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: JULY 16, 2018
SUIT NO. NICN/LA/627/2015
BETWEEN
Segun Arogundade – Claimant
AND
Aero Contractors Nigeria Limited – Defendant
REPRESENTATION
Edmund Z. Biriomoni, for the claimant.
Obasa Akpata, with Chibuzo Ofoha, for the defendant.
JUDGMENT
1. The claimants had filed this suit on 11th December 2015 vide a complaint and the accompanying originating processes. The claimant is claiming against the defendant the following reliefs:
(1) Declaration the purported termination of the claimant’s contract of employment by the defendant through a letter (ref: MAU/acc/HRD/L.3000/15) dated 11th August 2015 is illegal, null and void.
(2) An order reinstating the claimant as an Assistant Accountant and directing an accelerated promotion of the claimant to the position of an Accountant he would have attained if the defendant had not stagnated his growth in Aero contractors. ALTERNATIVELY
(i) N7211,802.60K being unpaid salary for 39 months
(ii) N323,608.84K being IBTC Pension
(iii) N554,754.54K being three months in lieu (as per letter of offer dated 7th of March, 2007)
(iv) N10,000,000.00K being damages.
(3) The sum of N3,000,000.00k being the cost of all legal services and actions taken by the claimant.
2. In reaction, the defendant filed its defence processes which include a counterclaim. By order of Court granted on 2nd March 2017, the defendant was permitted to amend its statement of defence and witness statement on oath. By the amended statement of defence and counterclaim, the defendant counterclaimed against the claimant as follows:
(a) A declaration that the defendant/counterclaimant is entitled to the sum of N92,328.09 (Ninety-Two Thousand, Three Hundred and Twenty-Eight Naira, Nine Kobo) being the unpaid balance of housing loan owed by the claimant to the defendant/counterclaimant.
(b) An order directing the claimant to pay to the defendant/counterclaimant the sum of N92,328.09 (Ninety-Two Thousand, Three Hundred and Twenty-Eight Naira, Nine Kobo) being the unpaid balance of housing loan owed by the claimant to the defendant/counterclaimant.
(c) An order directing the claimant to pay to the defendant/counterclaimant interest on the unpaid balance of housing loan at 21% per annum from 11th August 2005 until judgment in this suit is delivered and 10% thereafter until the judgment debt is finally liquidated.
(d) The cost of this suit in the sum of N2,000,000.00 (Two Million Naira).
3. The claimant in reaction filed a defence to the counterclaim, list of witness and an additional written statement on oath.
4. At the trial, the claimant testified on his own behalf as CW and tendered Exhibits C1 to C10, and Exhibit D1 was also tendered through him; while Akintade Apara, a Senior Resource Officer of the defendant, testified as DW for the defendant and tendered Exhibits D2 to D6. At the close of trial, parties filed and served their respective written addresses. The defendant’s final written address was filed on 14th February 2018, while the claimant’s was filed on 18th April 2018. The defendant did not file any reply on points of law.
THE CASE OF THE CLAIMANT
5. The claimant was a staff of the defendant, having been offered appointment by the defendant vide a letter of offer dated 7th March 2007. The appointment was confirmed by the defendant vide a letter of confirmation dated 14th January 2008. The claimant’s monthly salary was N184,918.18K (One Hundred and Eighty-Four Thousand, Nine Hundred and Eighteen Naira, Eighteen Kobo), with his annual salary totaling N2,219,018.27K (Two Million, Two Hundred and Nineteen Thousand, Eighteen Naira, Twenty-Seven Kobo). On 15th July 2010, the claimant applied for a Business Recovery Plan-Unpaid Leave without pay option to enable him further his study leading to award of Masters in Business Administration (MBA) in Dublin, Ireland. On the 2nd August 2010, the defendant granted his application for a Business Recovery Plan-Unpaid Leave without pay option vide a letter dated 2nd of August 2010. On 14th July 2011 he subsequently applied for an extension of six (6) months vide an application dated 14th July 2011. In response to his application for extension, he received a letter of response from the defendant dated 21st July 2011. At the completion of his study abroad, he sent a mail dated 1st February 2012 informing the company of his intention to resume in April 2012. He also sent a fresh application for resumption of official duty on 22nd May 2012 but when he did not receive any response from the defendant on his earlier mail of 21st July 2011, he sent a reminder dated the 10th September 2012 to the defendant. The defendant only responded to his various mails/letters for resumption sent vide a letter dated 7th July 2015. The claimant stayed at home for 39 months expecting to be called at any moment even at the expense of lucrative jobs offers.
6. On 11th August 2015, the defendant purportedly terminated the contract of employment of the claimant vide a letter of Termination of Employment dated 11th August 2015 with reference No: MAU/ACC/H RD/L.3000/15. To the claimant, the said termination has caused him grave hardship and trauma. He could not complete his course of study as he could not defend his thesis due to time constraint in order for him to resume at his official duty post in Nigeria. He was awarded Post Graduate Diploma (PGD) as against Master in Business Administration (MBA) which he initially applied for. That as a result of waiting for 39 months he lost so many jobs offers from other companies. Accordingly, he instructed his counsel to demand for the sum of N13,090,165.98K being unpaid salaries for 39 months, all other entitlements (IBTC Pension, 3 months in lieu) vide a letter of demand dated 21st August 2015 and Final Demand/Pre-action Notice dated 28th September 2015 respectively. This was not paid hence this action.
THE CASE OF THE DEFENDANT
7. The defendant denied any liability for the reliefs claimed by the claimant. To the defendant, the claimant opted for unpaid leave and so was not entitled to any salary. That the 6 months addition leave granted to the claimant as on the condition that his reabsorption upon his return to the country will not be automatic but will be subject to availability of vacancy. That the claimant accepted this condition. That beyond the 6 months extension it granted, the claimant unilaterally granted himself a further extension from the due resumption date, which was supposed to be 2nd February 2012. That when the claimant applied to resume work, he was told that there was no vacancy in the defendant company. The defendant denied having any policy know as “IBTC Pension”. What it has instead is “IBTC Gratuity”, a fund voluntarily created by the defendant with IBTC and is funded solely by the defendant. The defendant then counterclaimed against the claimant for the unpaid balance (put at N92,328.09) of the housing loan (put at N711,900.00) granted to him.
THE DEFENDANT’S SUBMISSIONS
8. The defendant submitted three issues for determination, namely:
(i) Whether the claimant has by his evidence established the existence of a subsisting employment with the defendant as at the date of his purported termination.
(ii) Whether the claimant is entitled to any of the reliefs sought.
(iii) Whether the defendant has proved its counterclaim.
9. On issue (i), the defendant submitted that Exhibit C2 (Approval letter to proceed on Business Recovery Unpaid Leave dated 2nd August 2010) established the fact that the claimant was first granted 12 months study leave without pay with a guaranteed re-absorption upon his return. Subsequently, the claimant by Exhibit C3 (claimant’s letter dated 14th July 2011) applied for a 6 months extension of the leave to which the defendant replied in Exhibit C4 (letter from the defendant dated 21st July 2011). That in Exhibit C4, the defendant’s reply was clear and unambiguous in stating that the re-absorption of the claimant will not be automatic but subject to availability of vacancy upon his return to the country. This fact was clearly understood by the claimant and has not been denied in his evidence before the Court. That admitted and uncontroverted facts need no further proof, citing Baalo v. FRN [2016] LPELR-40500(SC). Furthermore, that the claimant affirmed under cross-examination that he was never re-absorbed by the defendant upon his return to the country. This fact showed that the claimant was no longer in the employment of the defendant from 21st July 2011 when his employment with the defendant was no longer guaranteed. In other words, the claimant was no longer guaranteed a place with the defendant. That the claimant’s re-absorption will only be where there was a vacancy.
10. The defendant went on that it is the claimant’s case that in view of Exhibit C8 (the defendant’s termination letter dated 11th August 2015), the claimant remained in the employ of the defendant until 11th August 2015. To the defendant, the claimant has failed to show how in the face of Exhibit C4 he could have remained in the defendant’s employ when he was never informed that there was a vacancy which his re-absorption was required to fill. Therefore, that the claimant cannot be reasonably entitled to any salary for the alleged period as the parties are bound by the terms of the agreement and this agreement to proceed on unpaid leave in the first instance and subsequently agreeing to re-absorption only upon availability of vacancy will be upheld by the Court, referring to Idonibiye-Obu v. NNPC [2003] 2 NWLR (Pt. 805) 589 SC at 630. That Exhibits C2 ,C3 and C4 are the only documents in addition to the terms of employment that the Court can refer to in considering the claimant’s employment status. Furthermore, that no employer can be reasonably expected to wait indefinitely for the return of an employee without applying restrictions such as these, as safeguard mechanism. That the absence of the claimant for over 18 months buttresses this point. The defendant, therefore, submitted that the claimant had no subsisting employment with the defendant from 21st July 2011 wherein he was informed in Exhibit C4 that his re-absorption was not automatic but subject to availability of vacancy.
11. The defendant continued that the purpose for which the claimant embarked on the Business Plan Unpaid Leave as stated in Exhibits C2 and C3 was for a Masters Degree Programme (Specialization in Business Management). That there is, however, evidence before this Court that this was not achieved. That the claimant in Exhibit C5 lied to the defendant that he had completed his Master Degree Programme and was awaiting his result due to be released on 31 March 2012, This was the reason given when requesting for a further extension in addition to the 6 months requested in Exhibit C3. To the defendant, there are contradictions in the statement of the claimant as to the reason for non-completion of his Masters in Business Administration. In paragraph 8 of the claimant’s witness statement on oath dated 11th December 2011 (sic), the claimant stated that he was unable to complete his studies due to his inability to defend his thesis, while in Exhibit C6, (the claimant’s letter dated 22nd May 2012), the claimant stated that he was unable to complete his studies due to serious sickness as a result of snow accident. That the inconsistencies in the evidence of the claimant shows that such evidence cannot be relied upon by this Court, citing Kanni v. Nigerian Army & anor [2016] LPELR-41403(CA) and Oladejo v. The State [1987] 3 NWLR (Pt..610) 364. That the claimant in Exhibit C5 stated that he had completed his Masters in Business Administration (MBA) and will be ready to resume in April 2012 as against 2nd February 2012 which he had earlier proposed to resume albeit subject to availability of vacancy. That in paragraph 19 of his witness statement on oath dated 11th December 2011 (sic), the claimant also stated that he did not complete his MBA. This, to the defendant, goes to show the inconsistency in the evidence of the claimant and as such it cannot be relied upon, citing Nigerian Breweries v. Audu [2009] LPELR-8863(CA). That even though the issue of the completion or non-completion of the claimant’s Masters Degree programme is not before this Court, it was raised this to show that the claimant was not sincere to his employer on his mission for proceeding on leave. That he, however, wants to derive benefits from this act, by approaching this Court to uphold his employment with the defendant and grant him reliefs for unlawful termination. To the defendant, “he that comes to equity must come with clean hands”. That the claimant’s hands are soiled and this Court cannot be used to achieve any selfish gains.
12. Regarding issue (ii) as to whether the claimant is entitled to the reliefs he seeks, the defendant, citing Nigerian Gas Co. Ltd v. Dudusola [2005] 18 NWLR (Pt. 957) 292 CA, submitted that that from the evidence before this Court it is not in contest that the claimant’s employment with the defendant is one of a written contract of employment, and as such the determination of the right of the parties is by the written contract between the parties to which this Court must look; further citing Dr Adeosun Oluseyi Olalekan v. Management Board, University of Maiduguri Teaching Hospital [2012] LPELR 20099(CA). That the claimant has not placed sufficient material particulars before this Court to entitle him to any of the reliefs sought. That the onus of establishing the fact that the claimant’s termination was unlawful rests on the claimant, citing Abdulrazaq Adebayo Salami v. New Nigerian Newspaper [1999] 13 NWLR (Pt.634) 315 and Amodu v. Amode [1990] 5 NWLR (Pt. 150) 365. Furthermore, that based on the evidence before this Court, the claimant has not proved that his employment was wrongfully terminated, rather it was an act of voluntary resignation by the claimant when he did not resume work as earlier agreed with his employer as shown in Exhibit C2, referring to Dr G. S. Obo v. Commissioner of Education Bendel State & anor [2001] 2 NWLR (Pt. 689) 625. That in paragraph 3 of Exhibit C8, the defendant stated that the reason for issuing the termination letter after three years was to recover the defendant’s properties which were still in the custody of the claimant. That this was affirmed under cross-examination where the claimant confirmed that he still had the defendant’s identity card in his possession. That it has been settled in a long line of authorities that a master is entitled to dismiss his servant from his employment for good or bad reason or for no reason at all. Consistent with this principle, that it is also the law that the Court will not impose an unwilling employee on the employer. On the other hand no employer could prevent an employee from resigning from his employment to seek for “greener” pastures elsewhere, referring to Ujam Hilary v. Institute of Management [2007] 2 NWLR (Pt. 1019) 470.
13. The defendant proceeded that assuming without conceding that the employment of the claimant was wrongfully terminated, the claimant is not entitled to claim for salaries for the period he did not work, citing Professor Dupe Olatunbosun v. Nigerian Institute of Social and Economic Research Council [1988] NWLR (Pt. 80) SC – the page is not disclosed. Also cited is Mr I. O. Adefemiwa v. Osun State College of Education, Ilesa [2008] 5 CLRN 111.
14. To the defendant, the claimant is not entitled to general damages as claimed or in whatever form given that the principle guiding the award of general damages as was decided in UBA Plc v. Samba Pet Co. Ltd [2002] 16 NWLR (Pt. 793) 401 – 402. That in this case no reasonable man will expect that the claimant, having proceeded on an unpaid leave and also being informed that re-absorption into employment will not be automatic but subject to availability of vacancy, has a subsisting employment or is entitled to be paid. That there is no basis for the award of general damages as the claimant has suffered no loss from any act of the defendant as he was fully aware of the status of his employment when he proceeded on his unpaid study leave and when he applied for an extension of that leave. Also, that the claimant was not at any time re-absorbed as there was no vacancy. Rather than mitigate any perceived loss by seeking or accepting other employment, the claimant chose to do nothing on the pretext that he was waiting to be recalled by the defendant. That the defendant instead was misled by the claimant as to the purpose of the leave which was to obtain a Masters Degree that was never obtained, urging the Court to strike out the claim for general damages.
15. Issues (iii) is whether the defendant is entitled to its counterclaim. The defendant submitted that the claimant obtained a housing loan agreement which is shown in Exhibit D1 and admitted by the claimant under cross-examination. That the said loan has not been repaid by the claimant and the defendant in line with clause I paragraph (a) and (b) of the Housing Loan Agreement is empowered to recover same by deductions of benefits due to the claimants. That parties are bound by their contract, citing Adams O. Idufueko v. Pfizer Products Ltd & anor LER [2014] SC. 133/2004 and Atoyebi v. BeIlo [1997] 11 NWLR (Pt. 528) 268. That the claimant is not entitled to any gratuity as same has been applied towards offsetting the housing loan he took from the defendant. That the claimant under cross-examination admitted that he collected housing loan in the sum N710,900.00 and is yet to liquidate same till date. Thus, the claimant is not entitled to gratuity or any form of staff entitlements as claimed by him. Instead, that the defendant is entitled to its counterclaim based on the evidence before this Court which was not rebutted by the claimant, urging the Court to rule in favour of the defendant. In conclusion, the defendant urged the Court to dismiss the claimant’s claims in its entirety with substantial cost and uphold the counterclaim of the defendant.
THE CLAIMANT’S SUBMISSIONS
16. The claimant on his part also submitted three issues for determination, namely:
(a) Whether the claimant is entitled to his unpaid 39 months salaries and entitlements up till the 11th August 2015 when his appointment was terminated by the defendant vide a letter of Termination of Employment dated 11th August 2015.
(b) Whether the claimant is entitled to three (3) months salary in lieu of notice.
(c) Whether or not from the totality of the unchallenged and uncontradicted evidence led by the claimant and the documents tendered and admitted as exhibits in this case, the claimant is entitled to judgment of this Honourable Court based on the claimant’s claim.
