OKOCHA EBELE GERALD VS SAFE HAVEN MICROFINANCE BANK LTD

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA DIVISION

HOLDEN AT ABUJA.

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

Dated this 11^th day of December, 2018

SUIT NO: NICN/ABJ/80/2018

BETWEEN:

OKOCHA EBELE GERALD

CLAIMANT

AND

SAFE HAVEN MICROFINANCE BANK LTD

DEFENDANT

Representation

Fatima Shehu with Smart Aliyu for the Claimant

G.N.Bako with Innocent Ukoha for the Defendant

Judgment

This suit was commenced via a General form of Complaint filed on 22^nd of March, 2018 with same accompanied by a statement of claim, witness statement on oath, list of witnesses, list of documents and copies of documents to be relied upon.

Arising from the Complaint and statement of fact, the Claimant claims against the Defendant the following:

A declaration that the Claimant is by virtue of the terms and conditions of employment dated 23^rdJanuary, 2014, entitled to the following benefits: (1) arrears of salaries, (2) All accrued allowances stated in the letter of employment, (3) All bonuses. (4) compulsory benefits, (5) salaries and terminal benefits.
The sum of N773, 178.69k (Seven Hundred and Seventy Three Thousand, One Hundred and Seventy Eight Naira, Sixty Nine Kobo), representing arrears of salaries, wrongful termination, All accrued allowances stated in the letter of employment, All bonuses, compulsory benefits, salaries and terminal benefits of the claimant from January 2014 till date.

iii. The sum of N250, 000.00 (Two Hundred and Fifty Thousand Naira) for wrongful termination of employment.

Exemplary Damages in the sum of N5, 000, 000.00 (Five Million Naira) in favour of the Claimant for wrongful termination of employment, deprivation, hardship, pains and ridicule the Claimant have been exposed to since November 2017 till date, due to the brazen neglect and failure of the Defendant to perform her obligations under the Claimant’s terms and conditions of service contained in the letter of employment dated 23^rdJanuary, 2014.
The sum of N5, 000,000.00 (Five Million Naira) in favour of the Claimant as general damages, trauma and suffering the Claimant has been through.
The sum of N1, 500,000.00 (One Million, Five Hundred Thousand Naira Only) as cost of litigation.

In reaction to the claims, the Defendant on the 23^rd of April, 2018 filed a statement of defence accompanied by a pre-action counselling certificate, list of witnesses, witness statement on oath, list of exhibits, copies of document to be relied upon and certificate of compliance.

The Claimant then filed a reply on the 4^th of April, 2018 which was accompanied by a further witness statement on oath and additional copies of documents to be relied upon.

In opening his case, Claimant himself, Okocha Ebele Gerald, as the sole witness, adopted his witness statement on oath filed on 22^nd of March, 2018 as his oral evidence and same was marked as C1. Through CW1, 15 documents were tendered, admitted in evidence and marked as Exhibit C2 – C16.

Arising from the statement of fact and witness statement on oath (C1), the case of the Claimant is that the Defendant as a Microfinance Bank employed the Claimant on 23^rd of January 2014 through a letter of employment with a salary of N70, 566.67 after deduction of tax, NHF contribution and pension. For six months into his employment, the salary of the Claimant was paid in full but afterwards, his salary came in piece-meal. He was paid N55, 000 from August to December in 2014, N55,000 from January to June in 2015, N60,000 from July to December in 2015, N60,000 from January to December in 2016, N60,000 from January to June in 2017, then 37,000 from July to November in 2017. The Claimant computed the cumulated balance of his salaries and posited that the Defendant is in arrears and owes him the sum of N773, 178.69k (Seven Hundred and Seventy Three Thousand, One Hundred and Seventy Eight Naira, Sixty Nine Kobo) through the four years of his employment.

The Claimant in addition avers that throughout his employment, he never received any allowance, benefits as he is entitled to in the schedule attached to the letter of employment for the period he worked as an employee of the defendant from 2014 to 2017.

Claimant also stated that his employment was terminated on the 22^nd of November 2017 upon being issued a letter dated 6^th November, 2017 without notice.

Furthermore, the Claimant averred that the Defendant being a bank opened a salary account for the Claimant and upon the termination of his employment, he made a written application dated 5^th December, 2017 to the Defendant to provide him a statement of his account but the Defendant refused to honour the application. Similarly, the Claimant’s lawyer wrote another letter and then a reminder to the Defendant. The Lawyer also wrote to demand for the arrears of salaries and outstanding allowances owed to the Claimant but the Defendant failed to honour the request. Hence this suit.

During cross examination, the Claimant as CW1 maintained that the basis of his relation with the Defendant was the letter of employment and that he verbally complained about the reduction of his salary to the Defendant. He also maintained that his grouse was that no notice was given to him before the termination of his employment and that it is not true that either party can determine the employment. He also maintained that he did not receive salary in lieu of notice and that his salary account was not used for other purposes than for salary. Claimant stated that according to exh.C2, it is clearly stated that he would be paid salary based on performance but insisted that the payment were not based on performance and not paid in full.

Upon discharge of CW1, the claimant closed his case, while the Defendant opened theirs, calling one witness, DW1 in person of Christian Aghaegbuna who adopted his witness statement on oath filed on 13^th of June, 2018 as his oral evidence in this suit and same was marked as D1. Through DW1, four document were tendered and marked as Exhibits D2 – D5. While Exh.D5 was admitted in evidence, exh.D2-D4 were admitted under protest and to be addressed in the final Written addresses.

Arising from the statement of Defence and witness statement on oath of DW1, the case for the Defendants is that the Claimant is a former employee of the Defendant who is entitled to be paid N70, 566.67 (seventy thousand, five hundred and sixty six naira, sixty seven kobo) only during the 6 month probation period. The Defendant added that the Claimant’s subsequent salaries were based on his performance on the job after evaluation. The defendant avers further that the performance of the claimant while he was in the employment of the defendant was below the agreed performance standard and all for which the claimant was duly paid all his salaries while in the employment of the defendant. The Defendant stated that the Claimant was deployed to internal control but was never the head.

The Defendant also posited that the Claimant forged a letter of offer of employment and letter of introduction and on that basis the Claimant was asked to resign rather than being sacked and the Claimant stopped work with the Defendant on the 6^th of November, 2017. The Defendant also posited that the Claimant is not entitled to one month notice as a result of his fraudulent activities. The Defendant admits opening a salary account for the Claimant but added that the Claimant withdrew all the monies in the account upon getting a wind of the looming termination of his employment. The Defendant stated that the Claimant was orally informed that he has no money left in his salary account and that same has been closed upon the termination of his employment with the defendant and that they replied the letters written by Claimant’s lawyer after consulting their own lawyer. In conclusion, the Defendant maintained that they do not owe the Claimant any outstanding salaries, allowances, bonuses, benefit and any sum whatsoever.

In the course of cross examination, the DW1 posited that he is an internal auditor but he does not know the salary of the Claimant though the salary of every staff is paid through the staff account. He also admitted that he was not part of the panel that advised the Claimant to resign but he knew when the Claimant was advised to resign.

In view of the case of the Defence arising from the statement of defence and witness statement on oath, I reckon that the Claimant filed a reply wherein the Claimant denied the averments made by the Defendant and posited that the averment in respect of salaries being paid based on performance is an afterthought. The Claimant also denies forging any document and maintained that he was never invited to face any panel. He added that his application for visa was consented to by the Defendant and same was granted without any objection from the Defendant as he made the trip to the UK as planned.

The Defence closed their case upon the discharge of the DW1 and case was adjourned for adoption of final written addresses.

The Defendant filed their written address on the 3^rd of August 2018 and adopted same on the 23^rd of October 2018. Arising from the final written address signed by Ejumejowo A.A., counsel to the Defendant, G.N. Bako formulated four issues for determination to wit:

Whether or not the Claimant has proven his case entitling him to a favorable judgment of this honorable court.
Whether or not the Claimant is bound by the terms of contract of his employment by the Defendant.
Whether or not the termination of the Claimant’s employment by the Defendant was wrongful
Whether or not exhibits D2, D3 & D4 are admissible in law.

In arguing issue one, upon capturing the summary of the case of the Claimant, counsel submitted that It is trite law that a party in a civil matter who asserts the existence of certain facts in a matter is to prove same. He cited sections 131 (1) and 131(2) of the Evidence Act and the case of Leadway Assurance Co. Ltd v. Zeco (2004)11, NWLR (pt 884) 316 ratio 1.

Counsel then contended that in paragraph 3 of exhibit C2 being the principal contract between the Claimant and the Defendant, there is no evidence whether by documentary evidence or oral evidence before this honorable court to support any of the prayers sought for by the Claimant. The Claimant in prayer 2 seeks an order for the payment of the sum of N773,178.69k (seven hundred and seventy three naira, one hundred and seventy eighty naira, sixty kobo) only being arrears of salaries, accrued allowances and terminal benefits from 2014 till the termination of his employment but there is no evidence in support of this claim.

Counsel also posited that the Claimant is not entitled to other claims listed by the Claimant as special damages must be specifically proved. He cited the cases of Kusfa v. United Bawo Construction Company Limited (‘91) 4 SCNJ 12; (1994) 4NWLR (Pt 336) 1 and Bida v. Abubakar (2011) 25 WRN 90.

He also added that the case of CAMEROON AIRLINE V. OTUTUIZU (2011) 8 WRN 13 where the court defined what general damages is and then concluded that the Claimant has not proven his case.

With regards to issue two, counsel contended that as part of the terms of the contract of employment of the Claimant in paragraph 4 of exhibit C2 either party shall determine the contract by giving one month notice or payment for the same period in lieu of notice. He added that it is the evidence of both parties and as indicated in exhibit C3 being the letter of termination of the employment of the Claimant that the Defendant paid to the Claimant his salary for the month of November, 2017 in lieu of the one month notice as stipulated by their contract.

Counsel restated the averment of the claimant that he was informed by the Defendant to resign and that the Claimant was paid for the month of November and based on these, the Claimant is bound by the terms of the contract with regards to termination and payment in lieu of notice. He cited the case of A.G. Ferrero & Co. Limited v. Henkel Chemical Nigeria Limited (2011) 36 W.R.N. 4 ratio 2 and concluded that the contract of employment must be studied to see whether or not there was any breach of the terms of employment and whether or not the remedies being sought by the Claimant was envisaged and agreed upon by the parties at the time of entering into the said contract.

With respect to issue three, counsel posited that it is the evidence of the Defendant particularly in paragraph 8, 9 and 11 of the Defendant’s statement of defence that the Claimant was dismissed for his fraudulent activities while in the employment of the Defendant. He added that the Defendant in proof of this tendered exhibit D2, D3 and D4 together with a certificate of compliance pursuant to section 84 of the Evidence Act.

Counsel cited the case of Eze v. Spring Bank Plc (2012) 20 W.R.N. to contend that the law does not require an employer to follow any particular procedure in summarily dismissing an employee where the charge against the employee is founded on acts of gross-misconduct bordering on crime.

He also cited the case of Leadway Assurance Co. Limited v. Zeco (2004) 11, NWLR (pt 884) 316 ratio 1 and posited that where the evidence of a witness has not been challenged, contradicted or shaken under cross-examination and his evidence is not inadmissible in law and the evidence led is in line with the facts pleaded, the evidence must be accepted as correct version of what the witness says.

With regards to issue four, counsel posited that exhibits D2, D3, & D4 are in the proper form and that the Defendant laid the proper foundation for their admission. He maintained that the Defendant in paragraph (e) of its witness statement on oaths gave evidence to the fact that the said documents were sent along an email to the Defendant by the British Embassy as document submitted to the embassy purportedly emanating from the Defendant. The defendant while tendering exhibits D2, D3 and D4, took cognizance of the provision of section 84 (ii.) of the evidence Act and the fact that the said exhibits where computer generated, accompanied same with a certificate of compliance stating how exhibit D3 (email) to which exhibit D2 & D4 are attachments. Counsel cited section 84, 85 and 87 of the Evidence Act and the case of YAKUBU V. UBA PLC (2012)25 WRN 113 C.A and urged the court to discountenance the objection of the learned counsel to the Claimants and to admit the said documents as pleaded, relevant and admissible.

In conclusion, counsel urged the court to dismiss the case of the Claimant for lacking merit and substance and to award substantial cost.

In response to the final address of the Defendant, the Claimant filed his final written address on the 12^th of September 2018 and adopted same on the 23^rd of October, 2018. Arising from the said written address which was signed by Gbenga A. Ashaolu, counsel to the Claimant Fatima Shehu submitted four issues for determination to wit:

Whether having regard to the express terms as contained in the Letter of Employment and evidence led before the Court, the Defendant wrongfully terminated the employment of the Claimant.
Whether the Claimant has established his Claim based on the preponderance of evidence in order to be entitled to the reliefs sought in the Statement of Claim.

iii. Whether hearsay evidence is admissible.

Whether the provision of Section 84(4) of the Evidence Act has been met by the Defendant to warrant the admissibility of Exhibit D2, D3, and D4 which was admitted in protest.

In arguing issue one, counsel submitted that it is trite law that the terms and condition of employment is the bedrock of any case where the issue of wrongful termination of employment calls for determination. Counsel cited the case of UTC NIGERIA LTD V. SAMUEL PETERS (2009) LPELR 8426 CA and MR ALEXANDER OKOH & ORS V. UNIVERSITY OF LAGOS & ANOR (2010) LPELR-4719 (CA).

Upon identifying what a Plaintiff who seeks a declaration that the termination of his contract of employment is a nullity must plead and prove, counsel to the Claimant posited that the Claimant in giving evidence stated how he was employed by the Defendant via a letter of employment dated 23^rd January, 2014 which was admitted in Evidence and marked as Exhibit C2. Counsel added that a sensory look at Paragraph 4 of the terms of employment of the Defendant in Exhibit C2 reveals that either party shall determine the contract by giving one (1) months’ notice or payment for the same period in lieu of notice. Counsel contended that the Defendant neither gave a notice nor paid for the same period in lieu of notice thereby breaching the terms of Employment contained in Exhibit C2.

Counsel then submitted that it is trite law that the remedy for wrongful termination of employment is a claim in damages and cited the cases of ADEOSUN OLUSEYI OLALEKAN V. MANAGEMENT BOARD, UNIVERSITY OF MAIDUGURI TEACHING HOSPITAL (2012) LPELR – 200099 (CA) and GABRIEL ATIVIE V. KABELMETAL NIG. LTD (2008) LPELR 591 (SC).

Counsel concluded on this issue by urging the court to hold that the defendant is indeed in breach of the terms of employment of the Claimant and has wrongfully terminated the employment of the Claimant.

With regards to issue two, counsel argued that it is a trite law that the standard of proof in civil cases may be determined by a preponderance of evidence or balance of probability. Counsel cited the case of OSUJI v EKEOCHA SC. 390/2002 [2009] 16 NWLR (PT. 1166) 81 and ARIWODO V UKAIRO (1972) 2 ECSLR (PT2) 447.

Counsel reproduced the claims of the Claimant and posited that the Claimant is expected to discharge the onus placed on him by the law on the preponderance of evidence. Counsel asserted that the burden has hence been successfully discharged by the Claimant.

Counsel also cited sections 131 and 133 of the Evidence Act and contended that it is trite law that the burden of proof of particular facts in civil cases shifts from one party to the other as enshrined under Sections 133(1) & (2) and Section 136(1) of Evidence Act 2011.

Counsel also recounted the principles guiding the grant of exemplary damages and cited the case of ENGR. FEMI SONUGA & ANOR V. THE MINISTER, FEDERAL CAPITAL TERRITORY, ABUJA & ANOR (2010) LPELR- 19789 (CA).

Learned counsel added that it is the claim of the Claimant that he was billed the sum of N 1, 500, 000.00 (0ne Million, Five Hundred Thousand Naira Only) by his lawyer as cost of litigation and professional fees in which 75% has already been paid by the Claimant and to which Exhibit C6 was admitted. Counsel cited the case of NIGERIAN NATIONAL PETROLEUM CORPORATION V. CL1FCO NIGERIA LIMITED (2011) LPELR – 2022 (SC).

Furthermore, counsel posited the general damages need not be strictly proved and cited the case of OWENA MASS TRANSPORTATION COY LTD. V. KEHINDE IMAFIDON (2011) LPELR – 4810 (CA).

Counsel concluded on this issue by contending that consequent upon the heightened and sustainable proof of the plaintiff’s case by documentary evidence, the Claimant is entitled to damages for breach of contract by the Defendant.

With regards to issue three, learned counsel posited that a person who is not a maker of a document cannot tender same before the court for admissibility, hence it will amount to documentary hearsay. Counsel cited the cases of Obinna Osuohia Vs. The State (2010) LPELR-4669 (CA).

Counsel further cited the cases of AMBO WUYAH VS. JAMA’A LOCAL GOVERNMENT, KAFANCHAN (2011) LPELR 9078 CA and SAMARI ABDULMALIK ANOR VS. YUSUF AHMED TIJANI (2012) LPELR 1931. CA to submit that the Defendant’s sole witness not being a maker of Exhibit D1, D2, and D3 has no legal capacity to tender same in evidence as same will amount to documentary hearsay.

Counsel further referred to section 84 of the Evidence Act and posited that a look at the certificate of compliance shows that it did not in any way identify the document purporting to certify and did not name which particular document it is seeking to certify. Counsel also noted further that the maker of the said certificate of compliance is in doubt in view of two signatories.

With regards to issue four, counsel submitted that in view of the oral evidence of the Defendant’s sole witness Mr. Christian Aghaegbuna Chidebere, particularly paragraph 5 of his witness statement on oath where he boldly stated without more, that he was informed of all the allegations leading to the wrongful dismissal, that the said evidence is not tenable and cannot sustain any defence, as same is hearsay and does not have the legal stamina to sustain the Defendant’s Claim. Counsel cited the case of INIABASI OKON UMEH VS. THE STATE (2012) LPELR 1996 (CA) and Section 37 and 38 of the Evidence Act, 2011 on the meaning of hearsay.

Counsel concluded on the issue by urging the court to discountenance the evidence of the Defendant’s sole witness and grant the reliefs sought by the Claimant as the claimant’s claim remains unchallenged and uncontroverted.

The defendant did not file a reply on point of law.

I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated 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.

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

Whether or not the employment of the Claimant was wrongfully terminated in view of the terms of employment that existed between the parties.
Whether in view of the evidence before the court, the Claimant is entitled to the reliefs sought.

Before addressing the issues, I find it apposite to determine the status of exhibits D2-D4 which were admitted under protest. The grouse arising from the admissibility or otherwise of the documents is that counsel to the Claimant is contending that the documents were not tendered by the maker and the documents were not identified in the certificate of compliance with section 84 of the Evidence Act and therefore the documents are inadmissible.

Counsel to the defendant on the other hand contended that the documents are in proper form and proper foundation were laid for the tendering of the documents as reflected in paragraph 5 (e) of the witness statement on oath (D1) and also filed a certificate of compliance with section 84 of the Evidence Act.

In resolving the contention, I have taken a careful look at the said exhibits. The exhibits are a copy of e-mail sent to the Defendant’s e-mail address, info@safehavenmfb.com from the e-mail address of Sheffield.EnrichmentTeam@fco.gov.uk. The said e-mail is marked as D4. The said D4 in its heading shows that there are two attachments to the mail i.e. Safe Haven Employment 1. JPG and Safe Haven Employment 2. JPG. The said attachments are what was tendered and marked as D2 and D3. The attachments are letters of offer of employment and letter of introduction/attestation of the Claimant.

The first issue arising from the contention is whether the said exhibits particularly Exhibit D4 (the e-mail) is a computer generated evidence and whether there has been compliance with the provision of the Evidence Act in tendering the said exhibits. For want of Clarity, section 84 (1), (2) and (4) of the Evidence Act 2011 provides thus:

(1) In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible,if it is shown that the conditions in subsection (2) of this section are satisfied in relation to the statement and computer in question.

(2) The conditions referred to in subsection (l ) of this section are:

(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not by anybody, whether corporate or not, or by any individual;

(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;

(c) that throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and

(d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.

(4) In any proceeding where it is desired to give a statement in evidence by virtue of this Section, a certificate -.

(a) identifying the document containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer:

(c) dealing with any of the matters to which the conditions mentioned in subsection (2) above relate, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate, and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

Having carefully read the above provision of the Evidence Act, I find that the witness statement on oath adopted by DW1 as oral testimony before this court states in paragraph 5 (e) to the effect that the Defendant through the then Managing Director received an e-mail from British embassy concerning certain documents emanating from the Defendants. The exhibits being one printed from the e-mail therefore comes within the classification of computer generated evidence and in attempt to tender same, the Defendant filed a certificate of compliance which was tendered along with the exhibits in question. In view of this, counsel to the Defendant contends that the documents stands proper in law for admission.

I have also taken a look at the certificate of compliance which states that exhibit B2 (which is marked as Exhibit D4 by this court) is a printed email sent from the email of British Embassy to the email address of the defendant and that the document was printed from the Defendant’s HP computer with serial number 4C533705VR. It also stated that the computer was working properly throughout the material time of the production of the document and it was produced during a period which the computer was in regular use. All of which are the conditions demanded by section 84 (2) and (4) of the Evidence Act.

It must be stated that exhibits D2 and D3 are attachments to exhibit D4, hence the email carries along the two exhibits for the purpose of admissibility or otherwise and the certificate need not specifically mention or identify them as contended by counsel to the Claimant. I therefore find that the Defendant complied with the provision of section 84 in the tendering of exhibits D2-D4.

Before pronouncing on the admissibility however, I reckon the contention of counsel to the claimant to the effect that the document were not tendered by the maker and the authorities cited in that regard. I must state that I have perused the provision of section 83 of the Evidence Act which provides for the admissibility of documentary evidence generally and the provision admits of exceptions. In other words, there are circumstances where documents can be admitted without necessarily being tendered by the maker. Section 83 (2) provides that:

(2) In any proceeding, the court may at any stage of the proceeding, if having regard to all the circumstances of the case, it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible as evidence or may without any such order having been made, admit such a statement in evidence notwithstanding that –

(a) the maker of the statement is available but is not called as a witness: and

(b) the original document is not produced, if in lieu of it there is produced a copy of the original document or of the material part of it certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be.

In view of this provision, I take into account the fact that the document was a mail sent to the Defendant’s e-mail address and received by the Defendant. It would amount to an undue delay to require the maker from the British embassy to attend proceedings in order to have the document tendered. Consequently, I find the documents to be relevant and therefore admissible.

In view of the foregoing, the said Exhibits D2 – D4 are relevant to the proceedings and same having been considered admissible are hereby admitted. I must however quickly state that the there is a difference between the admission and the weight to be attached to the said documents. The court in Abubakar v. Chuks (2007) 18 NWLR (Pt.1066) at pg. 403 para D-F held that:

…a document which is consistent with the pleadings is admissible, if the document is admissible in law. The fact that a document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial Judge. It is not automatic. Admissibility of a document is one thing and the weight the court will attach to it is another. The weight the court will attach to the document will depend on the circumstances of the case as contained or portrayed in the evidence. Relevancy and weight are in quite distinct compartments in our law of evidence. They convey two separate meanings in our adjectival law and not in any form of dovetail. In the order of human action or activity, in the area of the law of evidence, relevancy comes before weight. Relevancy, which propels admissibility, is invoked by the trial Judge immediately the document is tendered. At that stage, the Judge applies sections 6, 7, 8 and other relevant provisions of the Evidence Act to determine the relevance or otherwise of the document tendered. If the document is relevant, the Judge admits it, if all other aspects of our adjectival law are in favour of such admission. If the document is irrelevant, it is rejected with little or no ado. Per Tobi, JSC

Consequent upon the above holding, the probative value of the said exhibits shall be considered in the course of the resolution of the main issues for determination before this court.

I therefore proceed to addressing issue one, which is “Whether or not the employment of the Claimant was wrongfully terminated in view of the terms of employment that existed between the parties”.

In addressing this issue, I must of necessity identify the type of employment before this court as the court in Longe v. FBN. Plc (2010) 6 NWLR (Pt. 1189) 1 S.C. reckoned that:

“There are three categories of contracts of employment as follows: –

(a) Purely master and servant relationship.

(b) Servants who hold their office at the pleasure of the employer.

In view of the above holding, I find that the Defendant is a private entity while the Claimant is its employee and that makes the employment fall under the category of master and servant relationship.

In addition, I must state that the status of the terms and conditions in a contract of employment is essential for consideration and in this regard, the court, Per Niki Tobi JCA (as he then was) in the case of CALABAR CEMENT CO. LTD. VS. DANIEL (1991) 4 NWLR (PT.188) 750 at 760 held that:

“in contract of service, parties are bound by the terms of the contract. Where the terms of the contract are clear and unambiguous, the parties cannot move out of them in search for more favourable terms or greener pasture. However, where the terms of the contract are clear and unambiguous, a Court of Law cannot move out of them and invoke the general rule of contract applicable to the nature of the contract of service. See: generally OLANIYAN VS UNIVERSITY OF LAGOS & ANOR (1985) 2 NWLR (Pt.9) 588; I.D.C. VS. AJIJALA (1976) 2 S.C. 115.

The court in Longe v. FBN. Plc (supra) also stated that:

“…every contract of employment contains the terms and condition that will regulate the employment relationship such as terms on determination, notice, wages, benefits are usually contained in the expressed contract of service or implied into it by common law and custom. The nature of employment generally affect the terms of the contract of employment.

In the instant suit, as envisaged in the above cited authorities, the Claimant tendered exhibit C2 which is the letter of offer of employment offered to him by the Defendant and the letter states that the terms of employment of the Claimant is attached to the letter. Rightly so, the terms of employment attached bears several clauses including code of conduct, compulsory benefits, leave, severance i.e. termination and acceptance of the terms. I shall come to the relevant clause as it affects this suit in due course.

Going further, The Defendant admitted the averments of the Claimant that indeed the Claimant was a former employee and that he was employed on the 23^rd January, 2014 as stated on Exhibit C2, the Letter of employment. Facts admitted need no further proof. The court in CHUKWU & ORS v. AKPELU (2013) LPELR-21864(SC) held that “The established principle of law is well founded and settled that facts admitted need no proof. See the case of Narinder Trust Ltd. v. N.I.C.M.B. Ltd. (2001) FWLR 1546 at 1558 and Nwankwo v. Nkwankwo (1995) 5 NWLR (pt. 894) 158.

The admission by Defendant indicates that the employment of the Claimant is not an issue in dispute. What is in dispute in relation to issue one is whether the employment of the Claimant was rightly or wrongly terminated.

Having said that, it is instructive to note that the burden of proof of wrongful termination of employment lies on the party who alleges the wrongful termination and that is usually the employee.

In WAEC & ORS v. IKANG (2011) LPELR-5098(CA), the court held that:

“This was the position of the law stated by the Supreme Court in the case of Ibama v. S.P.D.C. Nig. Ltd. (supra) when it said …it is the law that when an employee complains that his employment has been wrongfully terminated, he has the onus of placing before the court the terms of the contract of employment before proceeding to prove the manner the said terms were breached by the employer … as laid down by this court in many cases particularly in Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356 at 370 where Agbaje, JSC, said: “It appears clear to me that since it is the plaintiff’s case that his dismissal by the defendant is not in accordance with the terms and conditions of the contract of service between them, it is for the plaintiff to plead and prove the condition of service regulating the contract of service in question.” See also Afribank Plc. V. Osisanya (2000) 1 NWLR (640) 599.” (P. 41, paras. A-F)

The court in AJI v. CHAD BASIN DEVELOPMENT AUTHORITY & ANOR (2015) LPELR-24562(SC) also added that:

“For emphasis, the Plaintiff/Appellant is enjoined by law when he complains that his employment has been wrongfully terminated, he has the onus of placing before the Court the terms of contract of employment and then go on to prove in what way the said terms were breached by the employer”.

In clearer terms, a Claimant who alleges unlawful dismissal from employment must plead and prove the following facts to succeed in his claim:

That he or she is an employee of the Defendant,
Place before the court the terms of his or her employment and the terms and conditions of the employment,

iii. State who can appoint and who can remove him,

In what circumstances his or her employment can be determined, and
In what manner the said terms of the employment were breached by the Defendant.

See OLORUNTOBA-OJU vs. ABDUL-RAHEEM (2009) All FWLR (Pt. 497) 1 at 42; IMASUEN vs. UNIVERSITY OF BENIN (2011) All FWLR (Pt.572) 1791 at 1809. See also. OKOH & ORS. v. UNIVERSITY OF LAGOS & ANOR. (2010) LPELR-4719(CA).

The Claimant has discharged the burden relating to the fact that he is an employee of the Defendant and he has also placed before this court the terms of his employment as attached to Exhibit C2 which is his letter of offer of employment and the content of which I find apposite to reproduce. I should also state that it is from the said letter of employment and terms of employment that this court would find the circumstance in which the employment of the Claimant can be terminated and the manner, if any, that the said terms of employment in relation to termination were breached.

The content of the letter of offer of employment reads thus:

January 23, 2014.

OKOCHA EBELE GERALD

House 152, Zone B

Apo Resettlement,

Apo,

Abuja.

Dear Sir,

OFFER OF EMPLOYMENT

Our management is pleased to offer you employment with Safe Haven Microfinance Bank Limited on the grade level of Executive Assistant (EA). This offer is with effect from February 1, 2014.

Our bank seeks to compete on the basis of operational excellence, customer intimacy and product leadership, and expects all employees to embrace this business philosophy. Therefore, the bank will adopt a robust performance management framework in line with this philosophy.

Your career in the Bank will depend on your ability to meet specific targets, which will be achievable as assigned to you as appropriate. Also, your employment will be placed on a probationary period of six (6) after which your confirmation will be subject to your performance with the responsibilities assigned to you.

Your Terms of Employment is attached to this letter and its duplicate copy. Also attached are the details of your remuneration. Please sign the duplicate to indicate your acceptance of this offer and return same to us.

We are pleased to offer you this opportunity to work with us and wish you success in a challenging but rewarding career.

Accept our congratulations!

Yours faithfully,

FOR: SAFE HAVEN MICROFINANC BANK LIMITED

(Signed) (signed)

EMEKA IBEABUCHI OVUOKE AGHRI

MANAGING DIRECTOR CHIEF EXECUTIVE OFFICER

True to the words in paragraph 4 of the letter of offer of employment (Exhibit C2), the terms of employment was attached and I also find it apposite to reproduce the said terms of employment which reads thus:

TERMS OF EMPLOYMENT

Further to your Employment Letter, the following are your other terms of employment:

Code of Conduct

All employees are expected to comply with the Bank’s Code of Conduct, rules and regulations as contained in our Human Resource Staff Policy and all such other circulars and policy statements that may be issued from time to time. Should an employee be guilty of misconduct, be convicted of a criminal offence, or conduct his or her self in such a manner as to bring SAFE HAVEN MICROFINANCE BANK LIMITED to disrepute, then the Bank may cease to require the services of the employee.

Compulsory Benefits

2.1. Pension contribution

Pension Contribution under the reformed Pension Act (2004) is compulsory. Contributions are made by both the employer and the employee. The employee contributions are usually deducted via the monthly payroll. The contribution is 15% from both Employer and Employee. The Employee deduction is 7.5% made from Basic, Housing and Transport allowances. It is the responsibility of the employee to ensure that HR receives his/her PIN number for the remittance of this contribution.

2.2. National Housing Fund (NHF) Contribution

NHF Contribution under the National Housing Fund Act (1992) is compulsory. Contributions are made by the employee only which is 2.5% deducted from monthly basic salary via monthly payroll.

Other Benefits

3.2. Annual Leave

You are entitled to twenty-two (22) working days leave in a year. Each employee is entitled to go on annual leave and deferment shall not be allowed.

3.3. Sick leave

All cases of sickness resulting in an employee’s absence from work should be reported, along with an ‘excuse duty’ certificate from a qualified doctor, within forty-eight (48) hours. However, if this absence persists without further medical report from a qualified doctor, this may be regarded as absence without permission.

In the case where an employee will require extended medical attention based on a qualified doctor’s recommendation, the employee may apply for extended medical leave for six months. Full monthly remuneration will be paid in the first three months and half pay in the second three months. Another medical evaluation will be required after this period in order to determine the employment of the employee.

3.4. Maternity Leave

All female employees are entitled to twelve (12) working weeks of maternity leave in line with Nigeria Labour Law. Such staff shall be entitled to Maternity Leave on full pay for a maximum period of twelve weeks, which will be in substitute for the staff’s leave for that year. Only confirmed staff who have completed a minimum of six months’ service with the bank will be qualified for maternity leave with full pay.

3.5. Working Hours

The Bank maintains work hours of 8:00am to 5:00 pm for its employees from Monday through Friday, including a lunch break in line with Nigeria Labour Law. However, Branch Operations employees are required to resume duty 30minutes earlier and may be required to stay later than 5:00pm where operational challenges warrant so. Due to exigencies that may arise, Staff may be required to be at work on Saturdays between 10:00am to 2:00pm.

Severance

Either party shall determine this contract by giving one (1) month’s notice or payment for the same period in lieu of notice.

Acceptance

If the above terms of employment are acceptable to you, please sign the endorsement at the bottom of the enclosed copy of this letter and return to the undersigned.

However, this employment shall be regarded as lapsed and cancelled if we do not receive your acceptance letter at the end of two (2) working days from the date of receipt.

We wish you the best and hope you will justify the confidence the Bank has reposed in you.

Yours faithfully,

FOR: SAFE HAVEN MICROFINANCE BANK LIMITED

(Signed) (signed)

EMEKA IBEABUCHI OVUOKE AGHRI

MANAGING DIRECTOR CHIEF EXECUTIVE OFFICER

Having reproduced the terms as above, I should state that the Supreme Court in Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356 had held that ‘terms of contract of service are the bedrock of any case where the issue of wrongful termination of employment calls for determination”. Per SANUSI, J.C.A (P. 27, paras. A-C).

Therefore, arising from the terms of employment in the instant suit, I find that Clause 4 stipulates that “either party shall determine this contract by giving one (1) month notice or payment for the same period in lieu of notice”.

In view of the said clause 4, Claimant in paragraph 11 and 12 of the statement of Claim and paragraph 13 and 14 of the witness statement on oath, maintained that the Defendant did not give him notice before terminating his employment as he was on the 22^nd of November, 2017 issued with a letter dated 6^th November, 2017 terminating his employment.

The Defendant on the other hand contended in paragraph 10 and 11 of the Statement of Defence and paragraph 5 (g) and (h) that the Claimant was informed of the decision to terminate his employment as the Claimant was initially advised to resign and that the Claimant stopped working on the 6^th of November, 2017. The Defendant added that the Claimant was not entitled to one month notice as a result of fraudulent activities while in the employment of the Defendant.

In view of the contentions, the court in Momoh v. CBN (2007) 14 NWLR (Pt. 1055) 504 at 521 – 522, paras. G – E (CA) held that:

“In construing the relationship between an employee and an employer under a contract, the court must confine itself to the plain words and meanings to be derived from the written contract. And interpreting the provisions of such a written contract, no addition thereto or subtraction therefrom is permissible. The words used must be given effect to and no word should be ignored in the interpretation of the intention of the parties. Accordingly, the court does not have the power to look elsewhere for the terms of contract with regard to the termination of a contract other than in the written contract of the relationship between the appellant and the respondent, the court was right to have confined itself to the plain words and meaning derived from the provisions contained in the respondent’s staff manual. See Afrotec Tech Services (Nig.) Ltd. v. M.I.A. & Sons Ltd. (2000) 15 NWLR (Pt. 692) 730; CBN v. Archibong (2001) 10 NWLR (Pt. 721) 492.”

In view of the above fact, let me state clearly that one “month” according to section 18 of the Interpretation Act means a calendar month reckoned according to the Gregorian calendar. The court in Akeredolu v. Akinremi (1985) 2 NWLR (Pt.10) 787 held that:

“It is however, true that in section 18(1) of the Interpretation Act 1964, the term “month” is defined as “a calendar month” reckoned according to the Gregorian calendar, and Gregorian Calendar is the correction of the Julian Calendar made in 1582 by Pope Gregory XIII, (See 5th Ed. The Concise Oxford Dictionary page 540).” PER ANIAGOLU, J.S.C. (P. 9, paras. A-C).

In view of this interpretation of one month, if the Defendant were to give one month notice to the Claimant, the notice would be one calendar month preceding the termination. In the facts pleaded, the Defendant posited that the Claimant was informed of the Defendant’s decision to terminate the Claimants employment on the 6^th of November, 2017 yet, the Claimant’s employment was terminated via a letter dated the 6^th of November, 2017. In this situation, there is clearly lack of one month notice as stipulated in the terms of employment and I so hold.

On another wing of contention after stating that the Claimant was notified, the Defendant posited that the Claimant was not entitled to notice as a result of fraudulent activities. I must state that this assertion would bear no weight in view of the fact that the letter of termination of employment before this court does not state that the termination was based on fraudulent activities and same is considered as an afterthought.

The said letter of termination of employment which was admitted in evidence as Exhibit C3 reads:

November 6, 2017.

Gerald Okocha

House 152

Zone B

Apo

Abuja

Dear Gerald,

Termination of Your Appointment with Safe Haven Microfinance Bank Limited.

We regret to inform you that your employment is being terminated, effective from 6^th November, 2017. This decision was reached as a result of the obvious prevailing redundant situation of yours in the office.

You are requested to kindly hand over any of the banks belongings that may be in your possession to the Head of operations.

You are entitled to your salary for the month of November as we continue to wish

you well in all your future endeavours.

If you have any questions or would like any clarifications, the managing Director remains at your disposal for the rest of this month of November, 2017.

Thank You.

Yours sincerely,

Authorized Signatory.

It is abundantly clear that the reason for the termination of the employment was as a result of the prevailing redundant situation of the Claimant in the office of the Defendant. Exhibit C3 says absolutely nothing about fraudulent activities and no variance or alteration can be admitted to the contents of the said document at this stage. See section 132 of the Evidence Act.

I also reckon that according to Clause 4 of the terms of employment, the Defendant has two alternative ways of terminating the employment. He could give one month notice which I have held was not done or he could pay for the one month in lieu of notice.

Having found that the Defendant did not give notice in accordance with the terms of employment, the questions that follows is whether the Claimant was paid in lieu of notice. The Claimant posited that the Defendant is in breach of terms of employment and during cross examination maintained that he did not receive salary in lieu of notice. Although the Claimant maintained that his last salary was for the month of November, 2017.

The Defendant on the other hand did not categorically state that the Claimant was paid in lieu of notice although Exhibit C3 which is the letter of termination of the Claimant’s employment as reproduced above states that the Claimant is entitled to his salary for the month of November without stating whether same is intended to be payment in lieu of notice. That lack of clarity notwithstanding, I had earlier stated that a month in accordance with the Interpretation Act is a calendar month. Therefore, if the Defendant had intended to pay in lieu of notice, the payment cannot be for the month of November when it is in the same month that the employment was terminated. One month in accordance with the Interpretation Act would be the month of December, 2017 and since that is not the month for which payment was made to the Claimant as clearly seen in Exhibit C3, it is conclusive that the Defendant did not comply with the terms of employment in terms of payment in lieu of notice especially considering the assertion of the Claimant that he was issued with the letter on the 22^nd on November, 2017.

In view of the foregoing, I must state that the Claimant has discharged the burden of establishing how he was an employee of the Defendant, that his employment was terminated and same was not carried out in accordance with the terms of employment having presented the said terms before this court.

With regards to shifting of burden of proof in civil cases, the court in African Petroleum Plc. v. Soyemi (2008) ALL FWLR (Pt. 397) 117 at 126, paras. G – H; P. 127, paras. B – C held that:

“In civil cases, the burden of proving a particular fact is upon the party who asserts it and who will fail if no evidence is called upon the issue, regard being had to any presumption which may arise from the pleadings of the parties. This onus is not static. It continually shifts from side to side in respect of a fact in issue until it finally rests on the party against whom judgment will be given if no further evidence is proffered… See Attorney-General, Lagos State v. Purification Tech. (Nig) Ltd (2003) 16 NWLR (Pt. 845) 1; E.L.B. Building Soc. Ltd v. Adebayo (2003) 11 NWLR (Pt. 823) 497, (2004) FWLR (Pt. 193) 223; F.A.T.B. Ltd v. Partnership Inv. Co. Ltd (2003) 18 NWLR (Pt. 851) 35; (2004) FWLR (Pt. 192) 167); Igwe v. A.C.B. Plc (1999) 6 NWLR (Pt. 605) 1; Fadlallah v. Arewa Textiles Ltd (1997) 8 NWLR (Pt. 518) 546”. Per Galinje JCA

At this point, the burden has shifted to the Defendants to prove that the termination of the Claimant’s employment was not in breach of the term of employment and it has failed to discharge that burden having not presented a clear and undisputed one month notice nor evidence of payment in lieu of notice in accordance with Clause 4 of the Terms of Employment attached to Exhibit C2, the letter of offer of employment.

I have no doubt that the Defendant has the right to terminate the employment of the Claimant, but it must be done in accordance with the terms of employment. In Longe v. FBN. Plc (supra) the court posited that:

“In the master and servant relationship, the master has unfettered right to terminate the employment – but in doing so he must comply with the procedure stipulated in their contract”.

The Defendant has failed to comply with the procedure stipulated in the contract of employment herein and consequently, issue one is resolved in favour of the Claimant to the effect that the employment of the Claimant was wrongfully terminated in view of the terms of employment existing between the parties.

I therefore turn to issue two which is ‘whether in view of the evidence before the court, the Claimant is entitled to the reliefs sought’.

In resolving this issue, I shall consider each relief sought in relation to the evidence before this court.

Relief one is a declaratory relief which reads “ A declaration that the Claimant is by virtue of the terms and conditions of employment dated 23^rd January, 2014, entitled to the following benefits: (1) arrears of salaries, (2) All accrued allowances stated in the letter of employment, (3) All bonuses. (4) compulsory benefits, (5) salaries and terminal benefits”.

A declaratory relief is such that depends solely on the strength of the Claimants case. In IKUMA v. CIVIL SERVICE COMMISSION BENUE STATE & ORS (2012) LPELR-8621(CA) the court with regards to the entitlement to declaratory reliefs held that:

“Declaratory reliefs are not granted as a matter of course but on credible evidence lead. This is so even where the other partly admits the claims. See David Fabunmi Vs Agbe (1985) 1NWLR (pt.2) 316.”Per TSAMIYA, J.C.A.(P. 22, para. A

Furthermore, the court in FAIRLINE PHARMACEUTICAL INDUSTRIES LTD & ANOR V. TRUST ADJUSTERS NIG. LTD (2012) LPELR-20860(CA) held that:

“In other words, courts do not grant declaratory reliefs either in default of defence or admissions, without hearing evidence and being satisfied by such evidence. This position is an exception to the rule that facts admitted need no proof. See BELLO v. EWEKA (1981) 1 S.C Pg.107; MOTUNWASE v. SORUNGBE (1988) 4 NWLR (PL 92) Pg. 90; A.G; FEDERATION v. AJAYI (2000) 12 NWLR (PT. 682) PG. 509; SALAU & ORS v. PARAKOYI (2001) 1 NWLR (Pt. 695) Pg,446 at 456 per Galadima; JCA (as he then was); NKWOCHA v. OFURUM (2002) 5 NWLR (Pt.761) Pg. 506 at Pg. 524-525 and MAJA v. SAMOURIS (2002) 7 NWLR (Pt 765) Pg. 78 at 101. However, there may be circumstances where the Plaintiff may take advantage of such weakness that supports his claim. In that case, he can take advantage of any weakness in the defendant’s case that supports his claim, to prove his case. See NWOKAFOR v. NWANKWO UDEGBE & ORS (1963) All N.L.R Pg. 104; EDOSOMWAN v. OGBEYEFUN (1996) 4 NWLR (Pt. 442) PG. 266; ALHAJI RAJI & ORS. v. GBADEBO COKER & ORS (1981) 5 S.C. Pg. 197 and ONYERO v. NWADIKE (1996) 9 NWLR (Pt. 231) Pg.240 – 241” PER TSAMMANI, J.C.A. (Pp. 61-62, Paras. F-D)

In view of this holding, I have considered the evidence before this court in relation to the items listed in the declaratory relief sought. The claimant wants this court to declare that he is entitled to arrears of salaries, accrued allowances, bonuses, compulsory benefits and terminal benefits. From the facts before this court, the Claimant presented Exhibit C2 which is his letter of offer of employment which is reproduced above and to which is attached the terms of employment. The Claimant had posited that his salary was fixed at N70, 566. 67k and he was paid full salary for just 6 months and from August 2014 he was not paid his full salary. He presented a schedule of the monies he was paid from February 2014 to November, 2017.He also maintained that according to the terms of employment, he was entitled to allowances and benefits as stated in the schedule attached to his letter of employment. He computed the total of the said monies to be N773,178. 69k.

The Defendant on the other hand admitted that the Claimant was entitled to the said N70, 566. 67k but contended that the salary of the Claimant was to be based on performance after the first 6 months of probation and that the performance of the Claimant was below agreed standard while the Claimant was paid all his salaries.

In view of the contention, I have further considered Exhibit C2 and the attachments. Paragraph 4 of Exhibit C2 states that “Also attached are the details of your remuneration”.

The said details of remuneration clearly states that the Claimant’s Gross Average monthly pay is N80, 833.33 and after the pension contribution, tax and NHF Contribution, the Net Average Monthly Pay (Take Home) is N70, 566 .67k which is the exact sum stated by the Claimant.

Immediately next to the salary on the schedule is the Performance Based Bonus which is to be determined. However, leave allowance is stated to be N25,830.59 while Passage allowance is stated as N33,206.70k.

Arising from the letter of employment, Exhibit C2, paragraph 3 states that the career of the Claimant will depend on the ability to meet specific target and his employment will be placed on a probation of 6 months after which the confirmation will be subject to performance of the responsibilities assigned to him. In view of this provision in the letter of employment and the schedule of remuneration attached, it is evidently clear that the take home pay of the Claimant which is N70,566.67k is not performance based and I so hold.

The leave allowance and Passage allowance which are performance based are benchmarked at N25,830.59 and N33,206.70k respectively but the Claimant stated that no amount was paid to him throughout the period of employment. If the Defendant paid any of such amount or less having evaluated the performance of the Claimant, the burden shifts unto the Defendant to establish that such monies have been paid. The Defendant via exhibit C12 informed the Claimant’s lawyer that he is not owed any outstanding payment.

It is instructive to note that the Claimant stated that he wrote several letters including exhibit C4 written by himself and Exhibit C9, C10 and C11 which were written by the Claimant’s Lawyer asking for the Claimant’s statement of account which the Defendant did not provide. The Defendant eventually replied the lawyer via exhibit C13 stating that the salary was a salary account and same is under investigation. In the witness statement on oath and statement of Defence, the Defendant also stated that the account of the Claimant has been closed upon the termination of employment of the Claimant.

In addition to the above, Exhibit C2 provides for the pension contribution and National Housing Fund (NHF) Contribution. These contributions are deducted from what ought to be the Claimant’s basic salary.

Arising from the evidence before this court, it is without doubt that the Claimant has placed credible, cogent and convincing evidence before this court to establish the fact that the Claimant is entitled to the declaratory relief sought. The burden placed on the Claimant is to be discharged on a balance of probability. The court in the case of WARIGBELEGHA v. OWERRE (2011) LPELR-4454(CA) held that:

“Learned Appellant counsel must further be reminded that though by virtue of S.137 of the Evidence Act, the burden of proof in civil cases is on the party who asserts a fact to prove same, the standard of proof required is on a preponderance of evidence and balance of probabilities. Thus in such cases, parties must prove their case on preponderance of evidence and on balance of probabilities. It is after the initial burden of proving the case has been discharged in accordance with this principle of law that the burden shift and continues to shift. Where the plaintiff fails to discharge this initial burden the defendant would not be required to prove any fact and the plaintiff would not be allowed to rely on the defendant in order to succeed. See Longe v. FBN Plc. (2006) 3 NWLR (pt.967) 228; Audu v. Guta (2004) 4 NWLR (Pt.864) 463, Mani v. Shanono (2006) 4 NWLR (Pt.969) 132 and Agbi v. Ogbeh (2006) 11 NWLR (Pt.990) 65.” Per MUHAMMAD J.C.A. (Pp. 14-15, paras. D-A).

Consequently, I find that the Claimant has discharged the burden of proof placed on him and therefore, entitled to the declaratory relief sought in relief one and same is accordingly granted.

Relief two is for the sum of N773, 178.69k (Seven Hundred and Seventy Three Thousand, One Hundred and Seventy Eight Naira, Sixty Nine Kobo), representing arrears of salaries, wrongful termination, All accrued allowances stated in the letter of employment, All bonuses, compulsory benefits, salaries and terminal benefits of the claimant from January 2014 till date.

I should start by noting that Relief two is dependent on the grant of relief one and same would be so considered having declared that the Claimant is entitled to the arrears of his unpaid portion of his salaries which is basic and non-dependent on performance. The Claimant ought to have been paid N70, 566.67k per month and from the facts pleaded which could have been substantiated by the production of the statement of account of the Claimant which the Defendant has failed to produce on the flimsy ground that the account is a salary account and same is under investigation, the Claimant was paid N70,000.00 for only 6 months while other months were less than the agreed N70,566.67k. In some months, the claimant was paid, N55,000 and in others, N60,000 and N37,000 until the employment was terminated in November 2017. From the facts and evidence placed before this court, I find that the total sum which the Claimant ought to be paid in a year is N846,800.04 as take home pay but in 2014 and 2017 the Claimant worked for 11 months for which his salary would total N776,233.37, he was paid N81,233 less the said total in 2014 and N231,233 less the said amount in 2017. In 2015 and 2016 when the Claimant worked for the whole year, he was paid N156,800 and N126,800 less his annual pay for the two years respectively.

The total of the monies unpaid of the said salary for the four years totalled at N596,066 while the total of the leave allowance and passage allowance of which no payment was made in the four years totalled at N158,657.39. The total of the unpaid salaries and the allowance consequently amounts to N754,723.39.

I must however state that this sum has nothing to do with wrongful termination, terminal benefits and bonuses as lumped into relief two by the Claimant.

In addition, from the above findings, the total sum is less than the sum claimed which is N773,178.69k. However, it must be noted that this court has the power to grant a sum less than what was sought but not more. In NITEL LTD. V. IKPI (2007) 8 NWLR (Pt.1035) 96 C.A., the court held that:

“It is settled law that a Court must on no account grant a party a relief which is more than he has sought. The Court can grant a lesser sum than what is claimed, but never more than what is claimed. See MAKANJUOLA v BALOGUN (1989) 3 NWLR (Pt. 348) p.4, ENIGBOKAN v A.I.I. CO. NIG LTD (1994) 6 NWLR (Pt. 348) P. 4; NIGERIAN HOUSING DEVELOPMENT SOCIETY LTD v MUMURI (1977) 2 SC p. 81.” Per RHODES-VIVOUR, J.C.A. (P. 18, paras. E-G) –

In view of the above, It is the holding of this Court that the Claimant is entitled to relief two to the effect that the Claimant is entitled to the sum of N754,723.39 (seven hundred and Fifty four thousand, seven hundred and twenty three naira, thirty nine kobo being the arrears of unpaid salaries and allowances of the Claimant from February 2014 to November 2017.

Going further, upon a consideration of reliefs three and four, I find it expedient to determine both together since they relate to claims for wrongful termination of the Claimant’s employment.

Relief three is for the award of the sum of N250, 000.00 (Two Hundred and Fifty Thousand Naira) for wrongful termination of employment.

While relief four is for Exemplary Damages in the sum of N5, 000, 000.00 (Five Million Naira) in favour of the Claimant for wrongful termination of employment, deprivation, hardship, pains and ridicule the Claimant have been exposed to since November 2017 till date, due to the brazen neglect and failure of the Defendant to perform her obligations under the Claimant’s terms and conditions of service contained in the letter of employment dated 23^rd January, 2014.

In view of the two reliefs, I must state categorically clear that the appropriate remedy for wrongful termination of employment of this nature is the amount that ought to be paid in lieu of the requisite notice, where notice or payment in lieu of notice is stipulated expressly and where the employer fails to give notice nor pay the salary in lieu of notice

The court made this abundantly clear in the case of Afribank (Nig.) Plc v. Osisanya (2000) 1 NWLR (Pt.642), pg. 599 where the court held that:

“It is also the law that in ordinary contracts of employment where the terms provide for one month’s notice before termination or salary in lieu thereof, the only remedy an employee who is wrongfully terminated can get is a month’s salary in lieu of notice and any other legitimate entitlements due to him at the time the employment was brought to an end. See Francis Adesegun Katto v. C.B.N. (1999) 6 NWLR (Pt. 607) 390 at 406. See also Western Nigeria Development Corporation v. Abimbola (supra)…”Per OBADINA, J.C.A.(Pp. 33-35, paras. D-C).

In similar terms, the court in Osiyemi v. Societe Generale Bank Ltd. (2001) 11 NWLR (Pt.725)563 held that:

“In a contract of employment, which is of the ordinary nature other than one with statutory flavour where the terms provide for a length of notice being given before termination or salary in lieu thereof, the only remedy an employee who has his appointment wrongfully terminated can get is that period’s salary in lieu of notice and any other legitimate entitlements to which he may be entitled at the time the employment was put to an end, see the W.N.D.C. cited supra. The measure of damages will be the salary which the employee would have earned during the period of notice.” Per ADEREMI, J.C.A. (Pp. 11-12, paras. E-A)

In view of the above authorities and the resolution of issue one to the effect that the Defendant wrongfully terminated the Claimant’s employment having failed to give the requisite one month notice nor payment for the one month in lieu of notice, and also the finding of this court that there is no evidence before this court in proof of any hardship, pain or ridicule as a result of the termination of employment, it is the holding of this court that that relief three and four is granted to the effect that this court makes an order that the sum of N70, 566. 67k being the monthly take home salary of the Claimant be paid to the Claimant as salary in lieu of notice of termination of his employment.

Relief five is for the sum of N5, 000,000.00 (Five Million Naira) in favour of the Claimant as general damages, trauma and suffering the Claimant has been through.

In the consideration of this relief, I reckon that the court in UBN PLC v. AJABULE & ANOR (2011) LPELR-8239(SC) described general damages thus:

“General damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need not be alleged or proved. They need not be specifically claimed. They are also termed direct damages; necessary damages.” Per FABIYI, J.S.C (P. 32, paras. C-E) see also Nwachukwu V Egbuchu (1990) 3 NWLR (Pt. 139) 433 at 445

This court held in the case of Ayodele Samuel K. v Afri Hotel and Suites and Restaurants and Anor. (unreported, Suit No. NICN/ABJ/61/2018) delivered on 26^th September, 2018 that, the effect of the above authority is that the Claimant need not prove the general damages sought and the court can grant same upon consideration of the wrong done to the Claimant which in this case is the refusal to pay to the Claimant his entitlements upon the termination of his employment.

Similarly in the instant suit, there is no evidence before this court to prove any trauma and suffering which the Claimant has been through. That notwithstanding, I find that the Claimant was wronged upon the failure of the Defendant to pay the Claimant his complete salaries and allowances as envisaged in the terms of employment and therefore finds that the Claimant deserves a remedy in form of general damages. Consequently, the general damages of N50, 000.00 is awarded in favour of the Claimant and against the Defendant.

Relief six is for the sum of N1, 500,000.00 (One Million, Five Hundred Thousand Naira Only) as cost of litigation. In determining this relief, I reckon that the court cautioned in EMPERION WEST AFRICA LTD v. AFLON LTD & ANOR (2014) LPELR-22975(CA) that:

“…although a court has the sole discretion to award cost, such award should not be made to serve as a punitive measure or as punishment. Rather, it should merely serve as indemnity or to compensate the wronged party on the out of pocket expenses he incurred in the prosecution or attendance of the suit or to cushion the cost of litigation incurred by the successful party in the suit. See PSO Olasipe vs. National Bank of Nigeria Ltd & Anor (1985) 3 NWLR (Pt. 11) 147 at 152 para B.” Per SANUSI, J.C.A. (P. 73, paras. D-F)

Upon consideration of the caution, I take into cognizance the fact that the Claimant in attempt to establish that he incurred cost tendered Exhibit C5 which is the letter with which he instructed his lawyer to take action in recovering the sum owed to him by the Defendant and wherein he offered to pay the sum of N1,500,000 as professional fees. He also tendered Exhibit C6 which is the letter of acceptance written by the law firm of his lawyer to him in respect of the instruction.

In view of the holding of the court in that the discretion to award cost is merely to compensate the wronged party for incurred expenses in the prosecution of a suit, I find that the Claimant merits the discretion and the cost of N200,000.00 is awarded to the Claimant.

In view of the above, issue two is therefore resolved in favour of the Claimant to the extents to which the above reliefs have been granted. .

In the final analysis, the reliefs sought by the claimant are granted as resolved above and the entitlements in form of monies to the extent to which they are granted are to be paid within 60 days from today.

Judgment is accordingly entered.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.