IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: OCTOBER 30, 2018 SUIT NO. NICN/LA/617/2015
BETWEEN
Olusanya Adeoshun – Claimant
AND
Stag Engineering Nig. Ltd – Defendant
REPRESENTATION
Gani Bello, with John Abanum, for the claimant.
Ademola Salami, for the defendant.
JUDGMENT
1. The claimant commenced this action vide a complaint filed on 7th December 2015 together with the supporting originating processes. However, pursuant to the order of Court dated 29th June 2016, the claimant’s originating processes were amended and filed on 30th June 2016. By the amended general form of complaint and the amended statement of facts, the claimant sought for the following reliefs:
(a) A declaration that the letter of suspension dated 2nd February 2012 suspending the claimant from the employment of the defendant with effect from 1st February 2012 is wrongful, unlawful, irregular, null and void and of no effect whatsoever.
(b) A declaration that the employment of the claimant with the defendant is still subsisting.
(c) The sum of N1,020,000.00 (One Million, Twenty Thousand Naira) being his salary and emolument per annum with effect from February 2012 till judgment is delivered in this case.
(d) The sum of N85,000.00 (Eighty-Five Thousand Naira) per annum with effect from 2010 till judgment in this case being his entitlement for the 21 working days unexpended leave commuted to cash.
(e) The sum of N51,000.00 (Fifty One Thousand Naira) per annum with effect from 2010 until judgment being his leave allowance.
(f) The sum of N51,000.00 (fifty One Thousand Naira) per annum with effect from 2010 until judgment in this case being his medical allowance.
(g) The sum of N1,000,000.00 (One million) as damages for breach of contract of employment.
2. In reaction, the defendant entered formal appearance and then filed its defence processes, to which the claimant filed his reply to statement of defence, additional written statement on oath, list and copies of additional documents. Upon the claimant amending his originating processes, the defendant consequentially amended its defence processes too. The claimant accordingly filed his reply to the defendant’s amended defence processes.
3. At the trial, the claimant testified on his own behalf as CW. His front loaded documents were admitted and marked as Exhibits C1 to C8. For the defendant, Mrs Olufunke Palmer, the HR and Admin Manager of the defendant, testified as DW. The defendant’s frontloaded documents were admitted and marked as Exhibits D1 to D6. At the close of trial, parties filed and served their respective final written addresses. The defendant’s final written address was field on 30th January 2018, while the claimant’s was filed on 26th February 2018. The defendant did not file any reply on points of law.
THE CASE OF THE CLAIMANT
4. By the pleadings of the claimant, he was employed as Manager, Engineering Logistics by the defendant vide a letter dated 28th November 2006. Since that time till 2012, he did not go on leave neither was he allowed to benefit from the medical facilities of the defendant. Although he was quite committed and dedicated to his work, the defendant by letter dated 2nd February 2012 suspended the claimant from work without pay with effect from 1st February 2012 even when his letter of appointment did not make an provision for suspension. That no query was given to him before the suspension. Letters written to the defendant by the claimant to demand his entitlements were ignored and rebuffed. The claimant was in a fix seeking for alternative job as his employment with the defendant has not been validly determined. Since February 2012, he had been denied his salary and allowances; hence this suit.
THE CASE OF THE DEFENDANT
5. The defendant’s case is that the claimant was employed on compassionate ground because of his age and that his scope of work was limited to PHCN Contract. The defendant also alleged that the claimant’s performance at work was fluctuating and erratic, which caused the defendant serious embarrassment with attendant financial implication. The defendant thereby issued the claimant a query, the reply to which was evasive and unsatisfactory. The defendant admitted issuing the letter of suspension dated 2nd February 2012 to the claimant on the ground that the contract the defendant had with PHCN was terminated. To the defendant, when the claimant decided to treat his letter of suspension as termination, it went ahead to calculate the reasonable entitlements due to the claimant. Unfortunately, that the day the claimant brought his letter of 7th May 2012, he was so unruly and created a big scene that the activities of the defendant were disrupted for hours; for this, the defendant withdrew the gesture. In his reply, the claimant denied that his employment was on compassionate ground and that his letter of employment did not state that his scope of work was limited to PHCN contract. The claimant maintained that his attitude to work was consistent, efficient, prolific, resourceful and progressive.
THE SUBMISSIONS OF THE DEFENDANT
6. The defendant submitted two issues for determination, namely:
(1) Whether the defendant’s letter of suspension dated 2nd February 2012 (Exhibit C2) can be interpreted as letter of termination.
(2) Whether the claimant can claim arrears of salary and emoluments, medical and leave allowances.
7. On issue (1), the defendant submitted that it is in evidence that the claimant was given schedule of work to fix PHCN electricity poles and transformers because of the PHCN contract. That the claimant attested to the fact that he resumed work outside the defendant company premises. That DW testified that when the PHCN contract came to an end, the claimant was given Exhibit C2, which literarily reads “suspension” but from all intents and purposes by liberal interpretation, it in fact means “termination”. To the defendant, Professor Akintunde Emiola in his book, Nigerian Labour Law, 1979 Edition at page 60 describes letter of termination as a “Notice in the legal sense is such notice as brought home to the mind of a reasonably intelligent and careful reader such knowledge as fairly and in a business sense amounted to notice of a contract. Briefly stated by notice meant the formal information by one party to the other that the contract is to be brought to an end at a specified date”. That without mincing words, Exhibit C2 categorically states the specific date of termination as 1st February 2012. That this is a clear notice to “the mind of a reasonably intelligent and careful reader”. That the choice of word suspension by the defendant in Exhibit C2 notwithstanding has plainly described the situation on ground that an end has been brought to the master servant relationship between the parties. That the courts are enjoined in Agusiobo v. Onyekwelu [2003] 14 NWLR (Pt. 839) 34 at 52 to decide a case on its merits and be wary of sacrificing justice on account of technicality. That for the interest justice to be served, the Court should look at the substance not the form. The substance of Exhibit C2 conforms with the ingredients of notice of termination. Another key ingredient of notice of termination is that after termination the employer is not bound to pay salary to the employee. That the defendant in Exhibit C2 stated that the claimant’s salary will be stopped.
8. The defendant went on that it is important to note that commission or allegation of crime is not contained in Exhibit C2. That the use of the word “suspension” by the defendant has no connotation with any offence or crime at all. That the defendant did not allege any commission of crime by the claimant, hence Exhibit C2 is purely civil and it simply reveals termination of employment. That in interpreting a document or judgment, the document or judgment must be read as a whole, and interpreted in that light with effort being made to achieve harmony among the part, relying on Mbani v. Bosi [2006] 11 NWLR (Pt. 991) 400 at 417 and urging the Court to read Exhibit C2 as a whole to decipher and see the clear intention of the defendant. Furthermore, that the defendant gave reason for the termination in Exhibit C2 as “because our contract with the PHCN has ended”. However, that it gave hope for the future if PHCN renews the contract. The defendant then cited NNPC v. Idoniboye-Obu [1996] 1 NWLR (Pt. 427) 655 at 671, which held that an employer is under no obligation to give reasons for terminating the appointment of his employee. That the defendant is not bound in law to give any reason for termination.
9. For issue (2) i.e. whether the claimant can claim arrears of salary, emoluments, medical and leave allowances, the defendant submitted that the claimant’s prayer for the payment of salary from February 2012 till judgment is delivered cannot be founded nor be granted by the Court, citing Idoniboye-Obu (supra) at 675 where it was held that termination of a contract of service even if unlawful brings to an end the relationship of master and servant or employer and employee. Accordingly, that the claimant is not entitled to claim salary, emoluments, medical and leave allowances from the defendant. That the termination or severance of employment has been indicated to the claimant, without conceding, it does not matter that the termination is alleged to be unlawful. The defendant has shown to the knowledge of the claimant that an end has come to the master-servant relationship that hitherto existed between them. Furthermore, that it is settled law that the Court will not impose an employee on an employer just as no employer can prevent an employee from resigning from its employment to seek greener pastures elsewhere. That Exhibit C2 states this in clear term as follows: “This is because our contract with the PHCN has ended. We will however, look into the possibility of re-engaging you in future”. That the intention of the defendant to severe the master-servant relationship is obvious, unequivocal and without any ambiguity, automatically, we submit that the claimant’s employment was terminated on 1st February 2012. That it is trite that once it is established that a relationship of master and servant exists, then it carries with it all its attendant consequences, one of which is the right of a master to terminate the services of his servant according to the terms of the contract of service between them, citing Ningi v. First Bank of Nig Plc [1996] 3 NWLR (Pt. 435) 220 at 230, which the defendant did vide Exhibit C2. As such, that the claimant is not entitled to claim any salary, emoluments, leave and medical allowances or any entitlement at all from the defendant from the date of the Exhibit C2.
10. The defendant continued that a Court will grant a declaration that a contract still subsists only in rare and special circumstances, as where the employee enjoys special status or office by virtue of statute, citing Registered Trustees of the Planned Parenthood Federation of Nigeria v. Sulaimon [2004] 11 NWLR (Pt. 883) 1. That the claimant has not shown to this Court that his contract of employment has special status to warrant the Court to order that his employment is still subsisting. That going by these authorities the claimant’s employment is deemed to have been successfully terminated as at 1st February 2012; therefore he is not entitled to claim salaries, emoluments, leave and medical allowance from that date till date.
11. The defendant proceeded that the claimant is claiming a sum of N85,000.00 per annum as unexpended leave commuted to cash. To the defendant, this claim is not supported with proof. That the letter of employment (Exhibit C1) does not reflect the claimant’s calculation and claim. The defendant also referred to the Company’s Handbook (Exhibit D6) at paragraph EA. That the claimant being an intermediate staff is entitled to N25,000 per annum. That the defendant is not conceding any amount to the claimant. Moreover, that Exhibit C1 expressly states under the clause for Annual Leave that annual leave is for the staff that is confirmed; and the claimant was not confirmed and he has failed to prove the contrary.
12. Furthermore, that Exhibit C1 under the Medical Facilities clearly states that these facilities will only be enjoyed by the claimant after confirmation of his employment. That since the claimant’s employment has not been confirmed, he cannot claim medical allowance as he was not entitled to enjoy medical facilities during his stay with the defendant. That the claimant cannot claim damages for breach of contract. That where an employee was not paid his salary in lieu of notice, such employee’s damages will be based on the monthly salary; and the remedy of the aggrieved employee is in damages and the measure of damages is what he would be entitled to in the amount of money in lieu of notice, citing Idoniboye-Obu (supra) at page 676.
13. Finally, that the claimant has woefully failed to lead evidence to sustain his claims; there was no convincing proof in support of his assertion to entitle him to the monetary claims. Accordingly, he has not discharged the burden of proof on him, relying on sections 131 and 132 of the Evidence Act 2011. In conclusion, the defendant urged the Court to dismiss the claimant’s action and all the prayers contained therein with substantial cost.
THE SUBMISSIONS OF THE CLAIMANT
14. The claimant submitted two issues for termination, namely:
(i) Whether in the circumstances of this case, Exhibit C2 validly determined the claimant’s employment with the defendant.
(ii) Whether the claimant is entitled to the reliefs sought.
15. Regarding issue (i), the claimant submitted that by Exhibit C1, there exists a contract of employment between the claimant and defendant, referring to paragraph 2 of the amended statement of facts, which paragraph was admitted by the defendant in paragraph 2 of its amended statement of defence; and citing to Iyere v. Bendel Feed & Flour Mill Ltd [2009] All FWLR (Pt. 453) 1217, where the Supreme Court defined a contract of employment as “a Contract of Service or apprenticeship whether express or implied”. That in this case at hand, the contract of employment is expressed in Exhibit C1, which terms governing the employment are contained therein and include offer of employment, job description, hours of work, probation/confirmation, dismissal, annual leave, remuneration and medical facilities. That as required by the defendant, the claimant accepted the employment plus the terms by endorsing Exhibit C1 accordingly. That by the evidence before the Court, the claimant performed his work creditably well with commitment and dedication so much so that his remuneration was increased, referring to paragraph 4 of the amended statement of facts and paragraph 6 of the claimant’s reply to the amended statement of defence.
16. To the claimant, against the run of play, by a letter dated 2nd February 2012 (Exhibit C2), the defendant suspended him from work. That the DW under cross-examination testified that Exhibit C2 was not issued pursuant to any offence committed by the claimant. She also testified that Exhibit C2 (letter of suspension) did not state that any offence was committed by the claimant. That Exhibit D5 (the defendant company’s Handbook) in clause G2 at page 20 thereof provides for warning and suspension. The clause stipulates that an employee of the defendant shall be suspended pursuant to offence or for a breach of discipline. The period of suspension shall not exceed two weeks. That the question that arises is where is the justification for the suspension of the claimant as expressed in Exhibit C2. Firstly, it is indefinite. Secondly, Exhibit C2 took retrospective effect. Finally, Exhibit C2 was not based on any offence and, therefore, is contrary to clause G2 of Exhibit D5. The claimant cited University of Calabar v. Esiaga [1997] 4 NWLR (Pt. 502) 719 at 739, which held that “the word suspension means temporary privation or deprivation, cessation or stoppage of or from the privileges and rights of a person”; and Longe v. First Bank of Nigeria Plc [2006] LPELR-7682(CA). The claimant then submitted that having regard to the indefinite nature of the suspension of the claimant as expressed in Exhibit C2, the entire scenario has lost justification. That the claimant has been in a fix since 2012 because of the suspension from work. He could not look for alternative job when the one with the defendant has not been validly determined. That what is more worrisome is that the suspension of the claimant was not for the purpose of creating space to investigate offence committed by the claimant. The suspension of the claimant was not a punishment for the offence committed. That Exhibit C2 does not make any sense at all.
17. The claimant continued that it is settled law that any disciplinary measure against an employee should not carry retrospective effect, citing Underwater Engineering & Co. Ltd & anor v. Darusha Dubefon [1995] LPELR-3379(SC); [1995] 6 NWLR (Pt. 400) 156, which held that “it is improper to dismiss or terminate the appointment of an employee with retrospective effect”. That the letter of suspension in this case (Exhibit C2) is dated 2nd February 2012 but to take effect from 1st February 2012. That having been with retrospective effect, Exhibit C2 cannot stand the test of time. That by the pleading and evidence of the parties in this case, Exhibit C2 was not based on any offence committed by the claimant. Exhibit C2 was not for the purpose of investigating offence committed by the claimant neither was it for punishment for offence committed by the claimant. That it will be proper, therefore, to say that Exhibit C2 is unwarranted, unlawful and unreasonable. Exhibit C2 cannot by any imagination secure the favour of this Court. It will thus be tidy and proper for the Court to take it that Exhibit C2 never existed at all. That the consequence is that the claimant is in the eye of law still in the employment of the defendant on the ground that his suspension (as per Exhibit C2) is not sustainable. It is null and void and of no effect at all. Therefore, Exhibit C2 is a worthless piece of paper which has not validly determined the claimant’s employment with the defendant, urging the Court to so hold and resolve issue (i) in favour of the claimant.
18. Issue (ii) is whether the claimant is entitled to the reliefs sought. To the claimant, it is trite that facts admitted need no further proof, citing Onoba v. Abuja Building Products Ltd & ors [2014] LPELR-22704(CA). That Exhibit C2 states clearly that the claimant is not entitled to his salary and allowances for the duration of the suspension. That the claimant has been on suspension since 1st February 2012 until now. That having regard to the claimant’s argument and resolution in issue (i) to the effect that the claimant is still in the employment of the defendant on the ground that his appointment with the defendant has not been validly determined, it stands to reason that he is entitled to his salary and allowances since February 2012 till now.
19. The claimant went on that the under-listed averments as expressed in the statement of facts are not denied or controverted by the defendant. The claimant’s salary and emolument per annum is N1,020,000.00 (One Million Twenty Thousand Naira) as claimed in paragraph 20(c) of the statement of facts. By the pleading and evidence of the parties in this case, the claimant has never gone on annual leave. The 21 days leave commuted to cash is N85,000 per annum, while his leave allowance is N51,000.00 (Fifty-One Thousand Naira) per annum. The claimant is also entitled to his medical allowance of N51,000.00 (Fifty-One Thousand Naira) per annum. That all the claims in paragraph 20(d), (e) and (f) of the statement of facts are for the period 2010 till the judgment in this case. Furthermore, that in paragraph 6 of the statement of defence, the defendant denied owing the claimant any outstanding leave or leave allowance. Unfortunately, no evidence of payment of leave allowance was exhibited by the defendant, citing PDP v. Abari [2009] LPELR-4835(CA), where it was held that “the law is now trite that the burden of proof is on who asserts”.
20. As for the claim for N1,000,000.00 (One Million Naira) damages, the claimant urged the Court to grant him same, citing Arab Construction Ltd & anor v. Isaac [2012] LPELR-9787(CA), where it was held that “general damages are damages which the law in its wisdom presumes to flow automatically from the wrong inflicted on a Claimant by a Defendant from whom they are claimed and do not need or have to be specifically pleaded”; and also SDPC v. Nwabueze [2013] LPELR-21178(CA). That the claimant in this case has been put into serious stress and hardship since 2012. He had no means of livelihood and this makes him to suffer. His state of affairs since 2012 till now can best be imagined than expressed. He then submitted that he is entitled to the N1,000,000.00 (One Million Naira) damages. It thus the claimant’s submission that he is entitled to all the reliefs sought. He, therefore, pleaded with the Court to resolve issue (ii) in his favour and grant all the reliefs he seeks.
21. On the two issues raised by the defendant, the claimant submitted that Exhibit C2 is the letter of suspension. It is not a letter of termination. That there is no way the Court will change the word “suspension” to “termination”; that will not be the duty of the Court. The Court is not permitted to read extraneous meaning into Exhibit C2, citing Minaj Holdings Ltd v. AMCON [2015] LPELR-2465(CA) and Dalek Nig. Ltd v. Compadec [2007] 2 SC 305. That what the defendant wants the Court to do to Exhibit C2 has no permission in law; it is like daydreaming, urging the Court to decline the obligation. That the rule of interpretation is that where the words used in a document are clear and unambiguous, they should be accorded their ordinary and grammatical meaning without any colouration, citing Agbaje v. Fashola [2008] 6 NWLR (Pt. 1082) 90 and Basinco Motors Ltd v. Woermann-Line & anor [2009] 5-6 SC (Pt. II) 123.
22. That another strong point why the Court should turn down the request of the defendant is that Exhibit C2 is to take retrospective effect. That if the Court reads “termination” into the document that will be running against the law, citing Underwater Engineering & Co. Ltd & anor v. Darusha Dubefon (supra). That the claimant in this case at hand is entitled to the arrears of salary and emoluments since 2012 till now; his absence from work being at the instance of the defendant who issued Exhibit C2. That from the totality of his submission, Exhibit C2 is unwarranted, null and void. That the argument of the defendant that the letter of suspension should be read as letter of termination is a demonstration of over-desperation. That the defendant is like a sinking swimmer desperately holding unto any available rotten straw in the river for survival. That either for the “suspension” or for the “termination”, Exhibit C2 having been made to take retrospective effect is null and void and of no effect at all. The claimant is, therefore, entitled to his salary and emoluments from February 2012 till the judgment in this case, urging the Court to so hold.
23. The defendant had also argued that since Exhibit C2 is termination, the claimant is not entitled to the arrears of salary and emoluments claimed. To the claimant, he had argued that Exhibit C2 is not termination of appointment but suspension of employment. He also argued that Exhibit C2 is unwarranted, unlawful and unreasonable and cannot stand the test of time. In consequence, that the claimant is in the eye of the law still in the employment of the defendant and, therefore, entitled to claim the arrears of salary and emoluments which have been denied him because of Exhibit C2. The claimant concluded by urging the Court to resolve the two issues raised by the defendant against the defendant and grant the claimant’s reliefs.
COURT’S DECISION
24. After a careful consideration of the processes and submissions of the parties, by reliefs (a) and (b) as claimed by the claimant i.e. the claim for a declaration that the letter of suspension dated 2nd February 2012 suspending the claimant from the employment of the defendant with effect from 1st February 2012 is wrongful, unlawful, irregular, null and void and of no effect whatsoever; and a declaration that the employment of the claimant with the defendant is still subsisting, the defendant’s and the claimant’s first issue coincide in calling for the determination of the legal effect of Exhibit C2, the letter dated 2nd February 2012 and titled, “Suspension of Employment”. Exhibit C2 is essentially a two-paragraphed letter. It reads thus:
We wish to advise that your employment will be suspended without pay with effect from 1st February 2012 till further notice. This is because our contract with the PHCN has ended.
We will however, look into the possibility of re-engaging you in future.
To the defendant, Exhibit C2, which literarily reads “suspension” is for all intents and purposes (and so means) “termination”. In other words, the letter of suspension (Exhibit C2) terminated the employment of the claimant, not merely suspended the claimant. This argument of the defendant is hinged on the fact that the claimant’s employment is specific to the PHCN contract; as such, as soon as the PHCN contract came to an end, the claimant’s contract with the defendant also came to an end. The claimant on his part argued that Exhibit C2 cannot be read as terminating his employment since suspension and termination are not in employment law one and the same. We may, however need to take a closer look at Exhibit C2 in order to determine its true legal import.
25. Exhibit C2 uses two critical phrases: “…your employment will be suspended…” and “We will however, look into the possibility of re-engaging you in future”. Suspension, conceptually and in the manner canvassed by the claimant is that which is meted out on an employee who faces disciplinary action; and here it is either meted out in order to investigate the employee or it is meted out as punishment after disciplinary investigation. See Longe v. FBN Plc [2010] 6 NWLR (Pt. 1189) 1 SC, Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt. 103) 40 NIC and Mr. Bisiriyu Adegoke Sheu v. Lagos NURTW (First BRT) Cooperative Society Limited unreported Suit No. NICN/LA/532/2013 the judgment of which was delivered on July 1, 2015. This fact is reflected in clause G.2 of Exhibit D5, the defendant’s Employment Conditions and Agreement. Clause G.2 dealing with “Warnings and Suspension” provides that the company “may either suspend or warn the employee” for less serious offence; and “shall suspend an employee for a breach of discipline as stipulated in section 37 of the Code”.
26. In all of this, a pertinent question arises: the suspension that Exhibit C2 talked of, and which the claimant alleged to, is it one that suspends the person of the claimant or his employment? In other words, is there a distinction between suspending an employee and suspending his employment? Exhibit C2 talked of “your employment will be suspended”. Clause G.2 talks of “the employee” being suspended. Case law authorities talk of the employee being suspended when the said employee is being disciplined. For instance, in University of Calabar Teaching Hospital & anor v. Juliet Koko Bassey [2008] LPELR-8553(CA), the Court of Appeal talked of “…where an employee is placed on suspension…” Contrast this with Total (Nig.) Plc v. Onuoha [2001] 11 NWLR (Pt. 725) 634, which held that probation is the testing of a person’s abilities or behavior to find out if he or she is suitable; it is the suspension of a final appointment to an office until a person temporarily appointed has by his conduct proved himself to be fit to fill it. Note the use of the word “suspension” in the phrase “it is the suspension of a final appointment to an office”, which word has nothing to with the discipline of the employee in question. The point I seek to make is that for disciplinary purposes, it is the employee that is suspended. This is different from the loose meaning of suspending an employment or work or appointment. So when Exhibit C2 advised the claimant that his employment will be suspended, and concluded that the defendant “will however, look into the possibility of re-engaging you in future”, this was not a case of discipline of the claimant to warrant the suspension the claimant talked of. It was simply the suspension or stoppage of employment in the loose sense of the word. I must state that though the claimant was queried in 2010 vide Exhibit D3 dated 18th October 2010 and he answered same vide Exhibit D4 dated 22nd October 2010, Exhibit C2 dated 2nd February 2012 is not the disciplinary outcome of the query given the time lag and the fact that Exhibit C2 did not indicate that the claimant was being suspended as a disciplinary measure. Instead, Exhibit C2 gave the reason for the suspension as “This is because our contract with the PHCN has ended”.
27. I acknowledge that the job description of the claimant as per Exhibit C1, the offer of employment dated 28th November 2006, does not indicate that the claimant’s contract was job specific to (and so was tied to) the PHCN contract. The job description of the claimant as per Exhibit C1 reads thus:
You will be responsible for the execution of all aspects of Engineering Logistics within the company. In addition, you will be required to carry out any duties as may be assigned to you at any time within the company of any of its subsidiaries.
However, when Exhibit C2 was given to the claimant, the claimant himself treated it as a termination of his employment. See Exhibits C3, C4 and C5. The claimant in paragraph 11 of the amended statement of facts stated thus: “Upon receipt of the letter of suspension, the Claimant in a letter dated 7th February, 2012 [Exhibit C3] demanded from the Defendant his terminal benefits”. In paragraph 12 of the amended statement of facts, the claimant proceeded to plead that his subsequent letters (Exhibits C4 and C5) to the defendant “on the issue of his terminal benefits were ignored and snubbed by the Defendant…” So it was the claimant who treated his suspension as termination. It is surprising, therefore, that the claimant would argue that Exhibit C2 is a worthless piece of paper which has not validly determined his employment with the defendant when he himself treated it as determining his employment with the defendant.
28. Since it was the claimant himself who treated his suspension as termination by asking for terminal benefits, the argument of the claimant that he is still in the employment of the defendant and so he is entitled to his salary and allowances since February 2012 till now becomes questionable. It is a classic case of approbating and reprobating; eating one’s cake and having it. In this sense, the claimant cannot lay claim to reliefs (a) and (b) as claimed. The claimant’s and defendant’s first issue must accordingly be resolved against the claimant. The claimant’s reliefs (a) and (b) thus fail and so are dismissed. Since reliefs (a) and (b) fail, relief (c), the claim for N1,020,000.00 (One Million, Twenty Thousand Naira) being salary and emolument per annum with effect from February 2012 till judgment is delivered in this case, must automatically fail. It fails and so is dismissed.
29. This leaves out the claims for reliefs (d) to (g), which make up the second issue of both the defendant and the claimant. Reliefs (d) to (f) are respectively claims for unexpended leave commuted to cash, leave allowance and medical allowance. Relief (g) is a claim for damages for breach of contract. Reliefs (d) to (f) are claims for special damages, which by NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) are never inferred from the nature of the act complained of, are exceptional and so must be claimed specially and proved strictly. To succeed in them, the claimant must show his entitlement to them as by reference to the instrument that entitles him to each of the heads of claim. He must also show how he came by the quantum of the sums claimed. See Mr. Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39. As pointed out by the defendant, the claimant did none of this. The claimant did not refer this Court to the instrument that entitles him to the right to have his unexpended leave commuted to cash; he did not refer this Court to the instrument that entitles him to N51,000 as leave allowance; and he did not refer this Court to the instrument that entitles him to N51,000 as medical allowance. Exhibit C1 which refers to annual leave and medical facilities did not stipulate any sum as an entitlement of the claimant. Reliefs (d) to (f) accordingly fail and so are dismissed.
30. Since all the reliefs of the claimant fail, there can be no talk of damages for breach of contract. Relief (g) accordingly fails and so is dismissed. On the whole, the claimant’s case fails and so is dismissed.
31. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
