Mr. Brain Lawrance Bassey -VS- Incorporated Trustees of Faith Alive

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE JOS JUDICIAL DIVISION

HOLDEN AT JOS

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.I. AMADI

DATED: JUNE 24, 2019 SUIT NO: NICN/JOS/2/2018

BRAIN LAWRENCE BASSEY——- CLAIMANT

AND

INCORPORATED TRUSTEES OF FAITH ALIVE FOUNDATION — DEFENDANT

REPRESENTATIONS:

P.H. Hammache for the Claimant

Charles Obishai (SAN) with Eric Goler and Blessing Ochayi for the Defendant

INTRODUCTION

The Claimant commenced this case by a general form of complaint and statement of facts dated 26^th January, 2018 and filed same date. The claimant claimed against the defendant as follows:

A Declaration that the Respondent’s act of deduction of the Claimant’s salaries to the tune of N19, 000.00 without the Claimant’s consent is unlawful, illegal and unwarranted.
A Declaration that the termination of the Claimant’s employment was unlawful.
A Declaration that the Claimant was entitled to 7 days’ notice and in the absence of the notice, 7 days salary equivalence in lieu of the said notice.
A Declaration that the Claimant is entitled to full payment of December, 2017 salary which is N40, 000.00 (Forty Thousand Naira only).
An Order compelling the Respondent to pay the Claimant’s N19, 000.00 being deducted without the consent of the Claimant.
An Order directing the Respondent to pay the sum of N40, 000.00 (Forty Thousand Naira only) being equivalence of the Claimant’s December, 2017 salary.
An Order awarding general and exemplary damages in the sum of N2, 000,000.00 (Two Million Naira Only) in favour of the Claimant against the Respondent.
Cost of this action.

The Defendant filed its Statement of Defence dated and filed 13^th February, 2018 and amended Statement of Defence dated and filed 16^th May, 2018. The Claimant filed his Reply to the Statement of Defence dated 26^th February, 2018 but filed on the 27^th February, 2018 and Amended Reply to the Statement of Defence dated 23^rd May, 2018.

TRIAL

Trial commenced on 23rd November 2018, the Claimant testified for himself as (CW1) by adopting his two witness statements on oath dated 26th January 2018 and 23^rd May 2018. He tendered all documents pleaded and frontloaded which were admitted and marked accordingly. He was subsequently cross examined by the defendants’ counsel and was discharged from the witness box on the same 23rd November, 2018 after which the claimant closed his case.

The Defendant opened their case on 28^th January 2019 and called one witness who testified on their behalf and was cross examined. The Defendant closed their case. Thereafter the parties filed their final written addresses.

FACTS OF THE CASE

The facts of this case from the claimant is as follows:

The Claimant was employed as a Laboratory Personnel in the Department of Medical Services and Hospital Administration by defendant after he served as Youth Corp member vide a letter dated 25^th March, 2016 and was placed on a salary of N21, 000.00 (Twenty-one Thousand Naira only) per month. The Claimant was promoted to the rank of “Officer in Charge of Commercial Pharmacy” in November 2016 and his salary was reviewed to N40, 000.00 (Forty Thousand Naira only).

The Defendant started making deductions from the salaries of the Claimant in the sum of N4, 000.00, N4, 000.00, N9, 000.00 and N4, 000.00 for the months of May, June, July, and August 2017 respectively amounting to N21, 000.00. As a result, the Claimant wrote a Letter signed on 10^th August, 2017 (Exhibit CF) to the Defendant seeking for explanation of the deductions.

Upon receipt of the letter the Defendant did not reply but the Chief Executive Officer invited him to meet her which he turned down. The Claimant letter met with the Founding Coordinator of the Defendant and the coordinator informed the Claimant verbally that the clocking policy did not apply to him and told the Claimant that the money wrongly deducted will be refunded. He also told the Claimant to write a letter of apology (Exhibit CG) for insisting on getting a written response to Exhibit CF which he complied.

Thereafter Defendant resumed deductions from his salary in the months of September to November amounting to N19, 000 (Nineteen Thousand Naira only) which led the Claimant to contract his solicitors who wrote a demand letter dated 15^th December, 2017(Exhibit CJ) to the Defendant. Upon receipt of the letter the Defendant terminated the Claimant’s employment and hence this suit.

The defendant on the other hand, presented the facts of this case thus; t hat the foundation has a clocking policy wherein every member of staff including volunteers and students sign in and out every day. That the policy makes it mandatory to sign in and out and where in default a deduction of 10% is made from the salary of such defaulter.

That the Claimant never adhered to the clocking policy and deductions were made from his salary for the months of May, June, July and August of 2017. That after that, the Claimant then wrote a letter to the Defendant demanding explanations for the deduction made. The defendant upon receipt of the letter, through its Chief Executive Officer, invited the Claimant for a meeting which the Claimant turned down. That the Claimant insisted on a written reply to his letter. That upon meeting the Founding Coordinator, the Claimant demanded a refund of the sums deducted explaining that since he lived within the premises of the defendant, that the clocking policy does not apply to him.

That the Founding Coordinator then directed that the deductions should be refunded on the ground that the Claimant should adhere to the policy from then on.

That the Claimant continued to default and the deductions resumed from September through November, 2017. Within the same period, the Claimant sold drugs to a patient without remitting the money to the accounts department. That this act attracted a query to the Claimant and he was subsequently invited to the Respondent’s disciplinary committee. That the Claimant instead of attending the committee’s sitting engaged the services of a legal Practitioner who wrote a letter of demand to the Defendant. Consequent upon the Claimant’s refusal to attend the Disciplinary Committee sitting, his employment was terminated.

ADDRESSES OF THE PARTIES

In his final written address, the learned counsel for the defendant raised three (3) issues for determination by this Honourable court to wit-

Whether the Claimant is entitled to refund of the deductions made from his salary?
Whether the Claimant has successfully proved his Claim for wrongful termination of his employment?
Whether the Claimant is entitled to any damages for wrongful termination of employment?

In arguing issue one, the learned counsel submitted that the crux of the defendant’s defence is the Defendant’s Clocking Policy ensures that all members of staff must sign in and out of the premises of the Foundation at the time of resumption for work and at closing time. That where an employee defaults in the clocking in and out for a minimum of three times in a month, a deduction of 10% is made from his salary as was done in the case of the Claimant. Counsel referred to exhibit “DA” (Orientation Checklist for New Staff of the Respondent) wherein the said Clocking Policy is clearly stated. That the same clocking policy was pleaded in the Respondent’s Amended Statement of Defence. That there was no denial of the existence of the Clocking Policy by the Claimant. That, the only contention surrounding the Clocking Policy is the Claimant’s claim that it does not apply to him, which claim is premised on the Claimant’s claim that he works for 24 hours for the defendant. That the Claimant tendered his employment letter (exhibit “CA”). That on the face of the said exhibit “CA” that the working hour of the Claimant is clearly stated thus:

“Upon assumption of work for this position, the departmental head will provide you with orientation materials regarding FAF conditions of service and your job description as per FAF’s policies and manuals. Working hours: 8:am-4:pm Mondays-Fridays and you will be required to take calls occasionally.” (Underlining for emphasis)

Counsel submitted that, the Claimant under cross examination gave manifest contradictory evidence. He said in one breath “yes, I work 24 hours for the Respondent” and in another said, “Yes, my letter of employment stipulated my working hours.” To continue his chain of contradiction and lies, CW1 went further to state that, “I don’t go to church, I go to the market and I do not have relations in Jos. I go for banking transactions. The bank and the market are not within the premises of the Respondent.” The question then is, how can someone who claims to be on duty for 24 hours all the time have time on his hands to engage in other activities outside his work place? That the law provides that where there is contradictory oral evidence, documentary evidence is relied upon to resolve such contradiction. Thus, a document cannot be varied by oral testimony. In this case exhibit “CA” must be relied upon to solve the issue of the working hours of the Claimant. Counsel referred to the the case of UNILORIN v. Abegunde (2015) 3 NWLR (Pt.1447) 421 at 450 where Ogbuinya, J.C.A held;

“In this wise, I will employ a hallowed principle of law that where oral evidence of adverse parties are in conflict, documentary evidence should be used as a barometer to determine their veracity.”

Counsel submitted that the Claimant being caught in his own web of lies agreed to not adhering by the Clocking policy of the Defendant.

Counsel submitted on the whole that, the Claimant’s case is fraught with numerous contradictions as such, his Claim must fail. The law provides that he who asserts must proof and that parties are solely enjoined to depend on the strength of their cases and not the weakness of the opponent’s case.

In arguing issue two, counsel submitted that, this is a case of termination of employment which makes it imperative to consider the kind of relationship which existed between the Claimant and the Defendant.

Counsel submitted that, this case depicts that the relationship between the Claimant and Defendant is that of a master and servant. That the termination of employment in master-servant relationship is not governed by statute, but by terms and conditions of such employment and once the master complies with the terms of such agreement, he can terminate at anytime. Counsel referred to the case of U.B. A v. Oranuba (2014) 16 NWLR (Pt.1390) 1 at 21 where it was held thus:

“Furthermore, in a contract of employment between a master and servant without statutory flavor, once the master complies with the terms of agreement, he may relieve the servant of his job with or without reason.”

Continuing further counsel submitted that, it is elementary in law that he who asserts must prove. That this principle extends to cases of wrongful termination of employment. That this principle is enunciated in the fact that where an employee makes a claim of wrongful termination of employment, such Claimant must bring before the court that portion between it and his employer which was breached. Counsel referred to the cases of; U.B. A v. Oranuba (Supra) at 21where it was held that

“it is settled law that in an action for wrongful dismissal from employment, the burden is always on the claimant to prove the terms and conditions of his contract of employment and in what manner the said terms were breached by the employer.”

Also N.D.L.E.A v. Zakari (2015) 7 NWLR (Pt.1458) 361 at 376 Bage, J.C.A (as he then was) held-

“An employee who complains that his appointment was wrongfully terminated has the onus to place before the court the terms and conditions of the contract of employment and the manner those terms were breached by the employer.”

That, the Claimant in this case has failed woefully in proving this. The Claimant has failed to put before the Court any contract of employment between it and the defendant to show which portion of the terms of such contract has been breached. That the only document tendered by the Claimant relating to his employment with Defendant is his appointment letter marked as “Exhibit CA”. That a careful study of the appointment letter shows that no portion of it states any procedure for termination of employment.

Continuing counsel submitted that the Claimant’s employment was terminated for indiscipline. That the only condition an employer needs to fulfill before he dismisses an employee for gross misconduct is to give such an employee a fair hearing. That this condition was fulfilled by the Defendant. That it is an undisputed fact that after serving the Claimant with a query for non remittance of proceeds from drugs he sold, the Claimant was invited to the Disciplinary Committee of the Defendant which he declined to attend. That this fact was not disputed by the Claimant. That the invitation extended to the Claimant to attend the Disciplinary Committee of the Defendant to explain the circumstances relating to the drug sold is enough to satisfy the condition for dismissing the Claimant for gross misconduct.

That the law provides that fair hearing does not connote that the Claimant must attend the panel, but that he was given a chance to so attend is enough. His refusal to attend the panel is definitely at his own risk. This was the decision of the court in the case of Ardo V. I.N.E.C (2017) 13 NWLR (Pt. 1583) 450 at 497 where Nweze, J.S.C held;

“My Lords, permit me to observe that the touchstone for determining the observance of fair hearing in trial is the question of whether an opportunity of hearing was afforded to parties entitled to be heard. J.C.C Inter. Ltd v. N.G.I. Ltd. (2002) 4 WRN 91,104. Thus, where, as in this case, counsel had the opportunity of being heard but prostituted it, Omo v. J.S.C, Delta State (2000) 7 KLR (Pt.108) 2623, (2000) 12 NWLR (Pt.682) 444 or decided to filibuster just to delay the trial. Oyedeji v. Akinyele (2002) 3 NWLR (Pt. 755) 586, 613 or, deliberately, failed to avail himself of the opportunity of delivering his a ddress, Chidoka v. First class Finance Co. Ltd. (2001) 2NWLR (Pt.697) 216, 227, he cannot be heard to complain of want of fair hearing.”

Counsel submitted that further that, the crux of the case of the Claimant is that no notice was given to him and no salary in lieu was paid to him before the termination of his employment but this is an erroneous view. That the facts of this case clearly reveal numerous cases of indiscipline on the part of the Claimant. That an employee who refuses to adhere to policies of his employer cannot be heard to complain when he is met with sanctions for such non-compliance. The law permits that in such circumstances, the Claimant is not entitled to any notice. Section 11(5) of the Labour Act provides thus;

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

In conclusion Counsel submitted that the above section clearly provides an exception to the giving of notice of termination of employment. These circumstances have clearly been made manifest in the instant case, hence, the Claimant’s claim for wrongful termination of employment has failed woefully.

In arguing issue three counsel submitted that the Claimant in one of his reliefs seeks a claim for N2, 000,000.00 (Two Million Naira only) as general and exemplary damages.

Counsel submitted that the only damages an employee whose employment is terminated is entitled to is the salary he would have earned during the length of notice, that awarding the Claimant’s unwholesome claim of Two Million Naira (N2, 000,000.00) will amount to turning the law on its head.

Counsel submitted that, the only exhibit tendered by the Claimant to show an employment relationship between himself and the defendant is the Employment Letter marked as exhibit “CA”. upon a careful perusal of the exhibit, it will be seen that there is no provision stipulating anything close to termination of employment say more of a requirement for notice upon termination. Also, nothing in his pleadings proves any terms and conditions of employment which was breached by the defendant. That the Claimant merely pleaded that he is entitled to 7 days notice of the termination of his employment, no evidence was brought to that effect. That the law is trite that facts pleaded to which no evidence is led goes to no issue. Counsel relied on the case of Honika Sawmill Nig Ltd v. Hoff (1994) 2 NWLR (Pt. 326) at 252.

Counsel submitted that the Claimant failed woefully in his attempt to prove his claim to award of damages for wrongful termination of his employment. Counsel urged the Court to resolve this issue in favour of the defendant.

The learned counsel for the claimant in his final written address, raised three (3) issues for determination by this Honourable court to wit-

Whether the Claimant has proved his case against the Respondent.
If issue one is answered in the affirmative, whether the Respondent has disclosed any defence.
Whether the Claimant is entitled to the damages he sought in the circumstances.

On issue one, counsel submitted that the case of the Claimant is that the defendant’s persistent acts of deducting money from his salaries are unlawful. The Claimant gave evidence that the total illegal deductions by the defendant was N19, 000.00.

That it is instructive to note that the Defendant did not deny deducting the said amount but relied on the defence that the deductions were lawful as it is part of their clocking policy to deduct 10% of its staff’s salaries upon default of the said policy. That the Defendant did not deem it necessary to plead and tender such a piece of document that they heavily relied on as their defence for the illegal deductions. That the DW1 under cross examination claimed that there is a document embodying the policy but she testified that “it is not in court but in the office”. She was equally confronted with the fact that the deduction for the month of July, 2017 was more than 10% but she could not give any satisfactory answer.

Counsel submitted that there is no such policy at all nor is there any document containing the said policy. It is all part of the arbitrariness and highhandedness of the Defendant to its staff. That it is trite that he who asserts must prove the existence of his claim, and since the Defendant is asserting the existence of clocking policy, the Defendant then has the burden of proof to show such policy indeed exists. Counsel referred to the case of W. A. Cotton Ltd V Haruna [2008] ALL FWLR (Pt.416) 1942 at 1958 paragraphs G-H, held that “the law is that he who asserts must prove his assertion by credible and admissible evidence. And if he fails to so prove, his claim must fail”. (underline supplied)

Counsel submitted that contrary to the submission of the Defendant in his final written address, that the claimant did not deny the existence of clocking policy, that the Claimant has consistently denied the existence of deduction of Defendant’s staff salary upon default of the clocking policy. Counsel referred to paragraph 3 of the Claimant’s Amended Reply to the Statement of Defence.

Continuing, counsel submitted that the DW1 under cross examination admitted the fact that the claimant was doing a 24hour work for the defendant. She further conceded that 24 hours shift does not mean the literal 24 hours being put to work but that the Claimant could be called upon to render services whenever the need arises anytime of the day. That there were therefore no contradictions at all in the evidence of the Claimant on clocking policy that would warrant the invocation of the authorities of Mtn (Nig.) Comm. Ltd V Handson [2017] 18 NWLR (PT. 1598) and Ipkeazu V Otti [2016] 8 NWLR (PT.1513). Counsel urged the Court to discountenance the said authorities as they do not apply to the instant case.

