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: MAY 15, 2019 SUIT NO. NICN/LA/492/2016
BETWEEN
Yunus Adewale Adefowope – Claimant
AND
MTN Nigerian Communications Ltd – Defendant
REPRESENTATION
Joseph Asine, for the claimant.
Mrs Ayo Obe, with Miss Abidemi Jimoh and Miss Edidiong Bassey, for the defendant.
JUDGMENT
INTRODUCTION
1. The claimant filed this action on 28th July 2016 vide a complaint accompanied with statement of facts, list of witness, statement on oath, list of documents and copies of the documents. The defendant entered formal appearance and then filed its statement of defence, list of witnesses, witness statement on oath, list of documents and copies of the documents. In reaction, the claimant filed a reply to the statement of defence, additional written statement on oath, additional list of documents and copies of the additional documents.
2. By the complaint (but not the statement of facts), the claimant is praying for:
(a) A declaration that the suspension of the claimant as contained in the defendant’s letter dated 3rd February 2016 is unlawful, null and void.
(b) A declaration that the termination of the appointment of the claimant as contained in defendant’s letter dated 15th June 2016 is wrongful, illegal, null and void.
(c) An order setting aside the suspension and termination of the appointment of the claimant.
(d) An order to reinstate the claimant and pay his accumulated salaries. Or in the alternative
(e) N200 million damages for wrongful suspension and termination of appointment.
3. The statement of facts does not have these reliefs; rather it is in paragraph 24 of the claimant’s statement on oath that the claimant simply adopted the reliefs as per the complaint. There is thus the question whether there is validly any relief before the Court.
4. At the trial, the claimant testified on his own behalf as CW. His frontloaded documents were admitted and marked as Exhibits C1 to C18. The defendant’s Exhibits D1 and D2 were also admitted through CW. Mrs Folakemi Taiwo, a Senior Manager with the defendant, testified for the defendant as DW. She adopted Exhibits C16, D1 and D2 as documents she referred to in her deposition. At the close of trial, parties filed their respective final written addresses. The defendant’s final written address was filed on 27th February 2019, while the claimant’s was filed on 21st March 2019. The defendant’s reply on points of law was filed on 27th March 2019.
THE CASE BEFORE THE COURT
5. The claimant was a senior manager, solution development wth the defendant until when he received a text message from the defendant on 25th January 2016 inviting him to an interview on 27th January 2016. At the interview, the defendant alleged hat the claimant had an interest in another company known as Computer Warehouse Ltd. The claimant denied the allegation. He, however, received a suspension letter from the defendant on 3rd February 2016 and was not contacted until 15th June 2016 when he received a letter of termination of his appointment from the defendant. On 21st July 2016, he received an email from Human Relations (HR) Department intimating him of his exit computation. He responded to the email stating hat he was not in agreement with the termination as he considers same unlawful. He requested for the Department to forward its account details for same to be returned. The claimant’s case , therefore, is that his termination was wrongful and the defendant kept his fate hanging by the suspension letter, making it impossible for him to secure another job before the termination of his employment on 15th June 2016.
6. To the defendant, at the time of the termination of the claimant’s appointment vide Exhibit C16, he had been placed on suspension pursuant to a letter to him dated 3rd February 2016 (Exhibit C15). hat the claimant’s contract of employment specifically stated that either party could terminate it on 30 days’ written notice. hat following the said termination, the defendant calculated and paid him his full terminal benefits, the basis for which was shown in an Exit Statement dated 19th July 2016 (Exhibit D1).
THE SUBMISSIONS OF THE DEFENDANT
7. The defendant submitted five issues for determination:
(a) Whether the relationship between the claimant and the defendant was one of ordinary master and servant.
(b) Whether the defendant properly terminated the claimant’s appointment.
(c) Whether the claimant is entitled to reinstatement.
(d) Whether the defendant is entitled to suspend the claimant.
(e) Whether the claimant is entitled to any damages beyond the scope of his contract of employment.
8. On issue (a), the defendant submitted that the contract of employment between the parties (Exhibit C1) shows that it was an entirely common law contractual employment with no statutory flavour whatsoever. That although the contract was modified in writing by the defendant through documents such as Exhibit D2, its nature was never altered, nor did it ever become anything other than an ordinary contract of employment, urging the Court to so find.
