MR. TOLULOPE AKEEM ADEGABI -VS- SCHLUMBERGER NIG. LIMITED

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: 18^th day of September, 2019 SUIT NO: NICN/PHC/132/2014

BETWEEN

TOLULOPE AKEEM ADEGABI—————————CLAIMANT

AND

SCHLUMBERGER NIGERIA LIMITED—————————DEFENDANT

Representations:

M.O. Opue for the Claimant.

O.Ndubuisi with T.F. Oyibo for the Defendant.

Judgment.

This suit was commenced by way of a General form of Complaint filed on the 26^th of August, 2014 along with an affidavit of verification, statement of claim, list of witnesses, witness statement on oath, list of documents and copies of the listed documents to be relied upon at trial.

The suit was originally before Justice Agbadu-Fishim before it was transferred to this court sometime in January, 2019.

Upon the matter coming up before this court, the Claimant filed an amended statement of fact on the 8^th of May, 2019 and arising from the Complaint and the amended Statement of fact, the Claimant’s claims against the Defendant are:

A DECLARATION that the purported termination of the Claimant’s employment with the Defendant vide the Defendant’s letter to the Claimant dated 31^stDecember, 2012 was wrongful, oppressive, unjust and as such null, void and of no effect whatsoever, the said termination letter having being issued in gross violation of Section VII of the Home Country resident Status (HCS) and Home Country Mobile (HCM) Employment Manual Oilfield Services Nigeria which governs and regulate the Claimant’s employment with the Defendant.
AN ORDER OF MANDATORY INJUCTION directing that the Claimant be reinstated forthwith to his former position as the Facilities Lead in Port Harcourt Office with all rights, benefits and other Prerequisites attached thereto with effect from the date of the purported termination of his appointment with the Defendant.

OR IN THE ALTERNATIVE

AN ORDER OF COURT directing the Defendant to Pay to the Claimant his arrears of salaries in the sum of N281, 250.00 (Two Hundred & Eighty One Thousand, Two Hundred & Fifty Naira) per month starting from January, 2013 till judgment is entered in this suit and all terminal benefits based on his rightful position as Facilities Lead in the Defendant from the date of the Purported termination of his employment with the Defendant till judgment is entered.
AN ORDER OF COURT directing the Defendant to pay to the Claimant the sum of N500,000,000.00 (Five Hundred Million Naira) being and representing aggravated, punitive and general damages for the wrongful termination of the Claimant’s employment with the Defendant.
The Sum of N700,000.00 (Seven Hundred Thousand Naira) being and representing the cost of this action.

Reacting to the claims, the Defendant entered conditional appearance on the 2^nd of June, 2015 and filed a statement of defence along with a list of witnesses and witness statement on oath.

Claimant initially opened his case on the 12^th of March, 2019 and closed same on the said date. He however applied for the re-opening of the said case on the 9^th of May 2019. At the initial and later opening of the Claimant’s case, the Claimant himself was called as CW1. He adopted his witness statements on oath which were marked as C1(a) and C1(b). Through the said CW1, nine documents were tendered in evidence and admitted as Exhibits C2 – C10 while C7 – C10 were admitted under protest.

Arising from the amended statement of fact and witness statements on oath, the case of the Claimant is that he was employed by the Defendant vide the Defendant’s email letter dated the 17th day of March, 2010 as Procurement Manager and the Claimant was thereafter transferred to the Defendant’s branch office in Port Harcourt. He was later promoted to being facilities lead vide the Defendant’s email to him dated the 8^th June, 2012. He posited that he carried out his duties diligently. Claimant added that by the email sent to him, the Defendant had stated that all terms and conditions of his employment with the Defendant shall be governed by Home Country Resident Manual which the Claimant dutifully adhered to without any problem from any quarter or persons. He posited that he however received a query on the 16^th of August, 2012, alleging misconduct on his part concerning a purported misappropriation of diesel barely eight days after he resumed work at his new posting. He responded to the query and a panel was later set up to which he was invited and he appeared. Thereafter, two staff of the Defendant approached and urged him to resign because they have received instruction to terminate his employment. HE posited that he refused to resign, rather, he wrote a protest letter on the 30^th of December 2012 to complain about his encounter with the two staff who asked him to resign. The employment of the Claimant was eventually terminated on the 31^st of December, 2012. He posited that he was not paid his terminal benefit as stated in the letter of termination of employment and neither was he paid salaries for the month of January 2013 till date nor any other sum besides the one month salary in lieu of notice. He contended that the termination of his employment contravenes Home Country resident Status (HCS) and Home Country Mobile (HCM) Employment Manual.

Upon cross examination, CW1 posited that the Defendant is his employer and that he is aware of Schlumberger Support Ltd. He affirmed that he was issued a query letter dated 16^th August 2012 by Schlumberger Support Ltd and not the Defendant. He also admitted that his letter of termination was issued to him by Schlumberger Support Ltd and admitted that there is nothing on Exhibit C7 showing that the Defendant employed him. He also admitted that Exhibit C5 which is his termination letter states that his services are no longer required and the letter made no reference to missing diesel.

Upon his recall, he posited that Exhibit C10 is a computer generated document and it is the standard practice in a bank. He added that he did not supply the information contained therein and does not know the device with which same was produced. Neither does he know the maker, but his understanding is that it was generated by an organization and not an individual.

Upon the discharge of CW1, Claimant closed his case while the Defendant opened theirs. In doing so, the Defendant called one witness in person of Edu Inyang as DW1 who adopted his witness statement on oath marked as D1.

Arising from the statement of defence and witness statement on oath, the case of the Defendant is that the Claimant was never at any time or at all an employee of the Defendant and ought not to have brought this action against the Defendant in the first place and that this suit discloses no reasonable cause of action against the Defendant and, therefore, an abuse of the processes of this Honourable Court. The Defendant added that the Claimant is not entitled to his claims in this suit or any claim whatsoever.

Upon cross examination, DW1 posited that he had worked with the Defendant for 12 years as he was employed in 2007. He admitted that there are many companies that comprises of Schlumberger. He posited that Schlumberger Nigeria Limited is his employer. He posited that he knows Mr. Ashish Patro and Chief Birionwu. He posited that Exhibit C7 bears Schlumbereger but he cannot pin it to a particular company within the group. He admitted that Exhibit C2 regulates the relationship between the Defendant and employees. He also posited that it is not true that the Defendant terminated the Claimant’s employment and he knows the Claimant to be an employee of Schlumberger Support Ltd and not that of the Defendant.

Upon the discharge of DW1, the Defendant closed their case after which CW1 was recalled and then matter was adjourned for adoption of final written addresses.

The Defendant initially filed an address on the 4^th of April 2019 but re-filed same on the 24^th of May, 2019 upon the re-call of CW1 on the 9^th of May, 2019. The said final address was adopted on the 5^th of July, 2019.

Arising from the said final written address, counsel to the Defendant, O. Ndubuisi Esq, formulated three issues for determination to wit:

(i) Whether the Claimant was at any time material to this suit an employee of the Defendant.

(ii) Assuming without conceding that the Claimant was employed by the Defendant, whether by the evidence led at the trial, the Claimant’s employment was unlawfully terminated by the Defendant to entitle him to the reliefs sought.

(iii) Whether having regard to the evidence led at the trail, the Defendant is entitled to his clams in this suit.

In arguing issue one, counsel recounted the averments in relation to the claimant’s case and submitted that it is a fundamental requirement of the law that in an action for wrongful dismissal or unlawful termination of employment, the Plaintiff must not only plead that he was employed by the Defendant, he must also furnish evidence of the existence of a contract of service between him and the Defendant and if the contract is written, the relevant letter of appointment of the Plaintiff must be tendered or adequate evidence of its whereabouts be led in the event that the letter is not available at the trial. He cited the cases of NITEL —VOSHODIN (1999) 8 NWLR (PT. 616) p. 528 @ 544- 545, PARAS. F-A. and MOROHUNFOLA V KWARA STATE OF COLLEGE OF TECHNOLOGY (1990) 4 NWLR (PT. 145) P.506 @ 527.

Counsel added that the letter of appointment tendered by Claimant as Exhibit C7 has no bearing with the Defendant. He also posited that by Exhibits C3 and C7, the employer of the Claimant is Schlumberger Support Nigeria Limited and that it is trite law that a company once incorporated under the Companies and Allied Matters Act, CAP 20 Laws of the Federation of Nigeria, 2004 becomes a legal person capable of suing and being sued in its registered name. He cited Section 37 of the CAMA, 2004 and the case of C.B.D.I. -V- COBEC (NIG.) LTD. (2004) 13 NWLR (PT. 890) P. 376 @ P. 394-395, PARAS. H-C and VASILEV V PASS INDUSTRIES LTD. (2000)12 NWLR (PT.681) P. 347 @ P. 358, PARA. D.

Counsel further submitted that even if the Defendant and Schlumberger Support Nigeria Limited are subsidiaries of the Schlumberger Group of Companies as could be reasonably inferred from the evidence of DW1 under cross examination, the Defendant cannot assume the liability of Schlumberger Support Nigeria Limited which is a sister subsidiary company. He cited the case of M.O. KANU, SONS & CO. v F.B.N. PLC (1998) 11 NWLR (PT. 572) P.116 @ P. 129, PARAS. FG.

Counsel concluded on the issue by urging the Court to resolve issue 1 in the negative by holding that the Claimant was at no time material to this suit an employee of the Defendant.

In arguing issue two, counsel posited that it is an established principle of law that a plaintiff who seeks a declaration that the termination of his appointment was wrongful must prove the following material facts namely, (a) that he is an employee of the defendant; (b) the terms and conditions of his employment; and (c) the way and manner, and by whom the employment can be terminated. It is not the duty of the employer who is a defendant to an action brought by the employee to prove any of the breaches of the contract of employment. He cited the cases of IBAMA -V- SPDC (NIG.) LTD. (2005) 17 NWLR (PT. 954) P. 364 @ PP. 378-379, PARAS. G-A, 388, PARAS. C-D and NGERIAN GAS COY. LTD -V- DUDUSOLA (2005) 18 NWLR (PT. 957) 292 @ P. 318, PARAS. E-F.

Counsel restated the evidence tendered by the Claimant and posited that a cursory examination of Exhibit C5 would show that the Claimant’s employment was merely terminated by the Defendant because his “services are no longer required by the Company” and not out of malice or victimization as alleged by the Claimant in paragraphs 13, 14, 15 and 22(c) of his Statement of Facts. He added that it is trite law that in an ordinary master and servant relationship, a master is entitled to dismiss his servant from his employment for good or bad reason or for no reason at all. He cited the case of NIG SOC. INS TRUST FUND MACT BORAD -VADEBIYI (1999) 13 NWLR (PT. 633) P.16 @ 28, PARA. C; DR. BEN CHUKWUMAH –V SHELL PET. DEV. CO. NIG. LTD. (1993) 4 NWLR (PT. 289) P. 512; NIG. OIL MILLS LTD -V- DEURA (1996) 8 NWLR (PT. 468) 601; OSAGE -V- NNB PLC (2005) 3 NWLR (PT. 913) P. 513 @ 534 PARA. B.

He added that Exhibit C5 neither made any reference whatsoever to the allegation of misappropriation of diesel against the Claimant as the reason for the termination of his employment and neither was any reference made to the query issued to the Claimant on account of alleged misappropriation of diesel by the Claimant.

Counsel also added that a cursory look at Exhibit C5 (i.e. the Defendant’s termination letter) would show that no reference was made to any act of misconduct or gross misconduct listed under Section VII of Exhibit C2 as a ground(s) for the termination of the Claimant’s employment. He posited that the Claimant’s contention, that the procedures laid down in the said Section VII of Exhibit C2 must be followed before his employment is terminated is totally unfounded. He added that the content of Exhibit C5 are clear and unambiguous and should be given its literal meaning. He cited the case of U.B.N. LTD -V- NWAOKOLO (1995) 6 NWLR (PT. 400) 127 @ 142 PARAS. E-F. Counsel then submitted that on the contrary, the relevant provision of Exhibit C2 that governs the termination of the Claimant’s employment is Section III (H).

Counsel added that the Claimant was not given notice but was paid salary in lieu of same. He concluded by urging the court to discountenance the contention of Claimant that his employment termination violated exhibit C2 assuming the Claimant was employed by the Defendant.

In arguing issue three, counsel posited that the Claimant’s claim ought to be dismissed first for not being an employee of the Defendant. He added that assuming the termination of the Claimant’s employment was wrongful, which is not the case, the remedy available to an employee in ordinary master and servant relationship without statutory flavour is neither reinstatement nor general damages as claimed by the Claimant in this suit. He added that the remedy for wrongful termination of employment is claim for damages.

Counsel added that even where there is a claim for damages for wrongful termination, the measure of damages is not arbitrary. The normal measure of damages is the amount the employee would have earned under the contract for the period the employer could lawfully determine it. He cited the cases of KATTO -V- C.B.N. (1999) 6 NWLR (PT. 607) P. 390 @ 406, PARAS. D., G-H; SEA TRUCKS NIG. LTD. V PYNE (1999) 6 NWLR (PT.607). 514 @ PP. 537-538, PARAS. H-F; OGBAJI -V- AREWA TEXTILES PLC (2000) 11 NWLR (PT.678) 322 @3335-336 PARAS. F-F. and SHELL PETROLEUM DEVELOPMENT COY. LTD. -VLAWSON-JACK (1998) 4 NWLR (PT. 545) P. 249 @ 272, PARAS. A-B.

Counsel also contended that the Claimant is not entitled to solicitor’s fee as it does not lend itself to support under the Nigerian Law. He cited the case of NWANJI -V- COASTAL SERV. (NIG.) LTD. (2004) 11 NWLR (PT. 885) 552 @ 568-569, PARAS. H-D.

He concluded that the claims of the Claimant fails in all material respect judging from the law, evidence and circumstances of the case. He urged the court to dismiss same and award substantial cost in favour of the Defendant.

Reacting to the Defendant’s final address, the Claimant filed his final written address on the 11^th of June, 2019 and arising therefrom, counsel to the Claimant, M.O. Opue Esq, formulated five issues for determination to wit:

Whether or not from the pleadings, oral and documentary evidence, the Claimant was an employee of the Defendant?
Whether the purported termination of the Claimant’s employment with the Defendant vide the Defendant’s letter to the Claimant dated 31^stday of December 2012, was wrongful, oppressive, unjust and as such, null and void and of no effect whatsoever?
Whether or not from the totality of the pleadings and evidence before this Honourable Court, the Claimant is not entitled to the payment of his arrears of salaries in the Sum of Two Hundred and Eighty One Thousand, Two Hundred and Fifty Naira (#281,250.00) per Month starting from January 2013 till judgment is entered in this suit and all terminal benefits based on his rightful position as Facilities Lead in the Defendant from the date of the purported termination of his employment till judgment is entered?
Whether or not the Claimant is not entitled to the payment of general damages for the wrongful termination of the Claimant’s employment with the Defendant?
Whether or not the Claimant is entitled to the cost for instituting this action against the Defendant in the sum of Seven Hundred Thousand Naira (#700,000.00)?

In arguing issue one, counsel posited that in an action for a wrongful termination of employment, the law is well settled that the employee only need to prove the following:

That he was employed by the Defendant.
The terms and conditions of his appointment including duration and termination.
The way and manner and by whom he can be removed.
The way and manner the terms and conditions of his employment was breached.

He cited the cases of UZONDU v. UIB.N PLC. [2009] 5 NWLR (PT. 1133) 1; N.RIIW LN.D LTD v. AKINGBULUGBE [2011] 11 NWLR (PT.1257) 131; N.D.LIE.A v. ZAKARI [2015] 7 NWLR (PT. 1458) 361; OMOSHEN V. CROWNS RELOCATIONS (NIG.) LTD [2015] 53 N.L.L.R (PT.178) 188, SUNDAY v. ZENITH BANK [2015] 56 N.L.LIR (PT.192) 460 and OFORISHE v. N.G.C LTD [2018] 2 NWLR (PT. 1602) 35.

Counsel thereon contended that Exhibits C7and C10 shows that the Claimant was employed by the Defendant. He posited that the law is well settled that documents speak for themselves and even oral evidence cannot contradict the unambiguous content of a document. He cited the case of IKEMEFUNA & ORS. v. ILONDIOR & ORS (2018) LPELR-44840.

Counsel contended that the evidence before this Honourable Court is so clear that the Defendant comprises of different entities and then urged the Court not to lose sight of the evidence of CW1 during cross examination.

He added that where a fact is admitted, it is deemed proved and needs no further proof. He cited Section 75 of the Evidence Act (As amended) 2011 and the cases of KAYILI V. YILBUK (2015) 7 NWLR (PT.. 1457) 26; ADEDEM v. OLOSHO (2007) 5 NWLR (PT.1026) 133.

Counsel contended that the Defendant having deliberately through it’s internal modus operandi created an obnoxious, oppressive and wrongful technical defence as regards hiring and firing procedures, by employing the Claimant using Schlumberger Nigeria Ltd but however, querying and terminating the Claimant’s employment using Schlumberger Support Service Ltd, cannot be allowed to benefit from such vile, wrongful and oppressive procedure aimed at arm twisting, confusing and depriving the Claimant and other employees alike, from approaching the Courts because of fear of which company or entity is to be sued as Defendant. He cited the case of ADEKALA v. SURU SUITES AND HOTEL LIMITED & ANOR [2015] 56 N.L.L.R (PT193) 538 and TERIBA v. ADEYEMO [2010] 11 NWLR (PT.1211) PG. 242 @ PG. 263 -264 PARAS F-A.

With regards to issue two, counsel contended that it is Section VII of the home Country Resident Status and Home Country Mobile employment manual that governs and regulates the Claimant’s employment with the Defendant. He added that the said Home Country Resident Status and Home Country Mobile employment manual clearly stipulates the conditions precedence before the Claimant’s employment can be terminated and same was never followed by the Defendant before terminating the Claimant’s employment with the Defendant.

Counsel also cited section VII(A) of the said manual and submitted that the word “dismissed” as used in the context, connotes termination of employment under Section VII(B), stage 3 and dismissal as the case may be under Section VII(B), stage 4. He added that from all intents and purposes, Exhibit C5 (Defendant’s Letter of Termination of employment was issued pursuant to Section VII(b) stage 3, Home Country Resident Status and Home Country Mobile employment manual.

Counsel further submitted that it is trite law that parties are bound by the terms of their contracts and the duty to be so bound by contract agreement of parties is so sacrosanct that the even the Court cannot impute or introduce any extraneous term into contract agreement of parties or otherwise re-write contract agreements for parties in it’s interpretative jurisdiction. He cited the case of KAYDEE VENTURES LTD v. MINISTER F.C.T [2010] 7 NWLR (PT. 1192) 171 @ PG. 219 PARAS A-B.

Counsel also added that the Defendant never denied the wrongful termination of the Claimant’s employment form its statement of defence but merely posited that Claimant is not its employee. He contended therefore, that the argument of counsel to the Defendant on issue two has no basis as there is no pleading to support same. He added that cases are not decided on the addresses or alluring closing speeches but on pleadings and credible evidence in support of the pleadings. He also added that the law is well settled that no matter the length and logic, the submissions of Counsel, same cannot be substituted for pleadings or hard evidence. He cited the case of CALABAR CENTRAL CO-OPERATIVE THRIFT AND CREDIT SOCIETY LIMITED & 2 ORS. v. BASSEY EKPONG EKPO (2008) 25 WRN 1.

Counsel posited that assuming the court considers the argument of the Defendant’s counsel, the law has gone past the crude, archaic and primordial times where under a master and servant relationship, a master is entitled to dismiss his servant from his employment for good or bad reasons or for no reasons at all. He added that same is against the Termination of Employment Convention, 1982 (No. 158) and Recommendation No. 166. He posited that though the convention is not yet ratified, the Court is empowered to apply International Best Practice and International Labour Standard on labour matters like this by virtue of Section 254C (1) (f) and (h) of the Constitution as amended. He also cited the case of ALOYSIUS v. DIAMOND BANK PLC. [2015] 58 N.L.L.R (PT.199) 92 on the position that termination on ground that service is no longer required is not a valid reason and that it is no longer conventional in the 21^st century to terminate employment without any reason given.

Counsel also cited the case of AERO CONTRACTORS CO. LTD v. NAAPE & ORS. [2014] 42, N.L.LR (PT. 133) at page 716-718 on the applicability of international convention in Nigeria. He also submitted that the essential reason why the Defendant refused to state the reason for the termination of the Claimant’s employment was because it was terminated as a result of malice.

With regards to issue three and four, counsel posited that the Defendant having atrociously breached the terms of employment by wrongfully terminating the Claimant’s employment with it, for failure to state the reason(s) for which the employment, was terminated and the said termination was contingent upon a single query issued to the Claimant by the Defendant all through his employment with the Defendant, the Claimant, being the injured party is therefore entitled to damages naturally flowing from the breach thereof.

He added that the guiding principle for the award of damages is restitution intergrum. In other words, the injured party should as much as possible be put so far as money can do it, in the same position as if the contract had been performed. He cited the case of FAIRGREEN v. BEES CO. LTD [2017] 10 NWLR (PT 1573).233.

Counsel posited that the Claimant tendered Exhibit C8 in proof of his base salary and sundry benefits. He added that the relief of reinstatement is in the alternative. Counsel refereed to the testimony of the Claimant that he is currently not working and added that the Claimant as breadwinner in his family would not have been out of job for six years if not for the wrongful termination.

With regards to issue five, counsel posited that the current position of the law is that once the claim for Solicitor’s fees as cost of action is pleaded and cogent evidence is led in support thereof, same is granted by the Court. He cited the cases of LONESTAR DRILLING NIG. LTD v. NEW GENESIS EXECUTIVE SECURITY LTD and NAUDE v. SIMON (2014) ALL FWLR (PT. 735) 1878.

Counsel concluded by urging the court to grant the reliefs sought by the Claimant having proved same on a balance of probability.

By way of reply on point of law filed on the 26^th of June, 2019, counsel to the Defendant responded to some of the submissions of counsel to the Claimant.

With regards to the issue of termination of employment on ground that service is no longer required, counsel posited that the authority of ALOYSIUS v. DIAMOND BANK PLC (SUPRA) relied on by the Claimant was on the issue of dismissal and not termination of employment as in the instant case. He added that in the case of UNION BANK –V SALAUDEEN (2017) LPELR-43415(CA), the Court of Appeal considered the issue whether an employer is bound to give reasons for terminating his employee’s contract of employment and restated the current position of the law.

With regards to claim for general damages, counsel contended that the cases cited by the Claimant’s counsel is also misconceived as general damages is at the discretion of the court which must be exercised judicially and judiciously based on sufficient material placed before the court in the form of credible evidence. He cited the case of IMNL —V- NWACHUKWU (SUPRA) @ P. 543, PARAS F-H.; EZEANI —V- EJIDIKE (1964) 1 ALL NLR P. 402 and further submit that having regard to the Claimant’s pleadings and the evidence adduced at the trial, the Claimant has not placed any reasonable and or sufficient materials in the form of credible evidence before this Honourable court in proof that he has suffered any loss for which he can be compensated by way of damages.

With regards to claim for solicitor’s fee, counsel submitted that the case of NWANJI -V- COASTAL SERV. (NIG.) LTD. (2004) 11 NWLR (PT. 885) 552 @ 568-569, PARAS. H-D still remains the law on the recovery of cost of action. He added that the Supreme Court has not overruled itself on the said case either expressly or by implication and thus it remains the law on the issue. He posited that the award of cost is discretionary, and added that the Claimant having filed a frivolous suit against the Defendant is not entitled to be awarded any amount as costs.

He concluded by urging the Court to so hold and dismiss his claims for cost. He also urged the court to discountenance the arguments and authorities relied upon by the Claimant in his written final address in support of his claim in this suit.

Upon a careful evaluation and understanding of 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. 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 and the reply on point of law of the Defendant, the issues for the determination of this suit are to wit:

Whether or not the Defendant as constituted before this court is the employer of the Claimant.
Whether or not in view of the evidence before this court, the Claimant is entitled to the reliefs sought.

Before I address the said issues, I find it apposite to address the status of the exhibits admitted under protest in the course of trial i.e. exhibits C7, C8, C9 and C10.

Counsel to the Defendant contended that the said documents are computer generated and can only be admitted upon the fulfillment of the conditions laid down by section 84 (1) (2)(a) — (d) & (4 ) (a) — (c) of the Evidence Act, 2011. Counsel added that Claimant has not furnished any material before the court to show that the documents sought to be tendered have satisfied the conditions laid down in Section 84(2)(a) — (d) nor are the documents accompanied by a computer certificate containing the information itemized in Section 84(4) (a) — (c). He cited the case of C.R.U. TECH -VOBETEN (2011) 15 NWLR (PT.1271) 588 @608 PARAS. C-E and NWANKWO -V-YAR’ADUA (2011) NWLR 81 @133-134, PARAS. H-A.

In reaction to the objection, counsel to the Claimant posited that even though the Evidence Act has indeed made express provisions in the aforementioned Section on the conditions to be satisfied before tendering a computer generated evidence, nonetheless, Section 12 (2)(b) of the National industrial Act 2006, has made some qualification to the applicability of the entire Rules of evidence as provided under the Evidence Act in respect of proceedings before the National Industrial Court.

Counsel added that the law is well settled that relevancy is the mother of admissibility. He cited the case of ABUBAKAR v. CHUKS (2007) 18 NWLR (PT. 1066) 386 and posited that the said Exhibits C7, C8, C9 and C10 are relevant and were copiously pleaded by the Claimant in his Statement of facts establishing the cause of action and his sole witness’s written deposition. He therefore urged the Court to depart from the Rule of the Evidence Act in the interest of justice in overruling the objection of the Defendant and admit the said documents in evidence.

By way of reply, counsel to the Defendant contended that the Supreme Court made it very clear in the case of DICKSON -V- SILVER (2017) 8 NWLR (PT. 1567) P. 167 @ P. 200, PARAS F-G that a computer generated document cannot be admitted in evidence until the conditions set out in Section 84(2) of the evidence Act are satisfied. This decision was given by the Supreme Court in the face of the provisions of Section 12 (2)(b) of the National industrial Court Act 2006 and without any qualification.

In view of the foregoing contentions, I have taken a look at the said exhibits C7 – C10 which the Counsel to the Claimant rightly captured thus:

Exhibit C7 is a copy of the Defendant’s computer printout of Letter of Employment of the Claimant dated the 17^th day of March, 2010.

Exhibit C8 is a copy of an E-mail printout of the Defendant’s promotion letter dated 8^th day of June, 2012.

Exhibit C9 is a copy of an E-mail printout dated 30^th December, 2012. (letter to Ashish Patro complaining about the directive from DW1 and Biriowu for him to resign).

Exhibit C10 is a copy of the Claimant’s retirement savings account statement opened by the Defendant in favour of the Claimant at Stanbic IBTC Pension Managers.

There is no gainsaying that the said documents are computer generated and judging from the entire proceeding, the Claimant has failed to comply with the provisions of section 84 of the Evidence Act. Counsel to the Claimant has admitted to the failure. The question is whether the court can in view of the provision of section 12 (2) (b) of the National Industrial Court Act, waive the need for compliance. The said section provides that:

Subject to any Act any Rules made thereunder, the Court-

(a) may regulate it’s procedure and proceedings as it thinks fit;

and

(b) shall be bound by the Evidence Act, but may depart from it in the interest of justice.

While I reckon the contention of counsel to the Defendant that the Supreme Court has made the provision of section 84 of the Evidence Act mandatory, the said authority did not bar the court from exercising the discretion conferred on it by an Act of the National Assembly to depart from the rule of evidence in the interest of justice.

Consequently, I have taken a careful consideration of the exhibits and find that they are relevant to the proceeding and necessary for the just determination of the instant suit. In view of the said consideration, I find it appropriate in the circumstance of this suit to exercise discretion in favour of the Claimant to depart from the rule of evidence relating to compliance with the provision of section 84 of the Evidence Act.

Consequently, the objection of counsel to the Defendant is overruled and the said Exhibits C7, C8, C9 and C10 are accordingly admitted in evidence.

I then turn to issue one which I must start its resolution by stating that the issue is borne out of the reliefs sought by the Claimant that the Defendant wrongfully, oppressively and unjustly terminated his employment while the Defendant is contending that the Claimant was not an employee of the Defendant.

The said issue one and its resolution is important in view of the conditions which the Claimant must prove in a case where he alleges wrongful termination. The position of the law with regards to the said conditions was stated in the case of UZONDU v. UBN PLC (2008) LPELR-4535(CA) where the court held that:

“On this issue, it is apt to state here that in an action for wrongful termination of appointment, the employee must prove the following.

(a) That he was employed by the defendant;

(b) The terms and conditions of his appointment including duration and termination.

(d) The circumstances under which his appointment can be terminated;

(e) That his appointment can only be terminated by a person or authority other than the defendant.

The facts which show the regulations binding on the parties are material facts to be proved by the employee.” Per OGUNWUMIJU, J.C.A. (P.20, Paras.C-F)

It is perhaps on the first condition that the Defendant predicated its defence that the Claimant is not its employee. In the face of the defence, it must be stated that the Claimant wants a declaration that the termination of his employment by the Defendant was wrongful, oppressive and unjust. Being a declaratory relief, it is the Claimant who bears the burden of proof that the Defendant was indeed his employer. The court in this regard held in the case of OLADIMEJI & ORS V. AJAYI (2012) LPELR-20408(CA) 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. 23, paras. F-G)

In view of the foregoing, Claimant tendered Exhibit C7 which is his letter of employment dated the 17^th of March, 2010.

The said letter of employment reads:

Dear Tolu,

I am pleased to offer you employment in Schlumberger as Procurement Manager, effective 01 March, 2010

Located in Port Harcourt, You report to Bandele Toyo, Nigeria Supply Chain Service Manager.

As of the same date. Your grade will be G10. Your annual base salary will be NGN 2,695.000.00

All terms and conditions are as per HCS Manual.

Congratulations and I wish you success in your career as you join Schlumberger.

Signed

Heather Buscher.

The Claimant also tendered exhibit C2 which is the employment (HCS) manual mentioned in Exhibit C7 (the letter of employment). He also tendered Exhibit C3 which is a query letter issued to him on the 16^th of August, 2012. In addition, claimant tendered Exhibit C5 which is the letter of termination of his employment and Exhibit C10 which is the statement of account of the Claimant pension contribution with Stanbic IBTC.

In view of the foregoing exhibits, Counsel to the Defendant contended that though the letter of employment tendered by the Claimant has no bearing whatsoever with the Defendant, the query letter and letter of termination which were issued to the Claimant and bearing the name of Schlumberger Support Nigeria Limited would naturally follow that the said Schlumberger Support Nigeria Limited is the Claimant’s employer. Counsel also referred to the testimony of the Claimant where he confirmed that the query and letter of termination were issued to him by Schlumberger Support Nigeria Limited and not the Defendant and that there is nothing in the letter of employment showing that the he was employed by the Defendant.

Counsel to the Claimant on his part contended that whilst Exhibit C7 shows that the Claimant was employed by “Schlumberger”, Exhibit C10 reveals pointedly and undoubtedly who the Claimant’s employer is as Schlumberger Nigeria Limited. Counsel added that the evidence before this Honourable Court is so clear that the Defendant comprises of different entities. He added that the issuance of the query letter and termination letter under the name of Schlumberger Support Nigeria Limited by the Defendant was aimed at purposefully setting up a technical defence by confusing employees who may wish to bring the Defendant to Court for any wrong doing.

I have taken a careful evaluation of the exhibits in relation to whom the employer of the Claimant is. Firstly, I find that the letter of employment tendered as Exhibit C7 merely carries the name “Schlumberger” which is a trade name rather that the corporate name of the employer. By the said letter of employment which is dated 17^th March, 2010, one cannot tell which of the entities of the Schlumberger is the employer of the Claimant. However, Exhibit C10 which is the statement of contributory pension account of the Claimant with Stanbic IBTC wherein the Claimant’s employer pays in pension contribution of the Claimant as an employee and which bears the date of first contribution to be 4^th of February, 2011 reflects the name of the employer of the Claimant as Schlumberger Nigeria Limited which is the Defendant in the instant case. Exhibit C3 which is a query letter issued to him on the 16^th of August, 2012 captures the Trade name “Schlumberger” on the right but on the top left carries the name “Schlumberger Support Nigeria Limited”. The same goes for Exhibit C5 which is the letter of termination of the Claimant’s employment dated the 31^st of December, 2012.

The foregoing evaluation clearly shows that there is an incongruity as to which particular entity is the Claimant’s employer. The incongruity arose out of the fact that there is a group of company using the name “Schlumberger” along with each of its subsidiary companies. Both parties did not state clearly which of the entity is the Parent company to each of the Subsidiary.

That notwithstanding, I must state that the general position of the law is that a parent company and its subsidiaries are distinct entities with each bearing a corporate personality separated from the other. In this regard, the court in Musa v. Ehidiamhen [1994] 3 NWLR (pt.334) held categorically clear that:

” …a subsidiary company is not an agent of the parent company, but is an entirely different entity. Its acts are not the acts of the parent company and the parent company is not responsible for its acts or defaults in the absence of special provisions in some contract between the parties”.

This principle of separate personality has been long established in the case of Salomon v. Salomon & Co. (1897) AC 22. Our courts have also maintained same as in the case of Gbenga v Maersk Nig, Ltd (2013) 30 NLLR (Pt.87) at 484 where the court held that:

“A parent company may be treated as a separate and distinct legal entity from a subsidiary company in which case an employee of one company cannot be imputed to another, each must be held accountable for its actions”.

While the forgoing is the general position of the law, the incongruity in the manner of employment of the Claimant does not lend credence to conveniently pin the Claimant to the employment of either Schlumberger Nigeria Limited or Schlumberger Support Nigeria Limited. It is however, safe to conclude from the circumstance of the case that the employer of the Claimant is Schlumberger Nigeria Limited in view of the fact that Exhibit C10 which is the document reflecting the pension scheme registered for the Claimant by his employer with Stanbic IBTC Limited states clearly that the employer of the Claimant is Schlumberger Nigeria Limited. That reflection occurred prior to the issuance of query and termination of the Claimant’s employment. If at any point in time the employment of the Claimant was transferred to Schlumberger Support Nigeria Limited, the Defendant owed the Claimant the obligation of informing him of his new employer and also bears the burden of proof that that it did transfer the employment and communicated same to the Claimant.

In addition to the foregoing, I must add that it is also the position of the law that in certain circumstances, the concept of corporate personality which treats a parent company and a subsidiary as distinct entities can be jettisoned by lifting the veil of incorporation. The court asserted the position of the law in the case of NEW NIGERIAN NEWSPAPERS LTD. V. AGBOMABINI (2013) LPELR-20741(CA) when it held that:

“An incorporated limited liability company is always regarded as a separate and distinct entity from its shareholders and directors. The consequence of recognizing the separate personality of a company is to draw the veil of incorporation over the company. No one is entitled to go behind the veil. This corporate shell shall however be cracked in the interest of justice. Particularly where the company is used as a mask or sham by the director to avoid recognition in the eyes of equity, the court must be ready and willing to open the veil of incorporation to see the characters behind the company in the interest of justice. Since a statute will not be allowed to be used as an excuse to justify illegality or fraud, and once there is clear evidence of fraud or illegality, the veil will be lifted.” Per ABIRU, J.C.A. (Pp. 40-41, Paras. F-E)

Relying on the foregoing position of the law, I must state that it is in the interest of justice to lift the veil of incorporation of the Defendant in the Circumstance in view of the testimonies of both the Claimant and the DW1 who ascertained that both Schlumberger Nigeria Limited and Schlumberger Support Nigeria Limited are entities under the Schlumberger Group. It will be sheer injustice to hold that the Defendant is not the employer of the Claimant simply because the Claimant was issued query and letter of termination of employment under the name Schlumberger Support Nigeria Limited after Schlumberger Nigeria Limited has been stated to be his employer via Exhibit C10.

For the sake of clarity, issue one is resolved in favour of the Claimant to the effect that I find and hold that the Defendant, Schlumberger Nigeria Limited is the employer of the Claimant and is answerable for the termination of the employment of the Claimant.

Issue two is to determine whether or not in view of the evidence before this court, the Claimant is entitled to the reliefs sought. The resolution of the issue touches on the reliefs sought by the Claimant and I must start by stating that the law is settled as to the implication of the termination of different categories of employment. This is in view of the fact that the Claimant via relief one and two wants the court to declare that the termination of his employment was wrongful, oppressive, unjust and as such null, void and of no effect whatsoever and then make an order of mandatory injunction to reinstate him into the employment with all benefits and rights from date of the purported termination till date of judgment. In his alternative relief three, he also wants the court to make an order directing the Defendant to pay to him his arrears of salaries.

To start with relief one, I find it apposite to state from the onset that 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”.

In view of the foregoing authorities, I reckon the fact that the Claimant has alleged that the termination of his employment was in gross violation of Section VII of the Home Country resident Status (HCS) and Home Country Mobile (HCM) Employment Manual which governs and regulate the Claimant’s employment with the Defendant.

What the foregoing finding suggests is that the employment relationship that existed between the Claimant and the Defendant is one regulated by agreement of parties captured in a contract of employment along with condition of service regarded as an employment manual in the instant case. In other words, the employment is one of master-servant relationship in which case the Claimant is not entitled to claim reinstatement and arrears of salary if the employment is found to be wrongfully terminated. What the Claimant would be entitled to is damages in the sum of what he ought to have been paid as salary in lieu of notice or damages for any other form of wrong.

Having determined the nature of employment that existed between the Claimant and the Defendant and the attendant implication in case of wrongful termination, the next question is whether the termination of the Claimant’s employment was indeed wrongful. I have earlier stated that the position of the law is that the Claimant bears the burden to prove that he is employed by the Defendant and also to prove the terms stating the procedure of how his employment ought to be terminated and that the Defendant breached the said procedure.

This position of the law is sacrosanct to the effect that the success of the Claimant’s case is not dependent on the weakness of the case of the Defendant especially in view of the fact that the Defendant’s averments in the instant case are merely related to the denial of the Claimant’s employment without fact or evidence in relation to the propriety or otherwise of the termination.

The court in this wise postulated in the case of AUDU V. PETROLEUM EQUALISATION FUND (MANAGEMENT) BOARD & ANOR. (2010) LPELR-3824(CA) that:

“It has been firmly established that when an employee complains that his employment was wrongfully terminated, he had the onus (a) to place before the court the terms of the contract of employment and (b) to prove in what manner the said terms were breached by the employer. It is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts. Okomu Oil Palm Co. V. Iserhienrhien (2001) 5 NSCQR 802.” Per Odili, JCA (as she then was) (P.23, Paras B-D).

In view of the foregoing, the Claimant posited that he received a query on the 16^th of August, 2012, alleging misconduct concerning purported misappropriation of diesel barely eight days that he resumed work at his new posting. He responded to the query and a panel was later set up to which he was invited and he appeared. Thereafter, two staff of the Defendant approached and urged him to resign because they have received instruction to terminate his employment. He refused to resign and wrote a protest letter on the 30^th of December 2012 to complain about his encounter with the two staff who asked him to resign. However, his employment was terminated on the 31^st of December, 2012.

Claimant tendered Exhibit C5 which is the said letter of termination and Exhibit C2 which is the Employment manual which he considered breached by the Defendant.

By way of argument, counsel to the Claimant contended that it is Section VII of the Employment Manual which clearly stipulates the conditions precedent before the Claimant’s employment can be terminated and stated that same was never followed by the Defendant before terminating the Claimant’s employment with the Defendant.

He posited that the word “dismissed” as used in the context of section VII(A) of the said manual connotes termination of employment under Section VII(B), stage 3 and dismissal as the case may be under Section VII(B), stage 4. He added that from all intents and purposes, Exhibit “C5” (Defendant’s Letter of Termination of employment was issued pursuant to Section VII(B) stage 3 of the Manual.

Counsel to the Defendant argued to the contrary that a cursory look at Exhibit C5 (i.e. the Defendant’s termination letter) would show that no reference was made to any act of misconduct or gross misconduct listed under Section VII of Exhibit C2 as a ground(s) for the termination of the Claimant’s employment. He added that the Claimant’s contention, that the procedures laid down in the said Section VII of Exhibit C2 must be followed before his employment is terminated is totally unfounded as the content of Exhibit C5 are clear and unambiguous and should be given its literal meaning. He also contended that on the contrary, the relevant provision of Exhibit C2 that governs the termination of the Claimant’s employment is Section III (H).

In view of the foregoing contention, the duty of this court in resolving same is to evaluate the content of the letter of termination vis-à-vis the employment manual that regulates the termination of the Claimant’s employment.

In this regard, I find it apposite to reproduce the content of Exhibit C5 (the letter of termination) which reads thus:

Dear Tolulope,

TERMINATION OF EMPLOYMENT

We refer to your letter of employment dated 17^th March, 2010 and wish to inform you the your services are no longer required by the company. Consequently, your employment with Schlumberger Support Nigeria Limited is terminated effective 31^st December, 2012.

Note that N281,250.00 being your one month base salary will be paid to you as payment in lieu of notice.

The Nigeria Deferred Benefit Administrator will send a statement detailing your benefits computations for your review after which the cheque for your terminal benefits will be given to you. You will be required to sign a Receipt and Release Certificate.

Ypur Pension contribution and that of the company (done on your behalf) will remain with your chosen Pension Fund Administrator as provided in the Pension Reform Act.

Please arrange to return all company’s property in your custody immediately to your Manager including your identity card, mobile telephone set, office keys, PPE, computer and hand-held radio.

We thank you for your service to the company and wish you success in your future endeavours.

Yours faithfully,

Signed.

Quincy Assoku Gyekye

NGA Procurement & Facilities Manager.

In view of the foregoing, it is crystal clear that the Defendant terminated the Claimant’s employment because his services are no longer required. No mention was made of any misconduct as a reason for the termination of the employment and neither was he informed that he was dismissed from employment. In addition, the Claimant was informed of the payment of one month salary in lieu of notice.

Furthermore, upon consideration of the letter of termination and the contention of both counsel, I must point out that there is a distinction between termination of employment and dismissal from employment. The court in this regard posited in the case of 7UP BOTTLING COMPANY PLC V. AUGUSTUS (2012) LPELR-20873(CA) that:

“It is trite that ‘dismissal’ of an employee by the employer translates into bringing the employment to an end while under ‘termination of appointment’, the employee is enabled to receive the terminal benefits under the contract of employment. The right to ‘terminate’ or bring an employment to an end is mutual in that either party may exercise it. ‘Dismissal’ on the other hand is punitive and depending on the contract of employment entails a loss of terminal benefits. It also carries an unflattering opprobrium to the employee. See Mr. A. S. Jambo vs. Petroleum Equalization Fund (Management Board) & 2 Ors (2005) 7 SC (PT 11) 30 at 43 – 44. … ” Per ABBA AJI, J.C.A (Pp. 26-28, paras. B-A).

In the instant case, the Claimant tend to place heavy reliance on the background facts leading to the termination of his employment which is in relation to a query over misappropriation of diesel and the eventual invitation to appear before a panel, to be the reason for the termination of his employment. It is upon the background facts that he contends that the procedure laid down in his employment manual was not complied with. That is, he considers his termination to be a disciplinary action taken against him by the Defendant.

It is consequent upon the foregoing contention that I take a look at the provision of Section VII of Exhibit C2 (Employment Manual). The said section is sub-titled ‘Disciplinary Procedure’. In other words, the section provides for the procedure which the Defendant must comply with where it is to discipline an employee and eventually terminate the employment of same for any of the itemized misconduct under stage 3 or to dismiss the employee for gross misconduct under stage 4.

While that is found, I find it apposite to also consider the provision of section III of the same Exhibit C2 which counsel to the Defendant argued that same is the section under which the termination of the Claimant’s employment falls in view of the fact that he was informed by letter of termination that his employment is no longer required.

The said section III is generally sub-titled ‘General Terms of Employment’ and IIIH which counsel to the Defendant specifically referred to is titled ‘Termination of Employment’ and reads thus:

“The employee or employer must give prior notice of termination. Once the employee is confirmed, the Notice Period will be one month. During the Notice Period the Company reserves the right to keep the employee working or to pay salary in lieu of Notice. Where the employee does not give the required notice period, he/she will be required to make the payment in lieu. If the notice period is shortened at the Employee’s request, payment is made only for the time worked.

The company will give no notice or payment in lieu of notice if employee is dismissed on grounds of the Employees material breach of contract or gross misconduct.”

In view of the said provision vis-à-vis the content of the letter of employment, it is clear that the Defendant simply elected its right to determine the employment relationship having served the Claimant with Exhibit C5 which clearly indicates that the Claimant is to be paid salary in lieu of notice. If the Claimant’s employment had been terminated on ground of breach of contract or gross misconduct which would have required proof of compliance with the provision of section VII of the Employment Manual, the Claimant would not have been offered or paid salary in lieu of notice and neither would he be offered terminal benefits.

The foregoing finding is concretised by the fact that the letter of termination of the Claimant’s employment made no reference to the fact that his employment is terminated because of misappropriation of diesel or any other misconduct; it rather simply says the services of the Claimant is no longer required.

I am not oblivious of the contention of counsel to the Claimant that the Defendant cannot terminate employment on ground that the services of the Claimant is no longer required. In support of the said contention, counsel cited the case of ALOYSIUS v. DIAMOND BANK PLC. [2015] 58 N.L.L.R (PT.199) 92 on the position that termination on ground that service is no longer required is not a valid reason and that it is no longer conventional in the 21^st century to terminate employment without any reason given. The said case is a decision of this court per Kola-Olalere.

In reaction to the contention, counsel to the Defendant replied on point of law that the case of ALOYSIUS v. DIAMOND BANK PLC (SUPRA) relied on by the Claimant was on the issue of dismissal and not termination of employment as in the instant case. Counsel on his part cited the case of UNION BANK V SALAUDEEN (2017) LPELR-43415(CA).

In view of the fact that the case cited by counsel to the Defendant is a decision of the Court of Appeal, I find it apposite to consider same first as this court is bound by the decision of the appellate court by virtue of the principle of stare decisis. The Supreme Court in the case of DINGYADI & ANOR V. INEC & ORS. (2011) LPELR-950(SC) posited that:

“This is the doctrine of ‘stare decisis et non quieta movere‘ or judicial precedent. The meaning and import is to abide by former precedents where same points come again in litigation. It presupposes that the law has been solemnly declared and determined in a previous case. It does preclude the judges of subordinate courts from changing what has been determined.” PER ADEKEYE, J.S.C(P. 57, Paras. C-E).

Consequently, I have taken a look at the holding of the Court of Appeal in the said case of UNION BANK V SALAUDEEN (2017) LPELR-43415(CA) and find that the court rightly held that:

“The question that now agitates my mind is, whether the words “for services no longer required” qualify as a reason as to require the Appellant to establish by evidence. This scenario occurred in the case of NITEL Plc v. Akwa (2006) 2 NWLR (pt.964) 391, where My Lord, Sanusi, JCA (as he then was) said: The effect of the judicial decisions, some of which I cited above, which stated that an employer needs not give reason for termination simply means that the master or employer needs not give a catalogue of allegation or accusation(s) of any wrong doing, or offence committed by the employee in terminating his appointment. In other words, even if the employee was never involved in any wrong doing, misconduct, fraud or any act that smacks of criminality, his employment can still be terminated. In my view, to say that the phrase “your service is no longer required” amounts to “giving reason” for the termination which requires the employer to justify, is stretching the meaning too far.” “Per TSAMMANI, J.C.A. (Pp. 33-34, Paras. B-E)

The Court further added that:

“the law is that, the motive which informs the decision of an employer to terminate a contract of employment with his employee is irrelevant, so long as the employer does not expressly state that motive for his action. It therefore means that, the exercise of an employer’s right to terminate a contract of employment cannot be vitiated or questioned on grounds of malice or improper motive, once no motive is expressed by the employer as the reason for terminating the employment. See L.C.R.I. v. Mohammed (2005) 11 NWLR (pt.935) 1; Fakuade v. O.A.U.T.H. (1993) 5 NWLR (pt.291) 47 and Chukwumah v. Shell Petroleum Nig. Ltd (1993) 4 NWLR (pt.269) 512.”Per TSAMMANI, J.C.A. (Pp. 33-34, Paras. B-E).

What the Court of Appeal has stated in essence as recent as 2017 in the foregoing case is that the position of the law is to the effect that an employer retains the right to terminate an employee’s employment; that the employer may choose not to give any reason for such termination; that only where the employer states a reason will it be required to prove the reason; that where the letter of termination does not state any motive, the court cannot imply one and neither can the court infer malice; that where the employer states that the service of the employee is no longer required, same cannot be considered a reason that need be proved and most importantly, the termination will only be wrongful if same does not comply with the terms and condition of employment.

In view of the foregoing holding, I must state that this court, being a subordinate court to the Court of Appeal, is bound by the said holding of the Court of Appeal and is also precluded from changing the position of the law until same is carried out by the Appellate Courts.

For the sake of clarity, I must reiterate that from the evaluation of the evidence before this court, I find that the termination of the Claimant’s employment being mere termination and not dismissal for gross misconduct was in accordance with the provision of section III of the Employment Manual which is the terms and condition of employment regulating the employment relationship between the Claimant and the Defendant. The said section requires the employer to give one month notice or pay salary in lieu of same and the Defendant as the employer chose the option of terminating the employment with payment of one month salary in lieu of notice. Consequently, the contention of Claimant and his Counsel that termination of employment violates section VII of the Employment Manual is misconceived and I so hold.

It is consequent upon the forgoing evaluation, findings and holdings that I shall consider the reliefs sought by the Claimant.

Relief 1 is for “A DECLARATION that the purported termination of the Claimant’s employment with the Defendant vide the Defendant’s letter to the Claimant dated 31^st December, 2012 was wrongful, oppressive, unjust and as such null, void and of no effect whatsoever, the said termination letter having being issued in gross violation of Section VII of the Home Country resident Status (HCS) and Home Country Mobile (HCM) Employment Manual Oilfield Services Nigeria which governs and regulate the Claimant’s employment with the Defendant”.

With regards to the said relief, I have categorically stated that the content of Exhibit C5 which is the letter of termination of employment which the Claimant himself tendered indicates that the Claimant’s employment was terminated and not that the Claimant was dismissed from employment. I have also stated that Exhibit C5 shows that the Defendant complied with the requirement of Exhibit C2 which is the Employment Manual regulating the employment of the Claimant by offering the Claimant a month salary in lieu of notice and notifying him of the payment of his terminal benefit.

In view of the foregoing, the Claimant has failed to discharge the burden of proof placed on him to prove the means by which the terms and condition of employment was breached by the Defendant. Consequently, there is no basis upon which the declaration sought in relief 1 can be granted and same is accordingly refused.

Relief 2 and relief 3 (which is an alternative to relief 2) are considered together and reproduced thus:

AN ORDER OF MANDATORY INJUCTION directing that the Claimant be reinstated forthwith to his former position as the Facilities Lead in Port Harcourt Office with all rights, benefits and other Prerequisites attached thereto with effect from the date of the purported termination of his appointment with the Defendant.
AN ORDER OF COURT directing the Defendant to Pay to the Claimant his arrears of salaries in the sum of N281, 250.00 (Two Hundred & Eighty One Thousand, Two Hundred & Fifty Naira) per month starting from January, 2013 till judgment is entered in this suit and all terminal benefits based on his rightful position as Facilities Lead in the Defendant from the date of the Purported termination of his employment with the Defendant till judgment is entered.

The said reliefs are predicated on the success of relief 1. With regards to relief 2 specifically, it is a trite position of the law that in employment of master-servant relationship which is the instant case, the remedy obtainable where the termination is wrongful is for damages to be awarded rather than reinstatement as the court cannot foist a willing employee on an unwilling employer. See UNION BANK V SALAUDEEN (Supra).

This means that out-rightly, the said relief 2 which seeks for reinstatement is misconceived as it lacks legal basis ab initio and is accordingly dismissed for lacking in merit.

With regards to relief 3, I find that the letter of termination of the Claimant’s employment took effect on the 31^st of December, 2012 and having held that the termination is not wrongful, it means that from the 31^st of December, 2012, the Claimant ceased to be an employee of the Defendant and is no longer entitled to salaries. Consequently, there is no basis for the grant of the alternative relief for the payment of salaries not earned. However, I find that Exhibit C5 states that the Claimant shall be paid terminal benefit which the Claimant posited that the Defendant has not paid. In view of the said Exhibit C5 stating that the Claimant is entitled to terminal benefit, I find it apposite to reckon the position of the law as stated in Julius Berger (Nig.) Plc. v. Nwagwu (2006) 12 NWLR (Pt.995) pg.518 that:

“Terminal benefits are sums of money which a party entitled to it has earned. They are sums accruable to an employee when his services are no longer required. They are easily assessed from the Agreement on Terms and conditions of employment, the Agreement that governs the contract of employment, Statute or Common Law rules.” Per RHODES-VIVOUR, J.C.A.(as he then was) (P.26, Paras.B-E)

In the instant case, the Claimant did not state how much the terminal benefit is and neither does the letter of termination of his employment state exactly the sum of terminal benefits. That notwithstanding, I take into account the fact that terminal benefit is a sum accruable to an employee whose services are no longer required and a sum which has been earned in accordance with the terms and condition of employment and consequently, I find it appropriate to grant relief 3 to the extent that this court makes an order directing the Defendant to pay to the Claimant the terminal benefit due to the Claimant in accordance with the terms of employment.

Relief 4 is for AN ORDER OF COURT directing the Defendant to pay to the Claimant the sum of N500,000,000.00 (Five Hundred Million Naira) being as and representing aggravated, punitive and general damages for the wrongful termination of the Claimant’s employment with the Defendant.

With regards to aggravated damages, the court in JULIUS BERGER NIGERIA PLC & ANOR v. UGO (2015) LPELR-24408(CA) posited that:

“Aggravated Damages… may be awarded where the defendant’s motives and conduct were such as to aggravate the injury to the plaintiff. They are a specie of compensatory damages in that their purpose is to compensate the plaintiff for the injury to his feelings of dignity and pride and not the injury sustained.” Per OHO, J.C.A. (P. 135, paras. C-E)

As regards punitive damages, the court in the case of EMIRATES AIRLINE v. NGONADI (2013) LPELR-22053(CA) held that:

“Damages are said to be punitive or exemplary when they are awarded as punishment for the Defendant or as a deterrent and are for his loss – see Baker Marine (Nig.) Ltd. v. Chevron (Nig.) Ltd. (2006) 13 NWLR (pt. 997) 276 SC, G. K. F. Investment (Nig.) Ltd. v. Nitel Plc. (2009) 15 NWLR (Pt. 1164) 344 and Odiba v. Azege (1989) 9 NWLR (Pt. 566) 370” Per AUGIE,J.C.A. (Pp.58-59,paras.F-B).

While with regards to general damages, the court in SEVEN-UP BOTTLING COMPANY PLC. v. NKANGA & ORS. (2008) LPELR-8462(CA) held that:

“General damages are those damages which the law implies in every breach and in every violation of a legal right. It is the loss that flows naturally from the defendant’s act and its quantum need not be pleaded or proved as it is generally presumed by law… ” Per OMOKRI, J.C.A. (P.28, Paras.E-A).

Having said that, the Claimant has lumped all the foregoing damages into one as he seeks for the sum of N500,000,000.00 for all three. In view of the aggravated damages, I have earlier stated the position of the law that motive for termination of employment is irrelevant. Therefore, whatever the Claimant may have considered to be the motive of the Defendant to have terminated his employment, same does not in law warrant the grant of damages as the feeling of the Claimant in the termination of his employment which is not wrongful does not call for compensation.

With regards to punitive damages, I must, without much ado, state that there is no act of the Defendant deserving of punishment in view of the fact that the Defendant complied with the terms of contract of employment in terminating the Claimant’s employment.

Similar conclusion is to be reached of general damages as there is no violation of the Claimant’s legal right in the termination of his employment.

Consequent upon the foregoing, it is safe to reach the irresistible conclusion that the Claimant is not entitled to either aggravated, punitive nor general damages and they are accordingly dismissed collectively.

Relief 5 is for the Sum of N700,000.00 (Seven Hundred Thousand Naira) being and representing the cost of this action.

The said relief is akin to cost of action and I find that Claimant tendered Exhibit C6 as the receipt of payment of the Claimant’s Solicitor’s fee. That notwithstanding, I must state that cost is granted at the discretion of the court. The court in Jaiyeola v. Abioye [2003] 4 NWLR (Pt.810)397 held that:

“The law is however also settled that costs are not meant to be a bonus to a successful party. It is also not meant to be as punitive measures. In making the award, the court must exercise the discretion conferred on it judiciously and judicially… the main aim of awarding cost is to relieve the successful party of his costs of the litigation he was unjustly put into by the unsuccessful party, the facts of each case must be taken into consideration in deciding whether the costs awarded is reasonable.” Per AKINTAN, J.C.A.(Pp. 28-29, Paras E-C).

In view of the determination of other reliefs sought which have been refused, it is clear that the Claimant is not the successful party in the instant suit. Hence, he is not worthy of the exercise of discretion in the award of cost and the said relief 5 is accordingly refused.

Having said that, it is without doubt that issue two is largely resolved in favour of the Defendant and against the Claimant as the Claimant is found not to be entitled to the reliefs sought in view of the evidence before this court.

In the final analysis, I find the claims of the Claimant to be largely unmeritorious save to the extent which this court makes an order that the terminal benefit which is due to the Claimant be paid by the Defendant. Consequently, other claims of the Claimant lacks merit and are accordingly dismissed.

Judgment is accordingly entered.

I make no order as to cost as parties are to bear their respective cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE