Peter Omatseye Clarke -VS- MinisomLifestyle Nigeria Limited

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD

DATE: WEDNESDAY 6^TH MAY, 2019 SUIT NO. NICN/LA/442/2018

BETWEEN

PETER OMATSEYE CLARKE – CLAIMANT

AND

MINISO LIFESTYLE NIGERIA LIMITED – DEFENDANT

Representation:

A Kazeem, with C Unankaappear for the Claimant

Matthew Burkaa with A Kayode, IB Ahmed and Hope Kesmen, appear for the Defendant

JUDGMENT

This matter was commenced on 20^th August 2018 by a General Form of Complaint taken out by the Claimant wherein he seeks the following reliefs:

A DECLARATION that the conduct of the Defendant and its Staff in withdrawing the Claimant’s access to his place of employment with the Defendant on 23^rd April, 2018 and denying him access to his official email account with the Defendant without any reason being given constitutes an immediate termination of the Claimant’s employment.
A DECLARATION that the Letter of Employment Termination dated 24^th April 2018 from the Defendant to the Claimant is an afterthought and, therefore, null, void and of no effect.
A DECLARATION that failure of the Defendant to pay the Claimant three months’ salary in lieu of notice upon his immediate termination constitutes a breach of the Claimant’s contract of employment with the Defendant.
AN ORDER directing the Defendant to pay to the Claimant the sum of N1,359,743.04 (One Million, Three Hundred and Fifty-Nine Thousand, Seven Hundred and Forty Three Naira, Four Kobo) being the Claimant’s monthly income (including benefits) of N453,247.68 (Four Hundred and Fifty- Three Thousand Two Hundred and Forty Seven Naira Sixty- Eight Kobo) for 3 (three) months and other terminal benefits.
AN ORDER directing the Defendant to pay to the Claimant his due overtime payments in the sum of N468,000.00 (Four Hundred and Sixty- Eight Naira) at the rate of N18,000 (Eighteen Thousand Naira) per day to the Claimant having worked outside his primary place of assignment between 16th November 2017 to 10^th April 2018 for a cumulative period of 26 (twenty-six) days.
AN ORDER directing the Defendant to pay general damages to the Claimant in the sum of N5,000,000.00 (Five Million Naira Only).
Cost of Action.

The Defendant in response to the Claimant Statement of Facts filed a Statement of Defence dated 21^st September 2018 and counter-claimed as follows:

(a) A DECLARATION that the one month’s notice to terminate the employment of the Claimant issued to the Claimant on 24^th April, 2018 was in accordance with the Claimant’s offered terms, and therefore valid.

(b) A DECLARATION that the action of the Claimant of walking out on his job, as the Claimant did in questionable circumstances, just to resume another job, and earn salaries from both companies within the same calendar month, constitute a substantial breach of the terms of his employment contract.

(c) AN ORDER directing the Claimant to pay the Defendant the sum of N1, 359, 743.04 (One Million, Three Hundred and Fifty-Nine Thousand, Seven Hundred and Forty-Three Naira, Four Kobo) being Three Month’s salary payable to the Defendant in lieu of failure to give notice of resignation by the Claimant as required by his contract of employment.

(d) AN ORDER directing the Claimant to pay general damages of N 5,000,000.00 (Five Million Naira) only for breach of his contract of employment.

The Claimant filed his Reply to Defendant’s Statement of Defence on 27^th November 2018.

Trial commenced on 29^th of November, 2018 and was concluded same day. The Claimant testified for himself as CW1 and one Ms Njideka Patricia Unokesan(a Human Resources Manager, previously employed by the Defendant) testified as CW2. Both witnesses were cross-examined by the Defence. The Defendant called one witness – GodspowerMekparobo. He was also cross-examined by the Claimant. Through CW1, the following documents were tendered and admitted as Exhibits C1 – C10 in the order it is listed below:

Defendant’s Offer of Employment to the Claimant dated 25^th July 2017;
The Defendant’s Terms and Condition of Employment to the Claimant dated 25^th July 2017;
The letter of Confirmation of Appointment and Review of compensation dated 25^th October 2017;
The Defendant’s Employment Termination Letter to the Claimant dated 24^th April 2018;
Letter of Demand dated 3^rd May 2018 from the Claimant’s Solicitors to the Defendant;
The Defendant’s letter dated 7^th May 2018;
The Claimant’s letter dated 8^th May 2018;
The Defendant’s letter dated 24^th May 2018 to the Claimant’s Solicitors.
The Claimant’s Statements of Account of Guaranty Trust Bank Plc. – Account Number 0019664748.
WeChat message broadcast dated 20^th , 23^rd , and 24^th April 2018 by Mr.Gan

The Defence witness tendered the following documents which were admitted and marked as exhibits D1 – D19 in the order listed below:
Claimant’s Assessment Report dated 31^st October, 2017.
Claimant’s Confirmation of Appointment and Review of Compensation letter dated 25^th October, 2018.
Leave Request Form dated 15^th December, 2017.
Training and Induction Report dated 16^th December, 2017.
First Fake Cash Payment Receipt dated 5^th January, 2018.
Second Fake Cash Payment Receipt dated 5^th December, 2018.
Third Fake Cash Payment Receipt dated 12^th January, 2018.
Three Fake Receipts and Four Fake Taxi Receipts.
Sanction Letter Issued by Ms. Unokesan dated 9^th February, 2018.
AbayomiOgunsanwo’s Rejected Dingtalk Application for Advance Clearance dated 9^th February, 2018.
Query issued by Ms. Unokesan dated 9^th February, 2018.
Peter Clerk’s Rejected Dingtalk Business Trip dated 27^th March, 2018.
Ms. UdokwuChikaodili Francisca Dingtalk Business Trip dated 22^nd April, 2018.
Query issued by Ms. Unokesan dated 17^th April, 2018.
Tranex City Express Waybill Number 537421.
Claimant’s Solicitor’s Letter dated 3^rd May, 2018.
Ms. Unokesan Reply dated 7^th May, 2018.
Claimant’s Terminal Benefits Computation.
Letter dated 24^th May, 2018.

Trial closed on that same day and the Court ordered parties to file their final written addresses. The Final Written Addresses were adopted on 21^stFebruary 2019, and the Court adjourned for judgment.

Facts of the Case:

The Claimant was the Information Technology (IT) Manager of the Defendant via an Offer of Employment dated 25^th July 2017. His appointment was confirmed vide a letter of confirmation of appointment and review of compensation dated 25^th October 2017. On 20^th April 2018, Claimant had an altercation with one of his colleagues, after which he was asked to return all the Defendant’s properties in his possession. He also discovered that the Defendant had also withdrawn his access to his official email account.It is Claimants case that on 23^rd April 2018 he was denied access into his place of employment with the Defendant by the Defendant’s security personnel and that at the time of his arrival the then Human Resources Manager (“HR Manager”), Njideka Patricia Unokesanhad also just arrived. He stated that he immediately notified her of the situation and she advised that she would go into the Defendant’s premises to confirm who had authorised the security personnel to deny him access into the Defendant’s offices. The HR Manager later informed him that the Managing Director of the Defendant – Mrs Key Yang had instructed that he be prevented from gaining access into the building. The Claimant states that he had a conversation with the Managing Director, Key Yang via a WhatsApp message chat concerning the situation and the Managing Director confirmed that she had given the instructions to deny him access to the building. The Claimant states that as an afterthought and in an attempt to cure its error, the Defendant purported to issue him with one months’ notice of his termination through its letter of 24^th April, 2018. The Claimant states that the terms of his employment require the Defendant to pay him three months’ salary in lieu of notice in the event that his employment is terminated without notice after the confirmation of his employment.

On its part, the Defendant states that the Claimant actually had series of issues bothering on poor performance, elopement from place of assignment especially when on business trips outside of Lagos on account of which a query was issued by the Human Resources (HR) Manager of the Defendant at that time Ms. PatricaNjidekaOnokesan (CW2). Defendant states that the Claimant only came to the building premises of the Defendant on Monday 23^rd April 2018 and took a video of himself talking to the Landlord’s security men with his mobile phone as purported evidence of his dismissal. He later circulated the video to some employees. It is Defendant’s case that it is impracticable for the Defendant’s MD to instruct the property owners security men to stop the Claimant from entering the premises as the MD was in Abuja, and does not have any direct communication links with the security men. Defendant states that the termination of the Claimant was part of the business exigency for the year as the Claimant was not the only employee affected by the downturn as a total of five (5) managers were affected, including the Claimant and Ms.Unokesan(CW2). Defendant states that if Claimant’s employment was indeed terminated orally by a HR Manager as erroneously claimed by him, the Defendant Company would not have paid his full salary for the month of April 2018. Defendant alleges that the Claimant walked away without a formal resignation and is liable to pay three months’ salary in lieu of notice to the Defendant.

Arguments of Counsel:

Counsel for Defendant in their final written address formulated the following issues for determination:

Whether the Claimant’s employment was wrongfully terminated in view of the agreed terms and condition of the Claimant’s Employment.
2. Whether the Claimant is entitled to N468,000.00 (Six Hundred and Eighty Thousand Naira) as overtime allowance claim.
3.Who is entitled to the sum of N1,359,743.03 (One Million, Three Hundred and Fifty Nine Thousand, Seven Hundred and Forty Three Naira, Three Kobo) being three month’s salary payable in lieu of a month notice of termination as between the Claimant and the Defendant.
On issue one;the Defendant contends that the Claimant’s employment was not wrongly terminated by the Defendant for the following reasons:
The Defendant complied with the terms of employment on termination and the Claimant properly issued with one month notice of termination;
Suspension/denial of access to work is not termination of employment;
The Claimant’s wilful refusal to come to work is unlawful termination on his part.

On issue two, Defendant argues that the Claimant’s claim of overtime allowances totallingN468, 000.00 purporting to have worked outside his place of primary assignment is unfounded as he has not been able to prove that he is entitled to such an amount.

On issue three, the Defendant submits that the Claimant is not entitled to the sum of N1,359,743.03 being three month’s salary payable in lieu of one month notice of termination, rather, it is the Defendant that is entitled to same by virtue of its Counter-claim.

Claimant’s Counsel submitted a sole issue for determination;

Whether the Claimant’s employment was wrongfully terminated such that the Claimant is the party entitled to the damages sought in the suit herein.

Claimant hinged the wrongfulness of his termination on the fact that following the altercation which occurred between him and a colleague at the Defendant’s premises on 20^th April, 2018, he was instructed to return all the Defendant’s property in his possession and subsequently, on the following work day of 23^rd April, 2018, he was refused entry into the Defendant’s premises on the instructions of the Defendant’s Managing Director; and was also denied access to all the Defendant’s systems that would enable him carry out his duties as an Information Technology Manager. Claimant also argues that the reasons given by Defendant for terminating his employment were inconsistent and should be discountenanced.

In Reply, the Defendant submits that the contradictions alleged by the Claimant were clearly clarified in detail by CW2 in Exhibit C6, and that where contradictions/discrepancies appear, but has been satisfactorily explained, same contradictions would be said to have been resolved –Muhammad Ali v. Kano State(2018) LPELR – 44201 (CA).

Decision:

I have considered the processes filed in this matter, the evidence led and the arguments of Counsel. I adopt the following issues for determination:

Whether the Claimant’s employment was terminated by the ‘conduct’ of the Defendant.
Whether Claimant is entitled to his Claim.
Whether the Defendant is entitled to its counter-claim.

Parties are agreed on the employment relationship between the Claimant and the Defendant. They are equally agreed that up to the 20^th of April 2018(Friday), Claimant was a staff of the Defendant. There was altercation between the Claimant and a colleague on the said 20^th April 2018. To the Claimant, his being prevented from entering the premises of the Defendant on the 23^rdof April 2018 and further denial of access to his official email constitutes wrongful termination of his employment, entitling him to three months’ salary as provided in his contract. The Defendant, on the other hand alleges that Claimant absconded from work, and refused to attend to his work after being served a notice of termination issued on 24^th April 2018, a day after Claimant’s purported prevention to enter the Defendant’s premises. Defendant then argues that Claimant’s refusal to attend to his work amounted to resignation without notice.

A Court must decide based on evidence before it, and not based on conjecture. As held in Adegbite v. State, (2017) LPELR-42585(SC)

It is trite principle also that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculation. “See Ohue v. NEPA (1998) 7 NWLR (Pt.557) 187; Oguanzee V. State (1998) 5 NWLR (Pt.551) 521; Animashaun v. UCH (1996) 10 NWLR (Pt.476) 65; Adefulu v. Okulaja (1996) 9 NWLR (Pt.475) 668.”Per GALINJE, J.S.C. (Pp. 13-14, Paras.C-B.

The only mannerby which this Court can determine if Claimant’s employment was determined wrongfully by Defendant; or as counter-claimed by the Defendant, is by a consideration of the terms of the employment relationship between the parties.

The Terms and Condition of Employment is contained in Exhibit C2. The Claimant’s appointment having been confirmed through Exhibit C3, both parties agree that Clause 23.2 regulates the determination of the employment relationship. The Clause provides:

Any party to this contract may terminate the employment contract without assigning any reason whatsoever upon giving:

2.3.2. One (1) month notice or Three (3) months’ salary in lieu of notice when the employment is confirmed.

By the terms of the introductory clause above, there is no need to consider the issue whether the reasons for the termination of Claimant’s employment are consistent or not as raised by the Claimant. This is because the reason or non-reason comes to no issue by the express intention of the parties.

In evidence is exhibit C4/D15, being a one month notice issued by the Defendant. Claimant argues that by Defendant’s act of preventing him access to its premises on 23^rd April, his employment had actually been terminated without notice, thus rendering exhibit C4 dated 24^th April, ineffectual. In proof of his perceived termination ‘by conduct’ on 23^rd April, prior to the letter of notice of 24^th April, Claimant relies heavily on the evidence of CW2. CW2 was the Human Resources Manager at the time of Claimant’s termination. In her evidence, CW2 states that the Defendant prevented the Claimant from entering its premises. She co-signed exhibit C4 (the letter of termination) and signed exhibit C6 – the Defendant’s response to Claimant’s Solicitor’s letter. In her evidence at paragraph 18, CW2 stated that:

On arriving at the office on 23^rd April 2018 I met the Claimant by the gate. The Defendant’s security personnel on duty at the Defendant’s office had denied him access into the Defendant’s office which they said were on the instructions of Jack. I then went into the building leaving the Claimant at the security post

In exhibit C4, CW2 had written to the Claimant, along with the Managing Director that:

In accordance with your offer of employment, please note that a one-month notice to terminate shall be applied. This letter therefore serves as your one-month formal employment termination notice (from April 24 to May 23 2018). You are to continue your normal routine duties and you will remain on the company’s employment and payroll for one month from this date. You are also entitled to be paid your full month salary up to the end of termination date, including accrued benefits such as your pro-rated leave allowance, if any. Please note that your terminal benefits would be paid along with your last salary by the end of May.

In reaction to Claimant’s Solicitor’s letter alleging wrongful termination due to his prevention to enter Defendant’s premises, CW2 wrote exhibit C6. It states in part:

Please be informed that contrary to the claims in your letter, there wasn’t, and there is still no official denial of access to your client by our company.

… He abruptly stopped working on his own volition after a questionable incidence with a female expatriate staff. Please take another look at the termination letter as it has addressed all your concerns. Your client’s personal decision to stop work abruptly is a clear case of abscondment from duty, rather than a dismissal; and it shall be so treated.

The quoted portions of exhibits C4 and exhibit C6 contradict CW2’s evidence. CW2, as the Human Resources Manager of Defendant wrote the letters, in the course of her regular duties. The said documents were also tendered by the Claimant. In her own words during cross-examination she stated that:

I stand by content of C6 as signed by me. The letter stated that the termination was based on poor performance etc. it is stated in the letter that he was not denied access rather he stopped coming to work. It was not indicated in any of my letters that Claimant was entitled to 3 months’ Salary in lieu. All the letters said he walked away despite the one month notice given to him. The letters I signed do contradict what is written in paragraph 20 of my statement”

I find the evidence of CW2 and exhibits C4 and C6 prepared by her to be contradictory. During cross-examination, CW2 accepted that the letters she signed contradicted her evidence. A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated not when there is just a minor discrepancy between them – Onoche v. Elumelu&Ors(2014) LPELR-22969(CA). The contradiction is fatal to the case of the Claimant, as it is not possible for the two positions to co-exist.

In Eke v. The State(2011) 3 NWLR 589, the Supreme Court held that:

It is basic that testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. For contradictions in the evidence of witnesses to vitiate a decision, they must be material and substantial. Such contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testified, or as to the reliability of such witnesses. In sum, minor and inconsequential contradictions which do not seriously relate to the ingredients of the offence charged should not vitiate the case of a party See: Enahoro v. Queen (1965) NMLR 265; Emiator v. The State (1975) 9-11 SC 107; Afulalu v.The state (2009) 3 NWLR (Pt. 1127) 160; Nasiru v.The State (1999) 2 NWLR (Pt. 589) 87; Okoziebu v.The State (2003) 11 NWLR (Pt 831) 327.”PER FABIYI. J.S.C (Pp.13-14, Paras F-C)

I find the evidence of CW2, which Claimant relies on, to be unreliable. The law is well positioned that where there are material contradictions in the evidence adduced by a party, the court is enjoined to reject the entire evidence as it cannot pick and choose which of the conflicting versions to follow. The entire evidence must be rejected. See Kayili v. Yilbuk&Ors (2015) LPELR-SC.92/2005. See also Mogaji v. Cadbury (1985) 2 NWLR (Pt.7) 393.” Per OGUNBIYI, J.S.C. (P. 68, paras. A-C)

The two pieces of evidence from CW2 being contradictory, both must be rejected. This is as stated in the case of Ekweozor&Ors v. The Registered Trustees of Saviours Apostolic Church of Nigeria(2014) LPELR-23572(CA) that:

Where a witness gives contradictory evidence on the same issue, the court is not in a position to choose one and reject the order, the two pieces of evidence must be rejected and such a witness is not capable of being believed.” Per BOLAJI-YUSUFF, J.C.A. (Pp. 59-60, paras. G-A)

If then the evidence of CW2 is discountenanced in its entirety due to its inherent contradictory nature, Claimant’s remaining evidence in proof of his termination ‘by conduct’ would be exhibit C10. This is the WeChat message broadcast dated 20^th, 23^rd and 24^th April 2018 by Mr.Gan(Regional Operational Manager of the Defendant). In it, Mr.Gan announcedvideWeChat on 20^th April 2018 at about 4:54 p.m. as follows:

Important information to all stores: due to work related issues the IT Manager Clarke would no longer be handling IT related issues, should any of your stores need IT related assistance please relay all information to Francisca.

On 23^rd April Claimant stated:

Am outside the office. The Security men said they gave them instructions not to allow me in the office.

Key (The Managing Director of Defendant) replied:

Yes. I’ll give you feedback on China. You are currently suspended for investigation and all your rights are currently closed.

The above evidence does not suggest termination; rather, it informs the Claimant that he has been placed on suspension. I find therefore that on the 23^rd of April, 2018, (the very next working day after 20^th April) the Claimant was informed that he has been suspended from work, after having gone to work on the 20^th of April. Subsequently, on 24^th April, a termination letter was issued. Based on the above, I do not find that Defendant had terminated Claimant’s employment by ‘conduct’, prior to the termination letter of 24^th April. Consistent with the termination letter, Claimant was paid his salary for the month of April on the 25^th of April, 2018. By this, I find that Claimant’s case, which is hinged on wrongful termination on the grounds of the conduct of the Defendant, is not proved, and therefore fails.

Assuming it is decided to ignore the contradiction, it would still be imperative for the Court to rely on the documentary evidence as shown in exhibits C4 and C6 instead of on the oral evidence of CW2. In Zakirai v. Muhammad &Ors(2017) LPELR-42349(SC) it was restated that:

It is an elementary principle that documentary evidence is used as a hanger to test veracity of evidence, whether oral or by affidavit – see Gbileve V. Addingi (supra), Kimdey V. Mil. Gov. Gongola (1988) 2 NWLR (Pt.77) 445 and Fashanu V. Adekoya (1974) 4 SC 83. Thus, documentary evidence is a hanger to base other pieces of evidence.In political cases, the only proof of winning of an election is the election result duly issued; mere averments cannot stand up to that. The Court below was right to place a greater value on documentary evidence, which bears eloquent testimony to what happened – See Aiki v. ldowu (2005) 9 NWLR (Pt 984) 47, wherein it was observed- Documents when tendered and admitted in Court are like words uttered and do speak for themselves. They are even more reliable and authentic than words from the vocal cord of man because they are neither transient nor subject to distortion and misinterpretation but remain permanent and indelible through the ages. The documents bear eloquent testimony to what happened.” Per AUGIE, J.S.C. (P. 73, Paras. A-F)

Based on the above, the contents of exhibit C4 and exhibit C6 do not support that Claimant’s employment was terminated by ‘conduct’.

Now on issue two, which is whether the Claimant is entitled to his reliefs? I hereby consider the reliefs’ one after the other.

Relief one seeks a DECLARATION that the conduct of the Defendant and its Staff in withdrawing the Claimant’s access to his place of employment with the Defendant on 23^rd April, 2018 and denying him access to his official email account with the Defendant without any reason being given constitutes an immediate termination of the Claimant’s employment. From the finding on issue one that prior to 24^th April 2018, there was no termination of Claimant’s employment by the conduct of the Defendant, this relief fails. The Claimant had not challenged the form of the notice given to him, and it is not for the Court to raise it for him

Relief two is for a DECLARATION that the Letter of Employment Termination dated 24^th April 2018 from the Defendant to the Claimant is an afterthought and, therefore, null, void and of no effect. Apart from the finding on issue one raised by the Court, I find no evidence or basis for this relief. It is therefore declined.

Relief three is for a DECLARATION that failure of the Defendant to pay the Claimant three months’ salary in lieu of notice upon his immediate termination constitutes a breach of the Claimant’s contract of employment with the Defendant. This relief is dependent on the success of relief one. In view of the holding that there was no ‘immediate termination’ of Claimant’s employment, this relief fails.

Relief four which seeks an ORDER directing the Defendant to pay to the Claimant the sum of N1,359,743.04 (One Million, Three Hundred and Fifty-Nine Thousand, Seven Hundred and Forty Three Naira, Four Kobo) being the Claimant’s monthly income (including benefits) of N453,247.68 (Four Hundred and Fifty- Three Thousand Two Hundred and Forty Seven Naira Sixty- Eight Kobo) for 3 (three) months and other terminal benefits, fails; as a consequence of the failure of reliefs one and three.

Relief five is for an ORDER directing the Defendant to pay to the Claimant his due overtime payments in the sum of N468,000.00 (Four Hundred and Sixty- Eight Naira) at the rate of N18,000 (Eighteen Thousand Naira) per day to the Claimant having worked outside his primary place of assignment between 16th November 2017 to 10^th April 2018 for a cumulative period of 26 (twenty-six) days. Claimant has not led any evidence to prove his entitlement to these overtime payments and how and when they became due to him; for instance, by showing that it is part of the terms of his contract or that he has been so paid in the past. This relief also fails.

As a consequence of the failure of reliefs one to five, reliefs six and seven equally fail.

In summary, the entirety of Claimant’s case fails.

On Issue three, which is whether the Defendant is entitled to its counter-claim; I again take each relief one by one.

Relief one of the counter-claim is for a DECLARATION that the one month’s notice to terminate the employment of the Claimant issued to the Claimant on 24^th April, 2018 was in accordance with the Claimant’s offered terms, and therefore valid. As already stated earlier in this judgment, parties agreed that either party may terminate the employment by giving one(1) month notice. Exhibit C4 which is the notice of termination gives the Claimant notice from April 24^th to May 23^rd 2018. One month notice requires that the employee is given a whole month as notice, not one which days are counted off as if the notice required is ‘days of’ notice. In Oyekoya v. G. B. OllivantNig. Ltd., (1969) 1 All N. L. R. 80, the Supreme Court distinguished between 30 days and one month notice. In the later form of notice, it was held that a month’s notice must expire at the end of the current month. So that where a month’s notice is given and served to be effective after the first day of the month, then the proper day of the expiration of the notice will be the end of the next month. In Adeyemo v. Oyo State Public Service Commission (1979) O. Y. S. H. C., 83, it was held that the Defendant could not terminate the plaintiff’s employment on a 30-day notice commencing from April 9^th, 1978, when the contract provided for a notice of one month. Fakoyade C. J. stated that there exists a difference between 30 days and one month’s notice. In this case, one month’s notice would have ended on the 31^st of May 2018. I follow the above cases, and hold that the one month’s notice issued to the Claimant on 24^th April to expire on May 23^rd was not in accordance with the terms of exhibit C2 and decline the order.

Relief two of the counter-claim is for a DECLARATION that the action of the Claimant of walking out on his job, as the Claimant did in questionable circumstances, just to resume another job, and earn salaries from both companies within the same calendar month, constitute a substantial breach of the terms of his employment contract. From the facts of the case, the Claimant was in his job on the 20^th of April being a Friday. If, as contended, he was not at his job on 23^rd April (Monday), and his employment was terminated on 24^th April, I do not find it sufficient, without more, to conclude that Claimant walked out on his job. It is the same reasoning behind not agreeing that (as argued by the Claimant) denial of access for one day, without more, will tantamount to the Defendant terminating the Claimant’s employment by conduct. There is also no evidence that Claimant resumed work in another job. I therefore decline this relief.

Based on the above, the relief for an order directing the Claimant to pay the Defendant the sum of N1, 359, 743.04 (One Million, Three Hundred and Fifty-Nine Thousand, Seven Hundred and Forty-Three Naira, Four Kobo) being Three Month’s salary payable to the Defendant in lieu of failure to give notice of resignation by the Claimant as required by his contract of employment, is hereby declined. Relief four for an order directing the Claimant to pay general damages of N5,000,000.00 (Five Million Naira) only for breach of his contract of employment also fails.

On the whole, both Claimant’s claim and the Defendant’s counter-claim fail.

I make no order as to cost.

Judgment is entered accordingly.

——————————————–

Hon. Justice Elizabeth A. Oji PhD