query and warning to the Claimant by the Defendant is discountenanced as it has no effect whatsoever on the letter of termination issued to the Claimant for the termination of his employment.

It is in the light of the foregoing holding that the reliefs sought by the Claimant is considered thus:

Relief 1 and 2 are sought pursuant to Clause 30(A) of the condition of service regulating the Claimant’s employment as considered above.

The said reliefs are:

An order for the “Payment of the sum of N5,088,111.30 (Five Million, Eighty-Eight Thousand, One Hundred and Eleven Naira, Thirty Kobo) monies lawfully due to the Claimant which represents the balance sum of terminal benefits of the Claimant, due and payable under Clause 30 (A) of the “Springview Staff Conditions of Service” which came into effect on the 1^st day of February, 2014 and which the Defendant has blatantly and unlawfully refused to pay despite demands on her to do so, having terminated the Claimant’s employment”.
An order for the “Payment of Ex-gratia and Reparation entitlements under Clause 30 (A) of the Conditions of Service applicable to the Claimant’s employment”.

Upon the finding that the provision stated in Clause 30(A) only applies to employees declared redundant and not the employees whose employment was terminated under clause 28 and upon the finding that the Claimant was not at any point declared redundant but rather had his employment terminated under clause 28 of the Condition of Service, the Claimant is precluded from making claim for Redundancy Benefit and Ex-gratia and Reparation entitlements which are the benefits provided under Clause 30(A) of the condition of service.

Consequently, the Claimant, in view of the findings made by this court upon the evaluation of the evidence before this court, is not entitled to relief 1 and 2 and same are accordingly refused.

Relief 3 is for “the sum of NGN20,000,000.00 (Twenty Million Naira) being damages by the Claimant as a result of the Defendant’s breach of the Staff’s conditions of service when the Defendant unlawfully and willfully failed to pay the Claimant’s full terminal benefit to which the Claimant is lawfully entitled on the termination of Claimant’s employment with the Defendant, thereby putting the Claimant to grave financial distress”.

The said sum was particularized by the Claimant to incorporate cost of action put at N1,330,000.00 (One Million, Three Hundred and Thirty Thousand Naira) which represents the monies expended for legal representation with the balance of N18, 670, 000 (Eighteen Million, Six Hundred and Seventy Thousand Naira) being for damages suffered by the claimant as a result of the breach of clause 30 (A) of the Staff Conditions of Service.

With regards to cost of action, I must posit that cost is granted at the discretion of the court. The court in WEMA BANK PLC. & ANOR v. ALARAN FROZEN FOODS AGENCY NIG. LTD. & ANOR (2015) LPELR-25980(CA) posited that: it is at the discretion of the court to award cost. The ultimate requirement is that such discretion must be exercised judicially and judiciously. Per IYIZOBA, J.C.A. (Pp. 41-42, Paras. B-E).

Bearing the above in mind, I also reckon that cost is to be deservedly awarded to a successful party to cushion what is expended on litigation. The court in EMPERION WEST AFRICA LTD v. AFLON LTD & ANOR (2014) LPELR-22975(CA) noted that:

“…although a court has the sole discretion to award cost, such award should not be made to serve as a punitive measure or as punishment. Rather, it should merely serve as indemnity or to compensate the wronged party on the out of pocket expenses he incurred in the prosecution or attendance of the suit or to cushion the cost of litigation incurred by the successful party in the suit. See PSO Olasipe vs. National Bank of Nigeria Ltd & Anor (1985) 3 NWLR (Pt. 11) 147 at 152 para B.” Per SANUSI, J.C.A. (P. 73, paras. D-F).

In the instant suit, the Claimant is not the successful party in view of the finding that the Claimant is not entitled to relief 1 and 2 above. Upon this consideration, the Claimant is to bear his cost and the relief seeking for an award of cost is accordingly refused.

With regards to claim for general damages for the alleged breach of the provision of Clause 30(A) of the Condition of Service, I must for sake of repetition state that this court has found that the Claimant is not entitled to redundancy benefit under Clause 30(A) of the condition of service, the implication of which is that the refusal of the Defendant to pay the Claimant redundancy benefit does not amount to breach of the said clause. In the absence of a breach, there is no basis upon which general damages can be granted and the claim for same is accordingly refused.

Consequent upon the foregoing the sole issue is resolved against the Claimant and in favour of the Defendant to the effect that the Claimant is not entitled to the reliefs sought based on the facts and evidence before this court.

In the final analysis, the case of the Claimant lacks merit in its entirety and same is accordingly dismissed.

Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE