MR. RICHI ASONYE AJOKU -VS- SEVEN UP BOTTLING COMPANY PLC

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

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

Dated: 12^th day of November, 2019 SUIT NO: NICN/PHC/23/2019

BETWEEN

RICHI ASONYE AJOKU———————————–CLAIMANT

AND

SEVEN UP BOTTLING COMPANY PLC–———————–DEFENDANT

Representations:

Ken Agba with C.A. Atata for the Claimant.

Felix Jonathan with C.C. Nwachukwu and Chukezie Obiefule for the Defendant.

Judgment.

This suit was commenced by way of a General form of Complaint filed on the 13^th of February, 2019 along with an affidavit of verification, statement of fact, list of witnesses, witness statement on oath, list of documents and copies of the listed documents to be used at trial.

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

A declaration of this Honourable Court rendering null and void and of no effect the letter of termination against the claimant.
AN ORDER of this Honourable Court compelling the Defendant to pay to the claimant the sum of thirty six million seven hundred and seventeen thousand one hundred and twenty naira (N36,717,120) only, computed until the age of retirement.

iii. AN ORDER of this Honourable Court compelling the Defendant to pay to the claimant the sum of N10,000,000 (Ten Million Naira) only being the unnecessary litigation and professional fee of the claimant’s solicitors.

AN ORDER of this Honourable Court compelling the Defendant to pay the claimant the sum of N20,000,000 (Twenty Million Naira) only for the purported letter of termination without notice.
AN ORDER of this Honourable Court compelling the Defendant to pay the claimant the sum of N30,000,000 (Thirty Million Naira) only for malicious and unlawful termination of his job.
AN ORDER of this Honourable Court compelling the Defendant to pay the claimant the sum of N15,000,000 (Fifteen Million Naira) only for accrued salaries arrears and other entitlements.

vii. AN ORDER of this Honourable Court compelling the Defendant to pay the claimant the sum of N5,000,000 (Five Million Naira) only for transportation cost, telephone and other incidental charges.

viii. AN ORDER of this Honourable Court compelling the Defendant to pay to the claimant the sum of N20,000,000 (Twenty Million Naira) only for mental shock and disrepute to the claimant and his family aggregated due to the malicious letter of termination of claimant’s employment.

AN ORDER of this Honourable Court compelling the Defendant to pay to the claimant the sum of N10,000,000 (Ten Million Naira) only as general damages for the inconveniences, mental torture and hardship suffered by the claimant as a result of termination letter.
AN ORDER of this Honourable Court compelling the Defendant to pay to the claimant the sum of N10,000,000 (Ten Million Naira) only as special damages for unlawful disengagement that terminates the appointment of the claimant.
Interest on the above sums at the rate of 10% from the date of judgment till liquidation.

Reacting to the foregoing claims, the Defendant on the 10^th of June, 2019 entered appearance and filed a statement of defence along with list of witnesses, witness statement on oath, list of documents and copies of the said documents.

Upon being served with the statement of defence, Claimant on the 26^th of June, 2019 filed a reply with a further witness statement on oath and additional list of documents with copies of same.

Trial commenced in this suit on the 8^th of July, 2019 and in opening his case, the Claimant himself, Richi Asonye Ajoku, was the sole witness as CW1 and he adopted his witness statements on oath marked as C1(a) and C1(b). Through him, 15 documents were tendered in evidence and admitted as Exhibit C2 – C16 while exhibit C15 was admitted under protest with the grounds of objection to be addressed in the final written addresses and considered in this judgment.

Arising from the statement of fact and witness statement on oath of the Claimant, the case of the Claimant is that he was initially a casual staff of the Defendant between 14^th April 2011 and 21^st October, 2012 before he was offered provisional appointment on the 22^nd of October, 2012 and on the 27^th of July 2013, his employment was confirmed. Claimant averred further that while working for the Defendant in 2013 as a sales officer, the POS machine was a challenge and several complaints were made to the Defendant. Claimant added that in 2013, the Defendant’s bank (first bank) had meeting with the Defendant (Account manager, sales marketing manager, operation manager and the sales team), and in that meeting, First bank promised to give to the account manager (Mr. Olufemi) an interface between him and the sales team so as to enable the account manager to see the breakdown of the sales team transactions on a daily basis. The claimant avers that due to his stand on management meeting over denial of employment quota meant for the host community, Mr. Boniface Nnamdi (the security manager) was drafted to frame the claimant up. Claimant then posited that his employment was terminated by the Defendant without notice nor payment of salary in lieu of notice. Upon the termination, he was invited for the collection of his entitlement but on getting to the Defendant’s office, one Mr. Boniface invited policemen to arrest him and he was taken to the police station where he was detained for three days before he was granted bail. He posited that he then engaged a lawyer who wrote protest letter on his behalf and copied several bodies. Claimant added that he was later charged to the Magistrates’ Court on grounds of falsifying POS machine and stealing the sum of N1,747,500 but the court found him not guilty and had him discharged and acquitted. Claimant averred also that the Defendant failed to pay him his entitlement and was also denied the transportation expenses incurred in the course of his duty as sales officer.

Upon cross examination, CW1 stated that he was given Exhibit C2 which is the Handbook of the Defendant and that he understood from the beginning of his employment that same could be terminated without reason. He admitted that page 23 provides for payment of salary in lieu of notice as well as his letter of employment. He admitted that the queries he received had nothing to do with employment of indigene. He added that he had a privileged information that the Defendant stopped his employment with Merborg Contractors Ltd as the Defendant made a phone call and wrote a letter but he does not know who made the call. He stated that the N10million he paid his lawyer was in respect of this suit and he got the money from different sources and had paid the money before the suit began even though he is jobless. CW1 also stated that he is entitled to gratuity and his pension money at Leadway while adding that the first time he went for his salary in lieu of notice, he was arrested and he can’t go there again and will not accept the salary in lieu of notice if given to him. CW1 also admitted that matters of employment are taken care of in Lagos office while he is not a management staff in Lagos while stating that the calculation of his gratuity was from the time of his employment to his retirement. With regards to his claim for transportation expenses, he stated that the way he runs his transport is his business.

Upon the discharge of CW1, Claimant closed his case, while the Defendant opened theirs by calling Anthony Akpati as DW1. The said DW1 adopted his witness statement on oath marked as D1 and through him, 6 documents were tendered and admitted in evidence as D2 to D7.

Arising from the statement of defence and witness statement on oath, the case for the Defendant is that the Claimant was an employee of the Defendant until the 24^th day of January 2014 when his employment was terminated in line with his terms of employment. The Defendant added that the Claimant’s relationship with the Defendant was merely employer/employee relationship and that the Claimant during his brief employment as a Sales Officer had the habit of disregarding policies put in place in the Defendant’s company which earned him several queries with the last being issued on the 3^rd of January, 2014 and was given the opportunity to defend himself. The Defendant averred that the response was found to be unsatisfactory which led to the decision to terminate his employment. The Defendant further averred that the Claimant is not a management staff and denies that the termination of the Claimant’s employment was against administrative policy but that due process was followed as the one month salary in lieu of notice was made available but the Claimant refused to make himself available for collection. The Defendant also added that the termination of Claimant’s employment was not because of the issue of POS which led to the query of 13^th October, 2013 and eventually a criminal trial rather, it was after the query of 3^rd January, 2014. The Defendant posited that it never discouraged any company from employing the Claimant as it did not receive enquiry from Merborg Contractors Ltd or any other company and concluded that the Claimant is not entitled to gratuity while the only entitlement of the Claimant is one month salary in lieu of notice which Claimant refused to collect.

Upon cross examination, DW1 stated that the Claimant denied all the allegations in his responses to the queries issued and that HR Manager made recommendation to the Management. He stated that the salary in lieu was calculated but the Claimant did not come to collect. DW1 denied that the Claimant was arrested on the day he went to collect the money and added that the duties of sales officer is to deal with dealers from either primary or secondary sales while the Sales and Marketing Manager is responsible for sales as well. He stated that he does not know much about the POS and added that it is mandatory to give certificate of service to an employee upon application while admitting that the Defendant pays salaries to staff bank account but that salary in lieu of notice was computed as part of terminal benefit.

Upon discharge of DW1, the Defendant closed their case and matter was adjourned for adoption of final written addresses.

The Defendant filed their final written address on the 9^th of September, 2019 and adopted same on the 7^th of October, 2019.

Arising from the said final address, counsel to the Defendant, Felix Jonathan Esq. formulated two issues for determination to wit:

Whether under the law the Defendant has the powers in line with the contract of employment with the claimant, to terminate the Employment of the Claimant?
Whether the claimant is entitled to his claim going by the contract/terms of Employment of the Claimant.

In arguing issue one, counsel posited that both parties agree that the contract of employment between the claimant and the defendant is made up of ExhC2 (the staff handbook) and Exh C3 (the letter of offer of appointment). He added that it is settled law that where an employment is governed by agreement of the parties, the question as to the validity of such termination must be effectively answered by considering the terms of such agreement. counsel referred to paragraph G No.29 (i-ii) at page 23 of the Staff Hand book and cited the cases of SEVEN UP BOTTLING COMPANY PLC V. ANYANYA AFAM AUGUSTUS (2012) LPELR-20873(CA) and CBN VS AMIKA (2000) 13 NWLR PART 683 PAGE 21 AT 34.

Counsel thereon contended that the Defendant has complied with the requirement of the said provision in view of exhibit C5. He argued further that the termination of the Claimant’s employment is not as a result of exhibit C7,C8 and C10.

Counsel also contended that exhibit C5 did not state any reason for the termination of the Claimant’s employment as the Defendant is not under any obligation to do same as the law is settled that an employment can be terminated with or without reason at all. He cited the cases of IHEZUKWU V. UNIVERSITY OF JOS (1990) NWLR (Pt.146) 598 and ATIVIE V. KABELMETAL (NIG.) LTD. (2008) 10 NWLR (Pt.1095) 399.

With regards to the fact that the Claimant failed to collect the salary in lieu of notice, counsel posited that the Defendant’s witness told this court that the claimant was required to come for his one-month salary in lieu of notice, and the money was made available while the claimant refused to come for it. He added that the DW1 stated that salary in lieu of notice works with terminal benefits which the beneficiary is usually required to come and sign before collecting as it does not belong to the categories of other salaries that can be paid in the bank.

Counsel also contended that while the Claimant had alleged that he went to the Company premises to collect the money but was arrested, assuming without conceding that the Claimant was arrested in the defendant’s company premises, by the Police for an alleged crime which was later charged to court and prosecuted, he was not arrested because he went to collect his entitlement but because of a crime which the police were at that period investigating.

With regards to issue two, counsel adopted the arguments on issue one and added in respect of relief 1 sought by the Claimant that that the claimant is not entitled to this claim as he has not made out a sufficient case to warrant such declaratory relief. Counsel also posited that the Defendant complied with the procedure as contained in the contract of employment between the parties hence the termination cannot be void and unlawful.

With regards to relief 2, counsel posited that the contract of employment between the parties did not guarantee that the employee will be in the employment of the Employer up to a certain age. He referred the Court to Exhibit C2 at Page 23 paragraph G 29 (i-ii) and added that an employee whose contract has been unlawfully terminated, (though not the case in the instant matter), cannot claim wages for services he never rendered. He cited the case of OLATUNBOSUN Vs. NISER (1988) 1 NSCC vol.19 PT1 page 1025 @ 1047 line 25.

With regards to relief 3, counsel contended that the Defendant did not sue the Claimant, rather the Claimant took out this action which by his claim he has agreed is “unnecessary” litigation. Counsel added that the claimant did not particularize the items so as to enable the court to know how the figure of N10, 000,000.00 was arrived at. Counsel posited that it has been held by courts that claim for solicitor’s fees are alien and unethical to our jurisdiction. He cited the case of GUINNESS (NIG) PLC V. NWOKE(2000) 15 NWLR (PT689) 132.

With regards to reliefs 4 and 5, counsel contended that the Claimant is only entitled to salary in lieu of notice which he has been offered but refused to collect. He added that the termination of the Claimant’s employment is lawful and in line with Exhibit C2 and C3.

Counsel argued that Claimant is not entitled to relief 6 as there is nothing before this court to show that the Defendant owes the Claimant any salary arrears. He added that there is no piece of evidence from the Claimant showing when he was paid last and for when he has not been paid or even the amount he receives as salary which the court cannot speculate.

Counsel added that relief 7 which is for the sum of N5,000,000:00 (Five Million Naira) only for transportation cost, telephone and other incidental charges, was also not itemized and proved.

With regards to relief 8 and 9, counsel reiterated that the relationship between parties is not one with statutory flavor but one which both parties were aware from the onset that the relationship can be terminated at any time going by the contract of employment. Counsel cited the case of IJEBU-ODE LOCAL GOVERNMENT VS. ADEDEJI BALOGUN & CO. LTD. (1991)1 NWLR (PT. 166) 136 and submitted that the damages as claimed by the Claimant for “mental shock and mental torture” was not a direct or probable consequences of an act of the Defendant which the parties from the onset agreed.

Counsel also argued against relief 10 to the effect that the relief does not constitute special damages and that makes the claim misplaced. He cited the cases of AKINKUGBE Vs. EWURUM HOLDINGS (NIG LTD (2008) LPELR-346 and RCC LTD Vs. AKPAN (2019) LPELR-48142(CA).

Counsel concluded by urging the Court to dismiss the claims with punitive cost.

Reacting to the final address of the Defendant, the Claimant on the 25^th of September 2019 filed his final written address which was adopted on the 7^th of October, 2019.

Arising from the said final address, counsel to the Claimant, Ken Agba Esq, formulated three issues for determination to wit:

Whether from the preponderances (sic) of evidence before this Honourable Court if the defendant can properly terminate the employment of the claimant without notice or payment in lieu of notice as stipulated by the staff hand book. EXH C2.
Whether from the preponderances (sic) of evidence, the claimant has proved malice and intimidation on the side of the defendant against the claimant in putting in motion the criminal prosecution of the claimant in an allegations the defendant knows is untrue.
Whether the claimant has proved his case as to entitle him to the reliefs sought.

In arguing issue one, counsel posited that the defendant in its pleadings never challenged paragraph 2, 3, 4, 6, 7 and 8 of the claimant’s pleadings. He added that the defendant expressly admitted paragraph 13 of the claimant’s pleadings and the said unchallenged and expressly admitted paragraphs of the Claimant’s pleadings were neither controverted nor discredited by the defendant during cross examination of the claimant. Counsel therefore enjoined the Court to accept and act on the said paragraphs of the claimant’s pleadings which were also fully given in evidence by the claimant. He cited the case of Monkon vs. Odili (2010) 2 NWLR (pt. 1179) 419 @ 442.

Counsel also posited that the court can give legal effect to Exhibits C2 – C16 having been admitted in evidence and unchallenged by the Defendant. He cited the case of Longe vs. F.B.N. Plc (2006) 3 NWLR (pt. 967) 228 @ 251.

Counsel argued further that by Exhibit C2, C3 and C4, the defendant having failed to pay the claimant salary in lieu of notice and other entitlements rendered the termination letter wrongful. He cited the case of CBN vs. Amika (2000) 13 NWLR (pt. 683) page 24 Ratio 2 and Chukwumah vs. SPDC (1993) 4 NWLR (pt. 289) pg. 512.

Counsel submitted that the deliberate refusal or failure of the defendant to pay the claimant the salary in lieu of notice and other benefits does not only make the termination unlawful and wrongful but the termination also amounts to irregularity and malpractice on the part of the defendant, which made the claims of the claimant an exception to the rule “that the only available damages awardable to employee whose contract of employment was wrongfully terminated is the amount the employee would have earned for the period of the required notice”. He cited the case of ISAAC EZEKIEL VS WEST MINISTER DREDGING NIGERIA LIMITED (2000) 9 NWLR (pt 672) at 248, page 250, ratio 2.

Counsel also argued that the claimant has established that the defendant mobilized armed police men to arrest and detain the Claimant the day he was invited to Eleme Depot, Port Harcourt and eventually charged him to the Magistrates’ Court, Elimgbu, Port Harcourt and by that, it is obvious that the defendant did not have intention to make payment in lieu thereby violating the due process of the law. Counsel also referred to the testimony of the Claimant during cross examination.

Counsel further referred to the testimony of DW1 to contend that the Claimant was not given fair hearing before his employment was terminated. Counsel added that the claimant has discharged both his legal burden and evidential burden. He posited that in discharging the evidential burden, the claimant adduced sufficient evidence and tendered exhibits C2 to C16 which were never challenged nor discredited during cross examination of CW1 by the defendant’s counsel.

In arguing issue two, counsel adopted the arguments proffered for issue one and submitted further that from the available, credible and cogent evidence adduced before this court, the claimant has proved that the defendant acted out of malice and intimidation in terminating the appointment of the claimant and also set in motion the criminal prosecution of the claimant, wherein, at the point of charging the matters to court, the Defendant, well aware that the claimant is innocent did not allow the administrative measure set out by Exh. C2 in page 36, section 4.0 to take its full course.

With regards to relief 3, counsel submitted that the claimant’s evidence is more straight forward, consistent, believable and more probable to that of the defendant.

Counsel added that the judicial precedents of Union Bank Nigeria Ltd vs. Ozigi (1994) 3 NWLR (pt. 333) pg 385 and Amodu vs Amode (1990) 5 NWLR (pt 150) 356, cited by the defendant in his final address are inapplicable to the facts and legal principles of this case.

Counsel urged the court to resolve in favour of the claimant that Exh C5 is null and void and of no effect. He added the 2^nd Claim of the Claimant is based on Exhibit C2 at page 26 at paragraph 35 while the termination of the Claimant’s employment and setting in motion of a criminal trial against the Claimant caused him mental shock. He added that the Defendant caused the Claimant to institute this legal action which could have been avoided if the Defendant had not been ill advised. He added that Exhibit C6 is enough to motivate the Defendant to pay the Claimant all the monies owed to the Claimant by the Defendant.

Counsel also posited that upon his submissions on issue one and two, the employment of the Claimant still subsists in line with Exhibit C3.

Counsel posited that the Claimant has disclosed reasonable cause of action and concluded that in totality of the submissions made, the exhibits tendered and the claimant’s evidence, the court is urged to hold that the claimant has proved his case to entitle him to the reliefs sought.

The Defendant filed a reply on point of law on the 2^nd of October2019 in reaction to the final written address of the Claimant and arising therefrom, counsel to the Defendant posited that an employee whose employment was terminated in line with the contract of employment cannot be heard of complaining of lack of fair hearing. He cited the case of SEVEN UP BOTTLING COMPANY PLC VS ANYANYA AFAM AUGUSTUS (2012) LPELR-20873 (CA).

Counsel reiterated that what the Claimant will be entitled to is salary in lieu of notice and cited the case of Chukwuma vs Shell Petroleum (1993) 4 NWLR (PT 289) 512.

Counsel also posited that the Court can expunge any exhibit that is wrongly admitted and cited the case of SURAKATU VS ADEKUNLE (2019) LPELR-46412.

With regards to claim for gratuity, counsel posited that by paragraph 35, page 26 of Exhibit C2, gratuity is payable for employees of the Defendant who have been so for 5 years while the Claimant was employed on 22^nd October, 2012 and had his employment terminated on 24^th January, 2014 hence he is not entitled.

Counsel posited that the claim before the court is not for malicious prosecution and urged the court to dismiss the suit of the Claimant.

Upon the forgoing, I have evaluated and understood all the processes filed by the parties in this suit, I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and painstakingly examined all the exhibits tendered and admitted in evidence. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses and reply on point of law.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the issues for the determination of this suit are to wit:

Whether or not the termination of the Claimant’s employment by the Defendant is wrongful in view of the terms of the employment.
whether or not in view of the facts, circumstances of this case and evidence before the court, the claimant is entitled to the reliefs sought?

Before I resolve the foregoing issues, it is apposite to determine the status of exhibit C15 which was admitted under protest upon the objection of counsel to the Defendant that the said document is computer generated and the Claimant failed to comply with section 84 of the Evidence Act in view of absence of certificate of compliance.

Counsel to the Claimant on the other hand responded that the said document is relevant and same has been pleaded.

Upon the foregoing contention, I have taken a look at the said exhibit C15 and find that same is a statement of account bearing the name of the Defendant in the entries made and I also reckon that the said statement bears the stamp of the Chief Magistrate Court Registry as the said document was tendered in the course of criminal trial undergone by the Claimant. In that wise, I reckon that the said document has been certified as a true copy of the record of the court and need not go through the process of certification as computer generated evidence.

In addition, I must state that this Court is clothed with discretion to depart from the provisions of the Evidence Act in the interest of justice and in the instant case, this court is inclined to exercise the said discretion in view of the fact that the said Exhibit C15 is relevant and pleaded. Same is accordingly admitted in evidence.

I then turn to the resolution of issue one and in doing so, it is pertinent to first ascertain the category of employment relationship that existed between the Claimant and the Defendant in other to be certain of the implication of such relationship particularly in view of the declaration sought by the Claimant in the reliefs sought before this court. With regards to type of employments and the attendant implications, the court in FEDERAL MEDICAL CENTRE, IDO-EKITI & ORS v. MICHAEL (2012) LPELR-20406(CA) posited that:

“In N.I.I.A. v. Ayanfalu (2007) 2 N.W.L.R. part 247 at 265, this court (i.e. the Court of Appeal) enumerated the three categories of employment as follows:

(a) A pure master/servant relationship under the common law.

(b) Employment where the office is held at pleasure.

See also Olaniyan v. Unilag (1985) 2 N.W.L.R. part 9 at page 599 and Shitta-Bay v. F.P.S.C. (1981) 1 S.C. at page 40.” Per FASANMI, J.C.A (Pp. 12-13, paras. E-A)

In the instant case, the Defendant being a Public Limited Company (PLC) is a registered company under the extant laws and not a body established under any statute. This fact is reckoned by both parties before the court through their pleadings. In addition, the relationship between the parties is also not regulated by statute and neither is the Claimant under an office that is held under pleasure.

In view of the forgoing, there is no gainsaying that the employment that existed between the parties before the court is one of master-servant relationship.

Having said that, the question that naturally follows is what is the implication of wrongfully bringing an employment that is under master-servant relationship to an end?

There are plethora of authorities that have provided answer to this question to the effect that the termination of the employment under master-servant relationship cannot amount to being declared as ‘null and void’ or ‘illegal’ since the termination is not contrary to a written law. In this regard, the court in BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. v. ESEALUKA (2013) LPELR-20159(CA) held that:

“There is no doubt that there is a vast difference between an employment with statutory flavor in which case the terms of employment of that staff is governed by the statute creating that organization and any infraction of the terms of employment and discipline as guaranteed by the statute is bound to be declared null and void. That is illegal dismissal, where it occurs. In such situations the employee is restored to the position as if no disciplinary measures had been taken at all. See Dr. Taiwo Oloruntoba-Oju & Ors. v. Prof. Shuaib O. Abdul-Raheem & Ors. (2009) 13 NWLR Pt.1157 Pg.83; Bamgboye v. University of Ilorin (1999) 10 NWLR Pt.622 Pg.290. However, where the relationship is not governed by statute and there is infraction of the terms of employment and dismissal by the employer such infraction is merely wrongful and not null and void. The employee can only claim damages for breach of contract and cannot claim arrears of salary and reinstatement. See Eze v. Spring Bank (2011) 12 SC Pt.1 Pg.173; Joseph Ifeta v. SPDC Nig. Ltd. (2006) 8 NWLR Pt.983 Pg.585.” Per OGUNWUMIJU, J.C.A. (Pp.32-33, Paras.B-F)

In addition to the forgoing, the court in ESIEVWORE vs. NEPA (2002) FWLR (Pt. 124) 398 at 408 held that:

“Employment with statutory backing must be terminated in the way and manner prescribed by the relevant statute and any manner of termination inconsistent therewith is null and void and of no effect. But in other cases governed by only agreement of parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed. Any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void. The only remedy is a claim for damages for wrongful dismissal… for this wrongful act, he is only liable in damages and nothing more”.

Consequent upon the forgoing authorities, the implication of a wrongful termination if found in the instant case would be to declare same as merely wrongful but not null and void or illegal in view of the fact that the employment is one of master-servant relationship and the fact that the employment is regulated by terms expressly agreed upon by the Claimant and the Defendant.

Having said that, what is next is to determine whether or not the employment of the Claimant was wrongfully terminated and this is predicated on the fact that the Claimant posited that he was employed as sales officer on the 22^nd October 2012 but the Defendant issued him a letter of termination on the 24^th of January, 2014. Claimant also stated that he was handed a Handbook by the Defendant which guides his employment and the Defendant failed to comply with the said handbook in terminating his employment.

In view of the foregoing and having stated that the type of employment before this court is one of master-servant relationship which is usually regulated by contract of employment entered into by the parties, there is no gainsaying that the resolution of whether the termination of the Claimant’s employment is wrongful shall be within the framework of the contract of employment which is to be found in the letter of employment issued to the Claimant and the Staff Handbook. In this regard, the court in JOWAN & ORS. v. DELTA STEEL COMPANY LTD. (2010) LPELR-4377(CA) held that:

“It is trite law that where there is a document or series of documents incorporating the terms and conditions of an employment, a Court of law should not look outside those terms in deciding the rights and obligations of parties thereto.” Per GUMEL. J.C.A (P. 10, para. C).

In the light of the foregoing, I reckon that the burden is on the Claimant to prove that the termination of his employment was wrongful as the court in the case of
Afribank (Nig.) Plc v. Osisanya (2000) 1 NWLR (Pt.642) pg. 599 held that:

“The law is well settled that when an employee complains that his employment has been wrongfully terminated, that employee has the onus:(a) to place before the court the terms and conditions of the contract of employment and (b) to prove in what manner the said terms were breached by the employer. The term of contract of service is the bedrock of any case where the issue of wrongful termination of employment calls for determination” Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356; Iwuchukwu v. Nwizu (1994) 7 NWLR (Pt. 357) 379 at 412. Per OBADINA, J.C.A.(Pp. 32-33, paras. C-D)

In compliance with the requirement placing the terms and condition of his employment, Claimant tendered Exhibit C3 which is the letter of offer of Appointment as Sales Officer dated the 22^nd of October, 2012 and Exhibit C2 which is the Seven Up Bottling Company Plc. Staff Handbook.

In attempt to establish the manner in which the termination of his employment was wrongful to bring about a breach of the terms of the contract of employment, Claimant posited that the Defendant failed to follow the administrative policy as he was not given notice nor paid salary in lieu of notice. He also stated that the letter of termination of employment was issued out of malice coupled with ulterior motive. Claimant tendered the said letter of termination of appointment as Exhibit C5.

Counsel to the Claimant specifically contended that the termination of the Claimant’s employment did not comply with Exhibit C3 at page 23, paragraph 29.

The Defendant on the other hand contended that it complied with the terms stated in the said Exhibit C3 having exercised its right under the letter of employment and Staff Handbook coupled with having offered the Claimant salary in lieu of notice though the Claimant refused to accept same.

In view of the foregoing, I find it apposite to start the resolution of the contention by considering the provision of the letter of employment and Staff Handbook in relation to termination of employment. With regards to the letter of employment, the paragraph headed as ‘Termination of Appointment’ states that:

During the probationary period, the appointment may be terminated by either party by giving two (2) weeks’ notice or payment in lieu of notice. After confirmation of appointment, the notice is one month or payment in lieu.

The Staff Handbook also provides thus:

It is fully understood and recognized that either party may terminate the employment without assigning any reasons by giving the stipulated notice.

If at the company’s discretion, the employee is not required to work out the notice, he will receive pay in lieu.

In view of the foregoing provision, it is clear that both parties have the right to terminate the contract of employment and upon the consideration that the Claimant is a confirmed staff as evidenced by Exhibit C4, the required length of notice to be provided is one month or salary in lieu of same.

Consequent upon the consideration that the Defendant agreed that one month notice was not given to the Claimant but that the Claimant was to be paid his one month salary in lieu of notice which he refused to collect, I find it apposite to consider the letter of termination which the Claimant tendered as Exhibit C5 and reads thus:

24th January, 2014.

Mr. Ajoku Richi Asonye,

Seven-Up Bottling Company Plc.,

P/H Region.

Dear Mr. Richi,

TERMINATION OF APPOINTMENT

We regret to advice that your services are no longer required with the Company; you are therefore terminated from the Company with immediate effect.

From our records you registered with Leadway PFA under the new Pension Scheme, therefore the following will enable you access your contribution through your PFA:

Date of Birth: 15th November, 1986
Date of Engagement: 12th November, 2012
Date of Disengagement: 24th January, 2014
Remittance into your RSA from November, 2012 to January, 2014.

Meanwhile, you will be paid your salary up to and including 23rd January, 2014 together with one Month Basic Salary in lieu of notice less any indebtedness to the Company.

You are to surrender all Company properties that may be in your possession to the Marketing Manager (P/H), as well as the Company’s Identity Card, THT Cards and Hand Book issued to you to the Human Resource Department (P/H) on receipt of this letter.

We thank you for your past services and wish you well in your future endeavours.

Yours faithfully,

for: Seven-Up Bottling Company Plc

(underline mine).

Upon a careful perusal of all the foregoing, it is apparent that the letter of termination of employment did inform the Claimant that his services are no longer required and in addition, he was informed that he will be paid salary for the month of January and will also be paid salary in lieu of notice. In this regard, there is a clear and manifest intent to comply with the provision of the Handbook which made payment of salary in lieu as optional to giving notice.

The issue before the court however extends further in view of the fact that the Claimant alleged that on the day he was called to collect the said salary in lieu, he was arrested at the office of the Defendant by Police officers and detained before he was granted bail and later charged to court. Claimant tendered Exhibits C7 and C8 as charge sheets filed against him in respect of the matter reported to the Police for which he was arrested and charged. The Charges were in respect of falsification of POS machines belonging to the Defendant and also for stealing the sum of N1,747,500.00. Claimant also tendered Exhibit C10 which is the judgment of the Magistrates’ Court delivered on the 18^th of August 2018 wherein the Claimant was discharged and acquitted.

The said exhibits on their own do not establish the fact that Claimant was arrested on the day he was to be paid his salary in lieu of notice and neither do they negate the fact that the Defendant intended to pay the Claimant his salary in lieu of notice.

I therefore take into consideration the testimony of the Claimant as CW1 in court.

When Claimant was asked about not going to collect his salary in lieu of notice, he stated that:

“I went for my salary and that was when they arrested me”

He was further asked if he made any other attempt to collect his money, he answered:

“No, I cannot go there again, first time I tried to collect it I was arrested so I can’t go there again”.

In addition, Claimant answered in the negative when asked if he would collect the salary in lieu of notice if given to him.

In view of the foregoing, I must state that the fact that the Defendant has the right to initiate a report to the Police if it has a criminal allegation against the Claimant and if the Claimant is arrested and prosecuted based on the said report, same cannot on the face of it be considered a factor for holding that the Defendant does not intend to pay salary in lieu of notice to the Claimant. The Claimant has himself stated that he has not returned to collect the said salary in lieu of notice and stated further that he is not willing to collect the salary in lieu of notice, his refusal to collect same cannot be considered as the Defendant’s breach of the terms of contract of employment.

Having said that, I am not oblivious of the fact that counsel to the Claimant contended that the salary in lieu was not paid as at the time of termination. However, I must state that the Claimant himself posited that it was upon the letter of termination that he was invited to collect his entitlement. (see paragraph 15 of statement of fact).

Counsel also contended that the Defendant’s witness admitted that salaries are usually paid into staff account. He however failed to take into cognizance the fact that the witness stated further that the salary in lieu was computed as part of terminal benefit.

Notwithstanding the foregoing, it is imperative to state clearly that the letter of termination of the Claimant’s employment speaks for itself that the Claimant was to be paid salary in lieu of notice while the arrest and prosecution of the Claimant prevented the Claimant from collecting the said monies due to him. Consequently, this court does not find the circumstance of this case to amount to a breach of the contract of employment on the part of the Defendant such as would warrant the termination of the Claimant’s employment to be declared wrongful.

In addition to the foregoing, I must state clearly that in master-servant employment, once the termination of an employment is in line with the terms of employment, whatever the background leading to the termination maybe, including malice or any other reason becomes irrelevant. This is upon the consideration of the letter of termination which states that the services of the Claimant is no longer required. In this regard, the Supreme Court in the case of Fakuade v. O.A.U.T.H (1993) 5 NWLR (Pt.291) 47 held that:

“…generally speaking a master can terminate the contract of employment with his servant at any time and for any reason or for no reason at all, provided the terms of contract of service between them are complied with. The motive which led an employer to lawfully terminate his servant’s employment is not normally a relevant factor and the court will have no business with such motive but only to give effect to the contract of service between the parties”. PER KUTIGI, J.S.C. (Pp. 14-15, Paras. G-B).

It is in view of the foregoing authority that I find it insignificant to consider the contentions relating to issuing the Claimant with queries and whether the Defendant acted on the queries or not since the letter of termination says nothing in relation to the non-performance or misconduct on the part of the Claimant as a reason for the termination of his employment.

For want of clarity, the terms of the contract of employment between the Claimant and the Defendant have been considered and this court finds that the termination of the Claimant’s employment took cognizance of and complied with the provision relating to termination of employment. Consequently, the termination of the Claimant’s employment is considered not to be wrongful and I so hold.

In the light of the foregoing, issue one is resolved against the Claimant and in favour of the Defendant to the effect that the termination of the Claimant’s employment by the Defendant is not wrongful based on the terms of the employment.

Issue two touches on the reliefs sought by the Claimant in this suit as it is to determine whether or not in view of the facts, circumstances of this case and evidence before the court, the claimant is entitled to the reliefs sought?

The Claimant has sought for one declaratory relief upon which some of the other reliefs are predicated. With regards to the declaratory relief however, the law is trite that same must be granted upon cogent and convincing evidence which proves that the Claimant is entitled to it and the Claimant cannot rely on the weakness of the Defendant’s case but on the strength of his. The court in the case of OLADIMEJI & ORS V. AJAYI (2012) LPELR-20408(CA) held that:

“It is trite law that a party seeking a declaratory relief must satisfy the court that he is entitled to the exercise of the court’s discretion in his favour by adducing cogent and positive evidence in proof of his claim. He must rely on the strength of his case and not on the weakness of the defence. See: AJAGUNGBADE III V. ADEYELU II (SUPRA)” Per BADA J.C.A (P. 13, paras. C-E).

The question that arises is whether the Claimant has proven that the letter of termination issued to the Claimant is null and void? In answering the question, I must start by reiterating the fact that in view of the nature of employment that existed between the parties before the court, termination cannot be declared null and void and of no effect in a master-servant employment as in the instant case. This means first and foremost that the claim in relief one lacks merit and cannot be granted.

In addition, the resolution of issue one above which is to the effect that the termination of the Claimant’s employment is not wrongful also means that there is no basis upon which relief one can be modified nor granted. Consequently, the said relief fails and is accordingly refused.

Relief two and six which are respectively for the sum of N36,717.120 to be paid to the Claimant until the age of the retirement of the Claimant and N15,000,000.00 as arrears of salaries, has no basis in law in view of the nature of employment before the court. I have earlier stated the position of the law in the case of BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. v. ESEALUKA (2013) LPELR-20159(CA) where the Court of Appeal, Per OGUNWUMIJU, J.C.A. held that:

“…where the relationship is not governed by statute and there is infraction of the terms of employment and dismissal by the employer such infraction is merely wrongful and not null and void. The employee can only claim damages for breach of contract and cannot claim arrears of salary and reinstatement. See Eze v. Spring Bank (2011) 12 SC Pt.1 Pg.173; Joseph Ifeta v. SPDC Nig. Ltd. (2006) 8 NWLR Pt.983 Pg.585.” (Pp.32-33, Paras.B-F).

In the light of the foregoing, notwithstanding the fact that this court has found the termination not to be wrongful, if at all the termination were wrongful, the Claim for payment in the sum of N36,717.120 computed until the age of retirement and arrears of salaries has no legal basis particularly in view of the position the law that salary is for work done. The said claims lack merit and they are accordingly dismissed.

Reliefs four, five, eight, nine and ten are claims for various sums in respect to the issuance of letter of termination to the Claimant by the Defendant which the Claimant sought to be declared null and void and of no effect.

The reliefs for sake of clarity are thus:

AN ORDER of this Honourable Court compelling the Defendant to pay the claimant the sum of N20,000,000 (Twenty Million Naira) only for the purported letter of termination without notice.
AN ORDER of this Honourable Court compelling the Defendant to pay the claimant the sum of N30,000,000 (Thirty Million Naira) only for malicious and unlawful termination of his job.

AN ORDER of this Honourable Court compelling the Defendant to pay to the claimant the sum of N10,000,000 (Ten Million Naira) only as general damages for the inconveniences, mental torture and hardship suffered by the claimant as a result of termination letter.
AN ORDER of this Honourable Court compelling the Defendant to pay to the claimant the sum of N10,000,000 (Ten Million Naira) only as special damages for unlawful disengagement that terminates the appointment of the claimant.

In view of all the foregoing, and based on the consideration of this court that the termination of the Claimant’s employment is not wrongful as the letter of termination was validly issued in line with the contract of employment as found in exhibit C2 (staff Handbook) and C3 (letter of appointment), it is axiomatic that all the claims for the various sums of money in relation to the issuance of the letter of termination are bound to fail and they are accordingly refused.

Relief seven is for AN ORDER of this Honourable Court compelling the Defendant to pay the claimant the sum of N5,000,000 (Five Million Naira) only for transportation cost, telephone and other incidental charges.

The said relief without a doubt falls within the realm of special damages which must not only be specifically pleaded but must also be strictly proved. In this wise, the court in JULIUS BERGER NIGERIA PLC & ANOR v. UGO (2015) LPELR-24408(CA) posited that:

“… special damages are based on measurable Naira amounts of actual loss, and it is for this reason that they are expected to be specially pleaded and strictly proved…A Court trying a case should give adequate consideration to the evidence offered in support of a claim for Special damages and if the accepted evidence possesses such a probative value as preponderates the case in favour of the person claiming, then an award would certainly be justified.” Per OHO, J.C.A. (P. 91, paras. A-G).

In consideration of the requirement for specific pleading, I reckon that Claimant stated in paragraph 21 of his statement of fact that the Defendant denied him his transportation expenses incurred in the course of his duty even where same has been approved. He posited that he intends to rely on the application for transportation expenses during trial and in that case, Claimant tendered Exhibit C11 which is an application written and signed by the Claimant asking for approval for the sum of N8,500 as transport expenses.

Aside from the said Exhibit C11, there is no other specific pleading as to how the Claimant arrived at the sum of N5,000,000.00 and neither is there any Piece of evidence in proof of the said sum.

Consequently, the Claimant has failed to specifically plead and strictly prove how the Defendant became indebted to him in the sum of N5,000,000.00 for transport cost, telephone and other charges and the said relief seven is accordingly dismissed.

Relief three is for cost of action as the Claimant is seeking for AN ORDER of this Honourable Court compelling the Defendant to pay to the claimant the sum of N10,000,000 (Ten Million Naira) only being the unnecessary litigation and professional fee of the claimant’s solicitors.

In this wise, I must posit that the award of cost is at the discretion of the court as the Supreme Court in the case of NNPC v. CLIFCO NIG. LTD. (2011) LPELR-2022(SC) held that:

“The award of cost is entirely at the discretion of the court, costs follow the event in Litigation. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement. In making an award of costs the court must act judiciously and judicially. That is to say with correct and convincing reasons. See Anyaegbunam v. Osaka 1993 5 NWLR pt.294 p.449 Obayagbona v. Obazee 1972 5 SC p.247” Per. RHODES-VIVOUR, J.S.C (P. 26, paras. E-G).

In view of the foregoing authority and in view of the resolution of issue one and the outcome of the consideration of other reliefs sought by the Claimant, it is needless to state that the Claimant is not the successful party in the instant suit.

Consequent upon the fact that the Claimant is not the successful party, this court is not inclined to exercise discretion in favour of the Claimant for the award of cost and same is accordingly refused.

Relief eleven is for post judgment interest as the Claimant seeks for interest on the sums claimed at the rate of 10% from the date of judgment till liquidation.

The said relief is dependent on whether this court has awarded any monetary claim sought by the Claimant and the answer being in the negative, it follows naturally that there is no basis upon which the said relief can be granted. Consequently, the said relief eleven fails and same is accordingly refused.

Upon the foregoing consideration of all the reliefs sought by the Claimant, it is clear that issue two is resolved against the Claimant and in favour of the Defendant to the effect that in view of the evidence before this court, the Claimant is not entitled to the reliefs sought.

In the final analysis, the claims of the Claimant lacks merit and they are accordingly dismissed in their entirety.

Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR.

JUDGE.