9. For issue (b), the defendant referred to clause 7 of Exhibit C2 (sic), which reads: “After the probation period, the contract may be terminated on 30 (thirty) days written notice by either party”. That the claimant’s appointment was determined pursuant to this clause vide Exhibit C16 dated 15th June 2016, which stated that the claimant’s services were no longer required and that the termination was with effect from June 15, 2016, and that “Adequate payment in lieu of the applicable notice of this termination shall be paid to you”. The defendant went on that all the claimant did was to plead in his reply to the testament of defence that he was not in agreement with the termination as he considers same unlawful. That other than this, there is no pleading whatsoever to show what it was that he claimant believes rendered the termination unlawful. That since the defendant pleaded that it terminated the claimant’s contract of employment in accordance with the terms clause 7 of Exhibit C2, the silence of the claimant on the point means that there is no basis for finding that the termination was anything other than valid, citing Babatunde Ajayi v. Texaco Nig Ltd & ors [1987] 3 NWLR (Pt. 62) 577 and Benin Electricity Distribution Co. Plc v. Mr Napoleon Esealuka [2015] 2 NWLR (Pt. 1444) 411. That in the present case, there was no infraction of the terms of employment in the termination of the claimant’s employment so not only is there no question of declaring it null and void, it cannot be declared wrongful or illegal either. The defendant then urged the Court to find that the contract of emolument was lawfully, validly and effectively determined on 15th June 2016, and hat the claimant’s prayer for a declaration that the said termination should be declared “wrongful, illegal, null and void” should be dismissed.
10. Regarding issue (c), the defendant submitted that once it is established that the contract of employment was an ordinary master and servant contract, and that it was validly and lawfully determined on 15th June 2016, then there can never be any question of forcing the defendant to reinstate the claimant, citing Tunji Bankole v. Nigerian Broadcasting Corporation [1968] All NLR 736. That in the instant case, the dismissal was completely lawful and the claimant did not offer anything whatsoever to support any ending to the contrary, urging the Court to refuse the order of restatement or payment of accumulated salaries.
11. In respect of issue (d), the defendant submitted that as with the letter of termination, the claimant in his pleadings merely stated the fact of suspension without asserting anywhere that the suspension was illegal, invalid or even irregular. That it is only in the complaint that he asserted that the suspension was “unlawful, null and void” without stating why. To the defendant, it is entitled in its discretion to place the claimant on suspension and the claimant did not plead anything to justify his prayer for a declaration that the suspension was unlawful, null and void. That the evidence of the claimant under cross-examination to the effect that he was supposed to have been given a hearing under section 10.1 of Exhibit D2 as well as DW’s answer to the question whether the process in Exhibit D2 was carried out in respect of the claimant all go to no issue as there is no supporting pleading for any of it. In any event, that the claimant is required to succeed on the strength of his own case. The defendant continued that even if the Court is minded to look at the regularity of the suspension in terms of Exhibit D2, the case of the claimant is not that the suspension was unlawful when it was handed down to him, but that after he was suspended he was not given a hearing and the suspended persisted. To the defendant, this cannot retrospectively make the suspension unlawful, null and void. In any event, that the effect of any order setting aside the suspension merely means that the claimant would be paid the salary that he would have earned during such suspension, citing Benin Electricity Distribution Co. Plc v. Mr Napoleon Esealuka (supra); and the claimant was paid his full salary during the period of suspension, a fact admitted by the claimant under cross-examination. The defendant then urged the Court to refuse the reliefs pertaining to the suspension.
12. Pertaining to issue (e), the defendant submitted it that it had computed the claimant’s terminal benefits and paid same to the claimant. That under cross-examination, the claimant admitted that he ad not challenged the calculation of his terminal benefits; rather, he said that he sent back emails in Exhibit C17 saying that he rejected the termination of his employment as unlawful. That there is accordingly no challenge on the amount to which the claimant was entitled to on the termination of his appointment, which termination was valid and lawful. That as an alternative, the claimant is seeking N200 million as damages and an order of restitution, To the defendant, the claimant failed to state what his salary or entitlements are, citing Simon Nfor v. Ashaka Cement Co. Ltd [1994] 1 NWLR (Pt. 319) 222, which held that damages most not be awarded on speculative claim and scanty evidence. That since the claimant is nit entitled to any of the declarations or orders he seeks, the question of being paid any money as an alternative does not and cannot arise, citing Benin Electricity Distribution Co. Plc v. Mr Napoleon Esealuka (supra). In any event, that even if the claimant had provided any justification for a finding that his appointment was wrongly terminated, the measure of damages recoverable would only be the amount he would have earned under the contract of employment, citing Kaduna Textiles Ltd v. Umar [1994] 1 NWLR (Pt. 319) 143 and Simon Nfor v. Ashaka Cement Co. Ltd (supra). To the defendant, the present action represents gold-digging and speculation of the most egregious kind as the claimant was paid all he is entitled to under the contract of employment. In conclusion, the defendant urged the Court to dismiss this suit with substantial costs.
THE SUBMISSIONS OF THE CLAIMANT
13. The claimant submitted five issues for determination:
(1) Whether the suspension of the claimant as contained in the suspension later of 5th February 2016 was lawfully carried out.
(2) Whether the defendant properly terminated the claimant’s appointment vide its letter of termination dated the 15th of June 2016.
(3) Whether the Honourable Court have the power to set aside the claimant’s suspension and termination, as unlawful and wrongful.
(4) Whether the Honourable Court can make an order for the reinstatement of the claimant into the defendant company.
(5) Whether the claimant is entitled to damages.
14. For issue (1), citing Brightstar Industries Ltd v. Precision Electrical and Related Equipment Workers Union [1978-2006] Digest of Judgments of the NIC and Bernard Ojeifo Longe v. First Bank of Nigeria Plc [2010] 6 NWLR (Pt. 1189) at 12 and 13 the claimant submitted that the arms and conditions of employment set out in a company’s handbook form the basis of the contract of employment of the parties, and while the master has unfettered right to terminate the employment, that must be done in compliance with the procedure stipulated in the contract. That under cross-examination, the claimant informed the Court that his suspension was in violation of section 10(1) of Exhibit D2, which provides:
The company may at its discretion place an employee on suspension pending the outcome of a FORMAL HEARING which may lead to a termination/dismissal with or without notice. Sch suspension shall not exceed 30 days in the first instance, after which it could be extended for another 30 days. However, if the case has not been disposed of within 60 days, the employee shall then proceed on indefinite suspension without pay.
That in the instant case, the claimant was suspended on 3rd February 2016 without a FORMAL HEARING and on 15th June 2016, his appointment was wrongfully terminated; citing John Ovoh v. Nigerian Dredging and Marine Ltd unreported Suit No. NIC/9/2002, the ruling of which was delivered on 13th April 2005 and urging the Court to do justice.
15. On issue (2), the claimant referred to paragraphs 8 and 8.1 of Exhibit C1, the contract of employment dated 13th August 2002, and sections 10(1), 12 and 13.1-13.3 of Exhibit D2 as well as management of Glaxo Nig Ltd v. National Union of Chemical and Non-Metallic Products Workers [1978-2006] Digest of Judgments of NIC at page 285, Ibekwe v. ISEMB [2009] 5 NWLR (Pt. 1134) at 239 and UBN v. Chinyere [2010] 10 NWLR (Pt. 1203) at 457 and 458. The claimant then submitted that his case is that the defendant did not properly terminate his appointment vide its letter of termination dated 15th June 2016 having neglected, failed and refused to follow due process and the prescribed laid down procedures as enshrined in Exhibit D2, using the Court to so hold.
16. In respect of issue (3), the claimant submitted that paragraphs 8 and 8.1 of Exhibit C1 and the provisions cited in Exhibit D2 are integral formations of the claimant’s contract of employment and the failure of the defendant to adhere to these provisions in suspending and terminating the appointment of the claimant makes it wrongful and unlawful, citing COE Ekiadolar v. Osayande [2010] 6 NWLR (Pt. 1191) 426. That from the totality of the legal authorities cited, the Court is only bound to examine Exhibits C1 and D2 in determining and setting aside the suspension and termination of the claimant’s appointment as wrongful and unlawful, urging the Court to so hold.
