NIG. SECURITY PRINTING AND MINTING PLC v. OLALEYE (2020)

NIG. SECURITY PRINTING AND MINTING PLC v. OLALEYE

(2020)LCN/14406(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, July 27, 2020

CA/L/466/2011

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

NIGERIA SECURITY PRINTING AND MINTING PLC APPELANT(S)

And

OLANIKE AFUSAT OLALEYE RESPONDENT(S)

RATIO

WHETHER OR NOT ONCE EMPLOYMENT WAS TERMINATED BY AN EMPLOYER AS A RESULT OF WHICH THE EMPLOYEE CEASES TO WORK, HE IS NOT ENTITLED TO BE PAID FOR WORK NOT DONE

Once the employment was terminated by the employer as a result of which an employee ceases to work , he is not entitled to and cannot be paid for work not done or doing nothing. Olatunbosun vs. N.I.S.E.R.C. (1988) 6 SCNJ, 38; Osisanya vs. Afribank Nigeria Limited Plc (2007) 6 NWLR (Pt. 1031) 565; Ekpeogu vs. Ashaka Cement Company Plc (1997) 6 NWLR (Pt. 508) 280; WR &PC Limited vs. Onwo (1999) 12 NWLR (Pt. 630) 312; Nitel Plc vs. Akwa (2006) 2 NWLR (Pt. 964) 391, Isievwore vs. NEPA (2002) 7 SCNJ 323 @ 335 (2002) 13 NWLR (Pt. 784) 417 @ 434, Mobil Oil Nigeria Limited vs. Akinfosile (1969) NMLR, 217. This position is premised on the law that a Court cannot, for it lacks the jurisdictions, to impose an employee on an unwilling employer who has chosen the option to end the contract between him and the employee. Osisanya vs. Afribank Nigeria Plc (supra) Chukwumah vs. Shell Petroleum (supra); Shuaibu vs. UBN, Plc (1995) 4 NWLR (Pt. 388) 178; Iwuchukwu vs. Nwizu (1994) 7 NWLR (Pt. 357) 379. L.C.R.I vs. Mohammed (2005) 11 NWLR (Pt. 935) 1. PER GARBA, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Respondent was employed by the Appellant vide the letter of provisional offer of employment dated 27th December, 2007 and the employment was terminated via the letter 26th March, 2009 on the ground that the services of the Respondent were no longer required. By the said letter of termination of her employment, the Respondent was notified that the General Manager (Finance) had been advised to pay her a month’s salary in lieu of notice.

Not satisfied with the manner her employment was terminated, the Respondent filed an action in Suit No: FHC/L/CS/534/2009 before the Federal High Court, Lagos (Lower Court) for wrongful termination of the employment and claimed reliefs set out at paragraph 19 of the statement of claim dated 2nd April, 2009 but filed on 25th May, 2009, as follows: –
“i. A DECLARATION that the purported termination of the plaintiff from the service of the defendant is unlawful, illegal null and void and of no effect whatsoever.
ii. AN ORDER of reinstating the plaintiff to her duty post and her appropriate rank of factory operative with

effect from the 26th March, 2009 restored back to her including her confirmation letter.
iii. AN ORDER that all salaries, emoluments and benefits of the plaintiff be paid from 26th March, 2009 to the date of termination.
iv. AN ORDER of perpetual injunction restraining the defendant from harassing, intimidating or terminating the appointment of the plaintiff, except in accordance with her contract of Employment and with due regard to the due process of law.
v. General damages for breach of employment contract and living wages to the sum of N700,000 on only.
vi. The cost of this litigation is put at N300,000.00 only.”

On its part, the Appellant refuted the claims and the matter proceeded to trial during which the Respondent testified as the sole witness and the Appellant also called a single witness. At the end of the trial, the Lower Court in a judgment delivered on the 11th January, 2011, granted the reliefs 1 and III above in favour of the Respondent.

This appeal resulted from the grievance by the Appellant against the grant of the said reliefs and was brought by the Notice of Appeal dated 25th February, 2011 on three (3)

grounds.

In the Appellant Brief dated and filed on the 5th December, 2011, deemed on the 17th September, 2012, two (2) issues are said to arise for decision by the Court as follows: –
“ISSUE 1 (GROUND 1 OF THE NOTICE OF APPEAL AT PAGE 196 OF THE RECORD OF APPEAL).
Whether the learned Trial Judge was right in law when he held that the termination of the Plaintiff’s appointment is wrongful and ineffective until proper notice or one month’s salary in lieu of notice has been paid.
ISSUE 2 (GROUND 2 OF THE NOTICE OF APPEAL AT PAGE 196 OF THE RECORD OF APPEAL).
Whether the learned Trial Judge was right when he held that the Plaintiff shall be entitled to all her salaries and allowances until when the Defendant properly terminates her employment.”

The Respondent’s brief was filed on 15th March, 2012, also deemed on 17th September, 2012, wherein, a preliminary objection to the competence of ground 1 of the appeal was raised and argued and ground 3 said to have been abandoned since no issue was distilled from it for determination by the Appellant. Two (2) issues are formulated from grounds 1 and 2 of the

appeal in the following terms: –
“a) Issue No. 1 from ground of appeal No. 1.
Whether the learned trial judge erred in law to have held that the plaintiff’s appointment is wrongful and ineffective until proper notice or one month’s salary in lieu of notice has been paid.
b) Issue No. 2 from ground of appeal No. 2.
Whether the learned trial judge erred in law when he held that the plaintiff shall be entitled to all her salaries and allowances until when the defendant properly terminates her employment.”

Dealing with the preliminary objection first, since the briefs of argument were filed under the 2011 of Court of Appeal Rules, it was properly raised and argued in the Respondent Brief even though it only challenges the competence of a ground of appeal of three (3) grounds.

The grounds relied on for the objection, as set out at page 8 of the Respondent Brief, are: –
“(a) That grounds 1 and 3 are incompetent.
(b) that ground 3 is deemed abandoned as no issue was formulated thereon.
(c) That ground 3 is deemed abandoned as no issue was formulated thereon.”

The arguments on ground

one (1) is that the particulars set out thereunder are of mixed facts and law as such, it requires leave of Court for it to be competent. Adeniran vs. Ashabi (2004) 2 NWLR (Pt. 857) 385, Balogun vs. Agboola (1974) 1 ALLNLR (Pt. II) 66 and Amadasun vs. Ume (2007) 13 NWLR (Pt. 1051) 219 are cited in support of the position.

For ground 3, the case ofSPDCN Limited vs. John (2011) 2 NWLR (Pt. 1231) 247 is referred to in urging the Court to hold that the ground is deemed abandoned since no issue was formulated for decision in the appeal by the Appellant.

In the Appellant Reply Brief (AB) it is submitted in answer to the objection on ground 1, that the arguments of the Respondent are misconceived on the wrong belief that the appeal was against an interlocutory decision, whereas, it is against a final judgement of the Lower Court which, by virtue of Section 241 of the Constitution, it is as of right and requires no leave of Court.

Without the need to waste resource, the learned counsel for the Appellant is right that the objection to ground 1 of the appeal on the basis that leave of Court was not obtained before it was filed, arose from a total

misconception of the principle of law on requirement of leave of Court in respect of grounds which are of mixed facts and law or of facts alone in the exercise of the right of appeal from the decision of a Lower Court to this Court as vested by the provisions of the Constitution.
Section 241(1)(a) of the 1999 Constitution (as altered) provides that: –
(i) An appeal shall lie from the decisions of the Federal High or a High Court to the Court of Appeal as of right in the following cases: –
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.”
Simply put, the appeal against the final decisions of the High Court; Federal or State, sitting as a trial Court or Court of first instance in all cases, to this Court, is as of right, subject only to the time limit within which the right is to be exercised as prescribed in Section 24(2) of the Court of Appeal Act and so does not ordinarily need or require the leave of Court, no matter the nature of the grounds of the appeal.
Once the right of appeal is exercised within the period of time stipulated in the Court of

Appeal Act, leave of Court is not required or needed even if some or all the grounds of the appeal are of either of mixed facts and law or of facts alone, under Section 241(1)(a) of the Constitution.
See FBN, Plc vs. Fasher (2000) 6 NWLR (Pt. 662) 573; Oyakhire vs. State (2006) 15 NWLR (Pt. 1001) 157; F.H.A. vs. Kalejaiye Nigeria Limited (2010) 19 NWLR (Pt. 1226) 147; Nigeria Lab Corporation vs. P.M.B. Limited (2012) 15 NWLR (Pt. 1324) 505, Abdul vs. CPC (2014) 1 NWLR (Pt. 1388) 299, UBA, Plc vs. Adikwu (2015) 1 NWLR (Pt. 1439) 27.
In this appeal, there is no dispute that the judgement appealed against is a final decision of the Lower Court sitting as a first instance or trial Court and the appeal was brought or filed within the time prescribed by the Court of Appeal, Act and so being as of right, requires no leave of Court even if any or all the grounds were of mixed facts and law or facts alone.

In the above circumstances, the objection to ground 1 of the Notice of Appeal has no legal basis and lacks merit. It is over-ruled and dismissed.

I now return to the issues raised by the learned Counsel for the parties, which, as may be observed,

are the same in substance. Arguments on the two (2) issues would be considered together.

Appellants’ Submissions:
Relying on Chukwumah vs. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512 @ 560, Mr. Olurotimi Aju; learned counsel for the Appellant, submitted that the termination of a contract of service even if, unlawful, brings an end to the relationship of employer and employee and that it is wrong to say that the letter of termination is ineffective to terminate the employment, howbeit wrongful. He also argues that the law supports that a declaration may be made that the termination of employment is defective and/or ineffective either when no notice is given at all or when the required notice provided for in the contract, was not given, but that the non-contemporaneous payment of salary in lieu of notice may be wrongful, but still effective to terminate the contract, citingOlaniyan vs. University of Lagos (1985) 2 NWLR (Pt. 9) 599. According to him, since the employment is governed by contract between the parties which provides for termination thereof by any of them on notice or salary in lieu thereof, the Appellant effectively determined the

contract by the letter of 26th March, 2009 from that date and so the Lower Court erred to have held that since there was no evidence that the Appellant paid the one month’s salary in lieu of notice, the Respondent was entitled to all her salaries and allowances until judgement and when it was paid.

Learned counsel said what the Lower Court did was to reinstate the Respondent to her employment and order the Appellant to pay for services not rendered by the Respondent who stopped work since the 26th March, 2009, thereby forcing an employee on an unwilling employer against the law stated in Chukwumah vs. Shell Petroleum (supra). He prays the Court to resolve the issue in Appellant’s favour.

On issue 2, it is submitted that the law is clear that where an employment was terminated in a manner inconsistent with the contract of employment, the termination will be wrongful and the employee entitled to damages for the wrongful termination of the employment, which is limited to what he would have earned during the period of notice specified in the contract to lawful terminate the employment. Chukwumah vs. Shell Petroleum (supra), Nigerian Produce Marketing Board vs. Adewunmi

(1972) 1 ALL NLR (Pt. 2) 870 and Intercontinental Distillers Company Limited vs. Ajijala (1976) 2 SC, 115 are relied on for the submission, along withEzekiel vs. West Minister Dredging Nigeria Limited (2006) 5 NLLR (sic) 411, said to have been relied on by the Respondent’s Counsel in the Final Address before the Lower Court. It is contended that the Respondent was therefore only entitled to the payment of a month’s salary at the time of the termination of the employment, in lieu of notice which was stated in the letter of termination. Once more, the Lower Court is said to have erred in law to have awarded the Respondent all her salaries and allowances until judgement and when the salary in lieu of notice was paid and learned counsel maintains that by the letter of termination, the Respondent was to be paid the salary in line with the contract between the parties.

The Court is urged to resolve the issue in favour of the Appellant and in conclusion, to allow the appeal, set aside the judgment by the Lower Court and enter judgment for the Respondent in the sum of N20,858.42 being the one month salary in lieu of

notice.

Respondent’s Submissions:
It is submitted by Mohammed Adamu, Esq; learned Counsel for the Respondent,that the Lower Court is right that the parties are bound by the terms of the contract between them and that any termination must follows the terms. That there was no evidence that notice was given or one month salary was paid to the Respondent in line with the contract and Section 11(7) of the Labour Law Act, Cap 198, Laws of the Federation of Nigeria (LFN) 1990 that all wages payable in money shall be paid on or before the expiry of any period of notice. According to learned counsel, failure by the Appellant to follow due process and abide by the provision of Section 11(7), rendered the termination of Respondent’s employment invalid and ineffective since, on the authority of CCB Limited vs. Onwuchekwa (1998) 8 NWLR (Pt. 562) 399, ignorance of the law is no defence and Tanko vs. State (2009) 1-2 MJSC, 237. The cases ofChukwumah vs. Shell Petroleum (supra) and Olaniyan vs. University of Lagos (supra) cited by the Appellant’s Counsel are said not to have been decided “in contemplation of the provisions of Section 254(ii) of the 1999 Constitution

which deals with unfair labour and best international practices in the 21st Century.” He said the common law position that a master can terminate for a reason or no reason at all is not what is currently obtainable in labour law jurisprudence and referred to the case of B.C.C. vs. Ager (2010) 9 NWLR (Pt. 1199) 293 in urging the Court to uphold the decision of the Lower Court and resolve issue 1 in Respondent’s favour.

On his issue 2, learned counsel cited Attorney General, Bendel State vs. Aideyan (1989) 20 NSCC (Pt. 3) 276 on what constitute unfair labour practice and the duty the employee owes to mitigate her loss. It is maintained by counsel that the Respondent’s employment, by the authority of BCC vs. Ager (supra), was unbroken in the eyes of the law and that the Lower Court is right to hold that until the one month salary was paid to terminate it, the Respondent was entitled all her salaries and allowances.

The Court is urged to dismiss the appeal with substantial costs and uphold the decision of the Lower Court.

In the Appellant Reply Brief, it is submitted that the case of BCC vs. Ager (supra)

relied on in the Respondent brief is said to be inapplicable because the termination letters in the case all bore retrospective dates and the termination was done during the pendency of the suit, in defiance to a subsisting order.

Resolution:
There is no doubt that the parties in the appeal agree that the relationship between them was one of contract of service between an employer and employee based on an offer by the employer and an unqualified acceptance by the employee of all the terms and conditions set out in the offer. The terms and conditions offered and accepted by the parties therefore formed the foundation which governed and regulated the agreement and relationship between them. Therefore, in the contract of employment, the parties are bound by the terms and conditions freely agreed to by them and each will be liable for the unilateral breach of any of the terms and conditions in the course of the relationship. Where therefore, there is an allegation of breach of any of the terms and conditions of a contract of employment, by an employer in terminating the employment of an employee, the specific terms and conditions become the bedrock upon

which the case will depend and be determined.Amodu vs. Amode (1990) 5 NWLR (Pt. 150) 356; Baba vs. NCATC (1991) 15 NWLR (Pt. 192) 383; Layade vs. Panalpina World Transport Nigeria Limited (1996) 6 NWLR (Pt. 456) 544; Araromi Rubber Estates Limited vs. Orogun (1999) 1 NWLR (Pt. 586) 302; Emenite Limited vs. Oleka (2005) 6 NWLR (Pt. 921); Momoh vs. CBN(2007) 14 NWLR (Pt. 1055) 504, Coca-cola Nigeria Limited vs. Akinsanya (2013) 18 NWLR (Pt. 1386) 255.
In its judgement, at page 176 – 7 of the Record of Appeal, the Lower Court stated that: –
“It is a common ground amongst the parties that the employment of the Plaintiff, which was conveyed to her by Exhibit J, the letter of provisional offer of employment, dated the 21st day of September, 2007, which offer she accepted, implicitly, because there was not before the Court, the letter of acceptance, however, paragraph 3 and 8 of the said letter stated as follows: –
2. The appointment may be terminated upon given one month’s notice in writing by either party or payment of one month salary in lieu of notice.
3. Your service with the company will be governed by the

company’s condition of service enforce from time to time, and your place of engagement in Abuja factory.
8. You will hereby agree to be bound by the condition, rules and regulations of employment of this company as provided in the Employment Handbook.
Section C paragraph 1(c) of Exhibit A, the Employee’s Handbook provides as follows: –
(c) Appointment during probation or after confirmation may be either by the employee or by the company on giving one month notice or payment of one month salary in lieu of notice.”
The above terms and conditions form part of the terms and conditions freely agreed to by the parties in this appeal to govern and regulate their contractual relationship of employer and employee or contract of service and so both of them are legally bound to abide by and comply with them in the determination of the contract as clearly stipulated therein.

In the exercise of the right conferred on it under paragraph 2 above, the Appellant wrote the letter of 26th March, 2009 to the Respondent terminating the employment and determining the contract between them. It is expedient that the letter should speak for itself

and here it is: –
“NSPM/320/OC/5498/HRD
26th March, 2009
Miss Olanike Olaleye
Thro: GM (AF)
TERMINATION OF APPOINTMENT
This is to inform you that your services are no longer required by the company.
In view of this, General Manager (Finance) is being advised by the copy of this letter to pay you salary and allowances up to 26th March, 2009 and N20,858.42 as one month salary in lieu of notice.
Please submit to the Head of Security (Abuja) your identity card and any other property in your possession.
The company wishes you the best in your future endeavours.
Yours sincerely,
WADZANI M.M. (MRS)
MANAGER – EMPLOYEE RELATIONS
FOR: GENERAL MANAGER – MANAGEMENT SERVICES”
This letter, admitted in evidence before the Lower Court as Exhibit L, clearly was to notify the Respondent that the Appellant no longer required her services and by the heading, that the contract of employment between the two (2) of them was terminated, immediately. The letter also informed/notified the Respondent to collect her salary and allowances up to the date of the letter as well as one month salary in

lieu of notice required for the termination under paragraph 2 of the terms and conditions of the contract, above.
All these facts are not disputed by the Respondent but her case, which was accepted by the Lower Court; hook, line and sinker, was that because she was not paid the one month salary in lieu of notice contemporaneously with the letter, the termination of the employment and determination of the contract was ineffective and that until it was paid, the Respondent was entitled to all her salaries and allowances as if the employment subsisted and continued. While it is a correct restatement of the position stated by Supreme Court, per Ogundare, JSC inChukwumah vs. Shell Petroleum (supra) which was cited and applied in the case of NNPC vs. Idoniboye-Obu (1996) 1 NWLR (Pt. 429) 655 @ 676-7 by this Court, that: –
“Where a contract of service gives a party a right of termination of the contract by either giving a particular length of notice or payment of salary in lieu of notice and the later course is chosen, the party seeking to put an end to the contract must pay to the other at the same time of the termination of the contract. It is not

enough that in the letter of termination he offers to pay salary in lieu of notice”,
but it’s not correct to say that because of failure to pay the salary at the same time with the termination or “contemporaneously”, will entitle the employee to all salaries and allowances until it was paid. The only consequence of such failure is that the termination will be wrongful and the employee entitled to damages therefor, the limit of which was also stated by Ogundare, JSC in the Chukwumah vs. Shell Petroleum case. In the very weighty voice of the erudite law lord, he stated that: –
“Having held however that his employment was wrongfully terminated, he is undoubtedly entitled to damages. On the authorities as they stand, he is only entitled to what he would have earned over the period of notice. See Nigerian Produce Marketing Board vs. Adewunmi (1972) (Pt. 2) ALL NLR 870 where Fatayi-Williams JSC, (as he then was) delivering the judgement of this Court said at p. 875 of the report:
“Where, as in this case, the defendant/appellants have failed to follow the machinery laid down in the above provision of paragraph 1402, the

measure of damages, as Mr. Lander has rightly pointed out, is enough money to put the plaintiff/respondent in the same position as if such machinery has been followed. In other words the plaintiff/respondent is only entitled to what he would have received had he been given the six months’ notice provided for in paragraph 1402 of the conditions of service applicable to the plaintiff/respondent. Since his salary at the time of his dismissal on the 4th May, 1958 was £2,040-050d per annum, he would be entitled to only E1,020-05-0d in this respect.”
This position was applied by the Court in the NNPC vs. Idoniboye-obu (supra) in the lead judgment by Katsina-Alu, JCA (as he then was) where is said: –
“Under the contract of service in the instant case plaintiff’s appointment could be terminated by the defendant by giving him one month’s notice or paying him one month’s salary in lieu of notice. As his appointment was summarily terminated on 30 August 1985 plaintiff was entitled to one month’s salary in lieu of notice. As Mr. Nwosu, learned counsel to the defendant has rightly pointed out, the plaintiff is only

entitled to one month’s salary in lieu of notice and no more.”
The above position of the law is simply that the exercise of the right vested in an employer to terminate an employment by the terms and conditions of the contract of employment even where wrongful, remains valid and effective to terminate and end the employment only at the risk of damages to the paid. Where the termination was found wrongful on ground of failure to give the notice or pay salary in lieu thereof at the time of the termination, the quantum of damages an employee is entitled to for the wrongful termination, will be the amount he would have earned for the proper termination of the employment. In Ifeta vs. SPDCN Limited (2006) 8 NWLR (Pt. 983) 585, Oguntade, JSC stated the principle that: –
“The measure of damages where a master brings the contract of employment to an end without giving the requisite notice as stimulated in the parties contract, is the salary the employee would have earned had the employment been determined as stipulated in the contract of employment. See: Nigeria Produce Marketing Board vs. Adewunmi (1972) 111 SC @ 17.” See also

Bemil Nigeria Limited vs. Emeribe (2009) LPELR-8732(CA); Katto vs. CBN (1999) 6 NWLR (Pt. 607) 390; Angel Spining& Dyeing Limited vs. Ajah (2000) 13 NWLR (Pt. 655) 523, Ajayi vs. Texaco Nigeria Limited (1987) 9 1- SCNJ, 1.
In the above situation, the termination cannot be said to be unlawful, illegal and not effective from the date of the termination even though done not in accordance with the stipulation of giving notice or payment of salary in lieu thereof and so wrongful. Once the employment was terminated by the employer as a result of which an employee ceases to work , he is not entitled to and cannot be paid for work not done or doing nothing. Olatunbosun vs. N.I.S.E.R.C. (1988) 6 SCNJ, 38; Osisanya vs. Afribank Nigeria Limited Plc (2007) 6 NWLR (Pt. 1031) 565; Ekpeogu vs. Ashaka Cement Company Plc (1997) 6 NWLR (Pt. 508) 280; WR &PC Limited vs. Onwo (1999) 12 NWLR (Pt. 630) 312; Nitel Plc vs. Akwa (2006) 2 NWLR (Pt. 964) 391, Isievwore vs. NEPA (2002) 7 SCNJ 323 @ 335 (2002) 13 NWLR (Pt. 784) 417 @ 434, Mobil Oil Nigeria Limited vs. Akinfosile (1969) NMLR, 217. This position is premised on the law that a Court cannot, for it lacks the jurisdictions,

to impose an employee on an unwilling employer who has chosen the option to end the contract between him and the employee. Osisanya vs. Afribank Nigeria Plc (supra) Chukwumah vs. Shell Petroleum (supra); Shuaibu vs. UBN, Plc (1995) 4 NWLR (Pt. 388) 178; Iwuchukwu vs. Nwizu (1994) 7 NWLR (Pt. 357) 379. L.C.R.I vs. Mohammed (2005) 11 NWLR (Pt. 935) 1.
The Lower Court therefore erred to have held that the termination of the Respondent’s employment was not effective and did not terminate or end the contractual relationship between her and the Appellant merely because it found the termination wrongful on ground of want of the notice stipulated in the contract. But, from the content of the termination, the option of payment of salary in lieu of notice chosen by the Appellant was made contemporaneously with the termination since the Respondent was notified to collect her salary and allowance up to the date of the letter, as well as one month salary in lieu of notice of the termination at the same time in the letter.
The letter of termination did not say or suggest that the one month salary in lieu of notice was to be paid at a later date or in future, but

at the same time with the salary and allowances up to the date of the letter. To be contemporaneous is to be, happen, to occur or take place at the same time; simultaneously. This was what happened in the case of the termination of the Respondent’s employment by the Appellant; vide the letter dated the 26th March, 2009 which at the same time offered the one month salary in lieu of notice to the Respondent for the termination.
The offer and notice of the one month salary in lieu of notice for the termination was contemporaneous and simultaneous with the notice of the termination in the same letter from and by the Appellant. It was not the case of the Respondent that she did not collect the salary and allowances up to the date of the letter or that she was denied or not given the one month salary in lieu of notice when she went to collect the salary and allowances for March as directed in the letter of termination. I strongly hold the view that the Appellant did not have to write and physically present a bank cheque or amount for one month salary in lieu of notice before the payment could be said to have been contemporaneous with the termination.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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This is because, the Appellant being a corporate entity cannot physically do so since the termination letter will be the authority by which the one month salary in lieu of notice can be paid out of its accounts. The un-deniable fact that the letter of termination of the employment offered and notified the Respondent that one month salary was to be paid to her along with the salary and allowances up to 26th March, 2009 at the same time, shows prima facie, that the termination of the employment and the payment of the one month salary in lieu of notice, were done contemporaneously and simultaneously as provided for in paragraph 2 of the terms and conditions of the contract freely agreed to by the parties which governed their relationship.
This position as it may be, even if the payment of the one month salary was not made on the same date with the termination; i.e. 26th March, 2009, as demonstrated earlier, it may be termed wrongful, but did not affect the validity of the termination which effectively ended the contract between the parties and the only remedy available to the Respondent was in damages the quantum of which was the month’s salary she

would have earned during the period the Appellant would have given the due notice for the termination. As stated in the case of NNPC vs. Idoniboye-Obu (supra) the Respondent in the circumstances is entitled to “no more” since she did not work for the Appellant from the date of the termination for according to her evidence in re-examination at page 46 of the Record of Appeal.
“After the query the next thing I received was the termination of appointment and the security lady took me out of the premises. Immediately the letter was given to me they came to the factory and asked me to go out.”
In view of this evidence, the order by the Lower Court that the Respondent was entitled to all her salaries and allowances until judgment and further until the salary in lieu of notice was paid, I agree with the learned counsel for the Appellant, amounted to reinstatement of the Respondent to her employment from the date of the termination and constituted an imposition of an employee on an unwilling employer both of which the Lower Court recognized it has no power and authority to order, in its judgement.
The Lower Court at page 184 of

the Record of Appeal stated that: –
“It is settled that in ordinary master-servant relationship, the Court would not treat a wrongful termination of appointment as a nullity and order reinstatement. See the case of: BAKARE VS. N.R.C. (2007) 17 NWLR (PT. 1064) 606.”
It is clearly a dramatic flip-flop and summersault for the Lower Court to later hold that: –
“therefore, bearing in mind the fact that I cannot order reinstatement of the Plaintiff, I must however order that until the Defendant pays to the Plaintiff one month salary in lieu of notice, she shall be entitled to all her salaries and allowances from the date of the purported termination of her appointment to the date of judgement and until such further date when the one month salary in lieu of notice is paid to her.”
The later position/decision by the Lower Court is not supportable and sustainable in law as stated in the judicial authorities referred to earlier on the point.
In the final result, I find merit in the appeal and allow it. In consequence, the judgement of the Lower Court delivered on the 11th January, 2011 is hereby set aside and in its

place, it is ordered that the Respondent be paid one month salary in lieu of notice for the termination of her appointment vide the letter of 26th March, 2009 by the Appellant.
Parties shall bear their respective costs of prosecuting the appeal.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I have had the honour of reading in print the succinct judgment prepared by my learned brother, Mohammed Lawal Garba, J.C.A., (Hon. P.J), with which I agree, and for the reasons His Lordship gave, I too would allow the appeal and abide by the consequential orders contained in the judgment.

BALKISU BELLO ALIYU, J.C.A.: I have read before now, the draft of the leading judgment prepared by my learned brother MOHAMMED LAWAL GARBA, JCA. I agree with His Lordship’s conclusion that the appeal has merit and I also allow it.

I set aside the judgment of the Federal High Court delivered on the 11th January, 2011 in respect of Suit No: FHC/L/CS/534/2009. Appeal allowed by me.

Appearances:

Aju For Appellant(s)

S.O. Sadiku For Respondent(s)