Mr. Dawodu Azzez -VS- 3 Peat Investment Limited

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

DATE: JULY 16, 2018

SUIT NO. NICN/LA/628/2014

BETWEEN

Mr Dawodu Azeez – Claimant

AND

3 Peat Investment Limited

(Owners of the business called and known as Ibis Hotel Lagos Airport) – Defendant

REPRESENTATION

Ebere Nwokoro, with G. N. Ejimfugha and Mrs Nzube Umeh, for the claimant.

Richmond E. Idaeho, with I. A. Koleowo, for the defendant.

JUDGMENT

The claimants had filed this suit on 24th December 2014 vide a complaint and the accompanying processes. The suit was initially against two defendants. By order of Court granted on 29th November 2016, the name of the second defendant was struck out leaving only one defendant, the current one. On same date, the Court also permitted the defendant to bring in an additional witness. From the claimant’s originating processes, the claims against the defendant are:

A declaration that the claimant’s employment with the defendant by virtue of the provisions of clause 18 of the employment contract dated 10/04/2013 can only be validly determined or terminated by the issuance of a one (1) month written notice to the claimant.
A declaration that the termination of the claimant’s employment without 30 days written notice as prescribed by the employment contract or any notice at all and without payment of salary in lieu of notice at the time of the said termination is grossly irresponsible, wrongful and smacks of unfair labour practice.
The sum of N3,423,251.40 (Three Million, Four Hundred and Twenty-Three Thousand, Two Hundred and Fifty-One Naira, Forty Kobo only) or USD 20,748.6 (Twenty Thousand, Seven Hundred and Forty-Eight Dollars and Six Cents only) being the cost of the claimant’s relocation with his family from Chicago, IL, USA to Nigeria at the proposition of the defendant.
The sum of N14,799,448.00 (Fourteen Million, Seven Hundred and Ninety-Nine Thousand and Forty-Eight Naira) as compensation for the wrongful termination of the claimant’s contract of employment.
The said cost of relocation and compensation for wrongful termination shall be paid within 30 days of the judgment, failing which post judgment interest of 10% shall start to run on the judgment sum.
The sum of N2,500,000.00 (Two Million, Five Hundred Thousand Naira) only being cost of the action herein including counsel’s fee.

In reaction, the defendant had filed its defence processes, to which the claimant filed a reply to the statement of defence, written witness statement on oath in reply, list and copies of further documents as well as certificate accompanying computer generated evidence.

At the trial, the claimant testified for himself as CW and tendered Exhibits C1, C2, C3, C4, C5, C6, C7, C7(a), C8, C9, C10, C11, C12 and C13 as well as certificates accompanying computer generated evidence. The defendant called two witness: Mrs Olayemi Afangbedji, Human Resource Manager of the defendant, who testified as DW1; and Waheed Sanni, Chief Accountant of the defendant, who testified as DW2. The defendant’s frontloaded documents were admitted and marked as Exhibits D1, D2, D3, D4, D5, D6, D7, D8, D8(a), D8(b), D8(c), D9 and D10. At the close of trial, parties filed their respective final written addresses. The defendant’s final written address was filed on 10th November 2017 and its reply on points of law was filed on 21st March 2018. The claimant’s final written address was filed on 25th January 2018.

THE CASE OF THE CLAIMANT

To the claimant, prior to his employment by the defendant as Front Office Manager vide an agreement of 10th April 2013, he was ordinarily resident in Chicago, IL USA and was in a gainful and stable employment as an Assistant Director of Front Office at Hotel Chicago (Access Hotels) but was persuaded to relocate with his wife to Nigeria to work for the defendant in consequence of the defendant’s offer of a promising future to him coupled with his desire to contribute his quota towards the development of the hospitality industry in Nigeria. That in the course of his employment with the defendant, he discharged his duties meritoriously and even used his personal contacts to bring in high net worth customers for the defendant. That as a result of his handwork, his appointment was confirmed on 18th November 2013. However, to his bewilderment on 10th April 2014 (the first anniversary of his employment), the defendant asked him to resign or consider his appointment terminated. That same day, the defendant asked him to consider same date (10th April 2014) to be his last day at work; and thereafter the security guards were asked not to allow him into the defendant’s hotel facility. That he was not given the requisite one month’s written notice in accordance with the terms of his employment contract, nor did the defendant pay him any salary in lieu of notice at the time of the termination. That he breached no rule nor was he given any query or warning, hence this action.

THE CASE OF THE DEFENDANT

The thrust of the defendant’s defence is that the claims of the claimant are spurious and unsubstantiated. Referring to Exhibits D1 and D2, that the claimant voluntarily forwarded his Curriculum vitae (CV) to the defendant and applied for employment, which he was offered and he duly accepted. That from the contract of employment (Exhibits D3 and D4), both parties did not contract that the defendant will pay, reimburse or compensate the claimant for any purported costs the claimant incurred for taking up the employment. That the claimant’s employment was duly terminated and that his salary was fully paid in lieu of notice as shown in Exhibits D8(b) and D8(c).

THE SUBMISSIONS OF THE DEFENDANT

In making its submissions, the defendant started off with what it termed preliminary points of law i.e. whether the claimant’s Exhibits C3, C9 (10 sheets), C10, C11, C12 and C13 are competent, relevant and reliable documents that can be acted upon by the Court. To the defendant, these exhibits are computer generated evidence and the claimant did not accompany them with the requisite certificate; as such they are inadmissible, citing sections 83 and 84(1) to (4) of the Evidence Act 2011 and Kubor v. Dickson [2013] 4 NWLR (Pt. 1345) 534 ay 577 – 578. That in respect of Exhibits C10 to C13, the purported certificate deposed to on 20th February 2017 does not cure the fact that they are defective and incompetent as the deponent was neither the maker of the exhibits nor the recipient nor a banker (and was not in custody of them) as to qualify to depose to the authenticity of the exhibits, referring to Adelarin Lateef & ors v. FRN [2010] LPELR-9144(CA) and Wuhay v. Jema’a Local Govt., Kafanchan [2013] All FWLR (Pt. 659) 1171 at 1187. Also that the deponent did not state what means, or led evidence on the source or from where she obtained the exhibits and from what means the exhibits were produced, as stated in Kubor. Additionally, that Exhibit C13 relates to bank statement, which requires proof of entries of bank statement as contained in section 89(h) and 90(1)(c) of the Evidence Act 2011. The defendant then urged the Court to discountenance these exhibits.

The defendant proceeded to submit 5 issues for determination, namely:

Whether the purported certificate contained in the affidavit of Mrs Nzube Umeh deposed to on 20th February 2017 is competent and reliable process of court.
Whether the claimant’s witness statement on oath deposed to on the 24th of December 2014 and the witness statement on oath in reply deposed to on the 21st of July 2015 are competent.
Whether the originating court processes dated 24th December 2014 and filed before this Honourable Court are competent processes of this Court.
Having regards to the claimant’s claims and the defendant’s defence before this Honourable Court vis-a-vis the evidence led by the parties during trial, whether the claimant has failed to prove his case against the defendant.
If issue No. (4) is resolved in the affirmative, whether the claimant is entitled to the reliefs sought.

On issue (1), the defendant merely reiterated the arguments it advanced in addressing what it termed preliminary points of law. The only additional point made was that the affidavit of 20th February 2017 sworn to by Mrs Nzube Umeh is a blatant lie.

For issue (2), the defendant submitted that the claimant’s depositions of 24th December 2014 and 21st July 2015 are grossly incompetent as they were not sworn to in accordance with section 13 of, and the Schedule to, the Oaths Act Cap O1 LFN 2004, referring to GTB v. Abiodun [2017] LPELR-42551(CA) and Macfoy v. UAC [1962] AC 152 at 160. Additionally, that the parties reflected on the sworn depositions of the claimant are different from the instant parties before the Court. The defendant then urged the Court to discountenance the depositions.

Regarding issue (iii), the defendant submitted that the originating processes are not competent on four grounds.

They are defective, having not been signed, fracked and sealed in accordance with the law. That aside from different signatures being on the originating processes and the reply processes, names were merely written on the originating processes without indicating who amongst the names listed signed the processes, citing Ewukoya & anor v. Buari & ors [2016] LPELR-40492(CA) and Union Dicon Salt Plc v. Nasiru [2008] LPELR-5061(CA). That as it is, the identity of the legal practitioner who signed the originating processes is not such that is ascertainable. In any event, that there is no seal affixed to the amended originating processes as well as the amended reply processes, referring to Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners 2007. In consequence of all of this, the defendant submitted that the claimant does not have any competent suit before the Court.
The originating processes and the purported amended processes contained different signatures for the same individual. The defendant asked the Court to compare the signature of Tahav Iorse-Sherifs, Esq on the General Form of Complaint dated 24th December 2014 and that on same process (though amended) dated 20th February 2017. That the signatures on both processes differ although they are meant be the signature of one and same person. Meanwhile, that the signature on the amended General Form of Complaint dated 20th February 2017 said to be that of Tahav Iorse-Sherifs, Esq is same as the signatures on all the other amended originating processes dated 16th February 2017 as well as the reply processes also dated 16th February 2017 even when Tahav Iorse-Sherifs, Esq is not listed as one of the legal practitioners listed on all these processes. The defendant relied on section 101 of the Evidence Act 2011, Okafor & anor v. Okafor & anor [2016] LPELR-40457(CA) and Igwe v. INEC & anor [2012] LPELR-9834(CA) in calling on this Court to compare the signatures as it argues. The defender t then urged the Court to discountenance the affected processes.
There is no verifying affidavit deposed to by the claimant. That the applicable Rules of this Court, the National Industrial Court (NIC) Rules 2007, which were applicable when this suit was filed, in Order 3 Rule 4 requires an affidavit in verification to be produced before the Registrar before sealing of the originating processes. That rules of court must be obeyed as they are not for fun, citing Akanbi v. Alao [1989] 3 NWLR (Pt. 108) 118 at 136 – 137 and Solanke v. Somefun [1974] 1 SC 141. That it is not the position of a legal practitioner to depose to an affidavit in verification; as such the affidavit deposed to by Daudu Justice on 24th December 2014 as well as the purported verifying affidavit deposed to on 20th February 2107 by Mrs Nzube Umeh, both of whom are legal practitioners, are incompetent, which implies that this suit is also incompetent. Relying on Ajagungbade III v. Adeyelu II [2001] 16 NWLR (Pt. 738) 126 and Madujolu v. Nkemdilim [1962] 2 NSCC 374 at 379 – 380, the defendant urged the Court resolve this issue in its favour.
The claimant does not have any competent witness statement on oath before the Court. That given this Court’s order of 29th November 2016 directing that parties refile their processes and the claimant’s withdrawal of his undated processes which he refiled (for which by Kalabor v. INEC & ors [2008] LPELR-4387(CA) signifies that the Court order remained uncompelled with) means that the processes before the Court are those filed on 24th December 2014 and 21st July 2015, which in any event have as parties those who different from the parties presently before the Court. That the Court should discountenance the processes of 24th December 2014 and 21st July 2015 as they are incompetent; by extension, this suit is also incompetent.

Issue (iv) relates to whether the claimant has proved his case. Taking reliefs (i) and (ii) together, the defendant referred to clauses 18.4 and 18.5 of Exhibit C2/D4, which provide thus:

18.4 Reference to clause 18.1 above shall not apply where summary termination of this contract occurs for any cause recognized by law as sufficient.

18.5 Where cause 18.1 applies, then you will be obliged to work your normal shifts, according to the shift roster, for the full period on notice nose the Hotel does not require you to work during the period of notice, in which case the Hotel shall pay you an amount equivalent to the wage payable for the full period of notice.

To the defendant, the claimant’s employment was summarily terminated (“with immediate effect”) on 10th April 2014 as per Exhibit D6; as such by Exhibit C2/D4, the issuance of notice is not applicable given clause 18.4. After all, that an employer can terminate the employment of an employee with or without reason, citing Azenabor v. Bayero University, Kano State & anor [2011] 25 NLLR (Pt. 1169) 96 CA (this appears to be a wrong citation), Osisanya v. Afribank Nig Plc [2007] 6 NWLR (Pt. 1031) 565 SC at 576 – 577 and NEPA v. Eboigbe [2010] 21 NLLR (Pt. 60) 472 at 485. That a combined reading of clauses 18.1, 18.4 and 18.5 of Exhibit C2/D4 did not state that the claimant will be entitled to notice or any length of notice or payment of salary in lieu of notice; as such the claimant is entitled to none given that parties are bound by the said terms, citing section 128(1) of the Evidence Act 2011, Nika Fishing Co. Ltd v. Lavina Corporation [2008] LPELR-2035(SC) and Aina & anor v. Dada & anor [2017] LPELR-42553(CA). That the claimant’s employment was thus duly terminated.

That even if the defendant was required to give notice or salary in lieu of notice, the defendant contended that it indeed paid the claimant’s salary in lieu of notice and even more, referring to Exhibits D8(b) and D8(c) as well as paragraph 23 of the deposition of DW1, Mrs Olayemi Afangbedji. Furthermore, that the claimant cannot be entitled to notice and at the same time salary in lieu of notice as he seems to claim as per reliefs (i) and (ii); and given the fact that the claimant did not claim for an order for payment of salary in lieu of notice, this Court cannot grant any as courts are not Father Christmas, citing Agbi v. Ogbe [2006] LPELR-240(SC) and Visitor, IMSU & ors v. Okonkwo & ors [2014] LPELR-22458(CA).

For relief (iii), the claimant for relocation cost, the defendant referred to Exhibit C2/D4 and submitted that no where is there a term where the defendant contracted with the claimant to bear or reimburse the claimant for any relocation expenses. The defendant also referred to the testimony of DW1 under cross-examination where she denied the existence of any such term. The defendant also referred to page 2 of Exhibit D2 (also page 3 of Exhibit C12) where the claimant said he was ready to cover his relocation expenses. That the defendant did not head hunt the claimant, referring to the testimony of the claimant under cross-examination. That Exhibit C9 does not constitute an undertaking by the defendant to bear the claimant’s cost of relocation. The defendant urged the Court to discountenance Exhibit C9 as it is irrelevant even though the Court is not bound by the strict rules of evidence, citing section 12(2) of the NIC Act 2006. That the fact that Exhibit C9 was admitted does not foreclose it being expunged at the point of judgment, citing IBWA v. Imano Ltd [2001] 3 SCNJ 160 at 177. The defendant urged the Court to note and hence discountenance the contradictory evidence of the claimant in terms of his written statements on oath and his oral testimonies, citing Ezeagu v. Gabizzinlingo Pharmaceutical Co. Ltd & anor [2017] LPELR-42513(CA).

Relief (iv) is a claim for compensation for wrongful termination of the claimant’s contract of employment. To the defendant, this claim is vague. hat there is nothing before the Court to show how the claimant arrived at the sum he claims under this relief. In any event, that the claimant did not even prove the allegation of wrongful termination in the first place. That putting a claim in the originating processes without proving same renders same as abandoned, citing Cement Company of Northern Nigeria Plc v. Giwa & ors [2017] LPELR-42500(CA). The defendant reiterated that the claimant’s employment was validly terminated and that the claimant’s salary in lieu of notice was even paid, that is assuming that the claimant was entitled to it, citing Exhibits C13, D8(b) and D8(c), which show payments for the months of April and May of 2014. In consequence, that the claimant is not entitled to any compensation for termination of employment. In any event that relief (iv) approximates to a claim for general damages, which is not grantable, citing Okechukwu Osuji v. Skye Bank Plc unreported Suit No. NICN/OW/49/2015 available at http://nicn.gov.ng/judgment/judgment-result.php.

On the claimant’s allegation that Exhibits D7, D8, D8(a), D8(b) and D8(c) were tampered with, manipulated and uttered, the defendant submitted that this allegation is without proof and must be proved beyond reasonable doubt, citing Lapade v. Caribbean Fin Ltd [2008] Vol. 44 WRN 115 at 133. In any event, that if these exhibits were tampered with, how come the same figures contained in them are also reflected in Exhibit C13, the bank statement tendered by the claimant himself? The defendant urged the Court to hold that the claimant’s employment was not wrongly terminated and that his salary in lieu of notice was duly paid to him and so he is not entitled to any compensation and dismiss the claimant’s relief (iv).

Reliefs (v) and (vi) are claims for interest and cost. To the defendant, relief (v) can only be granted if reliefs (iii) and (iv) succeed. That having argued that the clamant is not entitled to reliefs (iii) and (iv), it follows that he cannot be entitled to relief (v). That there is nothing upon which relief (v) can stand. As for relief (vi), the defendant submitted that the claimant’s counsel’s fee is not a necessary entitlement to the claimant. That to be entitled to it, the claimant must prove it. That there is no evidence before the Court that the claimant’s solicitor’s fee is N2.5 Million. In any event, that the issue of professional fee for counsel is a personal arrangement between party and his counsel, citing Okechukwu Osuji v. Skye Bank Plc (supra). Citing Akaose & ors v. Okoye & ors [2016] LPELR-40172(CA), the defendant urged the Court to dismiss the claimant’s reliefs (v) and (vi).

On issue (v), the claimant adopted its submissions made in terms of issues (i) to (iv) and submitted that then claimant failed to prove his case and so this suit must be dismissed with punitive cost.

THE SUBMISSIONS OF THE CLAIMANT

The claimant submitted two issues for determination, namely:

Whether from the facts and circumstances of this case the claimant’s employment was wrongfully terminated by the defendant.
Whether the claimant is entitled to compensation or damages for wrongful termination of employment.

On issue (1), the claimant submitted that clause 18 of Exhibit C2/D4 is the relevant term necessary to determine his issue (1). That given the said clause 18 and the fact that he was in the employment of the defendant for one year, the notice period due to him is one month as acknowledged by DW1. The claimant denied receiving Exhibit D6, which is dated 10th April 2014 and purportedly served on him on same 10th April 2014 as notification that his services were no longer needed with immediate effect. That Exhibit D6 falls short of the threshold of one month prescribed by Exhibit C2/D4. That the defendant’s reliance on clause 18.4 to obviate the necessity of issuance of one month notice is out of place and totally misleading as clause 18.4 merely excludes the applicability of clause 18.1 where summary termination occurs for any cause recognized by law as sufficient. That summary termination occurs where an employee is relieved of his employment as a result of his breach of a term of the contract, citing Spain v. Arnott (1817) 171 ER 638 and Re Rubel Bronze & Metal Co. and Vos [1918] 1 KB 315.

The claimant went on that the payments for April and May 2014 the defendant alluded to as payments in lieu of notice were respectively made on 2nd May 2014 and 2nd June 2014 as deducible from Exhibit C13; as such they do not qualify as payment in lieu of notice. That payment in lieu of notice cannot be deferred, citing Oyelude v. CBN [1977] 4 CCHJ 685 and Chukwuma v. Shell Petroleum Devt. Co of Nig Ltd [1993] 4 NWLR (Pt. 289) 512. The claimant actually worked for the defendant up to 10th April 2014 and so was entitle to be paid for the days he actually worked in the month of April 2014, citing Okpeta v. Nigerdock Nig Plc [2013] 30 NLLR (Pt. 86) 304; and that vide Exhibit D7, the defendant on 31st March 2014 gave approval to the claimant to proceed on a paid leave scheduled to span from 21st April 2014 to 17th May 2014 as also acknowledged by DW1 but denied by DW2. Regrettably, that the defendant decided to ruminate his employment on 10th April; 2014, 11 days before the commencement of his approved leave. That given that Exhibit D7 is inconsistent with the testimony of DW2 on the issue of the approval of paid leave for the claimant, the Court should prefer Exhibit D7 over the oral testimony of DW2. The claimant then urged the Court to hold that his employment was wrongfully terminated.

For issue (2), the claimant reiterated that the defendant did not fire him within the four walls of his contract (Exhibit C2/D4), nor did the defendant pay him any salary in lieu of notice as claimed. Referring to the letter of termination (Exhibit D6), which the claimant said he did not even receive, the claimant submitted that it corroborates the fact of non-compliance with Exhibit C2/D4. To the claimant, once employment is terminated in a manner contrary to the terms of the agreement between the parties, the employer must pay damages for the breach, citing E. A. Garuba v. Kwara Investment Co Ltd & ors [2004] 4 MJSC 57. The claimant continued here that the traditional view is that the quantum of damages is what the employee would earned if proper notice was given. However, that this Court has consistently disentangled itself from the web of the traditional rule and given effect to section 19(d) of the NIC Act 2006 by ordering in deserving cases an award of compensation where it is found that determination of an employment is wrongful. The claimant referred to Akinwale v. UBA unreported Suit No. NIC/LA/210/2012 and Monye v. Ecobank Nig Plc unreported Suit No. NIC/EN/06/2009 delivered on 6th October 2011, where this Court ordered the payment of six months gross salary as compensation; and Onah v. NLC [2013] 33 NLLR (Pt. 94) 104, where this Court ordered the payment of two years salary as general and aggravated damages.

Accordingly, the claimant urged the Court to award compensation to him for the following reasons:

The way and manner the claimant’s employment was terminated as stated in Exhibit D6, which was not even served on the claimant, is in total disregard of Exhibit C2/D4 and so wrongful and insensate given the fact that the claimant left a gainful employment in Chicago, IL USA to work for the defendant sliding a humongous amount of money to relocate for the job.
The claimant considered the defendant’s offer of a promising future in the job and so had reasonable expectations about the security of his employment, citing Exhibits C11 and C12 (also Exhibit D2), which portrayed a rosy portrait of the employment with the defendant.
The evidence of the claimant as to his feelings being negatively affected by the manner in which his employment was terminated remains unchallenged.
The circumstances culminating in the termination of his employment are that the defendant tried to compel the claimant to resign (referring to DW2’s testimony that he is aware that the defendant asked the claimant to resign) but when this failed, the said employment was terminated by the defendant, citing Stephenson v. London Joint Stock Bank [1902] 19 TLR 138 and Jegede v. Shell Co (Nig) Ltd [1970] NCLR 456.

The claimant the proceeded to respond to specific technical issues raised by the defendant, issues according to the claimant that add no value to the merit of the case. On the admissibility of Exhibits C3, C9 C10, C11, C12 and C13, the claimant submitted that they are admissible and have evidential value of r the following reasons:

The defendant equally pleaded and in the course of trial admitted the existence of the documents except Exhibits C9 and C13. That facts admitted need no proof, citing Khalid v. Yar’Adua [2003] 16 NWLR (Pt. 847) 466 and Ngige v. Obi [2006] 14 NWLR (Pt. 999) 122.
Mrs Nzube Umeh of counsel need not be the maker of the exhibit to be able to make a deposition in respect thereof. That as a matter of law, documentary evidence can be admitted in the absence of the maker, citing John & anor v. The State [2017] LPELR-8152(SC), which held the confessional statement of the 1st appellant admissible despite that he was not the maker.
The defendant’s objection centered on non-compliance with the Evidence Act. To the claimant, this Court is empowered by section 12(2)(b) of the NIC Act 2006 and Order 1 Rule 9(2) of the National Industrial Court (Civil Procedure) Rules 2017 to depart from the provisions of the Evidence Act in the interest of justice, citing Odua Investment v. NUTGTWN [2006] NLLR (Pt. 15) 198 at 256. The claimant the urged the Court to discountenance the defendant’s preliminary points of law.

As for the defendant’s reliance on section 83 of the Evidence Act, the claimant one again relied on section 12 of the NIC act. As regards the formality of the claimant’s depositions, the claimant submitted that GTB v. Abiodun [2017] LPELR-42551(CA) relied upon by the defendant is distinguishable from the instant case in these respects:

The relevant words of swearing in the relevant statements on oath in this matter are in substantial compliance with that prescribed by the Oaths Act
The claimant’s deposition of 24th December 2014 is properly so described on the face of the document. The word “affidavit” that appeared at paragraph 28 is a clerical error which is at worst an irregularity and thus curable.
The relevant witness statements were duly admitted by the Court and was not objected to at the trial by the defendant.
It is the law that once a written statement on oath is adopted, it becomes the evidence of the person adopting it, even where such deposition suffers from some defect or irregularity, citing Udeagha v. Omegara [2010] 1 NWLR (Pt. 1204) 168.

On the defendant’s argument as to defective originating processes arising from alleged improper execution (signature and sealing) of processes and alleged incompetence of the verifying affidavit, the claimant submitted that there is a valid verifying affidavit and that the recess were duly signed, stamped and sealed as required by law. However, that assuming that the said processes failed to comply with the Rules as alleged, Order 5 Rule 1 of the NICN Rules 2017 empower this Court to treat such non-compliance as an irregularity, urging the Court to do so. Furthermore, that the defendant’s failure to bring an application within reasonable time to set aside the proceedings for irregularity before taking fresh steps after the fact is damaging to the defendant’s argument, citing Order 5 Rule 2(1) of the NICN Rules 2017. On the withdrawn depositions, the claimant submitted that the defendant’s arguments on the whole are based on technicalities, which courts today deemphasize, citing Odua Investment Co. Ltd v. Talabi [1997] 10 NWLR (Pt. 523) 52, Order 1 Rule 9(2) and Order 5 Rule 1 of the NICN Rules 2017, Duke v. Akpabuyo Local Government [2006] All FWLR (Pt. 294) 569, Oyo State Government v. Bashir Apapa & ors [2008] 11 NLLR (Pt. 29) 228 and Adesanoye v. Adewole [2006] All FWLR (Pt. 340) 1028. In conclusion, the claimant urged the Court to grant his reliefs.

THE DEFENDANT’S REPLY ON POINTS OF LAW

The defendant’s reply on points of law is a rehash/re-argument of its submissions in its final written address. It is thus needless to reiterate the said submissions here. I only need to point here that on the claimant’s assertion that the defendant asked him to resign on 10th April 2014, the defendant submitted that the claimant did not provide any evidence to back the assertion. The evidence before the Court, however, is that DW2 under cross-examination positively acknowledged being aware of the claimant being asked by the defendant to resign. Although DW2 did not pin this testimony to a date, it is idle of the defendant making an issue out of this in a reply on points of law. After all, the claimant under cross-examination testified that he was asked to write a letter of resignation, which he turned down. The accusation, therefore, by the defendant that the claimant is giving evidence in a written address, and the defendant’s contention that the claimant’s assertion that his appointment was terminated when he refused to resign is only a figment of his imagination, is accordingly most uncharitable. The argument of the defendant that DW2 was not part of the process that led to the termination of the claimant does not take away the fact that DW2 is the defendant’s witness and his evidence ties with that of the claimant.

COURT’S DECISION

In considering the merit of this case, I noticed that it bears close affinity with Dorothy Adaeze Awogu v. TFG Real Estate Limited unreported Suit No. NICN/LA/262/2013, the judgment of which was delivered on 4th June 2018 especially in terms of the arguments and approach of the defence. Incidentally, Mr Richmond E. Idaeho was part of the defence legal team in Dorothy and he is the lead counsel in the instant case. I do not know how influential Mr Richmond E. Idaeho was in Dorothy since he was not the lead counsel in that case but the close affinity in the defence submissions in both cases attests to the fact that he must have been influential in shaping the arguments canvassed in that case, an influence that robs off on the instant case.

To begin with, the replies on points of law (of 25 pages in the instant case, as Dorothy’s was of 17 pages) are both of repeated arguments, a rehash I would say in both cases. I shall accordingly quote for effect what I said at paragraph 41 of Dorothy, which applies with equal force to the instant case:

…I start off with the defendant’s reply on points of law, which I indicated earlier was in the main a repetition of the submissions of the defendant already canvassed in its final written address. A reply on points of law is meant to be just what it is, a reply on points of law. It is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address. A reply on points of law is thus not meant to improve on the quality of a written address; it is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr Augustine N. Mozie & ors v. Chike Mbamalu [2006] 12 SCM (Pt. I) 306; [2006] 27 NSCQR 425, Basinco Motors Limited v. Woermann Line & anor [2009] 13 NWLR (Pt. 1157) 149; [2009] 8 SCM 103, Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors [2016] LPELR-40220(CA), UBA Plc v. Ubokolo [2009] LPELR-8923(CA) and Musaconi Ltd v. Aspinall [2013] LPELR-20745(SC). In the main, therefore, I shall discountenance the defendant’s reply on points of law to the extent of its repeated submissions.

In the instant case, I, therefore, only need to make a comment having arrived at the conclusion that the reply on points of law of the defendant was nothing but a mere rehash of already presented arguments and an attempt at re-arguing the case of the defence. Like I complained in Dorothy, I must also complain here of the verbose nature of the defendant’s written addresses. In Dorothy, it was 41 pages, which I turned down and had to be re-written to manageable pages in accordance with Order 45 Rule 2(1) and (2) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017. In the instant case, it was first 53 pages of words couched not in double spacing. I turned it down. The second version was then of 35 pages but still not of double spacing. I yet again turned even that down. The third, the one presently used, was still of 35 pages, but this time of double spacing. Despite all of this, the defendant would turn out with a 25-paged reply on points of law of repeated/rephrased arguments. It appears that the defence counsel wanted to achieve through the back door what he could not achieve with his initial 53-paged final written address since the NICN Rules do not have a limit as to the pages of a reply on points of law.

I indicated that Richmond E. Idaeho, the counsel for the defendant in the instant case, was part of the defence legal team in Dorothy. As part of the defence team in Dorothy, he was fixated in formalism as against the merit of the case even when section 12 of the NIC Act 2006 enjoins that the cause of justice should be the paramount consideration in the this Court. His defence legal team raised some issues in Dorothy, which he is at present also raising: issues as to computer evidence not being certified, issues as to originating processes being incompetent especially as they have no accompanying verifying affidavit, and issues as to depositions not conforming with the Oaths Act. One would have thought that having received this Court’s decision in Dorothy, where the essence of this Court was explained and all the issues as to competence he is presently re-canvassing were resolved against his team, he will not be pursuing the same line of argument in the instant case. He may of course argue that his final written address in the instant case was filed long before Dorothy was decided, yet that argument must fall flat for the simply reason that when adopting the said final written address he had the opportunity to withdraw his arguments in that regard and urge the Court to discountenance same; but he did not. In other climes, this attitude of counsel is enough to cause a withdrawal of his practicing license; but this is Nigeria where it appears anything goes and the rules of professional conduct are lax and kept more in the breach.

The issue of the admissibility and evidential value of exhibits is one that is peculiar with each individual case. So I start off with the defendant’s objection as to whether the claimant’s Exhibits C3, C9 (10 sheets), C10, C11, C12 and C13 are competent, relevant and reliable documents that can be acted upon by the Court. Exhibit C3 is an email. Exhibit C9 consists of 10 sheets of diverse documents relating to shipping of the claimant’s items and receipts/invoices. Exhibit C11 is an email to the claimant from Richard Robaix. Exhibit C12 is an email by the claimant to Mr Robaix. And Exhibit C13 is a copy of the Guaranty Trust Bank Plc customer statement of the claimant. These documents were accompanied with a certification of 21st July 2015 by Tahav Iorse-Sheriffs Esq and another certification of 20th February 2017 by Mrs Nzube Umeh. The defendant complains that these certifications are defective as amongst other things the deponents are not the makers of the documents as to attest to their authenticity. I note here that the defendant also tendered computer generated documents for which a certification of 2nd June 2015 was submitted, which certification was by Richmond Idaeho, counsel for the defendant in the instant case. The fact that the emails in question were forwarded to Richmond Idaeho does not mean that he was the maker of the said emails as to bestow authenticity on them. In Dorothy, I explained the difficulty an employee often has in assembling the documents he/she may need to prove a case. I reiterate that position here. Given section 12 of the NIC Act 2006, I am satisfied with the certification submitted by the claimant and hold that Exhibits C3, C9 (10 sheets), C10, C11, C12 and C13 are admissible as such; and their evidential value will be determined in terms of the merit of the case.

The defendant’s issue (1) i.e. whether the purported certificate contained in the affidavit of Mrs Nzube Umeh deposed to on 20th February 2017 is a competent and reliable process of court ties in with the defendant’s argument as to the admissibility and evidential value of Exhibits C3, C9 (10 sheets), C10, C11, C12 and C13, which documents I hold admissible. The submission of the defendant that the certification of Mrs Nzube Umeh deposed to on 20th February 2017 is a blatant lie is unsupported by any controverting or counter-affidavit of the defendant. I shall accordingly discountenance the argument of the defendant in that regard.

The defendant’s issue (2) is whether the claimant’s witness statement on oath deposed to on the 24th of December 2014 and the witness statement on oath in reply deposed to on the 21st of July 2015 are competent. the defendant’s argument here is of two planks: that the depositions are grossly incompetent as they were not sworn to in accordance with section 13 of, and the Schedule to, the Oaths Act; and that the parties reflected on the depositions are different from the instant parties before the Court. To take the issue of the depositions not having been sworn to in accordance with the Oaths Act, I only need to quote from paragraph 54 of Dorothy what I held in respect of the same issue the defence team raised in that case:
The defendant had argued that the claimant’s witness statement on oath…and the further witness statement on oath…are incompetent because they did not contain the words of swearing and so were not properly sworn to under the Oaths Act or Law, citing section 13 of the Oaths Act Cap O1 LFN 2004. The defendant relied on a number of case law authorities such as GTB Plc v. Abiodun [2017] LPELR – 42551 (CA), Obed Orlando Ibe & anor v. Nkiru Ugochukwu & 41 ors [2010] All NWLR (Pt. 504) 1590 at 1592 – 1593 and Chikwelu Chris Obumneke v. Okeke Sylvester & anor [2010] All FWLR (Pt. 605) 1945 CA at 1947. There is the additional case of Henry Okobiemen v. Union Bnak of Nigeria Plc (Jalingo Branch Taraba State) Legalpedia Electronic Citation: [2018] Legalpedia CA/YL/10/2017, which held that where the witness’s evidence in chief, evidence under cross-examination and re-examination, if any, are founded on a fundamentally defective witness’s statement on oath, it is as if the witness gave no evidence at all, relying on UAC v. Macfoy [1962] AC 152. However, in all of these cases, the equivalent of section 12 of the NIC Act 2006 was not in issue. And before these cases, the Court of Appeal itself had in Okpa v. Irek & anor [2012] LPELR-8033(CA) held thus:

This court has consistently held that a witness statement on oath is different from affidavit evidence. An affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a court Process in writing deposing to facts within the knowledge of the deponent. It is documentary evidence which the court can admit in the absence of any unchallenged evidence. Akpokeniovo v.. Agas [2004] 10 NWLR (Pt. 881) 394.

On the contrary a witness statement is not evidence. It only becomes evidence after the witness is sworn in court and adopts his witness statement. At this stage at best it becomes evidence in chief. It is thereafter subjected to cross examination after which it becomes evidence to be used by the Court. If the opponent fails to cross examine the witness, it is taken as the true situation of facts contained therein.

I agree with the claimant that the cases cited by the defendant especially GTB Plc v. Abiodun dealt with issues relating to the High Court, which did not have the equivalent of section 12 of the NIC Act 2006. If an authority such as Okpa v. Irek & anor is coupled with section 12 of the NIC Act 2006, the argument of the defendant as to the claimant’s depositions not being validly sworn depositions then is beyond the pale. I accordingly find and hold that the two depositions of the claimant upon being adopted in Court after the claimant was sworn in as CW became valid depositions and so became the evidence in chief of the claimant.

I similarly hold in the instant case. The argument of the defendant in that regard is accordingly discountenanced.

The second limb of the defendant’s submissions as to the claimant’s depositions being incompetent is that the depositions in question had two parties listed as defendants whereas presently there is only one defendant in this case. The same argument was also raised by the defendant in respect of the claimant’s pleadings. True, this Court ordered that the name of the second defendant be struck out leaving only one defendant; and that parties should file fresh processes to reflect the Court’s order. The claimant actually filed fresh processes but which were unsigned and so had to withdraw same and urged that the initial processes can still be used since the only issue was the removal of the name of the second defendant. The Court did not see anything wrong with this and so allowed the claimant to use his initial pleadings and to adopt his initial depositions that still bore the fact of two defendants instead of one defendant. For the defendant to now make an issue of this is the height of formalism that can be brought to a case. Even when processes were filed and the wrong Court was named on the processes, an order declaring that the case was accordingly incompetent was upturned on appeal as being a mere recourse to technicality. See Nathaniel Agunbiade & anor v. Busayo Oluwole Oke & 9 ors unreported Appeal No. CA/AK/EPT/HR/68/2015, the judgment of which was delivered on 2nd September 2015. I do not accordingly see any merit in the argument of the defendant here. It fails and so is discountenanced.

The defendant’s issue (3) is whether the originating processes dated 24th December 2014 and filed before this Court are competent processes of this Court. On the issue of the originating processes not being accompanied by a verifying affidavit, I note that there is actually a verifying affidavit of 24th December 2014 in the case file deposed to by Daudu Justice, a legal practitioner. The defendant’s argument though is that only the claimant can depose to a verifying affidavit since it is a deposition verifying the very facts of the case. The defendant did not supply any authority for this proposition. Despite that, I will quote what I said of the issue of the validity or otherwise of a verifying affidavit accompanying originating processes in paragraph 55 of Dorothy:
The defendant also contended that the claimant’s originating processes…are incompetent because they were not accompanied by a verifying affidavit. Once again, here we find the defendant giving undue credence to technicality. When the claimant filed this suit in 2013, it was the NIC Rules 2007 that was the applicable Rules. By Order 4 Rule 1, the complaint to be filed should accord with Form 1 “with such modifications or variations as circumstances may require”. It is Form 1 at the end that enjoined that before the complaint is issued, a certificate must be endorsed on it stating that a sufficient affidavit in verification of the endorsement on the complaint has been produced at the Registry of the Court. What is the penalty for non-compliance of this requirement? The Rules are silent. Even when Order 3 Rule 7 stipulates that the Registry should not accept the originating process, this is only if Rules 2 to 5 are breached. The Rules say nothing of the breach of Rule 1 under which the requirement of verifying affidavit can be founded. Two things are clear here. Even if Order 3 Rule 7 related to Rule 1, the fact that the originating process was accepted by the Registry means that this Court is bound to act on it as such. See Nathaniel Agunbiade & anor v. Busayo Oluwole Oke & 9 ors unreported Appeal No. CA/AK/EPT/HR/68/2015, the judgment of which was delivered on 2nd September 2015 and Honourable Justice Bassey Tambu Ebuta v. National Judicial Council & 3 ors (supra). Secondly, like I pointed out earlier, the Rules are actually silent of what the penalty of breach of Order 3 Rule 1 of the NIC Rules 2007 is. The law is that once a provision of law enjoins the doing of a thing, if sanction for breach is not provided then the doing of that thing enjoined is merely directory, not mandatory. See Bode Thomas v. FJSC unreported Appeal No. SC.228/2013, the judgment of which was delivered on 16th February 2018. In the words of Akaahs, JSC who delivered the leading judgment:

When the learned trial Judge x-rayed Rule 030307(xiii) of the Public Service Rules, there was nowhere it was provided that failure to observe the 60 days period would vitiate the proceedings. The logical conclusion which the court ought to have arrived at is that since the Rules did not provide any sanction for non-compliance, the period stated is directory and not mandatory.

What this means, therefore, is that in the instant case the requirement of verifying affidavit is directory, not mandatory. The originating processes in this suit are accordingly competent. I so find and hold.

I note that in the instant case filed on 24th December 2014 it was the NIC Rules 2007 that was also the applicable Rules of Court. As I held on this issue in Dorothy, so I hold in the instant case. The requirement of verifying affidavit is directory, not mandatory. That it was deposed to by a legal practitioner is strictly speaking immaterial. The argument of the defendant in that regard is accordingly discountenanced.

The defendant, however, further argued that the originating processes are incompetent because they were not appropriately signed by a legal practitioner as required by law. The defendant advanced two grounds here: that the originating processes were not signed, franked and sealed in accordance with the law especially as aside from different signatures being on the originating processes and the reply processes, names were merely written on the originating processes without indicating who amongst the names listed signed the processes; and the originating processes and the purported amended processes contained different signatures for the same individual. A look at the complaint filed on 24th December 2014 shows that Tahav Iorse-Sheriffs Esq signed the complaint as the person who issued it. The accompanying statement of facts, list of witnesses and list of documents were also signed but with a signature different from that on the complaint. The names of four persons as counsel were listed on the statement of facts, list of witnesses and list of documents but there is no indication by way of ticking whose signature it is on any of the said processes. One thing I also noticed on these processes (the statement of facts, list of witnesses and list of documents) is that they appear to have the word “for” in the signatures, something particularly more pronounced in the list of documents. Whoever signed these processes appeared to be signing for somebody not disclosed. Of course, the signatures on the reply to the statement of defence and the accompanying list of documents both of 21st July 2015 (the list of documents is actually undated) is different from that on the originating processes of 24th December 2014; and quite importantly the said word, “for”, appearing in the 24th December 2014 processes is no where to be found on the 21st July 2015 processes.

Given all of this, sections 2(1) and 24 of the Legal Practitioners Act 2004, often relied on by Courts such as in Okafor v. Nweke [2007] 10 NWLR (Pt. 1043) 521, would suggest that this suit as filed is incompetent. However, the recent Supreme Court decision in Heritage Bank Limited v. Bentworth Finance (Nigeria) Limited, unreported Suit No: SC/175/2005, the judgment of which was delivered on February 23, 2018 appears to suggest otherwise. In that case, the Supreme Court appeared to sidetrack in part the rule that any process that was signed by a person who was not called to the Nigerian Bar was incompetent in holding that, save for originating processes, Courts should no longer strike out court processes that are inadvertently signed in the name of a law firm, unless the other party objects to such irregularity at the earliest opportunity. I note that Alhaji Tajudeen Babatunde Hamzat & anor v. Alhaji Saliu Ireyemi Sanni & ors [2015] LPELR-24302(SC), not cited in Heritage, reached a different conclusion. A holding of the Supreme Court in Heritage, however, is that the originating process of a suit is the writ of summons, the complaint in the instant suit. The complaint filed on 24th December 2014 was signed by Tahav Iorse-Sheriffs Esq. Without more, and to this extent, going by Heritage, it is valid in originating this suit.

But there is another angle to all of this. It is the defendant’s submission that other signatures attributable to Tahav Iorse-Sheriffs Esq as per other processes in the case file are different from that on the complaint which initiated this suit. That a look at the signature on the complaint of 24th December 2014 and that of the amended complaint of 20th February 2017 shows the point being made. I took a closer look at both signatures and what I find is that the signature attributable to Tahav Iorse-Sheriffs Esq in both processes are different. This naturally throws up the question whether the signature of Tahav Iorse-Sheriffs Esq on the complaint of 24th December 2014 is actually his. This necessitated a closer look at that signature again; and what I found is that in the signature the word “for” appears to be in it. By section 101(1) of the Evidence Act 2011, “in order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose”.

Having thus carefully compared the two signatures attributable to Tahav Iorse-Sheriffs Esq, I am satisfied that not only are they different but the use of “for” in the complaint of 24th December 2014 means that it is not the signature of Tahav Iorse-Sheriffs Esq either. Since Heritage held that the originating process of a suit is the writ of summons (complaint in the instant case), it means that there is no valid complaint before the Court. I note that Henry Atuchukwu v. Gloria Adindu [2011] LPELR-3821(CA) held that “the fact of conflicting signature cannot be brought out as a hat trick by counsel during address”. However, Atuhukwu is a Court of Appeal decision and cannot withstand Heritage, a Supreme Court decision. So as it is, and given Heritage, the defendant’s objection to the competence of the originating processes in terms of the signature of Tahav Iorse-Sheriffs Esq succeeds. This being the case, there is no competent suit before this Court. The suit is liable to be dismissed; and I so order.

This case went to trial, and Courts are enjoined to state their opinion regarding the merit of the case should it be that on appeal the Court is wrong in striking out the suit. This is to enable an appellate court the benefit of the trial Court’s decision on merit just so that precious judicial time is not wasted in a re-trial should the verdict of striking out be upturned on appeal. See Feed & Food Farms (Nigeria) Ltd v. NNPC [2009] LPELR-1274(SC); (2009) 12 NWLR (Pt. 1155) 387, where Niki Tobi, JSC (of blessed memory) had this to say:

…Any court below the Supreme Court is in order to take, in the alternative, the merits of the matter after coming to the conclusion that it has no jurisdiction to hear the matter. This is to make sure that the case is not further delayed if the appellant court comes to the conclusion that the ruling on lack of jurisdiction is wrong. Accordingly, I am of the view that it is good wisdom on the part of the Court of Appeal to take the other issues in the appeal after coming to the conclusion that it had no jurisdiction to hear the matter.

So to the merit of the case I now turn.

By the Supreme Court decision in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47, a claim is circumscribed by the reliefs claimed. Accordingly, given the reliefs the claimant claims, the claimant’s case consists of three key issues: that his termination was wrongful since he was not given the 30 days notice or payment in lieu of notice enjoined by his contract of employment; that he is entitled to be reimbursed his relocation expenses when he came to Nigeria to take up the employment with the defendant; and that he is entitled to be paid compensation for the wrongful termination of his employment by the defendant. The claimant then seeks the consequential reliefs of interest and cost, that is, if he succeeds in his main claims.

I shall take first the claim for relocation expenses, which is actually a claim for special damages. As special damages, the claimant must show an entitlement to it before showing how he came by the quantum of the sums he claims. In paragraph 9 of his statement of facts, the claimant actually pleaded the claim for relocation expenses, itemized the claims and put sums of money against each head of claim. But what is the evidence of the claimant as to his entitlement to this? Under cross-examination, the claimant referred to Exhibit C12, an email dated 14th March 2013 that he sent to Mr Robaix in which to him he complained that the offer to him was too low due to cost of relocation but that after the email, his discussion with the defendant on the issue was verbal. In a run of cases, this Court has consistently held that in labour relations, an employee making monetary claims must establish his/her entitlement to it by reference to the instrument granting it save if the oral testimony in that regard is corroborated by some other evidence. See Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39 and Otunba Gabriel Oladipo Abijo v. Promasidor (Nigeria) Limited unreported Suit No. NICN/LA/602/2014, the ruling of which was delivered on 17th January 2016. So what does Exhibit C12 provide?

The second and third paragraphs of Exhibit C12 provides thus:

After considerable though, I am concerned about the salary you offered, It is over than I anticipated. Since I have had extensive experience in all aspects of the Front Office functions, I feel I will be of a great asset to you.

I am ready to accept this position but feet that we need to discuss the salary further. Relocating is going to cost me close to $10,000 and I am ready to cover my relocation expenses. I am willing to accept an offer of 250,000 Naira and start April 10th. My travel agent is currently holding a ticket for departure date of April 8th.

Is this evidence of an entitlement to reimbursement of relocation expenses? Certainly not! If anything, the claimant in his own words and hand said that he is “ready to cover relocation expenses”. Did the defendant later agree to reimburse the claimant any relocation expense? The claimant did not prove to this Court. Does the contract of employment, Exhibit C2/D4 contain a clause mandating the reimbursement of relocation expenses? The claimant did not show any. Why then would the claimant’s counsel advise the claimant to make this claim knowing fully well that the clamant himself said he is ready to cover his relocation expenses? The only reason that comes to mind is because we have a very weak culture of professional conduct and a very weak regime of cost especially wasted cost. For insisting on relief (iii), the counsel to the claimant has exhibited conduct of an unprofessional nature that must be condemned; and I so do. To add insult to injury, the claimant is asking as per relief (v) that the said sum be paid within 30 days failing which interest be paid at 10%. As it is, the claimant’s claim for relocation expenses as per relief (iii) fails and is hereby dismissed.

The next issue is whether the claimant’s employment was wrongly terminated, for which he is then entitled to compensation. The case of the claimant here is that he was asked by the defendant to resign, and when he refused, the defendant terminated his employment. And that Exhibit D6, which the defendant flaunts as the termination letter was not even served on him. That by clause 18 of the contract of employment, Exhibit C2/D4, he is entitled to 30 days notice before his employment can be terminated, having worked for the defendant for one year; or payment of one month’s salary in lieu of notice can alternatively be given at time of the termination but that this was not done. The defendant’s answer is that the claimant’s employment was summarily terminated (“with immediate effect”) on 10th April 2014 as per Exhibit D6; as such by Exhibit C2/D4, the issuance of notice is not applicable given clause 18.4. After all, that an employer can terminate the employment of an employee with or without reason.

The argument of the defendant that it is not required to even give notice citing a provision of the contract of employment (clause 18.4 of Exhibit C2/D4) is one that the defence also raised in Dorothy. I shall accordingly simply quote Dorothy yet again what I held especially in paragraphs 60 and 61 of the case, which applies with equal force to the defendant’s contention in the instant case. In Dorothy, I held thus:
Now the law which enjoins that termination or dismissal cannot be retrospective means that it can be with immediate effect; but this must be subject to the consequences that follow – consequences that follow termination without reasonable or adequate notice. The common law enjoins that even where the contract of employment does not stipulate a notice period, one that is reasonable must be read into the contract of employment. See Akumechiel v. BCC Ltd [1997] (Pt. 484) 695 at 703 and Emuwa v. Consolidated Discounts Ltd [2000] LPELR-6871(CA); [2001] 2 NWLR (Pt. 697) 424. The Supreme Court in Olayinka Kusamotu v. Wemabod Estate Ltd [1976] LPELR-1720(SC); [1976] 9 – 10 SC (Reprint) 254 stated the law thus:

The law is that, generally, the length of notice required for termination of contracts of employment depends on the intention of the parties as can or may be gathered from their contract and in the absence of any express provision, the courts will always imply a term that the employment may be terminated by a reasonable notice (from either of the parties); and even where (as clearly provided in clause 21(c) of “Exhibit “B” for persons still under probation) the employer has power to terminate the contract in his absolute discretion, the law enjoins the employer to give reasonable notice to the employee (see Re-African Association and Allen (1910) 1 KB 396).

It is the contention of the defendant that given Exhibit C1/D1, since the claimant was still under probation as at the time of the termination of her employment, she was not even entitled to notice let alone adequate notice as she has contended. This argument cannot stand Olayinka Kusamotu v. Wemabod Estate Ltd just cited. Clause 21(c) of Exhibit B referred to in Olayinka Kusamotu provides thus:

Before the appointment of a confirmed officer is terminated for general inefficiency, he should have received at least two written warnings stating in what respects his work or conduct has been found unsatisfactory. The appointment of an officer on probation may however be terminated at any time during the probationary period (the emphasis is this Court’s).

Interpreting the italicized portion of clause 21(c), the Supreme Court held in Olayinka Kusamotu that “even where…the employer has power to terminate the contract in his absolute discretion, the law enjoins the employer to give reasonable notice to the employee”. In like manner, in the instant case, Exhibit C1/D1 in giving the defendant absolute discretion to terminate during probation the claimant’s appointment without notice, cannot take away the requirement enjoined by law that reasonable notice must at least be given the claimant. This being so Exhibit C1/D1 in providing that the defendant can terminate the claimant’s appointment during probation without notice amounts to an unfair labour practice provision; and I so find and hold.

Given Dorothy and Olayinka Kusamotu, the argument of the defendant relying on clause 18.4 of Exhibit C2/D4 to the effect that the defendant has contractual license not to give notice of termination cannot stand. If anything, clause 18.4 of Exhibit C2/D4 cannot even stand the test of fair labour practice. The argument of the defendant in that regard accordingly fails and is hereby dismissed.

It is the further contention of the defendant that even if there is a duty on it to give notice or pay in lieu of notice, it in fact paid salary in lieu of notice to the claimant, citing the payment it made for the months of April and May 2014 per Exhibits D8(b) and D8(c) as well as Exhibit C13. In answer, the claimant submitted that the payments made vide Exhibits D8(b) and D8(c) cannot be payment(s) in lieu of notice for the simple fact that by Exhibit D7, the defendant granted him leave that was due to expire in May of 2014. So he remained a staff of the defendant more so as he was not served the termination letter (Exhibit D6). In any event, that payment in lieu of notice must be made contemporaneously and at the time of the termination. I agree with the claimant on these scores. Exhibit D7 granted leave to the claimant. Exhibit D8(c) reflects the date of leave as from 02/05/14 to 17/05/14. The claimant cannot be taking leave from 02/05/14 to 17/05/14 and the defendant is arguing that the claimant’s employment was terminated on 10th April 2014.

Meanwhile, there is no evidence before the Court (the defendant provided none) that Exhibit D6 was actually served on the claimant. As it is, the claimant remained an employee up to the end of his leave as per Exhibit D7. So when payments were made to the claimant for the months of April and May 2014 by the defendant, they could not have been payment in lieu of notice. I think the argument of the defendant in that regard is an afterthought. Hear how the defendant put the argument at paragraph 7.8 of its written address:

…assuming without conceding that the Defendant was required to give notice or salary in lieu of notice, we state that and contend that the Defendant indeed paid to the Claimant salary in lieu of notice and even more. The Claimant was paid his salary for the full month of April 2014, when his employment was terminated and the Defendant even made additional payment to the Claimant for the month of May 2014. We refer to Exhibits D8B and D8C.

The question is: if the defendant was very certain that it paid the claimant salary in lieu of notice why is that fact an alternative argument? I find and hold that the defendant did not give the claimant the one month’s notice enjoined under clause 18 of Exhibit C2/D4; nor did it pay the claimant one month salary in lieu of notice. This being the case, the termination of the employment was wrongful; and I so find and hold. Reliefs (i) and (ii) accordingly succeed.

But is the claimant entitled to compensation as per relief (iv)? The Court of Appeal decision in British Airways v. Makanjuola [1993] 8 NWLR (Pt. 311) 276 held that the quantum of damages recoverable by an employee depends on whether the wrongful termination of employment was as a result of the failure to give the required notice or as a result of an alleged malpractice (and if the former, the quantum of damages may be the employee’s salary in lieu of notice, but if the latter then since such a termination carries with it some stigma on the character of the employee, he shall be entitled to substantial damages far beyond the payment of salary in lieu of notice). The claimant made it clear even from his reliefs (i) and (ii) that his prayer is that the termination of his employment was as a result of failure of the defendant to give him the requisite notice or pay him in lieu of notice.

This means that the measure of damages (the compensation he seeks) is one month’s salary in lieu of notice. The Court of Appeal, Lagos Division in Oak Pensions Ltd & ors v. Olayinka [2017] LPELR-43207(CA), stressing the concept of sanctity of contract and the need for Courts to respect it, also held that payment in lieu of notice period is the measure of damages for wrongful termination. As it is, the claimant is entitled to only one month’s salary in lieu of notice as the compensation he claims. See also Mr Adebayo Gbolahan Adepoju v. Coscharis Group unreported Suit No. NICN/LA/409/2014, the judgment of which was delivered on 16th February 2018. In paragraph 5 of the statement of facts, the claimant pleaded that he was employed on an annual salary of N2,399,724.00, which is N199,977.00 per month, the same sum indicated in Exhibit D8(c) as the salary for May 2014. This is the sum the claimant is entitled to from the defendant as salary in lieu of notice, and as compensation for the wrongful termination of his employment in terms of relief (iv).

Reliefs (v) and (vi), respectively for interest and cost, are consequential reliefs. The part success of the claimant in this case as indicated, which is conditional on a verdict that the suit itself is competent, means that the consequential reliefs cannot succeed. They fail and so are not granted. On the whole, and for the avoidance of doubt, the key holding of this Court is that this suit is incompetent as the originating processes were not appropriately signed as claimed by the claimant’s counsel. The suit is accordingly dismissed. Should this holding be upturned on appeal, my decision on the merit of the case is that reliefs (i) and (ii) succeed; and relief (iv) succeeds in part and only to the extent that the compensation claimable from the defendant is N199,977.00.