17. On issue (a), the claimant submitted that he is entitled to his salaries up to 11th August 2015 when his appointment was terminated. That he gave evidence to the fact that he stayed at home for 39 months without any response from the defendant at the expense of lucrative jobs offer and his contract of employment with the defendant was terminated on 11th August 2015, referring to paragraphs 15 and 16 of his written statement on oath. That he further tendered Exhibits C7 and C8 respectively which were letter of response dated 7th July 2015 after 38 months of the his application for resumption of duty and letter of termination dated 11th August 2015 after 39 months of the claimant being at home, which evidence was not contradicted by the defendant, citing Francis Adesogun Katto v. CBN [1999] 7 NWLR (Pt. 607) 390 at 406. To the claimant, it is trite that terminal payments are statutory entitlements under the law which an employee is entitled to but have not yet been paid upon dismissal or termination of contract. That terminal payments may include salary/wages, arrears of payment, salary in lieu of notice, end of the year payment, maternity leave pay, severance payment, or long service payment, sickness allowance, holiday pay, annual leave pay, etc. Put differently, that terminal payments are entitlements that an employee might reasonably be expected to be entitled to under the law if the contract of employment had been allowed to continue. That the claimant gave unchallenged evidence in paragraph 6 of his written statement on oath that his monthly salary is N184,918.18K, which cumulate to an annual total of N2,219,018.27K; as such he is entitled to N7,211,802.60K being unpaid salary for 39 months at N184,918.18K per multiplied by 39 months. That he further gave unchallenged evidence in paragraphs 17 and 18 of his additional written statement on oath that his entitled IBTC Gratuity is N323,608.84K. The claimant then urged the Court to hold that he is entitled to his unpaid 39 months salaries and entitlements up till 11th August 2015 when his appointment was terminated by the defendant vide a letter of termination of employment dated 11th August 2015.
18. For issue (b), the claimant referred to Chukwumah v. SPDC (Nig.) Ltd [1993] LPELR-864(SC). Exhibits C1 and C8, and then submitted that it is well settled that where a contract of employment is terminable on notice, and the employee is not given the requisite notice, what the employee could have earned during the period of the notice is the damages that the employee can, citing also IDC v. Ajijola [1996] 2 SC 115 at 119 – 120. To the claimant, an employer can terminate the employment of his employee at any time and for any reason or for no reason at all provided the termination is in accordance with the terms of the contract of employment, the motive for such termination being irrelevant, citing Osisanya v. Afribank Nig.Plc.[2007] 6 NWLR (Pt. 1031) 565 SC. That where a contract contains a provision that either party thereto may determine it by specified notice or payment of prescribed sum of money in lieu thereof, such notice of payment as the case may be must be complied with in strict accordance with the terms of contract. That where the right to determine the contract by notice depends upon the performance of a condition precedent, the party seeking to exercise his right of determining the contract must first establish that the prescribed condition precedent was fulfilled, referring to New Nig. Bank Plc v. Solomon Owie [2010] LPELR-45591(CA), Noble Drilling (Nig) Ltd v. Mr Brownson Edemekong [2009] LPELR-8708(CA), Ajayi v. Texaco Nig. Ltd [1987] 3 NWLR (Pt. 62) 577 and Olarewaju v. Afribank (Nig.) Plc [2001] 12 NWLR (Pt. 731) 691.
19. Regarding issue (c), the claimant submitted that he has proffered consistent, credible and cogent evidence and tendered exhibits in support of his claims. He urged the Court to believe the evidence of the claimant and hold that he is a witness of truth. The claimant conceded that the burden/onus of proof is on him to establish his claim by cogent and convincing evidence, citing Omabuwa v. Owhofatsho [2006] 5 NWLR (Pt. 972) 40 at 66. That what the Court is entitled to do is to proceed to hear, determine the case and deliver its judgment on the preponderance of evidence before it. That the defendant has not shown the Court anything to contradict the facts already proved by the claimant and which would have entitled the Court to place the facts on imaginary scale. That it is trite law that when evidence is unchallenged or contradicted, the burden of proof on the claimant is discharged on minimal proof and the unchallenged evidence ought to be accepted, citing Ajero v. Ugorji [1999] 10 NWLR (Pt. 621) 1 at 18. That parties to an agreement may mutually but wrongly come to an understanding as to the legal content of it. That notwithstanding, a court of law can only interpret the agreement strictly in its legal content and arrive at a conclusion on the law and the law alone in respect of it, citing Oduola v. Papersack (Nig.) Ltd [2007] All FWLR (Pt. 350) 1222. That where there is a written contract of employment, it is outside the province of the Court to look anywhere for terms of termination of the contract other than in the written contract, citing Katto v. CBN [1999] 6 NWLR (Pt. 607) 390 at 405.
20. The claimant went on that the terms and conditions of contract of employment are the substratum of any case where the issue of wrongful termination of employment calls for determination, citing Ifeta v. Shell Pet. Dev. Co. Ltd [2006] 7 MJSC 121 at 133, Vincent U. Eghareva v. Dr Orobor Osagie [2009] LPELR–1044(SC) and Oshin Fibrin & ors v. Alhaji Elias & ors [1970] LPELR-2799(SC). Citing also Engineer Samuel Diden Yalaju-Amaye v. Associated Registered Engineering [1990] LPELR-3511(SC), the claimant submitted that general damages may be awarded to assuage such loss which flows naturally from the defendant’s act. In conclusion, the claimant urged the Court to grant all the reliefs he claimed, citing Ijebu-Ode Local Government v. Adede Balogun & Co Ltd [1991] LPELR-1463(SC).
COURT’S DECISION
21. After a careful consideration of the processes and submissions of the parties, I start off with the defendant’s counterclaim. I notice that the defendant repeated counterclaim (a) as counterclaim (b). In both, the defendant seeks for “an order directing the claimant to pay to the defendant/counterclaimant the sum of N92,328.09…being the unpaid balance of housing loan owed by the claimant to the defendant/counterclaimant”. In counterclaim (c), the defendant seeks for interest on the unpaid balance of the housing loan at 21% per annum from 11th August 2005 until judgment in this suit is delivered and 10% thereafter until the judgment debt is finally liquidated. And in counterclaim (d), the defendant seeks for cost of this suit in the sum of N2,000,000.00. The claimant did not say a word in his final written address on the counterclaim of the defendant. So I take it that the claimant abandoned his defence against the counterclaim. Indeed, under cross-examination, the claimant acknowledged that in 2010, he was given a housing loan in the sum of N710,900, to be repaid over 12 months in equal installments. He also acknowledged that the repayment is to be by deductions from his salary. He further acknowledged that he started repaying the loan. He testified also that the defendant could not deduct all the repayment due to his leave of absence. He still acknowledged that he entered into an agreement with the defendant regarding the loan. He identified the agreement as Exhibit D1, the “Aero Contractors Company of Nigeria Limited Lumpsum Housing Agreement Form”. Since the claimant did not challenge the counterclaim (in fact he acknowledged the counterclaim), it succeeds in terms of the repayment of the sum of N92,328.09 by the claimant to the defendant. I so find and hold.
22. I now turn to the claims of the claimant, which are essentially two: that the termination of his employment was illegal, null and void; and so he should be reinstated and given commensurate promotion(s) that he missed out given his stay out of work with the defendant. As an alternative to the prayer for reinstatement/promotion, the claimant prayed for monetary reliefs in terms of unpaid salary for 39 months, IBTC Pension, payment of three months in lieu and damages. The claimant then prayed for cost. The case of the claimant is hinged on whether the termination of his employment is legal or not. And key to determining the legality or otherwise of the termination of the claimant’s employment is the interpretation of Exhibits C2, C3, C4, C5, C7 and C8. The parties are agreed that the claimant applied for study leave and was granted same. The issue, however, is the conditions upon which the study leave was granted; for that issue is central to the question of the legality of the termination of the claimant’s employment.
23. By Exhibit C2 dated 2nd August 2010, the defendant approved “one (1) year unpaid leave without pay as requested by you effective from 4th August 2010, subject to the terms and conditions to be agreed with your Union”. Exhibit C2 continued with this statement: “Please be advised that with effect from 4th August, 2010, Finance Department shall cease payment of your salary and allowances accordingly”. “You are therefore expected to report for work and assume duties on the 3rd August 2011”. These conditions are pretty clear: that the leave does not carry any payment of salary, it is for one year, and the claimant must report to work on 3rd August 2011. On 14th July 2011, however, vide a letter of that date, the claimant applied for extension of the study leave by 6 months. In approving the extension of the study leave, the defendant vide Exhibit C4 dated 21st July 2011 informed the claimant to “please note that on return to the country, your re-absorption into the Company will not be automatic but subject to availability of vacancy”. So what do we have here? By Exhibit C2, the claimant had a job certain if he returned on 3rd August 2010; but because he sought extension, Exhibit C4 altered that position and made it clear that his return to work depends on availability of vacancy. The approval of 6 months extension meant that the claimant had up to 2nd February 2012 to complete his studies and return to the defendant, if there is vacancy. Exhibit C4 was explicit on this. However, by Exhibit C5, the claimant on 1st February 2012 wrote to the defendant informing the defendant of his status and that he “will be good to resume my official duty by April to enable me collect my masters certificate by 31st March 2012”. It must be noted here that the claimant merely informed the defendant. He was not praying for any further extension; he was informing the defendant. The defendant on same Exhibit C5 congratulated the claimant but reminded the claimant that his re-absorption depends on space availability. An additional condition was placed even here: that the re-absorption has to be justified by the claimant’s Departmental Manager to HR as to the claimant’s suitability, new role vis-a-vis the knowledge acquired. The defendant proceeded to caution that the claimant should note that he is “not expected to resume work without a letter from HR”. Exhibit C6 consists of two emails respectively dated 22nd May 2012 and 10th September 2012 from the claimant seeking to resume work. By Exhibit C7 dated 7th July 2015, the defendant turned down the request of the claimant to resume work and instead told the claimant that his appointment will be terminated; and by Exhibit C8 dated 11th August 2015, the defendant terminated the employment of the claimant with effect from 11th August 2015.
24. It is because Exhibit C8 stated that the claimant’s employment was terminated with effect from 11th August 2015 that the claimant argues that his employment subsisted with the defendant for 39 months for which he is either entitled to be reinstated and promoted or paid the backlog of salary and other entitelemnts. The claimant, like I pointed out, did not keep to the terms of the study leave in terms of when to resume. Even when the extension was granted to him by 6 additional months, he still did not keep to that. He dictated to the defendant when he wanted to resume work. The defendant made it very clear that there was no job certain for the claimant. In this scenario, that Exhibit C8 stated that the claimant’s employment was terminated with effect from 11th August 2015 means nothing since the claimant had no job in the interim. The moment the claimant sought for 6 months extension and it was granted with conditions as to availability of vacancy, the claimant lost his job. It is too late in the day to rely on Exhibit C8 as the basis for a claim for 39 months salary or reinstatement or promotion. In any event, promotion by The Shell Petroleum Development & 5 ors v. E. N. Nwawka & anor [2001] 10 NWLR Pt. 720 64 at 84 and Abenga v. Benue State Judicial Service Commission [2006] 14 NWLR (Pt. 1000) 610 at 622 CA, is not a right; it is a privilege. A claimant claiming for promotion must show an entitlement to it; even at this, only if he was vindictively denied it. See Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt. 103) 40 NIC, Mr Emmanuel A. Idonije v. Nigerian Maritime Administration and Safety Agency unreported Suit No. NICN/LA/303/2014, the judgment of which was delivered on 10th July 2017 and Steve C. Okebu Esq v. Delta State Judicial Service Commission & anor unreported Suit No. NICN/LA/79/2017, the judgment of which was delivered on 11th July 2018.
25. On the whole, I do not see any merit in the claimant’s case. It fails and is hereby dismissed. Like I pointed out earlier, the defendant’s counterclaim succeeds in terms of the repayment of the sum of N92,328.09 by the claimant to the defendant. In this wise, I make the following order: the claimant shall within 30 days of this judgment pay to the defendant the sum of N92,329.09 (Nine-Two Thousand, Three Hundred and Twenty-Eight Naira, Nine Kobo) only being the unpaid balance of the housing loan owed by the claimant to the defendant; failing this, the said sum shall attract interest at 10% per annum until fully liquidated.
26. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
