Mr. Titus Youngo -VS- Rubber Esates Nig. Ltd & 2 Ors.

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP: HON. JUSTICE A. A. ADEWEMIMO

DATED: 8^TH OCTOBER, 2019 SUIT NO: NICN/BEN/13/2018

BETWEEN

TITUS YOUNGO ……. CLAIMANT

AND

RUBBER ESTATES NIGERIA LIMITED
P. CARTY (MANAGING DIRECTOR) …….. DEFENDANTS
MR OBIEM (AGRIC MANAGER)

REPRESENTATION:

O. OKE APPEARS FOR THE CLAIMANT.

O. OSEMWEGIE FOR THE DEFENDANTS.

JUDGMENT

The claimant by a Complaint commenced this suit on the 8^th May, 2019 claims against the defendants as follows:

A DECLARATION that the termination of the claimant employment by the defendants contained in the defendants letter of 20/3/2018 in breach of the terms and condition of the Offer and Contract of Employment between the claimant and the defendants dated 30/4/2014 is wrongful and unlawful.

A DECLARATION that the claimant is still an employee of the Defendants until his employment is properly terminated in compliance with the terms and condition of the Offer and Contract of employment dated 30/4/2014.

AN ORDER of the court directing the defendants to pay all salaries and entitlements due to the claimant till the claimant’s employment is properly terminated in compliance with the terms and condition of the Offer and Contract of employment.

The sum of N856,618.43k(Eight Hundred and Fifty-Six Thousand Six Hundred And Eighteen Naira Forty Three Kobo) being the entitlement of the claimant from April 2014 to March 2018.

THE SUM OF 3 MILLION NAIRA general damages for the inconvenience suffered by the claimant for the wrongful and unlawful termination of the claimant employment by the defendants.

COST of this action.

The claimant filed along with the complaint all the accompanying processes, i.e. the statement of facts, deposition on oath of the claimant, list of witnesses and documents to be relied upon. The defendants on their own part filed a memorandum of appearance, statement of defence and other accompanying processes on 8^th June, 2018.

The claimant’s case is that he was offered an appointment as a tapper with the 1^st defendant effective from 2^nd May, 2014 by a letter of appointment dated 30^th April, 2014 and upon a successful completion of the probationary period, his employment was confirmed and he was promoted from Grade 4 Step 3 to Grade 4 Step 4 and his Annual Basic Salary was increased to N163,564.74k (One hundred and sixty three thousand five hundred and sixty four naira, seventy four kobo), he stated further that he is currently on a salary of N43,601.10k per month. He further averred that on the 4^th of January, 2018, one Mr Ifa Osasogie, in Division A informed him that the defendant was suspecting him as the person who stole rubber lumps from B Division and the 3^rd defendant wants his employment terminated based on the suspicion, despite having been informed that it was another person that stole the said rubber lump.

The claimant stated that the defendants acted on the aforesaid suspicion and terminated his employment with effect from 21^st March, 2018 without taking any step to hear from him.

He stated further that in terminating his employment, the defendants breached the terms and condition of the Offer and Contract of Employment between both parties and that consequent upon the receipt of the termination letter, he instructed his solicitors to write to the defendants demanding his unpaid entitlements and allowances to no avail.

Consequent upon the termination of his employment, he claimed that he had suffered serious psychological and emotional breakdown.

WHEREOF the claimant claims against the defendants as aforestated.

The 1^st – 3^rd defendants vide their amended statement of defence filed on 28^th January, 2019, denied each and every allegation of facts contained in the Claimants’ statement of facts as if each and every such allegation is specifically set out and traversed seriatim.

The Defendants denied paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20(a) – (f) of the statement of facts and put the Claimant to the strictest proof thereof at the trial of this case.

The Defendants stated that the 1^st Defendant is a member of the National Association of Agricultural and Allied Employers (NAAAE) and by the Claimant’s employment, he became a member of the Agricultural and Allied Workers Union of Nigeria (AAWUN) and the negotiated conditions of service for workers agreed between the National Association of Agricultural and Allied Employers (NAAAE) and the Agricultural and Allied Workers Union of Nigeria (AAWUN) applies to his employment.

The Defendants averred that following the appointment of the Claimant as a “Tapper”, both the contract of employment dated 30/4/2014 and the Negotiated conditions of service for Workers Agreed Between the NAAE and the NAWUN) regulated his employment with the Defendant. The defendant further averred that the claimant enjoyed some benefits under the Negotiated Conditions of Service.

The 1^st – 3^rd Defendants stated that as part of the company’s policy and condition of service, no staff in the employment of the 1^st Defendant is required to “tap” rubber or work in any of the plantation on Sundays and/or during public holidays or break/holidays declared by the 1^st Defendant except on the authorization of the Managing Director or Human Resources Manager of the 1^st Defendant. They stated further that the 1^st Defendant declared 23/12/2017 – 2/1/2018 Christmas holiday/break for its workers, but in flagrant disobedience and without authorization from the Divisional Manager and/or any other senior management staff of the 1^st Defendant, the claimant illegally and unlawfully tapped from the rubber plantation of the 1^st Defendant during the said break. The Claimant was later issued with a query and upon receipt, he responded and admitted the offence, the response was found to be unsatisfactory and in line with the provision of the Negotiated condition of service, his appointment was terminated.

The defendants finally averred that the claim of the claimant is frivolous, gold-digging and an abuse of court process, they therefore urged the court to dismiss same with substantial cost.

Trial commenced in this suit on the 4^th of March, 2019 with the claimant testifying for himself as CW1, he adopted his witness statement on oath and additional statement on oath. CW1 also tendered several exhibits which were admitted and marked Exhibits TU1 – TU6 and was cross examined. The claimant thereafter closed his case.

On the 2^nd May, 2019, the defendants opened their defence and called Mr Lucky Chukwu, Asst. Human Resources Manager of the defendants as DW1 and Ogiefa Egbe as DW2. They both adopted their witness statements on oath and tendered Exhibits RB1 – RB4. They were cross-examined and the defence closed its case. The counsel for parties adopted their final written addresses on the 11^th July, 2019 and the case was thereafter adjourned for judgment.

In the defendants’ Final Written Address dated 22^nd May, 2019, filed on the 23^rd May, 2019, the counsel formulated three issues for determination to wit:

(a) Whether or not the Negotiated Condition of Service, Exhibit RB1 agreed between The National Association of Agricultural and Allied Employers (NAAAE) and the Agricultural and Allied Workers Union of Nigeria (NAWUN) also apply to the Claimant employment?

(b) Whether or not the Defendants followed due procedure in terminating the Claimant’s employment with the 1^st Defendant?

(c) Whether the Claimant is entitled to payment of salaries and entitlements; his employment having been terminated/dismissed in line with due procedures.

On issue one, Nosa Obaizamowan Esq submitted that the Defendants duly complied with due procedure in terminating the Claimant’s employment with the 1^st Defendant. He stressed that authorities are replete on the position of the law on a master/servant relationship or employer/employee relationship with regards to termination of employment. He cited the case of Obaje v. N.A.M.A. (2013)11 NWLR (Pt. 1365)286 at 305 – 306, para G – A, where the court held that an employer has the right to discipline his staff/employee. He also submitted that a court cannot impose or foist an employee on an unwilling employer, citing Ziideeh v. R.S.C.S.C. (2007)3 NWLR (Pt. 1022)554 and Dudusola v. N.G. Co. Ltd. (2013)10 NWLR (Pt. 1363)423 at 438, paras D – G, adding however that the terms of the contract of service between the parties must be complied with.

The Defendants’ Counsel submitted that the Claimant tendered and relied heavily on Exhibit TU2 while the Defendants tendered and relied on Exhibit RB1. It is not in contention between the parties that the contract of employment tendered in this case are Exhibits TU1, TU2 and RB1 as the Claimant admitted under cross-examination, that he is a member of the NAWUN and by virtue of his employment with the 1^st Defendant his employment is also regulated by the Negotiated Condition of service for workers agreed between the NAAAE and NAWUN, i. e Exhibit RB1.

The counsel further submitted that a careful perusal of Exhibit TU1 reveals that the said document did not provide for the issuance of notice by the 1^st Defendant before terminating the Claimant’s employment or payment in lieu of notice; what is provided for is that either party may terminate the appointment by giving notice of seven days or payment in lieu of notice during the probation period. He stated that since the claimant is a confirmed staff of the 1^st defendant, the seven days applicable for staff on probation is no longer applicable to him. He added that in the said Exhibit TU5, the 1^st Defendant offered to pay the Claimant the sum of N9,774.41 (Nine thousand, seven hundred and seventy-four naira, forty-one kobo) as payment in lieu of notice, he reiterated that in the absence of any mutual agreement between the parties on notice, recourse can be made to the payment of money in lieu of notice. He cited Dudusola v. N.G. Co. Ltd. (supra) at 436, paras E – G.

Learned defence counsel submitted that aside Exhibit TU2, Exhibit RB1 tendered by the Defendants also regulate the condition of service between the Claimant and Defendants. Furthermore, since the Claimant enjoyed certain benefits under Exhibit RB1, he cannot deny the applicability of Exhibit RB1 to his employment. He therefore urged the court to hold that both Exhibits TU2 and RB1 regulate the employment of the Claimant.

On issue two, the counsel submitted that a scrutiny of Exhibit TU2, reveals that it does not provide for the procedure or period of notice to be given for the termination of employment after the probation period. Learned counsel submitted that it is only Exhibit RB1 that apply and regulate the condition of service between Claimant and Defendant, which made provision for termination of Employment. He submitted that the Defendant in terminating the employment of the Claimant complied with the conditions of employment; Exhibit TU2 and Exhibit RB1.

Learned defence counsel pointed out that it is pertinent to note that Article 34(1), of the Negotiated Condition of Service is in all fours with Section 11(1), (2)(c) and (6) of the Labour Act which applies to the relationship between the Claimant and the 1^st Defendant, and Exhibit TU2 recognises the position of the Labour Act, he cited Section 11(1), (2)(c) and (6) of the Act. He therefore submitted that the combined effect of Article 34(1), (2)(c) and 6 of Exhibit RB1 and Section 11(1), (2)(c) and (6) of the Labour Act is that either party to a contract of employment can terminate the contract on the expiration of notice given for the specified period, which is two weeks in the instant case. He cited the case of Dudusola v. N.G. Co. Ltd. and concluded that the Defendants lawfully dismissed the Claimant under the provision of Article 33(a) of Exhibit RB1.

Nosa Obaizamomwan, of Counsel to the Defendants submitted that the 1^st Defendant being a member of NAAAE can summarily dismiss the Claimant who is 1^st Defendant employee found guilty of serious misconduct and under Exhibit RB1, gross insubordination by an employee amount to serious misconduct. He submitted that no notice will be given nor wages in lieu of notice paid to an employee that was summarily dismissed for serious misconduct. He argued that the 1^st Defendant summarily dismissed the Claimant’s employment as a result of “unauthorized and unlawful tapping and removal of latex from the plantation of the 1^st Defendant during the holidays between 23/12/2017 – 2/1/2018.” Counsel reiterated that the action or disobedience of lawful directives/orders of the 1^st Defendant is gross insubordination amounting to serious misconduct for which the 1^st Defendant can summarily dismiss the Claimant. He cited the case of F.J.S.C v. Thomas (2013)17 NWLR (Pt. 1384)503 at 538 para E.

He urged the court to hold that the contract of employment between the 1^st Defendant and Claimant has come to an end and that Claimant is no longer and can no longer be an employee of 1^st Defendant.

On issue three, the counsel submitted that the Claimant is not entitled to the various sums claimed in paragraphs 19(c) – (h) of the statement of facts. He affirmed that the Claimant’s employment was terminated by Exhibit TU5, whether rightly or wrongly and as at that date the Claimant is no longer entitled to any salary and entitlements from the 1^st Defendant, and there is no evidence from the Claimant that he was not paid his salary and entitlement up till the time he was dismissed.

On the claim for the sum of N856,618.43k as claimant’s entitlements from April, 2014 to March, 2018. The defence counsel submitted that this is vague and same is not supported by evidence. He argued that the burden is on the claimant to prove special damages, by leading credible evidence with documents which shows the actual loss he suffered. He posited that unchallenged evidence is not enough to prove special damages, and cited the case of U.B.N. Plc v. Nwankwo (2019)3 NWLR (Pt. 1660)474 at 486 paras D – E, 487 paras A – C. He concluded that the Claimant failed to establish by credible evidence that he is entitled to the sum of N856,618.43k.

On general damages, counsel argued that apart from damages naturally resulting from the breach, no other form of general damages can be contemplated. He cited Co-operative Dev. Bank v. Essien (2001)4 NWLR (Pt. 704)479 at 492, paras A – B, D, and urged the court to refuse the claim for general damages.

Finally, the defendants’ counsel submitted that the Claimant has failed woefully to prove his claim against the Defendants and as such, he urged the court to dismiss the Claimant’s case.

The Claimant filed his Final Written Address on 21^st of June, 2019, wherein he formulated three issues for determination to wit:

a)Whether the termination of the Claimant’s employment vides Exhibit P5 sic is improper, wrongful and in breach of the terms contained in Exhibit TU1 upon confirmation of his employment in Exhibit TU3.

b)Whether the Claimant is entitled to be issued the proper one month maximum notice of termination of employment as agreed upon by the Defendants and the Claimant in Exhibit TU1 upon the fulfillment of the condition contained therein i.e the confirmation of Claimant employment.

c)Whether, if issue one and two is resolved in the affirmative, the Claimant is entitled to the reliefs sought before this Honourable Court.

On issue one, Eduvie, S. Oke Esq. of counsel for the claimant submitted that in civil cases, the burden of proof rests on the party who substantially asserts the affirmative of the issue in dispute and it is when that party had discharged the burden by adducing concrete, cogent and satisfactory evidence, in support of his assertion, that the burden shifts to the adversary to tilt the imaginary scale in his favour and so on until the case is decided on the balance of probability or preponderance of evidence. He cited the case of IROAGBARA V. UFOMADU (2009) ALL FWLR (PT. 491) 943 and AUTE V. UNIVERSITY OF CALABAR (2001) FWLR (PT. 41) 1909 @ 1928 .

The Claimant tendered Exhibits TU1, TU2 and TU3 to prove the essential particulars as stated in the case of AUTE V. UNIVERSITY OF CALABAR (Supra). Learned counsel agreed with the Defendants’ submission that the claimant’s employment can be terminated at any time for any reason or no reason, provided the terms of contract are complied with. He however submitted that by virtue of Exhibit TU1 the Claimant’s employment can only be terminated upon the issuance of a month notice after the confirmation of his employment, he referred to paragraph 5 of Exhibit TU1 on this.

Learned Counsel further submitted that the Claimant’s employment was confirmed by Exhibit TU3 and thus, upon confirmation, the condition stated in paragraph 5 of Exhibit TU1 is activated and becomes binding on both parties whenever the contract of employment between them is to be terminated.

He noted that the Defendants in terminating the Claimant employment issued Exhibit TU5, and from the content of Exhibit TU5, the Claimant was offered two weeks’ salary in lieu of notice of termination and this runs contrary to the terms agreed upon by both parties in Exhibit TU1.

Counsel pointed out that the Defendants in their written address argued that Exhibit RB1 regulate the condition of service between the parties, he disputed this and posited that the period of notice to be given to the Claimant to terminate his employment is as stated in Exhibit TU1 which provides for the issuance of a maximum one month notice. He argued that paragraph 5 of Exhibit TU1 excludes both parties from relying on the negotiated condition of service as it relates to the manner upon which the relationship of an employer and employee between the Claimant and the Defendants can be brought to an end.

Counsel submitted that from the foregoing, it is crystal clear that it is not the intention of both parties to have the conditions in Exhibit RB1 regulate the period/nature of notice to be issued for the termination of the contract of employment between them.

Counsel argued that Article 34(1) and (2) of Exhibit RB1 is not applicable as regards the period of notice to be given to terminate the employment of the Claimant, the Defendants having waived their right by virtue of Exhibit TU1 to rely on the provisions of Article 34(1) and (2) of Exhibit RB1 to terminate the Claimant’s employment. Contrary to the submission of the Defendants in their written address, he submitted that the Claimant was not summarily dismissed by the Defendants. He added that the Claimant was not found guilty of any serious misconduct as provided in Article 33 of Exhibit RB1 and the claimant’s appointment was terminated and not summarily dismissed. In addition, the claimant denied receiving any query or responding to same vide Exhibit RB3. The claimant denied the signature on the response to the purported query and the writing therein.

Counsel urged the court to hold that the termination of the Claimant’s employment vide Exhibit TU5 is improper, wrongful and in breach of the terms contained in Exhibit TU1 as he was a confirmed staff of the 1^st defendant.

On issues two and three, Counsel to the Claimant submitted that the Claimant is entitled to be issued one month maximum notice of termination in accordance with the terms contained in Exhibit TU1. He argued that the Defendants failure to issue the said maximum one month notice of termination of his employment means that the relationship of employer and employee between the Defendants and the Claimant still exists.

Counsel further reiterated that it is a trite principle of law that parties are bound by the terms of contract they entered into voluntarily and cannot act outside the terms of the contract. He cited the case of A.G. FERRERO & CO LTD V. HENKEL NIG. LTD (2001) 8 SCM, 1.

Learned Counsel to the claimant posited that it is in evidence that the Claimant is on a salary of N43,601.10k per month and until the Claimant’s employment is properly terminated in accordance with Exhibit TU1, the Claimant is entitled to the sum of N43,601.10k per month from the month of March, 2018 until the date his employment is properly terminated.

He also pointed out that the claimant stated in his evidence that he is also entitled to the sum of N856,618.43k (Eight Hundred and Fifty-Six Thousand, Six Hundred and Eighteen Naira, Forty Three Kobo) as his entitlements/benefits and leave allowance starting from the day he was employed. He stated that this was uncontroverted by the defendants, thus the failure of the Defendants to respond by tendering a denial of the statements of demand contained in Exhibit P6 is an admission of the statements contained therein. He cited TRADE BANK V. CHAMI (2003) 13 NWLR (PT. 836) 158.

The Claimant is also claiming general damages for the serious psychological and emotional breakdown as a result of the improper termination of his employment, the counsel pointed out that the Defendants did not in any way contradict this evidence. He therefore argued that the claim for general damages is always available as of right when a contract has been broken. The claimant’s counsel therefore urged the Court to grant the claim for damages.

The defendants filed their reply to the claimant’s address and stated that the claimant is required to prove and establish his case, they relied on the case of Aute v. University of Calabar (2001)FWLR (Pt 41) 1 909 at 1923.

Counsel argued that Exhibit TU1 and Exhibit TU2 does not contain the terms and conditions of employment of the claimant, as Exhibit TU1, being an offer of employment cannot not bind the parties. He stated that Exhibit RB1 contains the terms and conditions of the claimant’s employment and argued that contrary to claimant’s counsel’s submission, Exhibit TU1 does not bind the parties as it is not a contract of employment, he added that Exhibit TU2 which is the contract of employment does not contain any provision for the issuance of one month’s notice or any notice whatsoever. He reiterated that a document speaks for itself and the claimant’s counsel’s submissions cannot add or remove from the contents of Exhibits TU1 and TU2, and cited the case of P. T. & P. D. Co. Ltd v. Ebhaota (2001) 4 NWLR (Pt. 704) 495 at 518, para C, paras F – G.

Counsel argued that the words in Article 34(1) and (2) of Exhibit RB1 are clear and unambiguous as to the length of notice to be given or payment of salary in lieu of notice, and that Article 33(a)(v), (b) and (c) of Exhibit RB1 is applicable in the dismissal of the claimant, and as such, the dismissal of the claimant vide Exhibit TU5 is proper and that even though Exhibit TU5 is headed letter of termination, the court can look at the contents of Exhibits TU5 as a whole and find that the claimant was dismissed in line with Article 33(a)(v), (b) and (c) of Exhibit RB1.

In his submission, Counsel maintained that the claimant is not entitled to general damages as of right and that damages do not flow from any purported breach of contract of employment. He cited the case of Cooperative Dev. Bank v. Essien (2001) 4 NWLR (Pt. 704) 479 at 492, paras A – B.

He concluded by urging the court to discountenance the submissions of the claimant’s counsel and dismiss the case of the claimant.

After a careful consideration of the processes filed by both parties, the evidence adduced in support of their respective cases and the written submissions of counsel on both sides, it is my view that the issue that would best determine this suit is?

Whether or not the Claimant has proven his case to be entitled to the relief sought?

It is obvious from the fact of this case that the employment relationship in existence between the claimant and the defendants in this suit is that of master and servant. It is trite that in an employment of this nature, the master can terminate the service of the employee and is under no obligation to give reasons for terminating same, see the cases of Ojabor v. Hon Minister of Communications &Ors [2016] LPELR-44257 CA, Ajuzi v. FBN [2016] LPELR-40459 CA. Our case law is also replete with authorities on the nature of master-servant relationship, in that an employer has a right to dismiss/terminate an employee based on an allegation of misconduct but same must be in accordance with the contract of employment. This is in tandem with the position of the law that parties to an agreement are bound by the terms and condition of the agreement and cannot under any guise resile or renege from it, it is also trite that a contract of service is the substratum upon which an employment relationship is predicated and the Court will look only at the terms and no other document to decide rights of the parties, see Obanye v. Union Bank of Nigeria [2018] LPELR-44702 SC. In addition, an employee who complains of wrongful termination must place before the Court the terms of his employment and in what manner the terms of employment were breached, see Mighty Plastic Industries Limited v. Okeke [2016] LPELR-41034, Ogbonna v. Neptune Software Limited [2016] 64 NLLR (Pt228) P.518.

It is clear from the evidence before this court that the Claimant was offered an appointment by the 1^st defendant vide Exhibit TU1 and his employment was later confirmed after the completion of the probationary period vide Exhibit TU3, the claimant further testified that his employment was governed by the contract of employment signed by the Head Resource Manager and Managing Director of the 1^st defendant i.e. Exhibit TU1 and TU2. The grouse of the Claimant for which he took out the Complaint in this suit was that his employment with the 1^st defendant was wrongfully terminated vide Exhibit TU5 without strict adherence to the Contract of employment between both parties. The defendants on the other hand contended that the termination of the claimant’ employment was proper and in accordance with the contract of employment. They claimed that the claimant committed an offence of illegal tapping of rubber whilst he was supposed to be on holiday and that there was strict compliance with the condition of service applicable vide Exhibit RB1 to the dismissal of his employment in this regard.

There is no doubt that an employee retains the onerous duty of placing before the court the terms and conditions regulating his employment with the defendant/employer and also to prove the way and manner the said terms and conditions were breached by the employer. The Claimant in the instant case tendered Exhibit TU2 which is the contract of employment and paragraph 2 thereof provides thus:

¾ A commencement Basic Salary of N170,034.,7O per annum, a junior staff (Grade level 4, Step 3) in the company salary structure.

¾ Your appointment will be on probation for six month effective from your resumption date after which may terminate the appointment by giving notice of seven days or payment in lieu of notice

¾ Your place of primary assignment will be Rubber Estates Nigeria Limited, Osse, Rivers State. However it is a condition of this contract that you may be transferred to any location of the Company.

¾ In addition to your salary, you will be entitle to the following additional benefits.

¾ Annual Leave of 21Working days without twelve months of continuous service with the Company plus Leave Allowance of 10% of your annual basic salary

¾ Transport Allowance N33,690.45 p.a

¾ Entertainment N67,380.89 p.a

¾ COLA N33,690.45p.a

¾ Free medical facilities for you and your family up to a maximum of six children less than 18years of age and one spouse

¾ You are also to join the National Pension Scheme with an 8% of your salary as contribution while the company will add 12%

The Defendants on the other hand argued that the Negotiated Condition of Service i.e. Exhibit RB1 regulates the employment relationship between both parties, Article 34 of Exhibit RB1 provides thus:

“Both side agreed on the terms in Section 11 of the labour Act 21 of 1974 and as amended and reproduced in its entirety

Either party to a contract of employment may terminate contract on the expiration of notice given to the other party of his intention to do so.
The notice to be given for the purpose of subsection (1) above shall be
One day where the contract has continued for a period of three months or less
One week where the contract has continued for more than three months but less than two years and
Two weeks where the contract has continued for a period of two years but less than five years and
One month where the contract has continued for five years or more
Any notice for a period of one week or more shall be in writing.
The period of notice specified in subsection 2 above excludes the day on which the notice was given
Nothing in this section affects any rights of either party to a contract to treat the contract as terminable without notice by reason of such contract by the other party as would have enabled him so to treat it before the making of this Act
Nothing in this section shall prevent either party to a contract from waiving his right to notice on any occasion or from accepting a payment in lieu of notice
All wages payable in money shall be paid on or before the expiration of any period of notice
Any worker so terminated shall return company property and vacate the quarters immediately on receipt of any payment due
If an employer gives notice to terminate the contract of employment of a worker who has been continuously employed for three months or more the employer shall not be liable under this section to make payment in respect of a period during which the worker is absent from work with the leave of the employer granted at the request of the worker
In the calculation of payment in lieu, only that pay of wages which a worker receives in money exclusive of overtime and other allowance shall be taken into account.

The defence Counsel had submitted in his final address that the claimant having benefitted from Exhibit RB1 cannot deny that same apply to his employment, the Claimant responded in his argument that it is not the intention of both parties to have the contract of employment, i.e. Exhibit RB1 regulate the period/nature of notice between the parties. Learned Counsel for the defendants in his submission had argued that the Claimant in his pleadings and testimony before this Court surreptitiously admitted that Exhibit RB1 governs the employment relationship and it is also clear from the record of the court that the Claimant admitted under cross-examination thus: “ I am aware of the Condition of Service that regulates the employment”, and thus it is settled law that admitted fact needs no further prove, see the cases of Asuen &Anor v. Omoregie [2012] LPELR-796 (CA), Ebo v. Anadi [201] LPELR-9206 (CA).

It is the contention of the Claimant that on the 4^th January 2018, he was alleged informed of an allegation that he stole rubber lumps and as a result, the management of the 1^st defendant has resolved to terminate his employment, which was eventually done vide Exhibit TU5, he contended that the defendants proceeded and acted on the suspicion without affording him an opportunity to make any representation for himself and this is against the terms and condition governing his employment. The Defendants however argued that the Claimant contravened the memo issued declaring 23^rd December 2017-2^nd January 2018 as Christmas holiday/break for its workers and illegally tapped and removed latex from the rubber plantation of the 1^st defendant. He was later issued with a query vide Exhibit RB2 and responded vide Exhibit RB3. This was however found to be unsatisfactory, consequent upon which the 1^st defendant determined his employment in accordance with Exhibit RB1. The Claimant denied at trial that he tapped during the break and was issued with a query and responded vide Exhibit RB3, he however admitted been aware that 23^rd December 2017- 2^nd January 2018 was declared a public holiday by the 1^st defendant. He maintained that he was not dismissed for tapping on a public holiday, but based on mere suspicion.

I have stated earlier in this judgment that although an employer who hires an employee has the right to terminate the employee’s employment for good, bad and of no reason at all, however the right of the employer to terminate the employment of its staff must be done in accordance with the condition of service between the parties, see the case of Ante v University of Calabar supra It is equally a basic principle of law that in an ordinary master and servant relationship, issuance of a query by an employer and response thereto satisfies the doctrine of fair hearing , see the cases of African Newspaper Ltd &Anor v. Mr Jacob O.Akano [2014] 4 ACELR P.60, Imonikhe v. Unity Bank of Nigeria [2011] LPELR 1503 SC. The claimant however denied the authorship of Exhibit RB3, it is the law that the burden lies on the party that alleged the existence of a state of facts to proof same, the defendants did not find it necessary to debunk this denial by the claimant, and therefore leaving the authorship of Exhibit RB3 in doubt, the assertion of the defendants on Exhibit RB3 therefore fails as unproven. I so hold.

In addition, the letter of termination states that the claimant’s appointment was terminated for service no longer required, and there was no mention of any misconduct in Exhibit TU5, thus this precludes the fact that the claimant was dismissed for any misconduct, the difference between termination and dismissal is while the former entails the payment of entitlements to the employee, the latter foreclosed the right of an employee to any benefit. Moreover the court is not permitted to read into a document what is not contained therein. Consequently, I find that the defendants terminated the employment of the claimant for services no longer required and not for misconduct. The claimant in this case is seeking a declaration that the termination of his employment by the defendant as contained in Exhibit TU5 is in breach of the terms and condition of the contract of employment between both parties. In resolving this, the applicable contract of service between the Claimant and the 1^st defendant, must be determined between Exhibit TU1 and Exhibit RB1. In other words, what is the requisite notice to be issued to the Claimant prior to the termination of his employment by the 1^st defendant, whether it is the one month notice as prescribed by Exhibit TU1 or two weeks’ notice as prescribed by Exhibit RB1?

The Claimant joined the employment of the 1^st defendant on the 2^nd of May, 2014(Exhibit TU2) and his employment was determined on the 20^th March 2018 vide Exhibit TU5, invariably he was with the defendant for a period of almost four (4) years, and was confirmed as a staff vide Exhibit TU3 and Article 4 of Exhibit RB1. Article 34 2c of Exhibit RB1 specifies that the claimant in this suit is to be issued two weeks notice or payment of two weeks salary in lieu of notice prior to the termination of his employment, whereas by Paragraph 5 of Exhibit TU1, it was provided as follows:

“ A one month notice will be required by either party to terminate this appointment after confirmation while the other condition in the condition of service will also be applicable to you”(underlining mine for emphasis)

In Oguejiefor v Siemens Ltd [2008] 2 NWLR (Pt. 1071) at Pp.297-298 G-A, the Court held that where a collective agreement is incorporated into the conditions of a contract of employment whether expressly or by necessary implication, it will be binding on both parties. Invariably, Exhibit RB1 is binding on both the claimant and the 1^st defendant in this suit, but in order to determine the requisite notice period to be issued to the claimant, this Court finds only that the prescribed period of One month as stated in Exhibit TU1 is applicable, the court is inclined towards this position as it is the law that the express provision in a document is to the exclusion of any general provisions, whilst Exhibit RB1 is applicable to the industry in general, Exhibit TU1 is specifically applicable to the 1^st defendant. Clearly, the applicable provision on notice is that which is provided/stipulated in Exhibit TU1 which provides for one month notice to be given by either party to terminate the employment. Non-compliance with this condition makes it wrongful for the defendant to determine the appointment of the claimant. It is upon this premise that I find and hold that the Claimant is entitled to one month payment in lieu of notice for the wrongful termination of his employment. I so hold.

Now a cursory look at Exhibit TU4 discloses that the Claimant’s Net pay per month is Forty-Three Thousand, Six Hundred and One Naira, Ten Kobo [N43,601.10k]. It was also stated in Exhibit TU5 that the 1^st defendant offered the payment of the Nine Thousand, Two Hundred and Thirty-Two Naira and Thirty-Seven Kobo (N9,232.37k) by its Account department as the claimant’s two weeks salary in lieu of notice, there is no shred of evidence on record to show that the claimant was paid the said amount. The defendant obviously did not comply with the content of Exhibit TU1 on notice and it is consequent upon this that I find that the Claimant is entitled to the sum of Forty-Three Thousand, Six Hundred and One Naira, Ten Kobo [N43,601.10k] as one month salary in lieu of notice for the termination of his employment by the 1^st defendant. I so hold.

On relief ‘b’ wherein the claimant is seeking for a declaration that he is still an employee of the 1^st defendant until his employment is properly terminated, it is appropriate to state that there is no known law that imposes on the employer an employee in a master-servant relationship as in the instant case, the Court can only interfere with the action of the defendant where it finds in the primacy of each case or the circumstances of a case that the termination was constructive. In this case, the defendants having done away with the services of the claimant, the court cannot foist an unwanted employee on an employer, see the cases of Union Bank Plc v. Emmanuel Soares [2012] LPELR-8018 CA; Omidora v. Federal Civil Service Commission [2007] Vol.44 WRN 53 at 69-70 lines 40-15 (CA); Nigerian Society of Engineers v. Ozah [2016] 64 NLLR (part 225) 11 CA. It is on this premise that I find and hold that this claim fails.

The Claimant also sought from the Court an order to direct the defendants to pay all salaries and entitlements due to him till his employment is properly determined, it is trite that he who asserts must prove, I find no iota of evidence that Claimant worked for the period he is claiming, there is so single document to support his entitlement to the salaries and entitlements stated, consequently I find and hold that the Claimant’s claim c fails.

On claim ‘d’, which is for the sum of N856,618.43k(Eight Hundred and Fifty-Six Thousand Six Hundred And Eighteen Naira Forty Three Kobo) being the entitlement of the claimant from April 2014 to March 2018.

The claimant also failed to prove this relief, as Exhibit TU4 which was tendered by the claimant showed that he was paid his transport benefit of N3,975,75k and other benefits for that month, as to the entitlements he is claiming, this was not specified and he did not tender any document or evidence in proof that the 1^st defendant omitted the payment of his leave and transportation allowances for any of the months claimed. It is the duty of the Claimant to prove his case and the relief sought vide credible evidence. The claimant failed to establish this entitlement, hence his claim fails. I so hold.

On the claim for N3 Million Naira as general damages for the injury and inconvenience suffered by the claimant for the wrongful termination of his employment by the defendants. The position of the law on general damages is that it is the kind of damages that the law presumes as flowing from the wrong complained of by the victim and need not be specifically pleaded and specially proven. General damages are those damages which the law implies in every breach and every violation of a legal right. It is the loss which flows naturally from the Defendants act, and its quantum need not be pleaded or proved as it is generally presumed by law. The manner in which general damages is qualified is by relying on what could be the opinion and judgment of a reasonable person in the circumstances of the case. See Mrs. Abosede Dauda v. Lagos Building Investment Co. Ltd & 3 ors [2010] LPELR-4024 (CA) General damages is defined as such that the law will presume to be the direct natural or probable consequence of the act complained of or damages resulting from the loss flowing from the breach of contract and is incurred in due consequence of breach see Okoro J.C.A in NEPA v. Malam Muhammad Auwal [2010] LPELR-4577 (CA). The claimant in this case has placed sufficient facts before the court that his employment was abruptly terminated in breach of the contract of employment, to which I find he is entitled to damages. Consequently, I hereby award the sum of N500,000.00k as damages against the defendants in favour of the claimant.

On relief ‘f’ of the Claimant claiming for the cost of this action, it is trite that the award of cost is at the discretion of the Court in favour of a successful litigant, see the case of First Continental Properties Ltd v. Divine Triop Ltd [2017] LPELR-42869 (CA), Order 55 Rule 1 of the National Industrial Court Rules, 2017. This court therefore retains the discretion to award cost in this case.

In all and for the avoidance of doubt, the claimant’s case succeeds in some parts and I hereby declare and order as follows:

That the termination of the Claimant’s employment by the defendant vide letter dated 20^th March, 2018 is in breach of the terms and condition of employment between both parties.

That the termination of the Claimant’s employment by the defendant is wrongful.

That the claimant is entitled to one month salary in lieu of notice in the sum of Forty-Three Thousand, Six Hundred and One Naira, Ten Kobo [N43,601.10k] to be paid by the defendants for the wrongful termination.

Reliefs b and c fails.

That the claim for the sum of N856,618.43k (Eight Hundred and Fifty-Six Thousand Six Hundred and Eighteen Naira Forty-Three Kobo) as entitlements of the claimant from April 2014 to March 2018 fails.