MR. OLASUNKANMI MUFUTAU AYINDE -vs- ENUGU ELECTRICITY

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABAKALIKI JUDICIAL DIVISION

HOLDEN AT ABAKALIKI

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

DATE: 12th March 2018 SUIT NO. NICN/EN/14/2016

BETWEEN

OLASUNKANMI MUFUTAU AYINDE … CLAIMANT

AND

ENUGU ELECTRICITY DISTRIBUTION COMPANY [EEDC]… DEFENDANT

REPRESENTATION:

Boniface Nnabuchi Ugwu Esq. with Valentine Igwe Esq. and C. S. Eseli Esq. for the Claimant

Nzube Arthur Nwankwo Esq. with Chinedum Agwaramgbo Esq. and Boniface Ejiofor Mba Esq. for the Defendant.

JUDGMENT

The Claimant by a Complaint filed on 18th March 2016 claimed against the Defendant as follows:

A declaration that the Claimant was not accorded fair hearing in the complaint against him by the Defendant before he was issued with a letter of termination dated 31st July 2015 but served on him on 14th August 2015.

Declaration that the purported termination of Claimant with letter dated 11th August 2015 by the Defendant but served on Claimant on 14th August 2015 was wrongful, illegal, null and void ab initio.

An order of Court commanding Defendant to pay the Claimant forthwith the outstanding allowances of N243, 750 and N182, 812.50 respectively totaling N426, 562.50 being allowances due to Claimant but unpaid by Defendant from November 2013 to April 2014 and from May 2014 to August 2015.

An order of Court reinstating the Claimant in the employment of the Defendant forthwith with the attendant promotions, salaries and allowances in line with his colleagues from the date of his last payment.

OR ALTERNATIVELY

An order of Court commanding Defendant to reinstate the Claimant forthwith and giving him the option to voluntarily retire or resign from services of the Defendant with up to date salaries and allowances thereto.

Order that the Defendant should pay the Claimant his leave allowance from April to August 2015 of N182, 812.50 [one hundred and eighty-two thousand, eight hundred and twelve naira, fifty kobo] only.

General damages of N20, 000,000 [twenty million naira] only for wrongful termination of his employment.

And any other order the Honourable Court may deem fit to make in the circumstances.

The Claimant filed alongside the Complaint a statement of claim, list of witness and witness’ deposition, list of documents and copies of the documents. The originating processes were served on the Defendant on 21st March 2016. Thereafter, the Defendant, through its Counsel, Mr. Nzube Arthur Nwankwo, entered an appearance and filed its statement of defence, list of witnesses, witness’ deposition, list of documents and copies of the documents on 19th April 2016 together with a motion on notice of the same date for enlargement of time to file and serve these processes. The motion was heard and granted on 17th October 2016. Thereafter, the matter was set down for trial. Trial commenced on 20th February 2017 before my learned brother, Hon. Justice Waziri Abali. This case came up before me on 26th October 2017 and was adjourned to 13th November 2017 for trial to start de novo. Trial commenced on 13th November 2017 and was concluded on 27th November 2017. The Claimant testified in support of his claim. He adopted his statement on oath dated 18th March 2016 as his evidence in proof of his claim. Pursuant to the order of the Court made on 27th November 2017, the Claimant identified and adopted his additional statement on oath dated 14th November 2017. He tendered 27 exhibits. Exhibit A-A1 is the letter of employment dated 14th April 2014. Exhibit B is letter of termination dated 11th August 2015, exhibit C-C2 is Claimant’s letter dated 25th August 2015 to Chairman Board of Directors of the Defendant, exhibit D-D2 is Claimant’s letter dated 8th September 2015 to the MD/CEO of the Defendant; exhibit E-E2 is Claimant’s letter dated 2nd October 2015 sent via gmail to kenennmani.org, exhibit F-F28 are prepayment meter customization forms, debit and credit adjustment forms and prepayment meter installation forms between February to March 2014. Exhibit G-G2 is J. O. Mba and Co.’s letter dated 13th February 2015 to the Defendant, exhibit H-H1 is recommendation letter dated 7/4/2015 from Claimant to Principal Manager, Audit; exhibit J-J1 is executive summary issued by Principal Manager, Audit, exhibit K-K2 is MOU dated 6/2/2014. Exhibit L-L1 is letter dated 9/6/2015 from Emma. N. Onyibor & Co., exhibit M is Claimant’s previous employment letter dated 21/10/2013 from PHCN, exhibit N-N1 is Defendant’s letter to Claimant dated 21/10/2013 titled contract of service; exhibit O is notice of expiration of the contract from Defendant dated 1/4/2014 to the Claimant, exhibit P is Claimant’s pay slip; exhibit Q is query dated 26/6/2015 to Claimant, exhibit R-R3 is recommendation by Principal Manager, Audit dated 26/6/2015 to the MD/CEO, exhibit S-S3 is Claimant’s reply to query dated 29th June 2015; exhibit T-T3 is letter from Principal Manager, Audit dated 31/7/2015 to the MD/CEO recommending Claimant’s termination, exhibit U-U7 are Claimant’s letters dated 8/9/2015 and 9/9/2015 to Defendant, deputy MD/CEO and Senator Ken Nnamani. Exhibit W is Defendant’s Employee Handbook, exhibit X-X1 is Claimant’s letter dated 1/6/2015 to Principal Manager, Audit on threats to his life; exhibit AA-AA1 is Defendant’s disclaimer, exhibit BB is Claimant’s ICAN fellowship certificate, exhibit CC is Claimant’s Certified Information System Auditor certificate and exhibit DD is Claimant’s University of Portsmouth Master of Science in Forensic Accounting result. The Defendant’s witness, Mr. Sunday Christopher Ugwuchime testified in defence of the Defendant. He adopted his statements on oath dated 19th April 2016 and 20th November 2017 as his evidence in proof of the defence. He identified exhibits A-A1, M, B and W respectively as the documents he referred to in his statement on oath dated 19/4/2016. On conclusion of trial, the case was adjourned to 19th January 2018 for adoption of final written addresses. On 19th January 2018, the Defendant’s Counsel asked for an adjournment to file a reply on point of law to the Claimant’s Solicitor’s final written address. The case was consequently adjourned to 30th January 2018 for adoption. On 30th January 2018, learned Counsel to the Defendant was absent. Pursuant to Order 45 rule 7 of the National Industrial Court [Civil Procedure] Rules, 2017, the Defendant’s final written address and reply on point of law were deemed to have been adopted. Thereafter, the Claimant’s Counsel proceeded to adopt his final written address dated and filed on 15th January 2018 and the matter was set down for judgment.

CLAIMANT’S CASE

The Claimant’s case is that he was at all material time before the wrongful termination of his appointment a staff of the Defendant having been employed by letter dated 14th April 2014, exhibit A-A1 with effect from 1st May 2014. Exhibit A-A1 incorporated exhibit W, the Defendant’s Employee Handbook. The Claimant’s employment was terminated by letter dated 11th August 2015, exhibit B but received on 14th August 2015. The Claimant made representations to the Executive Management of the Defendant to have his termination reversed without success; exhibits D-D2, E-E2 and U-U7, hence this action. In his reply to the statement of defence, the Claimant stated that despite terminating his employment under Article 22[a] of the Defendant’s Employee Handbook, the Defendant went ahead to publish and hosted a disclaimer on its website and pasted the picture of the Claimant along with those of dismissed staff.

DEFENDANT’S CASE

The Defendant’s case is summarized in the Defendant’s witness’ statement on oath of Mr. S. C. Ugwuchime. The Defendant stated that the Claimant’s employment was lawfully terminated by exhibit B and that Claimant’s entitlements in respect of his contract of service from 21st October 2013 to 30th April 2014 were paid to him. The Defendant also stated that it did not rely on exhibit T-T3 in terminating the Claimant’s employment and that there was no reason to hear the Claimant as his termination was not based on the case reported against him.

SUBMISSION ON BEHALF OF THE DEFENDANT

At the close of trial, the Defendant filed its final written address and raised three issues for determination, namely:

What is the nature of the relationship between the Claimant and the Defendant and as a corollary, what guides the relationship between the two [2] parties?

How was the employment of the Claimant determined and as a corollary, was the determination lawful?

Whether the Claimant is entitled to the outstanding allowances he claims as per reliefs 3 and 5 of his complaint?

On issue one, learned Counsel for the Defendant submitted that the relationship between the parties was that of a master and servant or employer and employee and regulated by exhibits A-A1 and W.

On issue two, learned Counsel submitted that in a strict master and servant relationship, termination of the servant’s employment cannot be declared null and void or of no effect and consequently there cannot be a reinstatement and relied on Esievwore v. NEPA [2002] FWLR [pt.124] 398 at 408 and Calabar Cement Co. Ltd. v. Daniel [1991] 4 NWLR [pt. 188] 750 at 758-759. Relying on the latter case, learned Counsel submitted that the relevant documents to be considered in deciding whether the termination is wrongful or not are exhibits A-A1, B and W and went on to explain exhibit B. It was submitted that the reason for termination of the Claimant’s employment is that his services with the Defendant were no longer required which is in line with Article 22[a] of exhibit W. It was also submitted that by simply stating that the Claimant’s services were no longer required, the Defendant brought the termination under the first arm of Article 22[a] of exhibit W. Learned Counsel went on to explain the use of the word ‘consequently’ in exhibit B and argued that a re-rendering of exhibit B should read: “This is to inform you that your services with Enugu Electricity Distribution Company [EEDC] are no longer required. As a result of the above, or flowing from the above or for this reason or on this ground or on this account, or hence your appointment is hereby terminated with immediate effect in line with Article 22[a] of EEDC’s Employee Handbook.” He submitted that reference to Article 22[a] does not and cannot mean that the Claimant’s employment was terminated for reasons of misconduct as the first part of Article 22[a] clearly makes provision for termination for no reasons and referred to Iwuoha v. Mobil Producing [Nig.] Unltd. [2013] All FWLR [pt.664] 144 at 150-151 and Engr. Francis Onyebuchi v. E.E.D.C & Anor, Suit no. NICN/OW/17/2016. It was further submitted that the Claimant is estopped from challenging his termination after collecting his two weeks basic salary in lieu of notice. The cases of Umagba v. Ogbe [1996] 9 NWLR[pt.472] 377, Olademeji v. Trans Nig. Asso. Co. Ltd. [1998] 12 NWLR [pt.576] 44 at 50-51 and Temco Eng. & Co. Ltd. v. S.B.N. Ltd. [1995] 5 NWLR [pt.397] 607 were cited in support. Learned Counsel submitted that assuming without conceding that the Claimant’s employment was wrongfully terminated, the only thing the Claimant will be entitled to is two weeks salary in lieu of notice and relied on Adeniran v. NEPA [2001] 47 WRN 145 at 169 and UTC v. Nwokoruku [1993] 3 NWLR [pt.281] 295 at 312.

On issue three, learned Counsel submitted that the Claimant must prove his entitlement to the leave allowance; and referring to exhibits M and N-N1 submitted that there is no provision for payment of leave allowance. It was further submitted that the employment contract in exhibit M was terminated by exhibit O before exhibit A-A1 was executed by the parties. Learned counsel explained that paragraph 5 of exhibit A1 relieves the Defendant of any liability on account of any previous employment and therefore urged the Court to dismiss the claims for N243, 750 and N182, 812.50 respectively. On leave allowance from April 2014 to August 2015, it was contended that the Claimant failed to adduce evidence of how many leave days he accumulated to be entitled to the leave allowance and urged the Court to dismiss it.

SUBMISSION ON BEHALF OF THE CLAIMANT

The Claimant in his final written address adopted the three issues raised by the Defendant and raised one issue for determination namely, what is the motive of the Defendant for issuing an online disclaimer against the Claimant having committed no offence and despite his repeated call for review of his termination?

On issue one, learned Counsel conceded that the relationship between the Claimant and Defendant was that of master and servant regulated by exhibits A-A1 and W. On issue two, it was submitted that the termination of the Claimant’s employment did not comply with the stipulations and procedures contained in the Claimant’s terms of employment. Learned Counsel referred to Article 22[a] of exhibit W and explained that the Claimant did not commit an offence or issued a query and no disciplinary panel was set up to try him. He contended that the employer must strictly follow the employee handbook in determining the contract otherwise such termination would be wrongful and relied on WAEC v. Oshionebo [2007] All FWLR [pt.370] 1501 at 1512, Angel Spinning & Dyeing Limited v. Mr. Fidelix Ajah [2000] LPELR-10724[CA], Amodu v. Amode [1990] 5 NWLR [pt.150] and Famakinwa v. T. A. Nig. Plc [2007] 18 WRN 36 at 49. He concluded that the termination of the Claimant’s employment is wrongful and unlawful and consequently null and void ab initio; and as a result, the Claimant is entitled to reinstatement, full payment of his emolument from 14th August 2015 until the employment is properly determined and N20, 000,000 general damages. On issue three, he contended that the Claimant is entitled to reliefs 3 and 5 of his claim on the strength of exhibits M, N-N1, A-A1 and W and urged the Court to juxtapose the documents and find that the Claimant is entitled to his outstanding allowances. On issue four, learned Counsel contended that since the purported termination of the Claimant’s employment is wrong, null and void ab initio, the Claimant’s employment is still subsisting and consequently the online disclaimer announcing the Claimant’s exit is false. It was further argued that the publication has no place in the Defendant’s employee handbook and that the publication was intended to ridicule the Claimant’s image and make him unemployable. Learned Counsel urged the Court to assume jurisdiction pursuant to section 254A[1] of the Constitution of the Federal Republic of Nigeria 1999 as amended and relied on Tom Oko Okpe v. Zenith Bank Plc, Suit no. FCT/HC/CV/886/12 and British Airways v. Makanjuola [1993] 1 NWLR [pt.311] 276 and submitted that the Court should award exemplary damages against the Defendant pursuant to paragraph 51f of the statement of claim.

DEFENDANT’S REPLY ON POINT OF LAW

By way of reply on point of law, learned Counsel to the Defendant submitted that the case of Tom Oko Okpe v. Zenith Bank Plc, Suit no. NICN/ABJ/180/2013 relied on by the Claimant is distinguishable from the facts of this case because the reasoning behind the decision is that it is archaic, primitive and oppressive unfair labour practice to fire without reason and referred to Ebere Onyekachi Aloysius v. Diamond Bank Plc [238 NLLR [pt.199] 92 NIC and Article 22[a] and [d] of exhibit W. He contended that there is express provision to terminate if the Claimant’s services were no longer required or for no reason at all. He further submitted that the phrase in exhibit B, that is, ‘your services with Enugu Electricity Distribution Company [EEDC] are no longer required’, has been judicially interpreted in Mr. Ebere Onyekachi Aloysius v. Diamond Bank Plc where the Court held that it means “that the reason given by the Defendant for ending its contract of employment with the Claimant is that the Claimant’s services with them was no longer required” and submitted that exhibit B clearly stated the reason for the termination and urged the Court to refrain from embarking on any voyage of discovery. He further submitted that the Court lacks jurisdiction to determine claims for defamation and relied on Mr. Ebere Onyekachi Aloysius v. Diamond Bank Plc case.

COURT’S DECISION

I have read and understood the pleadings and depositions of witnesses filed by learned Counsel for the parties and listened to their testimonies during cross examination. I have also read and carefully evaluated the 27 exhibits and the written addresses filed by both learned Counsel. Having done this, it is my considered opinion that the issue for determination in this case is whether the Claimant has proved his case on a preponderance of evidence to entitle him to the reliefs sought or any of them. The law is now settled that in civil cases the burden of proof is on the person who asserts same. See sections 131[1] and 132 of the Evidence Act 2011 and the cases of Ebute John Onogwu & 4Ors. v. Benue State Civil Service Commission & 3Ors. [2012] LPELR-8604 [CA] 1 at 26, Senator Chris Adighije v. Hon. Nkechi J. Nwaogu & Ors. [2010] LPELR-4941 [CA] 79-80 and Federal Mortgage Finance Ltd. v. Hope Offiong Ekpo [2003] LPELR-5627 [CA] 1 at 23-24, [2004] 2 NWLR [pt.856] 100. In Calabar Cement Co. Ltd v. Abiodun Daniel [1991] 4 NWLR [pt. 188] 750 at 760 -761, Niki Tobi, JCA [of blessed memory, as he then was] held that: “The onus is on the person alleging wrongful dismissal or termination of appointment to so prove. See College of Medicine v. Adegbite [1973] 5 SC 149. And he has to discharge the onus by relying on the contract of service and the notice of wrongful dismissal and termination. The law will not allow the party to vegetate on general common law provisions which are not contained in the contract or anticipated therein.” See also the case of Patrick Ziideeh v. Rivers State Civil Service Commission [2007] 1-2 SC 1. Thus, to succeed the Claimant must put forward cogent and credible evidence in support of the reliefs sought. Before I continue, I would like to make a few clarifications.

Firstly, paragraphs 18 and 2[xi] of the statement of defence and Defendant’s witness’ statement on oath respectively are spurious and must be expunged. It is settled law that oral evidence cannot vary or alter the content of documentary evidence. See section 128 of the Evidence Act and the cases of Dinuola Akinbileje & 2 Ors. v. Chief Seriki Oguntobade & 4 Ors. [2013] LPELR-21965[CA] at page 13 and Shettima Suleimana v. Abubakar Usman Laga [2013] LPELR-23223[CA] at page 33. Also, learned Counsel’s submission in paragraph 3.5 page 10 of the Defendant’s final written address that the Claimant is estopped from challenging his termination after collecting his two weeks’ basic salary in lieu of notice is not backed by evidence. Neither of the parties pleaded it nor gave evidence on it. That submission is without foundation and consequently discountenanced. In New Nigerian Bank Plc v. Solomon Owie [2010] LPELR-4591[CA] at pages 19-20, Omoleye, JCA, had this to say: “It is trite law that civil proceedings are conducted on the basis of the pleadings and evidence put before a court. A court of law ought not to base its decisions on the address and speculations of learned counsel no matter how brilliant or well conceived…. It is settled law that, the address of counsel can never be a substitute or replacement of hard evidence, no matter how brilliantly couched.” Be that as it may, the law is fairly settled that where a contract of service gives a party a right of termination of the contract either by giving notice or payment of salary in lieu of notice and the latter course is chosen, the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice at the time of termination of the contract. It is not enough that in the letter of termination he offers to pay salary in lieu of notice. See the case of Ben O. Chukwumah v. Shell Petroleum Development Company of Nigeria Limited [1993] 4 NWLR [pt. 289] 512, [1993] LPELR-864 [SC] 1 at 28 and New Nigerian Bank Plc v. Solomon Owie [2010] LPELR-4591[CA] at page 18. It is in evidence that the Claimant’s employment was terminated on 11th August 2015 and the letter was served on him on 14th August 2015. It is the law that a letter of termination takes effect from the date it is served on the employee and there is no evidence before me that the two weeks’ salary in lieu of notice was made contemporaneously with the termination of his employment. If that is correct, this will vitiate exhibit B and render the termination wrongful. In that circumstance, payment of the two weeks’ basic salary in lieu of notice will not create an estoppel against the Claimant.

Finally, there is this submission on page 6 of the Claimant’s final written address to the effect that “The Claimant committed no offense, neither was he given a query to answer nor disciplinary panel set up to try him.” This is a gross misrepresentation of facts by learned Counsel. In paragraphs 29 of the statement of facts and 34 of the Claimant’s statement on oath and exhibit Q, the Claimant admitted receipt of a query and even answered the query. It is the responsibility of Counsel to assist and not mislead the Court. In Co-operative and Commerce Bank [Nigeria] Plc v. Ogochukwu Okpala & Anor. [1997] LPELR-6278[CA] at pages 27-28 [1997] 8 NWLR [pt.518], Achike, JCA [as he then was] cautioned: “Counsel, while putting across his client’s case is duty bound to do so fearlessly and courageously but he is not permitted to descend to the arena of mischief or calculated attempt to misguide or mislead the court with submission that border or [sic] ridicule and which if erroneously acted upon by the court will precipitate a miscarriage of justice. Counsel, I must reiterate, is an officer of the court and nothing in the determination of any matter by the court in which he serves in that respectable capacity should derail him from comporting himself outside [sic] the four walls of that exalted position.”

This leads me to a consideration of the Claimant’s claims in this suit. The first relief sought by the Claimant is for a declaration that the Claimant was not accorded fair hearing in the complaint against him by the Defendant before he was issued with a letter of termination dated 31st July 2015 but served on him on 14th August 2015. In proof of this claim the Claimant gave evidence of facts leading to his termination in paragraphs 19, 20, 21, 22, 34, 35, 36, 37 to 42 of his statement on oath dated 18th March 2016. The crux of his complaint is that on 26th June 2016, he received a query and answered the query on 29th June 2016 and on 31st July 2016, the Principal Manager, Audit recommended for his termination pursuant to Article 22[a] of exhibit W for using his position for personal gain. The Defendant contested these facts in paragraphs 2[viii], [ix], [x], [xi] and [xii] of the Defendant’s witness deposition dated 19th April 2016. The main plank of the Defendant’s defence is that it reserved the right to accept or reject exhibit T-T3, the Principal Manager, Audit’s letter dated 31st July 2016 and that in fact it did not accept the recommendation. This is a question of fact. The Defendant states that it did not accept the recommendation and yet the termination came as recommended. To my mind this is like the case of a ‘witch crying at night and in the morning the child died’. At any rate, I do not find the allegation of lack of fair hearing proved. It is settled law that in master and servant disputes, once a query is issued to the servant and he answers it, the requirement of fair hearing is satisfied. In A. Imonikhe v. Unity Bank Plc [2011] 5 SC [2011] LPELR-1503 [SC] 1 at 28, Rhodes-Vivour, JSC, held:

“Accusing an employee of misconduct, etc by way of a query and allowing the employee to answer the query, and the employee answers it before a decision is taken satisfies the requirement of fair hearing or natural justice.”

I therefore find and hold that this relief has not been proved and same is hereby dismissed.

The Claimant’s second claim is for a declaration that his purported termination by letter dated 11th August 2015 but served on him on 14th August 2015 is wrongful, illegal, null and void ab initio. The evidence relied on in proof of this claim is paragraphs 19, 20, 21, 22, 34, 35, 36, 37 to 42, 47, 48, 49 and 50 of his statement on oath dated 18th March 2016. In addition to what has been said above, the Claimant’s case is that before his reply to the query served on him on 26th June 2015, on the same date, the Principal Manager, Audit prepared a recommendation to the Managing Director/Chief Executive Officer recommending that he be warned in writing in line with Article 25[d] of exhibit W to desist from using his position for personal gain and be transferred out of the Corporate headquarters, exhibit R-R3. The Claimant also contends that he was not given a warning as recommended and therefore his termination is a witch hunt calculated to punish him for insisting on doing the right thing in his investigation report on the case involving Mr. Charles Emuakpor. The Defendant in paragraph 22 of the statement of defence and paragraphs 2[ix], [x], [xi], [xii] and [xiii] of the Defendant’s witness’ statement on oath dated 19th April 2016 contested these facts. A resolution of this issue will depend on interpretation of exhibit B, the letter of termination and Article 22[a] of exhibit W. I hasten to add that whether the termination is in breach of exhibit W or not, the termination cannot be declared illegal, null and void because a master always has the right to terminate the services of his servant. See the cases of E. O. Amodu v. Dr. J. O. Amode & Anor. [1990] 5 NWLR [pt.150] 356 at 368-369 and Mr. Kunle Osisanya v. Afribank Nigeria Plc [2007] LPELR-2809[SC]at page 19 [2007] 6 NWLR [pt.1031] 565. In the latter case, Katsina-Alu, JSC, held that “in a master and servant relationship, a dismissal of the employee by the employer, cannot be declared null and void and of no effect whatsoever. The employee’s remedy is in damages where the termination of the appointment or dismissal is held to be wrongful.” For this reason, I agree with the submission of learned Counsel to the Defendant in paragraph 3.04 page 5 of his final written address that in ordinary master and servant relationship reinstatement of an employee whose employment was wrongfully terminated cannot arise.

The Claimant on pages 5 and 6 of his final written address quoted Article 22 [a] of exhibit W and submitted that “it is trite that where in a contract of employment as in the instant case between the parties herein, the employer must strictly follow the terms and conditions [i.e. Employee handbook] to the termination the employee’s employment [sic], otherwise such termination will be wrongful.” Learned Counsel relied on the cases of WAEC v. Oshionebo [supra], Angel Spinning & Dyeing Limited v. Mr. Fidelix Ajah [supra], Amodu v. Amode [supra] and Famakinwa v. T. A. Nig. Plc [supra]. He further submitted that the termination of the Claimant’s employment by the Defendant without following the terms and conditions as contained in their contract of employment is wrongful and unlawful and accordingly null and void ab initio. The Defendant’s position is that exhibit B satisfies the provision of Article 22[a] of exhibit W. It was argued for the Defendant that the relevant documents to be considered in deciding whether the termination is wrongful or not are exhibits A-A1, B and W. It was submitted that the reason for termination of the Claimant’s employment is that his services with the Defendant were no longer required which is in line with Article 22[a] of exhibit W. It was also submitted that by simply stating that the Claimant’s services were no longer required, the Defendant brought the termination under the first arm of Article 22[a] of exhibit W. Learned Counsel went on to explain the use of the word ‘consequently’ in exhibit B and argued that a re-rendering of exhibit B should read: “This is to inform you that your services with Enugu Electricity Distribution Company [EEDC] are no longer required. As a result of the above, or flowing from the above or for this reason or on this ground or on this account, or hence your appointment is hereby terminated with immediate effect in line with Article 22[a] of EEDC’s Employee Handbook.” He submitted that reference to Article 22[a] does not and cannot mean that the Claimant’s employment was terminated for reasons of misconduct as the first part of Article 22[a] clearly makes provision for termination for no reasons and referred to Iwuoha v. Mobil Producing [Nig.] Unltd. [2013] All FWLR [pt.664] 144 at 150-151 and Engr. Francis Onyebuchi v. E.E.D.C & Anor, Suit no. NICN/OW/17/2016. In his reply on point of law, learned Counsel submitted that the phrase in exhibit B, that is, ‘your services with Enugu Electricity Distribution Company [EEDC] are no longer required’, has been judicially interpreted in Mr. Ebere Onyekachi Aloysius v. Diamond Bank Plc [supra] where the Court held that it means “that the reason given by the Defendant for ending its contract of employment with the Claimant is that the Claimant’s services with them was no longer required” and submitted that exhibit B clearly stated the reason for the termination and urged the Court to refrain from embarking on any voyage of discovery. While I agree with learned Counsel to the Defendant that where no other reason is stated for the termination of the Claimant’s appointment except that ‘his services are no longer required’, the court cannot go outside the said letter to discover the reasons for the termination; I hold the view that there are situations when the Court may go beyond what is stated in the letter of termination, as in this case, where reference is made to a provision of the Employee Handbook in the letter of termination. I would be failing in my duty if I do not probe further.

Exhibit B reads:

“Memorandum

Date: 11th August, 2015

From: Managing Director/CEO To: Mr. Olasunkanmi Mufutau Ayinde

Corporate Headquarters, Enugu SM (Audit), S/No: 42177

Ufs: Principal Manager [Audit] CHQ.

Ref: CHQ/EEDC/AGM (HR)/2015/20.2/2037

TERMINATION OF APPOINTMENT

This is to inform you that your services with Enugu Electricity Distribution Company (EEDC) are no longer required.

Consequently, your appointment is hereby terminated with immediate effect in line with Article 22(a) of EEDC’s Employee Handbook.

As a result you have ceased to enjoy all the rights and privileges applicable to members of staff of this company.

You should therefore surrender all company’s property in your possession to the AGM (HR), Corporate Headquarters, Enugu or his designate before your exit.

You will receive two weeks basic salary in lieu of notice.

You should acknowledge receipt of this letter of termination by signing the attached copy.

Sgd.

ROBERT DICKERMAN

MANAGING DIRECTOR/CEO”

Article 22[a] of exhibit W provides as follows:

“Article 22: TERMINATION OF EMPLOYMENT

“[a] The Company guarantees security of tenure of service to all her employees. However, the Company reserves the right to terminate the appointment of an employee without assigning any reasons, if, in Management’s opinion, the continued employment of the employee[s] is detrimental to the interest of the Company.

“The following misconducts shall attract termination of employment:

Flagrant disregard for the contents of this Handbook
Refusal to obey reasonable instruction
Drunkenness
Sleeping on duty
Smoking in prohibited areas
Dereliction of duty
Unauthorised possession of Company product/property
Engagement in union activities without due and appropriate authorization
Poor performance
Failure to accept/respond to query

Where misconduct may lead to loss of employment, the disciplinary process shall be as follows:

Query
Response to query within 48 hours

Constitution of disciplinary panel

Review of panel report
Implementation of panel report”

It is not in dispute that the Defendant is entitled to terminate the employment of the Claimant on the ground that his services were no longer required under Article 22[d] of exhibit W. However, there is no mention of Article 22[d] in exhibit B. If exhibit B had stopped after the first paragraph that would have been the end of the matter; but it did not end there. Paragraph 2 contains the following sentence: “Consequently, your appointment is hereby terminated with immediate effect in line with Article 22(a) of EEDC’s Employee Handbook.” Learned Counsel to the Defendant laboured to explain this away by re-rendering it. In whatever way one looks at it, this paragraph has brought the entire Article 22[a] of exhibit W into focus. The law is that it is within the right of an employer to terminate the services of the employee, but where conditions for such termination are terms of the contract of service, such conditions must be satisfied. See the cases of Ben O. Chukwumah v. Shell Petroleum Development Company of Nigeria Limited [supra] and Mrs. C.O.A. Fakuade v. Obafemi Awolowo University Teaching Hospital Complex Management Board [1993] LPELR-1233[SC] at pages 14-15.

Learned Counsel to the Defendant submitted that the termination is pursuant to the first arm of Article 22[a]. I am not persuaded by that argument. In the words of learned Counsel, “Indicative of the soundness of this conclusion is the use of the word ‘consequently’ in the second line of exhibit B.” I respectfully do not agree with learned Counsel. Article 22[a] is different from Article 22[d]. Article 22[d] is a proviso to Article 22[a], [b] and [c] and qualifies the stipulations therein. Article 22[a] empowers the Defendant to terminate the Claimant’s employment without assigning any reasons if, in Management’s opinion, the continued employment of the Claimant will be detrimental to the interest of the Defendant. It then goes on to list misconduct which will attract termination and procedure to be followed in the event of termination. Parties are deemed to mean what they have written. See the case of Kenneth Ojo v. ABT Associates Incorporated & Another [2014] LPELR-22860[CA] at pages 30-31. Perhaps, the intention of the Defendant was to terminate the Claimant’s employment pursuant to Article 22[d] of exhibit W, it did so unsuccessfully. Exhibit B is self contradicting and it is not within the province of this Court to imply into exhibit B what is not manifest on the face of the document.

It is a well established canon of statutory interpretation that in order to fully appreciate and understand the intention of the parties, the document should be read as a whole and not disjunctively or in isolation. See the cases of Calabar Cement

Co. Ltd. v. Abiodun Daniel [1991] 4 NWLR [pt.188] 750 at 761. In B.F.I. Group v. Bureau of Public Enterprises [2007] LPELR-8998 [CA] at pages 28-29, per Peter-Odili, JCA [as he then was] held “In the construction of a contract, the meaning to be placed on it is that which is plain, clear and obvious result of the terms used. A contract or document is to be construed in its ordinary meaning as question of fact where the language of a contract is not only plain but admits of one meaning, the task of interpretation is negligible. The words are to be construed according to the ordinary meaning. When construing documents in dispute between two parties, the proper course is to discover the intention or contemplation of the parties and not to import into the contract ideas not patent on the face of documents. Where the contract is reduced into writing, the terms of such contract are to be deduced from the written agreement.” Also, in Incorporated Trustees of Nigerian Baptist Convention & 12 Ors. v. Governor of Ogun State & 3Ors. [2016] LPELR-41134[CA] at pages 19-20, Tsammani, JCA, held “Now, the general principle of law is that, parties are bound by their agreements. Accordingly, the proper purpose of interpretation of such documents evidencing the agreement[s] of the parties, is to discover the intention of the parties and not to ascribe to the parties what they have not intended by that document. The Court saddled with the duty of construing that document in order to discover the intention of the parties should restrict itself to the words used in the document. In that respect, words or ideas not intended by the parties should not be imported into the document that are not patent on its face, see Obikoya v. Wema Bank Ltd (1991) 7 NWLR (pt. 201) p.119 at 130; and Amizu v. Nzeribe (1989) 4 NWLR (pt.118) p.755. This is so because, the parties to the agreement are presumed to intend what they have in fact written down, and therefore, the words written down by them should be given their ordinary and plain meaning, unless circumstances show or dictate that a particular construction ought to be applied in order to give effect to that particular intention envisaged by the parties.”

Applying these decisions to this case, it is my respectful view that exhibit B was not issued pursuant to the first arm of Article 22[a] of exhibit W. I find and hold that it was issued pursuant to Article 22[a] and did not comply with the procedure for termination of employment specified in Article 22[a] of exhibit W. Learned Counsel to the Defendant urged the case of Francis Onyebuchi v. E. E. D. C & Anor, Suit no. NICN/OW/17/2016 on this Court. Much as the decision is of persuasive authority, I humbly beg to defer from the conclusions of my learned brother. The Court in that case did not interpret the provision of Article 22[a] vis-à-vis the letter of termination. It is my respectful view that the duty placed on the Court not to go outside the letter of termination to discover the reason for the termination carries with it an equal responsibility not to exclude from the letter of termination what was expressly written therein. Consequently, I find and hold that the termination of the Claimant’s employment was wrongful.

What does this finding entail? In relief 4, the Claimant seeks an order reinstating him forthwith with the attendant promotions, salaries and allowances in line with his colleagues from the date of his last payment; or alternatively, an order commanding the Defendant to reinstate him forthwith and giving him the option to voluntarily retire or resign from the services of the Defendant with up to date salaries and allowances. This Court cannot accede to this request for reasons stated above. Doing so would mean re-writing the contract of the parties. Article 22[a] of exhibit W empowers the Defendant to terminate the employment of the Claimant and the Defendant has exercised that right, though wrongly. That is the end of the matter. The only remedy available to the Claimant is damages for breach of the contract of employment; and the measure of damages is the sum payable in lieu of notice. In Mobil Producing [Nig.] Unltd & Another v. Udo Tom Udo [2008] 36 WRN 53 at 102, it was held that a servant is generally entitled to damages in the sum of the period of notice. In Gabriel Ativie v. Kabelmetal Nig. Limited [2008] 5-6 SC [pt.11] 47, [2008] LPELR-591[SC] at pages 13-14, Tabai, JSC, held that “It has been settled in a long line of authorities that in cases of ordinary contract of employment where the terms provide for a specific period of notice before termination or salary in lieu thereof, the only remedy available to an employee who is wrongfully terminated is the award of salary for the period of notice and other legitimate entitlements due to him at the time the employment was brought to an end. He gets no more.” See also the case of Patrick Ziideeh v. Rivers State Civil Service Commission [2007] 1-2 SC 1, [2007] LPELR-3544[SC] at pages 27-28, Calabar Cement Co. Ltd. v. Abiodun Daniel [supra] at page 759 and Johnson Omale v. University of Agriculture Makurdi & 2 Ors. [2011] LPELR-4366[CA] at page 25. The Claimant is only entitled to his salary for the period of notice specified in his employment contract and not an order for re-instatement. See the cases of Johnson Omale v. University of Agriculture Makurdi & 2 Ors. [supra], Afribank [Nigeria] Plc v. Kunle Osisanya [1999] LPELR-5206[CA] 29-30 and Bashiru Atanda v. H. Saffeiddine Transport Ltd. [2007] LPELR-8303[CA] at pages 16-17. In the latter case, Augie, JCA, [as he then was] held:”Where an employer breaches the contract in terminating the employee’s appointment, the employee’s remedy lies in damages calculated on the basis of what the employee could have earned for the period of notice agreed upon for ending the employment.” I adopt these decisions as mine. There is no claim for salary in lieu of notice. The fact of payment or non-payment of the two weeks’ salary in lieu of notice was not pleaded by both parties. Learned Counsel for the Defendant only made a veiled reference to it in paragraph 3.5 page 10 of his final written address. If he has been paid, that is it. He gets no more. If he has not been paid, he is entitled to it. Consequently, relief 4 fails and is hereby dismissed.

In reliefs 3 and 5, the Claimant seeks an order of Court commanding Defendant to pay him forthwith the outstanding allowances of N243, 750 and N182, 812.50 respectively totaling N426, 562.50 being allowances due to him but unpaid by Defendant from November 2013 to April 2014 and from May 2014 to August 2015 and an order that the Defendant should pay him his leave allowance from April to August 2015 of N182, 812.50 [one hundred and eighty-two thousand, eight hundred and twelve naira, fifty kobo] only. These claims are in the nature of specific damages which must be specifically pleaded and strictly proved. See the cases of Nigerian Telecommunications Ltd. v. Emmanuel Oshodin [1999] 8 NWLR [pt. 616] 528 at 542 and MV Courageous Ace & 2Ors. v. Nigerdock Nigeria Plc [2016] LPELR-40223[CA] at pages 20-21. The Claimant pleaded as follows:

“4. The Claimant’s benefits and entitlements were stated in the payroll & Personnel Automated System of October 2013 to include transport, hazard, furniture, entertainment, electricity, domestic, meal subsidy and utility allowances and the amount attached to the respective allowance. The Defendant’s payroll & Personnel Automated System STAFF NO. 564970 is hereby pleaded and shall be relied upon during trial. Notice is given to Defendant to produce the original.

“5. The Claimant was owed a total of N243, 750 (two hundred and forty three thousand, seven hundred and fifty naira, only being leave allowance due but unpaid from November 2013 to April 2014 before the Defendant transmuted to Enugu Electricity Distribution Company (EEDC).

“7. The Claimant worked meritoriously for the Defendant from the 1^st appointment per letter dated 21/10/2013 to 30/4/2014 and is entitled to benefits or allowances due to him but unpaid by the Defendant. The Defendant is still owing Claimant an outstanding of N243, 750.00 for the period from November 2013, to April 2014.”

“12. The Defendant owes Claimant leave allowance from May to August 2015 before his wrongful termination amounting to N182, 812.50 (one hundred and eighty two thousand, eight hundred and twelve naira, fifty kobo only).”

These paragraphs were tersely stated in the Claimant’s statement on oath dated

18th March 2016 thus:

“6. That my benefits and entitlements are clearly stated in the Defendant’s payroll & Personnel Automated System of October 2013 with my name and number.

“7. That the Defendant owe me outstanding allowances of N243, 750.00 and 182, 812.50k respectively being allowances due but unpaid from November 2013 to April 2014 and from April 2014 to August 2015 and totaling N426, 562.50k.”

Nothing more was said about these allowances. The portion of the employment contract entitling the Claimant to these allowances, the basis of computation and whether it has been earned were not stated. To succeed the Claimant must clearly prove these figures and that it is an earned allowance. In the absence of this proof, this Court cannot grant the reliefs. Section 133[1] of the Evidence Act, 2011 provides that “In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side….” The payroll & personnel automated system, exhibit P is a mere pay slip. The Claimant merely dumped it on the Court without bringing it to life, no explanation whatsoever was offered neither was it related to the claims for leave allowances in any way. In MV Courageous Ace & 2Ors. v. Nigerdock Nigeria Plc [supra] at pages 20-21, Oseji, JCA, held “It is an established principle of law that documentary evidence cannot serve any useful purpose in a trial where there is no oral evidence led by any of the parties to explain their essence in the suit. The court cannot be drawn into the arena of litigation to explain the use or relevance of documents dumped on it.” In the circumstance, I find myself agreeing with the submission of learned Counsel for the Defendant in paragraph 3.9 of his final written address that the Claimant must prove his entitlement to the leave allowance. He argued further “… exhibit M is the letter of employment while exhibit N-N1 is the condition of service guiding the said employment. Now a critical analysis of exhibit N-N1 will reveal that there is no provision for payment of leave allowance. One then wonders how this claim came about and what indices were used in calculating same.” Moreover, in paragraph 10 of exhibit A1 captioned ‘Acceptance of offer’, it was agreed by the parties that “Acceptance of this offer releases the company from any claim, benefit or entitlement due to a former employee of Power Holding Company of Nigeria or the company.” This clause, in my considered opinion, provides an effective release or discharge to the Defendant from all claims arising from Claimant’s previous employment. The same thing applies to the claim from April to August 2015, the Claimant did not lead evidence on how many leave days he accumulated and how he arrived at the sum he is claiming. The Court cannot descend into the arena to explain the use of the documents dumped on it. Consequently, reliefs three and five fail also and are hereby dismissed.

In relief 6, the Claimant seeks the sum of N20, 000,000 [twenty million naira] as general damages for wrongful termination of his employment. In Mobil Producing [Nig.] Unltd & Another v. Udo Tom Udo [2008] 36 WRN 53 at 102, it was held that “Damages means the sum of money which a person wronged is entitled to recover from the wrong doer as compensation for the wrong…. The award of damages is a matter for the trial Court and this court would not ordinarily interfere with it. The quantum of damages recoverable by a party for wrongful termination of his employment will largely depend on whether the wrongful termination of employment was a result of the failure to give the required notice or as a result of an alleged malpractice. If the wrongful termination is as a result of the former, the quantum of damages recoverable may be the employee’s salary for the period of the required notice. But if it is due to the latter, then such a determination carries with it some stigma on the character of the employee for which he shall be entitled to substantial damages far beyond his salary for the period of the requisite notice.” The wrongful termination in this case arises from a failure to follow the procedure prescribed in the Defendant’s employee handbook and not on account of any misconduct. Consequently, the damages the Claimant is entitled is salary for the period of notice. There is no evidence before me whether the two weeks’ salary in lieu of notice was paid or not. If it has been paid, that is the end of the matter. If it has not been paid, the Claimant is entitled to it but he gets no more. The award of general damages will amount to double compensation. The claim for general damages is refused and accordingly dismissed.

The issue of defamation was raised for the first time in paragraphs 12 and 13 of the Claimant’s reply to the statement of defence. It was not part of his claims. The evidence in support of it is in paragraphs 11, 12, 13, 15 and 16 of the Claimant’s additional statement on oath dated 14th November 2017. The alleged offensive words are: “This is to advice members of the public that the following individuals are no longer employees of EEDC”. This is a statement of fact. Exhibit B terminated the Claimant’s employment even though the termination has been found to be wrongful. At the time of the publication it represented the truth. I therefore find and hold that the publication was not defamatory of the Claimant. I refrain from commenting on the issue whether this Court has jurisdiction in defamation cases as it was not properly raised in this case.

On the whole, the Claimant’s case succeeds in part. For the avoidance of doubt, reliefs 1, 3, 4, 5 and 6 fail and are hereby dismissed. Relief 2 is granted in part. I find and hold that the termination of the Claimant’s employment by exhibit B did not comply with the stipulations in exhibit W, the Defendant’s Employee Handbook and thereby wrongful. Pursuant to Order 55 rules 1, 2, 4 and 5 National Industrial Court [Civil Procedure] Rules, 2017, I award N200, 000 [two hundred thousand naira] cost against the Defendant in favour of the Claimant payable within 7 days from the date of this judgment.