On the issue of wrongful termination, counsel argued that the Claimant’s contention has been that his employment with the Defendant was terminated contrary to the provision of the Labour Act and hence unlawful. Therefore, regardless of the nature of the contract of employment between the parties in this suit, which is secondary and nonessential, that the Defendant is bound by the provision of Section 7 (1) (e) of the Labour Act, Cap L1, Laws of the Federation of Nigeria, 2004 which provides thus:

7 (1) not later than three months after the beginning of a worker’s period of employment with an employer, the employer shall give to the worker a written statement specifying-

(e) the appropriate period of notice to be given by the party wishing to terminate the contract, due regard being had to section 11 of this Act.

In the same vein Section 11 (2) (b) of the Labour Act, Cap L1, Laws of the Federation of Nigeria, 2004 provides for 7 days’ notice before a contract of employment could be terminated by either party to the contract of employment. Hence, the combined reading of the above sections will mean that the Defendant is under legal obligation to observe the stipulations as the Act did not give the Defendant any discretion in the matter and equally, the section did not specify the nature of employment it is restricted to.

That whether or not Exhibit CA contains the provision for issuing of notice before termination of contract by either party is immaterial and definitely of no moment. Thus, where such is missing, the provision of Section 11 of the Act will apply.

Flowing from the above, it is the case of the Claimant that he is entitled to at least 7 days’ notice before his employment could be terminated and in the absence of such notice, he is entitled to 7 days salary in lieu of the said notice. That it is in evidence that the Defendant stopped the Claimant from entering his office at the premises of the Defendant upon reporting to work and was subsequently given Exhibit CK, which is a letter terminating the employment of the Claimant. Counsel submitted that it is established that the Defendant did not comply with the provisions of the Labour Act by giving the Claimant 7 days’ notice of termination of his employment.

Counsel submits that it is not in controversy that the salary of the Claimant before he was unceremoniously sacked was N40, 000.00. That it is also deductible by mathematical calculation that 7 days of the Claimant’s salary would be N40, 000.00 divide by 30 days; which will represent the Claimant’s earning per day and then the amount be multiplied by 7 days. Hence, N40, 000.00 divided by 30 days = N1, 333.33 X 7 = N9, 333.31. Thus, the Defendant will be liable to pay the Claimant the sum of N9, 333.31 representing the 7 days’ salary in lieu of notice.

Continuing counsel argued that it also in evidence (paragraph 19 of the Claimant’s witness statement on oath) that the Claimant worked for the Respondent till 19^th December, 2017 when he was asked to leave. That if the 19 days are added to 7 days in lieu of notice, the days will come to 26 days and since December has 31 days, 26 days out of 31 days are substantial number of days bearing in mind the Christmas break. Thus, the Claimant has proved his case to warrant the granting of reliefs 4 and 6 as per the Claimant’s complaint before this Honourable Court.

Continuing further also counsel submitted that nowhere in Exhibit CK did it show that the Claimant was dismissed for misconduct. That the wordings of Exhibit CK are clear and unambiguous thus: “I have been directed to inform you that your services are no longer required in the organization effective from today December 18th 2017”.

That Exhibit CK simply says that the services of the Claimant are no longer required. It did not give the slightest hint of why the Claimant’s employment was terminated and if there was any good reason, apart from the obvious persecution of the Claimant for daring the Defendant by writing Exhibit “CF” and eventual hiring the services of solicitors to write them a letter, the Defendant would have not missed the opportunity of communicating that.

Counsel submitted that it is misleading to say that the Claimant was dismissed for misconduct or gross misconduct. That the Claimant’s employment was simply terminated. That the issue of gross misconduct is only brought in by the defendant’s counsel in the final written address and it is trite law that address of counsel, no matter how beautifully scripted, cannot substitute evidence. Counsel referred to the case of Okwejiminor V Gbakeji [2008] ALL FWLR (PT. 409) 405 AT 447 D-E where the Supreme Court held thus:

The law is well pronounced upon that no matter how brilliant the address of counsel is, it cannot be a substitute for pleadings or evidence. Courts are only enjoined to limit and restricts themselves to pleaded and proved facts.

Counsel urged the Court to find and hold that the Claimant has proved his case and resolve issue one in favour of the Claimant.

In arguing issue two, Counsel submitted that from the outset that the Defendant has not disclosed any defence on the merit. That the defence put forth by the Defendant that the deductions were legal pursuant to their clocking policy wherein 10% of a staff’s salary would be deducted was elaborately been dealt with under issue one.

Equally, that the Defendant would have been able to prove the fact of applicability of the clocking policy on the Claimant if it had taken time to reply the Claimant “exhibit CF” which raised pertinent questions on the applicability of the clocking policy on him. But the Defendant failed to do so. Counsel submitted that the Defendant’s silence on this important issue would only leave this Honourable court to infer admission of the claimant’s position. Counsel relied on the case of Trade Bank Plc v Chami [2003] 13 NWLR (Pt. 836) 158 @ 219-220 H-A where the Court of Appeal held thus:

The Respondent did not answer the letter and its failure or neglect to answer such a letter in the circumstance is tantamount to an admission of the assertion on it. Exhibits 2 and 3 are not social but business letters, while social correspondence may be ignored business letters deserve to be answered. The failure or neglect of the Respondent to reply or answer those letters amount to admission because what is asserted in those letters and is not denied is deemed admitted.

Counsel submitted that the Claimant has proved that the clocking policy did not apply to him on the fact that he was a resident staff who was on 24 hours duty. Counsel urged the Court to resolve issue two in favour of the Claimant.

On issue three, counsel submitted that, it is clear that what the Claimant is asking for under relief 7 of his complaint is for general and exemplary damages and not special damages. That the Claimant does not dispute the fact that in a claim for damages for failure to give notice, the damage is the earnings for the number of days the claimant would been given notice. But since the relief of the Claimant being a relief for general and exemplary damages, all that is expected of the Claimant to merit general damages is the success of his main claim before the court. That the Claimant is not expected to prove general damages. Counsel referred to the case of M.W.T. (NIG.) LTD V P.S.T.F. [2008] ALL FWLR (PT. 439) 499 @ 535 Para. D where the court held thus:

Proof of general damages does not require the strictness of special damages. The only requirement in the award of general damages is that such award shall not be manifestly too high or manifestly too little or not erroneously assessed.

Continuing further counsel submitted that the Defendant has been highhanded in dealing with the Claimant through arbitrary and unlawful deductions from the salary of the Claimant and the gagging of Claimant from freely asking questions without being punished. That the court should be guided by the high-handedness, malice and insensitivity of the Defendant in awarding the damages against it. Counsel referred to the case of G.K.F. Investment (Nig.) Ltd v NITEL PLC [2006] ALL FWLR (Pt. 299) 1402 @ 1418 Para. B-C where the Court of Appeal held thus:

In a claim for exemplary damages, the party to the suit must show or establish by evidence that the injury or loss he has suffered is due to the malicious act of the party against whom he is claiming the exemplary damages. The conduct of the defendant must be high-handed, insolent, vindictive or malicious.

In conclusion, counsel urged the Court to enter judgment in favour of the Claimant.

COURT’S DECISION.

I have read all the processes filed by the parties in this suit. I have also reviewed the evidence presented by them. I am of the view that the three issues raised by the learned counsel for the defendant summarized the issues in controversy between the parties. I hereby adopt them as mine; consequently, I shall treat the claims of the parties based on these issues as follows:

Issue one is whether the Claimant is entitled to refund of the deductions made from his salary? Both parties agreed that the various sums of money were deducted from the claimant’s salary. While the claimant claims that the deductions were illegal and wrongful the defendant claims justification based on an alleged clocking policy. It is trite that the contract of employment is the bed rock of any employment relationship. See NITEL Plc v Akwa (2006) 2 NWLR Pt 964 pg.391, Nig Gas Co Ltd v Dudusola (2005) 18 NWLR Pt.957 pg.292, Amodu v Amode (1990) 5 NWLR Pt.150 pg 356. In this case exhibit CA is the letter of employment of the claimant, in it there is nothing about the said clocking policy. Again, the defendant tendered exhibit DA (Orientation checklist for new staff/voluntary/student orientation) which is an empty unfilled form and has no relationship in any manner or form with the claimant and the issue at hand. Apart from that the claimant raised pertinent issues and questions about the applicability of the said clocking policy in exhibit CF (Enquiry into slashing of my stipend), which letter was not replied by the defendant. In view of the foregoing, it is not difficult to find and I hereby find that the purported clocking policy of the defendant does not apply to the claimant herein. Consequently, claims 1 and 5 have succeeded.

Issue two is whether the Claimant has successfully proved his Claim for wrongful termination of his employment? Here again exhibit CA is silent on the issue of length of notice for the termination of the employment relationship between the parties. Also, both parties claimed reliance on the provisions of the Labour Act to back their positions on this issue while the claimant relied on the provision of Section 11 (2) (b) of the Labour Act, Cap L1, Laws of the Federation of Nigeria, 2004 to demand for 7 days’ notice or payment in lieu of notice before the contract of employment between the parties herein could be terminated by either party.

The defendant on the other hand, relied on Section 11(5) of the Labour Act to the effect that an employee who refuses to adhere to policies of his employer cannot be heard to complain when he is met with sanctions for such non-compliance, in which case the Claimant is not entitled to any notice as in in this case before the termination of his employment. Two things are wrong here, first being that in exhibit CK, the employment of the claimant was terminated on the ground that “your services are no longer required” and not on ground of misconduct. The second relates to both parties and that is the fact that the claimant was employed by the defendant after his National Service Corps Service (NYSC) program with the defendant which showed that he was a graduate. He is consequently, excluded by the definition of a worker by section 91 of the Labour Act. The said provisions of section 11 and 15 of the Labour Act heavily relied upon by the parties are therefore in applicable to the claimant as he was not employed in the category of worker as covered by the Labour Act which is limited to worker engaged in manual and clerical work, see the case of Evans Brothers (Nig.) Publishing Ltd v Falaiye (2003) 13 NWLR (Pt.838) 564.

In cases, where the Labour Act is inapplicable and the contract of service is silent on the requisite notice of termination, the law is settled that a reasonable notice will be implied, see the cases of Maiduguru Flour Mills Ltd v Abba, (1996) 9 NWLR (Pt. 473) 506 @ 511, and Alraine (Nig) Ltd. v M. A. Eshiet (1977)1 S.C. The claimant was employed on the 25^th March 2016 and had his employment terminated on the 18^th Decmber 2017 meaning that he worked for over one year I am of the view that one month’s notice under this circumstance would have been reasonable and in view of the provision of section 14 of the National Industrial Court Act I so hold consequently, since no notice at all was given to the claimant the termination of his employment is wrongful. Consequently, claims 2 and 3 have succeeded.

The third issue is whether the Claimant is entitled to any damages for wrongful termination of employment. Both parties agreed that it is the length of notice that a claimant is entitled to in a case of wrongful termination where notice was not given that suffices. I have found and held that one month’s notice is reasonable in this circumstance which is hereby granted.

However, there is one silent and pertinent issue which the defendant over looked and tried to wished away. And that issue is; the fact that the claimant came to work up to 19^th December 2017 when he was stopped and his employment terminated. Considering the fact that there is usually Christmas and end of year holidays, the claimant is entitled to his salary for that month of December 2017. In Secretary Iwo Central Local Government v ADIO (2000) NWLR (PT. 667) 115 at 150 Paras F the Supreme Court held that;

Equity as we all know, inclines itself to conscience, reason and good faith and implies a system of law disposed to a just regulation of mutual rights and duties of men in a civilized society. It does not envisage sharp practices and undue advantage of a situation and a refusal to honour reciprocal liabilities arising therefrom. It will demand that a person will enter into a deal as a package- enjoying the benefits thereof and enduring at the same time the liabilities therein…

I therefore grant the claimant his salary for the month of December 2017.

I am also of the view that the claimant is entitled to cost of this suit including filing fees and out of pocket expenses which I access as N150,000(One Hundred and fifty Thousand Naira).

In all I make the following orders;

I declare thatthe defendant’s act of deduction of the claimant’s salaries to the tune ofN19, 000.00 without the claimant’s consent is unlawful, illegal and unwarranted.
The defendant shall pay the claimant the sum N19, 000.00 being the sum deducted from his salaries without his consent.

3.The defendant shall pay the claimant the sum N40, 000.00 (Forty Thousand Naira only) being his one month’s salary in lieu of notice

4.The defendant shall pay the claimant the sum N40, 000.00 (Forty Thousand Naira) only being his salary for December, 2017.

5.The defendant shall pay the claimant the sum N150, 000.00 (One Hundred and Fifty thousand Naira) being the cost of this suit.

The defendant shall pay all monetary awards in this judgment within 30 days from the date of this judgment failing which they shall attract 20% interest per annum until fully liquidated.Judgment is entered accordingly.

……………………………………………

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

(Judge)