17. Regarding issue (4), the claimant submitted that from his statement of facts, statements on oath and the exhibits especially Exhibits C1 and D2, the defendant failed in following due process in the suspension and termination of his appointment, which about this action. That it is trite that this Court can make an order of reinstatement based on the totality of the legal authorities can passed thus far, citing Mix and Bake Flour Mill Industries Ltd v. National Union of Food, Beverages and Tobacco Employees [1975-2006] Digest of Judgments of the NIC at page 472, which held that reinstatement can be ordered by this Court in cases of statutory employment or where termination is the product of union activities. The claimant urged the Court to find that the defendant grossly erred by not adhering to due process in terminating his appointment and make an order that the claimant be reinstated in the employment of the defendants.
18. Issue (5) deals with whether the claimant is entitled to damages. To the claimant, he pleaded that he was earning N1 million monthly as a senior manager until his termination on 15th June 2016, which termination cause him emotional trauma, inconvenience, legal expenses and denial of essential company benefits, hence the claim for N200 million to be paid to him in damages; and citing Ozigbu Engineering Co. Ltd v. Iwuamadi [2009] 16 NWLR (Pt. 1166) 49, which held that once an injury is proved general damages can be awarded. The claimant urged the Court to hold that he has been greatly wronged and his fate, hope, career-path and aspirations shattered by acts committed by the defendant by its unlawful suspension and wrongful termination of the claimant’s appointment since15th June 2016. In conclusion, the claimant urged the Court to grant all his prayers.
THE DEFENDANT’S REPLY ON POINTS OF LAW
19. To the defendant, the claimant raised three points of law, which require a response from the defendant. They are: the suspension of the claimant; the termination of the claimant’s appointment; and the orders that this Court can make. On the issue of suspension, the defendant merely reiterated its argument on the issue especially as to absence of the relevant pleadings to support the claimant’s case and the fact that the claimant was never put on suspension without pay. For the issue of termination, the defendant again reiterated its earlier arguments as to the absence of pleadings to show the particular manner in which the termination is wrongful. As for the orders that this Court can make, the defendant once again reiterated its earlier arguments i.e. that this Court cannot reinstate the claimant as well as the fact that the pleading that the claimant earns N1 million per month as salary is unsupported by any documentary evidence. The claimant has only his ipse dixit to support the assertion. Of course, the defendant reiterated its call that this case be dismissed with substantial cost.
COURT’S DECISION
20. After a careful consideration of the processes filed and the submissions of the parties, the claimant’s case centers on his suspension and subsequent termination of his employment by the defendant. In considering the merit of the case, I start off with an issue, though not raised by the defendant, but one that is fundamental nonetheless. It was the Supreme Court in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47 that said that:
A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may, at the end of the day obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed.
21. The question that presently arises is: in which process does a claimant make the claims (reliefs) he/she wishes the Court to grant? Is it in the complaint (writ of summons) or the statement of facts (statement of claim)? I note that the Supreme Court in Heritage Bank Limited v. Bentworth Finance (Nigeria) Limited, unreported Suit No: SC/175/2005, the judgment of which was delivered on February 23, 2018 held that the originating process of a suit is the writ of summons, the complaint in our case. In other words, it is the writ of summons (complaint) that commences an action, not the statement of claim (statement of facts). In the instant case, in the claimant’s originating processes, only the complaint indicated the reliefs the claimant seeks in this case. The statement of facts does not have the reliefs. Rather, it is in paragraph 24 of the claimant’s statement on oath that the claimant simply adopted the reliefs as per the complaint. What we have, therefore, is a complaint and a statement on oath claiming reliefs that are not in the statement of facts. Is there validly any relief before the Court? The law is that as between the complaint (writ of summons) and statement of facts (statement of claim), it is the latter that predominates in the event of conflict. See, for instance, Isamotu Otanioku v. Lawal Mustafa Alli [1977] LPELR-2820(SC); [1977] 11-12 SC (Reprint) 6, which, relying on Udochukwu v. Okwuka [1956] 1 FSC 70, held thus: “In the face of well-established authority, therefore, the Statement of Claim in the suit superseded the original Writ of Summons”. In Alhaja Rafatu Ayorinde v. Alhaja Airat Oni & anor [2000] LPELR-684(SC), relying on Fadahunsi v. Shell Company of Nigeria Ltd [1969] NMLR 304, it was held that: “It is well settled that a statement of claim filed by the Plaintiffs supersedes the endorsement on the Writ of Summons and cures whatever defect in the endorsement”. And in Jauro & anor v. Danmaraya [2016] LPELR-40328(CA), Sankey, JCA held thus:
It is a cardinal principle of law that a statement of claim supersedes a writ of summons; hence if some special form of relief be claimed on the writ and not in the statement of claim, it will be taken that so much of the claim is abandoned. So also, where in the statement of claim a consequential relief is added to the claim in the writ, such additional claim will be deemed as claimed before the Court. Thus, the statement of claim is more authoritative.
See further Alhaji Ndayako (Etsu Nupe) & anor v. Alhaji Dantoro & 6 ors [2004] 13 NWLR (Pt. 889) 187; [2004] 5 SCNJ 152 at 175-176, Oyu v. ACB International Insurance Co. (Nig.) Ltd [2008] LPELR-2827(SC), Omnia (Nig.) Ltd v. Dyktrade Ltd [2007] LPELR-2641(SC); [2007] 15 NWLR (Pt.1058) 576; [2007] 7 SC 44, Arabambi v. Advance Beverages Industries Ltd [2005] LPELR-529(SC), Gbadamosi v. Dairo [2001] 6 NWLR (Pt. 708) 137 and Lahan v. Lajotan [1972] LPELR-1748(SC).
22. Since in the instant case the claimant did not make any claim in his statement of facts, on these case law authorities, it must be taken that he has abandoned same. The complaint with the reliefs on the face of it is valid only as a process that activates this suit, not as a process that claims reliefs from this Court. This being so, there is no claim (relief) before the Court to adjudicate on. There is accordingly no competent suit before the Court. I so find and hold.
23. Assuming, however, that I am wrong and the reliefs on the complaint and as adopted in the sworn deposition of the claimant are read as feeding the statement of facts (which I doubt, and so hold otherwise), I shall proceed to consider the merit of the claimant’s case. The claimant was first suspended and then subsequently had his appointment terminated. Exhibit C15 dated 3rd February 2016 is the letter of suspension. It states that:
We write with respect to an on-going investigation being carried out by Business Risk Management Department.
In line with the Code of Conduct and Disciplinary Matrix, you are hereby suspended with immediate effect to allow further investigation.
Please be informed that you may be contacted during the course of the investigation to provide additional information as required. You are advised to keep a channel of communication open at all times to avoid any delay in concluding the process.
24. I must state that it is within the disciplinary powers of an employer to suspend an employee for purposes of investigating an infraction or as punishment for an infraction. So on face value, there is nothing wrong in the defendant suspending the claimant vide Exhibit C15. The claimant, however, challenges his suspension vide Exhibit C15. It is, therefore, for the claimant to state the basis upon which he makes the challenge; and the claimant will succeed only if he shows the suspension to be unnecessary, unreasonable, invalid and hence unlawful. What then is the case of the claimant?
25. Relying on clause 10(1) of Exhibit D2, the claimant argued that he was suspended on 3rd February 2016 but without a FORMAL HEARING and on 15th June 2016, his appointment was wrongfully terminated. By this submission, the claimant intuits that he cannot be suspended except with a formal hearing. Is this the law? I do not think so. In Mr Usanga Eyo Brian v. Polaris Bank Limited unreported Suit No. NICN/LA/412/2014, the judgment of which was delivered on 20th March 2019, this Court in paragraphs 29 and 30 summarized the law in these words:
29. Relief (f) is for an “order setting aside the suspension of the claimant from duty by the defendant on the 23rd day of April, 2010”. This relief calls to question the lawfulness or otherwise of the suspension of the claimant. The claimant argues that his suspension was unlawful. The duty is thus on him to prove the unlawfulness of the said suspension since he is the one who alleges that. Of course, an aggrieved employee has the right to approach this Court to challenge his/her suspension. The yardstick, however, for challenging the suspension is whether the suspension is necessary, reasonable, valid and hence lawful. See Mr. Bisiriyu Adegoke Sheu v. Lagos NURTW (First BRT) Cooperative Society Limited [2015] 62 NLLR (Pt. 216) 40. In order words, the claimant will succeed only if he shows the suspension to be unnecessary, unreasonable, invalid and hence unlawful. Exhibit C2 dated 23rd April 2010 is the letter suspending the claimant for “causing the Branch to grant overdraft facilities to your Church…without ensuring that proper security is in place for the facility which has now led to the exposure of the bank to the tune of N71,116,331.36 as at 30/11/20109”. The claimant was thereby asked “to proceed on suspension to pursue recovery with immediate effect”. It is within the disciplinary powers of an employer to suspend an employee for purposes of investigating an infraction or as punishment for an infraction. See Bernard Ojeifo Longe v. First Bank of Nigeria Plc [2010] 6 NWLR (Pt. 1189) 1 and Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt. 103) 40 NIC. So it is within the disciplinary right and powers of the defendant to issue Exhibit C2. It is for the claimant to show that the defendant acted unreasonably in issuing Exhibit C2. The moment the defendant was certain that the claimant recovered over 88% of the amount outstanding on the account of VAM, it recalled the claimant from suspension vide Exhibit C17 dated 17th January 2011.
30. In proof of the wrongfulness of his suspension, the claimant referred to Exhibits C11 and C13. Exhibits C11 and C13 are letters from the claimant to the defendant; as such, they cannot be proof of any wrongfulness of the suspension. The claimant complained of the absence of fair hearing in terms of his suspension, which thus made his suspension bizarre and suspicious. The authorities are, however, pretty clear that when it comes to suspension, the question of fair hearing and/or natural justice is immaterial. For instance, Longe v. FBN Plc (supra) held that the suspension of an employee when necessary cannot amount to a breach of the employee’s fundamental or common law rights. See also Ayewa v. University of Jos [2000] 6 NWLR (Pt. 659) 142, Akinyanju v. University of Ilorin [2005] 7 NWLR (Pt. 923) 87 and Shell Pet. Dev. Co. v. Lawson Jack [1998] 4 NWLR (Pt. 545) 249. As it is, the claimant has not been able to prove that his suspension was unnecessary, unreasonable, invalid and hence unlawful. Relief (f) accordingly fails and so is hereby dismissed.
See further Bamigboye v. University of Ilorin & anor [1999] 10 NWLR (Pt. 622) at 290, Sylvanus Eze v. University of Jos [2012] LPELR-20072(CA) and Yussuf v. VON Ltd [1996] 7 NWLR (Pt. 463) 746 CA.
26. In the instant case, the argument of the claimant that he cannot be suspended except with a formal hearing is thus untenable and so goes to no issue. I so find and hold. This being the case, the claimant has not shown to this Court that his suspension was unnecessary, unreasonable, invalid and hence unlawful. Exhibit C15 made it clear that the claimant’s suspension was to allow for investigation by Business Risk Management Department. The claimant did not show how unnecessary, unreasonable, invalid and unlawful this is. In any event, under cross-examination, the claimant testified that he was paid his full salary while on suspension. I accordingly hold that the claimant’s suspension vide Exhibit C15 was lawful.
27. The next issue is whether the claimant’s appointment was wrongfully terminated. Exhibit C16 dated 16th June 2016 is the letter of termination. It reads:
We refer to your Contract of Employment dated August 17, 2002.
In line with the relevant provisions of your Contract of Employment and the Company’s Terms and Conditions of Service, please be informed that your services are no longer required and the Company in pursuance of the aforesaid Contract of Employment hereby terminates your contract with effect from June 16, 2016.
Adequate payment in lieu of the applicable notice of this termination shall be paid to you.
Kindly liaise with the HR Business Partner, Enterprise Business Unit for all exit details.
28. Exhibit D1 dated 19th July 2016 is the exit statement from the defendant to the claimant. In the second and third paragraphs, it states:
Please find attached, details of your final entitlement computations and separation record. Your entitlement of N2,384,175.45 (Two Million, Three Hundred and Eighty Four Thousand, One Hundred and Seventy Five Naira, Forty Five Kobo Only) has been paid into your Guaranty Trust Bank account.
Kindly provide us with your Retirement Saving account (RSA) details to enable us facilitate the transfer of your pension funds.
Attached to Exhibit D1 is the breakdown of the claimant’s final entitlement as computed by the defendant. The computation is done under two columns: the earnings; and the deductions. Under earnings, there is payment for basic salary, transport allowance, flexible housing allowance, 13th month allowance, housing allowance monthly, amount in lieu earning, leave to cash earning, passage allowance and vehicle cash allowance. The total earnings came to N3,633,064.40. As for deductions, this was made in respect of income tax (PAYE), pension employee, National Housing Fund, development levy and leave differential. The total deductions came to N1,248,888.95. The net entitlements accordingly came to N2,384,175.45. This is the amount of money that was paid into the claimant’s account by the defendant. Of note is the payment of N1,227,850.59 as “amount in lieu earning”. I take this to be payment in lieu of notice.
29. To the claimant, on 21st July 2016, vide Exhibit C17, he received an email from Human Relations (HR) Department intimating him of his exit computation. He responded to the email stating hat he was not in agreement with the termination as he considers same unlawful. That he then requested for the Department to forward its account details for same to be returned. The actual words he used in Exhibit C17 are: “Please advise with MTN Nigeria Communications Limited Bank account details”. There is nothing in Exhibit C17 intimating that the claimant intended to return the money paid to him by the defendant. There is no evidence before the Court that the money paid by the defendant into the claimant’s account was actually returned to the defendant. There is no evidence before the Court that the claimant urged his bankers to reverse the payment of the said sum back to sender. So the statement of the claimant that he wanted to return the money paid by the defendant is not supported by the evidence before the Court; merely asking to be advised with the defendant’s bank account details is not enough as the evidence of intention to pay back the money, which in any event was actually not paid back as there is no evidence to that effect before the Court. In any event, under cross-examination, the claimant testified that he had no need to challenge the calculation of his terminal benefits in Exhibit D1 because he did not agree with the suspension and termination; and that he was paid all the salary he would have been entitled to given 30 days’ notice.
30. As can be seen, both parties had relied on section 10.1 of Exhibit D2 in arguing their respective cases. The point, however, is that section 10.1 comes under definition of terms in Exhibit D2; and as held by this Court in paragraph 82 of Oladapo Olatunji & anor v. Uber Technologies System Nigeria Limited & 2 ors unreported Suit No. NICN/LA/546/2017, the judgment of which was delivered on December 4, 2018, “An interpretation section of an Act does not grant an entitlement. It may explain the ambit of an entitlement, but certainly it does not primarily grant that entitlement”. The entry under termination in section 10.1 of Exhibit D2, however, appears to grant an entitlement (it is not even worded as a definition) as it enjoins that where an employee’s service is terminated, all benefits accruable to such an employee up to the day of termination shall be paid out to the employee. As it is then, Exhibit D1 satisfies this provision of Exhibit D2. The question is, however, still outstanding whether the termination is thereby lawful. Clause 7 of Exhibit C1 provides that after probation, the contract of employment may be terminated on 30 days’ written notice by either party. But in clause 8.1, the defendant is permitted to terminate the claimant’s employment with or without notice if the claimant commits any serious or persistent breach of any of the provisions of the employment contract, the defendant’s disciplinary code or conditions of employment. Clause 8.2 allows the defendant to terminate the claimant’s employment if he is found guilty of any misconduct or malperformance upon giving 30 days’ written notice.
31. The defendant had argued that the claimant’s appointment was terminated vide Exhibit C16 dated 16th June 2016 in accordance with clause 7 of Exhibit C2 (it is Exhibit C1 that actually makes the provision), which reads: “After the probation period, the contract may be terminated on 30 (thirty) days written notice by either party”. That Exhibit C16 stated that the claimant’s services were no longer required and that the termination was with effect from June 15, 2016, and that “Adequate payment in lieu of the applicable notice of this termination shall be paid to you”. Two points arise here: in terminating the claimant’s appointment with effect from 16th June 2016, Exhibit C16 of same date terminated the claimant’s appointment with immediate effect. This means that the termination was without notice. In Dorothy Adaeze Awogu v. TFG Real Estate Limited unreported Suit No. NICN/LA/262/2013, the judgment of which was delivered on 4th June 2018, this Court at paragraph 59 held that it is commonsensical that “a dismissal with immediate effect can never be a dismissal with notice”. This means that Exhibit C16 offended clause 7 of Exhibit C1 contrary to the argument of the defendant; and in not giving the 30 days’ notice, the termination becomes wrongful by that fact. I so find and hold.
32. This leads to the second point. The statement in Exhibit C16 that “adequate payment in lieu of the applicable notice of this termination shall be paid to you” does not meet the legal requirement of payment in lieu of notice, which is that payment must be made contemporaneously with the termination. See Chukwumah v. Shell Petroleum [1993] 4 NWLR (Pt. 289) 512, paragraphs 61 and 62 of Madam Oyesola Ogunleye v. Sterling Bank Plc unreported Suit No. NICN/LA/430/2014, the judgment of which was delivered on 24th May 2018 and paragraph 47 of Mr Dawodu Azeez v. 3 Peat Investment Limited unreported Suit No. NICN/LA/628/2014, the judgment of which was delivered on 16th July 2018. Exhibit D1 through which exit payment including the payment of N1,227,850.59 as “amount in lieu earning”, which I took to be payment in lieu of notice, is dated 19th July 2016. The attention of the claimant was drawn to the fact of payment on 21st July 2016 through Exhibit C17. The claimant’s termination was made vide Exhibit C16 dated 16th June 2016 and took effect from same date. In other words, the claimant was paid N1,227,850.59 as “amount in lieu earning” one month three days after his employment was terminated, not contemporaneously with the termination. For this additional reason, the termination is wrongful. I so find and hold.
33. In relief (b), the claimant prayed that the termination of his employment be declared “wrongful, illegal, null and void”. The claimant does not seem to understand that case law authorities in this country make a distinction between termination/dismissal that is wrongful and termination/dismissal that is illegal, null and void. See, for instance, BCC Plc v. Ager [2010] 9 NWLR (Pt. 1199) 292 SC, which held that there is a distinction between mere wrongful dismissal and an invalid or null dismissal. That where the Court makes a finding of wrongful dismissal, a payment in lieu of notice will apply; but where the finding is that the dismissal or termination was null and void, then there is no dismissal or termination as what the employer did was a nullity before the law. Having thus made a finding that the termination of the claimant’s employment was wrongful on two grounds i.e. in not giving 30 days’ notice; and in the payment of N1,227,850.59 as “amount in lieu earning” not being contemporaneously with the termination, the claimant is entitled to damages for the wrongful termination, which by case law authorities is what is payable in lieu of notice. See Oak Pensions Ltd v. Olayinka [2017] LEPLR-43207(CA); [2018] 12 ACELR 85, Peter Onteachonam Obanye v. Union Bank of Nigeria Plc LER [2018] SC. 569/2015; [2018] 14 ACELR 1 decided on Friday, June 8, 2018, Mr Adebayo Gbolahan Adepoju v. Coscharis Group unreported Suit No. NICN/LA/409/2014 decided on 16th February 2018 and Clement Abayomi Onitiju v. Lekki Concession Company Limited unreported Suit No. NICN/LA/130/2011, the judgment of which was delivered on 11th December 2018. Exhibit C13 dated 3rd February 2015 is a letter of promotion of the claimant. It puts in clause 2.1 the claimant’s total guaranteed package as N23,554,708 per annum. If this sum is divided by the 12 months of the year, what we have as monthly total guaranteed package is N1,962,892.33. This is the sum the claimant is entitled to as damages for the wrongful termination of his employment. I so find and hold.
34. The claimant had urged this Court to reinstate him to his employment with the defendant, citing Mix and Bake Flour Mill Industries Ltd v. National Union of Food, Beverages and Tobacco Employees [1975-2006] Digest of Judgments of the NIC at page 472, which held that reinstatement can be ordered by this Court in cases of statutory employment or where termination is the product of union activities. The claimant did not, however, show to this Court how his employment was statutory or that the defendant terminated his employment because of trade union activities as to make the citing of Mix and Bake Flour Mill Industries Ltd meaningful. In any event, in holding that the termination of the claimant’s employment was wrongful, not illegal, null and void, the question of reinstatement of the claimant does not even arise as it has no basis in law. I so hold.
35. On the whole, for the reasons already given, and for the avoidance of doubt, the decision of this Court is that there is no competent suit before the Court, the claimant having not prayed for any relief in his statement of facts. All other findings and holdings made are contingent upon an appellate holding that this Court is wrong in finding and holding that there is no competent suit before it; in which event all that the claimant would be entitled to is N1,962,892.33 as damages for wrongful termination.
36. Judgment is entered accordingly. I make no order as to cost.
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Hon. Justice B. B. Kanyip, PhD
