IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
SUIT NO: NIC/EN/24/2014
BETWEEN:
UMOH ABRAHAM TITUS
CLAIMANT
AND
COLDEN ROYALE RESORT AND
APARTMENT LIMITED.
DEFENDANT
BEFORE HIS LORDSHIP HON. JUSTICE (Dr) I.J. ESSIEN.
DATE: 26th February 2019
REPRESENTATION:
- T. Sanni Esq. with E. O. Enemor Esq. for the claimant.
- Maduka Esq. with E. M. Ugwu Esq. and R. Okafor Esq. for the defendant.
JUDGMENT
The claimant in this suit commenced this suit by a complaint on the 14th march 2014. In the originating process he claimed the following reliefs against the defendant from this court;
- A DECLARATION that the termination of the Claimant’s employment by the Defendant is in violation of his right and an outright contravention of the contract of employment and that same was done in bad faith and therefore illegal, null and void.
- AN ORDER directing the Defendant to pay the Claimant’s salaries, service charge and allowances from the date of the illegal termination till judgment of this honourable court is given.
- AN ORDER directing the Defendant to pay the Claimant’s remuneration for the dual capacity he holds throughout his employment with the Defendant.
- The sum of Two Hundred Million Naira (N200, 000, 000) only being general damages for the wrongful termination of the Claimant’s employment, the hunger, trauma he and his family went through as a result of the wrongful and sudden termination of his employment, the stigmatization as a result of wrongful allegation of incompetency he was accused of.
- The sum of One Million Naira Only (N 1,000, 000) only as cost of this action.
ALTERNATIVELY;
- AN ORDER directing the Defendant to pay the Claimant three month salaries and allowances in lieu of notice of termination of employment as contained in the letter of employment of the Claimant. i.e The sum of Seven Hundred and Fifty Thousand Naira (N750,000) being payment for 3 months salaries at N250,000 monthly. Payment of service charge allowance for the three month as calculated from the total sum of sales for three months.
- AN ORDER directing the Defendant to pay the Claimant’s remuneration for the dual capacity he holds throughout his employment with the Defendant.
- The sum of Five Hundred Million Naira (N500,000,000) only being general damages for the wrongful termination of the Claimant’s employment, the hunger, trauma and psychology effect he and his family went through as a result of the wrongful and sudden termination of his employment, the stigmatization as a result of wrongful allegation of incompetency he was accused of.
The claimant filed his witness deposition and the list of documents along with the originating process. On the 21/4/2015, pursuance to the leave of court, the defendant filed his statement of defence, a list of documents and a witness deposition along with the defence. On the 24/3/2016 the claimant filed a reply to the statement of defence along with a further witness deposition of the claimant .
Hearing in this matter commenced on the 28/4/2018 and was concluded on the 19/7/2018. The parties were directed to file their final written addresses.
BRIEF STATEMENT OF THE FACTS.
The claimant allege that he was employed on the 1/11/2011 in a dual capacity of ‘Deputy General Manager’ and ‘General Manager’ of the defendant.
The claimant was given a monthly gross revenue target of N 25,000,000.00 (Twenty-Five Million Naira Only) which the claimant claims he surpassed and the defendant only paid him remuneration for one of the two positions. It is the case of the claimant that the defendant issued to him a letter of displeasure on the 25th day of February, 2013 which embodies the defendant’s complaints against the Claimant ranging from his general ineptitude and inefficiency to total lack of leadership qualities to function as the General Manager of the defendant hotel. The claimant case is also that he applied for two (2) months leave of absence to enable him attend to pressing family matters and the said leave of absence was granted with two months, salary in advance for the months of April and May, 2013 and that the defendant sent him a letter of termination of his employment and details of severance payment dated 19th April, 2013, the same day his leave of absence was to commence. He further stated that he was not given three (3) months’ notice or payment in lieu of three months’ notice as contained in his letter of employment, rather the defendant paid to him the sum of Five Hundred Thousand Naira Only N500.000.00) which is two months’ salary. He alleges that his employment with the defendant was terminated in bad faith. The defendant contend that the letter of offer of employment for the post of “Deputy General Manager” was erroneously sent to the claimant on the 1st November, 2011 and when he pointed out the error to the defendant, the error was immediately corrected and a fresh letter of offer of employment bearing his correct job position as General Manager which he applied for was sent to the claimant and that the claimant never applied for two positions in the defendant. That at the time the claimant was employed the defendant was enjoying a boost in business with the former managers but the defendant general performance led to the drop in the fortunes of the defendant as the claimant could not meet the monthly target of N 25 million. That the non- performance of the claimant led to the termination of the claimant appointment with the defendant. That under the terms of the employment, the Claimant is entitled to three (3) months’ notice or be paid three (3) months’ salary in lieu or notice and upon termination of the employment the -Claimant was paid two (2) months’ salary of N500,000.00 in advance, thus leaving additional one month’s salary of N250,000.00. the remaining one month salary is what the defendant is claiming a set off in the sum of N246,000 as the total debt owed the defendant by the claimant. That the claimant is only entitled to N 4,000.00 as the balance from the set off sum This is the facts of this suit.
EXHIBITS TENDERED IN THE PROCEEDINGS.
The claimant in this suit testified as the CW1 and the sole witness and tendered the following documents in evidence;
1) Exhibit C1. Letter of employment dated 1/11/2011
2) Exhibit C2. Letter of employment dated 1/11/2011
3) Exhibit C3. Letter dated 21/12/11, requesting information.
4) Exhibit C4. Letter dated 24/5/2012, titled ‘Re Salary Increament’.
5) Exhibit C5. Letter dated 13/12/2011, titled ‘Area of Discussion.
6) Exhibit C6. Letter dated 25/2/2013, titled ‘Re booking/correspondence by all external customers.
7) Exhibit 7. Letter dated 21/5/2012, titled, ‘Re engagement of marketers outside Enugu State’.
8) Exhibit C8. Letter/memo dated 21/3/2013.
9) Exhibit C9. Letter/memo dated 12/9/2012 titled ‘issues that need urgent attention’
10 Exhibit C10. Memo dated 4/10/2012, titled ‘Re cost reduction’.
11 Exhibit C11. Letter dated 20/6/2012 titled ‘cooking comedy with Clint the Drunk’.
12 Exhibit C12. Minutes of directors and chairman meeting of 6/1/12
13 Exhibit C13. Letter of displeasure
14 Exhibit C14. Letter dated 25/2/2013, reply to query.
15 Exhibit C15. Letter dated 17/4/13 titled ‘Request for two months leave of absence’
16 Exhibit C16. Solicitor’s letter of complaint over the termination of appointment dated 17/9/12
17 Exhibit C17. Employers hand book.
18 Exhibit C18 a, b, c, and d. College cash receipt.
19 Exhibit C19 a and b. Car sales agreement.
20 Exhibit C20 a and b. Letter of termination of employment
21 Exhibit C21. Letter dated 3/7/2012.
22 Exhibits C22 a, b, c, d, e. and f.
The defendant opened their defence on the 19/7/2018. DW1 testified as the sole witness of the defendant and tendered the following documents in evidence.
- Exhibit D1 a, b, c, d, e, and f. Bundle of document being the reports of the management of the defendant
- Exhibit D2, Letter of displeasure dated 25/2/2013
- Exhibit D3 a, b, and c, documents marked as I O U
The defendant concluded their case on the 19/7/2018. The matter was subsequently adjourned to the 17/10/2018 for adoption of final written addresses.
DECISION OF THE COURT
From the facts and circumstances of this case, this court formulates the following issues for determination
(1) Whether the termination of the employment of the claimant by the defendant was wrongful and if so, whether the claimant is entitled to salaries from the date of termination to the date of judgment of this court. (This issue will address claim 1 and 2 of the claimant).
(2) Whether the claimant was employed in a dual capacity as to be entitled to remuneration for the dual capacity. (this will address claim 3 of the claimant)
(3) Whether the claimant is entitled to N 200,000 general damages and cost of N1. million naira.
The court would start with the consideration of issue no. 2
ISSUE NO 2
The case of the claimant as far as this issue is concern is that he was employed by the defendant in a dual capacity as the General Manager and also as a Deputy General Manager for which the claimant now claims salary for the dual positions, he alleges he occupied while in the employment of the defendant. The claimant was employed on the 1/11/2011vide Exhibit C1 and C2 which are both dated the same date. It is his evidence that he was acting in dual capacity as the General Manager and Deputy General Manager. He testified that he was only paid salary for one of the positions up till when his appointment was terminated. He relied on exhibit, C3, C4, C5. C6. Where he was variously addressed as ‘General Manager’ and Deputy General Manager by the defendant. In exhibit C1 the claimant is offered appointment as ‘General Manager’, in exhibit C2 his designation is ‘Deputy General Manager’ , in Exhibit C3 he is addressed as ‘Deputy General Manager’, in Exhibit C4 he is addressed as ‘Acting General Manager’, in exhibit C5 he is addressed as ‘Deputy General Manager’ in Exhibit C6 he is addressed as ‘General Manager’ I have carefully examined the content of these exhibits, it does appear the author of all the exhibits mentioned above, one Mr Ezechukwu Dike who is a director was using the term General Manager and Deputy General Manager Inter-changeably to describe the claimant office or position in the defendant. The contents of exhibit C1 and C2 are basically the same, If the claimant was employed in a dual capacity as he claims, he failed to prove to this court that he was interviewed for both position. It is also his testimony that he was given a target of N25 million naira per month. These targets are repeated in both exhibit C1 and exhibit C2. He claims the benefit of the content of both letters of appointment he ought to have also proof to this court that he discharged the burden of achieving the target of N25 million naira attached to the benefit of the other employment he claims. One other thing that throws a serious doubt on the claim of being employed in a dual capacity by the claimant is the fact that from 1st November 2011 to the 19th April 2013 when the claimant appointment was terminated vide exhibit C20a, the claimant was paid salary for one position only. The claimant failed to offer any proof that he received salary for a dual position even for one time during the pendency of the employment or that he ever made any demand for salaries for the other position he alleged he occupied in the defendant. Furthermore Exhibit C21 is very revealing on the 3/7/2012 when the claimant wrote to the Executive Director of the defendant requesting that his appointment be confirmed, he signed the letter as Deputy General Manager. There is no paragraph of the letter wherein the claimant asked to be confirmed as ‘Deputy General Manger’ as well as ‘General Manager’ In exhibit C8 the claimant signed the letter as General Manager. It does appear that even the claimant was as much as confused as Mr Ezechukwu Chike the Executive Director of the defendant who wrote exhibits C3, C4, C5, and C6, as to the position held by the claimant in the defendant company. This is so because at one breath he addressed the claimant as General Manager at another breath he would address the claimant as Deputy General Manager. He even addressed the claimant in exhibit C4 as Acting General Manager. Also the claimant solicitors letter exhibit C16 made no reference of the claimant being employed in a dual capacity. This means that what is not mentioned is deemed excluded. Having the foregoing in mind this court is inclined to accept the position canvassed by the defendant that the letter of offer of employment for the post of “Deputy General Manager’, of the hotel was erroneously sent to the claimant and when he pointed out the error to the defendant, the error was, immediately corrected and a fresh letter of offer of appointment bearing his correct job position as the ‘General Manager’ of the hotel was issued to him. The mere fact that the defendant failed to withdraw exhibit C2 formally by asking for its return by the claimant and the claimant held on to same, does not give the claimant a right of action over a letter he ordinary ought to have returned to the management of the defendant upon his receipt of exhibit C1 the letter of appointment which carries the correct designation of the position he was employed. His argument that the two letters speak for themselves and should be accepted as establishing his claim does not find favour with this court This court finds it very illogical that one person can be interviewed for two job position in a company and also employed to man the two position in the same organisation on a permanent basis. Bearing this in mind this court is mindful to invoke the provisions of section 167 ( c) of the Evidence Act 2011, which provides that;
The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the court may presume that-
( c) the common course of business has been followed in particular cases.
This court hereby finds that the claimant was never employed in dual capacity while in the employ of the defendant. Therefore, the claimant cannot and is not entitled to salaries for a dual position as claimed in this action. Issue 2 is hereby resolved against the claimant. Relief No 3 fails and is accordingly dismissed.
ISSUE 1
The claimant in this issue contends that the procedure in which his employment was terminated was done in bad faith, malice and violation of his fundamental human right. He wants this court to order the defendant to pay him his salaries, service charge and allowances from the date of the illegal termination up till the date of this judgment. From this claim the claimant canvases bad faith, malice and violation of his right to fair hearing as the grounds for his termination. The parties are at consensus ad idem, that the employment relationship between the parties is one of master servant relationship. The question is whether in a master servant relationship the master is bound to observe the grounds relied upon by the claimant before he can terminate the contract of employment. The employment of the claimant was terminated on the 19/4/2013 vide exhibit C20a. The defendant gave as his reason non-performance, inability to meet the set target and general loss of confidence by the sectional heads, as the reason for the termination. Again, the question to be addressed is, if the letter of termination constitutes a breach of the contract of employment, what is the appropriate quantum of damages allowed to be awarded by the law in this circumstance?. The law on the right to terminate a master servant contract of employment is well settled and it is stated in the case of Chukwu V. NITEL. [1996] 2 NWLR (pt. 430) at 290. Where the court held;
In the ordinary case of master and servant, as in the instant case, the master can terminate the contract with his servant at any time for good or for bad reason or for none. Thus, where in a contract of employment there exists, as in this case, a right to terminate the contract given to either party, the validity of the exercise of that right cannot be vitiated by the existence of motive or improper motive. The appellants’ terms and conditions of service are as contained in Exhibit F and confer on either party the right to terminate same with one month’s salary in lieu of notice which the respondent complied with. Therefore, the exercise of the respondent’s right cannot be vitiated by the existence of improper motive. See Ajayi V. Texaco (Nig.) Ltd. (1987) 3 NWLR (Pt. 62) 577 referred to and followed.] ( P .299. paras. G-H).
On the strength of this authority the reason given by the defendant in exhibit C20a for the termination of the claimant employment is of no consequence and cannot vitiate the exercise of the right to terminate the employment by the defendant. The claimant cannot complain of bad faith, malice and violation of the right of fair hearing on the part of the defendant in the exercise of this right. This court hereby holds that the defendant was entitled to exercise the right to terminate the employment.
Notwithstanding the above position, the law is that the right of a party to terminate a master servant contract of employment is subject to the manner provided in the contract of employment. In other-words, the master must comply strictly with the agreed procedure for the termination of the contract. The Court of Appeal in Chukwu V. NITEL supra emphasised this position when it held;
Where there exists conditions of service and a procedure for termination of employment as in the instant case, a premature termination ought ordinarily to follow the laid down procedure. There is need to follow laid down procedure in the conditions of service in terminating employment.
See also Calabar Cement Co. Ltd. V. Daniel (1991) 4 NWLR (Pt.188) 750 at 760 referred to]( P .303, paras. B-C).
The claimant vide exhibit C15 applied for two weeks leave of absence to enable him attend to family issues since he has not been on annual leave since he joined the defendant. This was approved by the management and in the minute on exhibit C15 the executive director wrote ‘ Thank you for your request which has been triggered by the vote of no confidence passed by your management team. Find attached two months salary in advance for the months of April and may 2013, management will look at all the allegations against you and inform you soonest. Your leave of absence takes effect from the 18/4/2013’.
On the 19/4/2013, the defendant terminated the appointment during the period of the leave of absence vide exhibit C20a. Attached to the letter of termination is exhibit C20b which is the ‘computed severance payments on termination of appointment’, wherein the two months salary advance was now converted and computed as part of a supposed 3 months salary in lieu of notice, and the third month is used as a set off for the debt allegedly owed the defendant by the claimant. The question is whether the three month salary can appropriately be said to be a three month salary in lieu of notice. I have carefully examined the letter of appointment exhibit C1, there is no specification as to the length of notice to be given or the salary to be paid in lieu of notice. Also the handbook exhibit C17 does not contain any clause on the procedure for termination of the contract of employment between the parties. The law is that where a contract of employment is silent on the length of notice to be given to terminate the contract the law requires that a reasonable notice rule should apply. In KASUMOTU V. WEMABOD ESTATE LTD. [1976]9-10 SC 254.(reprint) or [1976]LPELR-1720 (SC), the Supreme Court held;
The law is that, generally, the length of notice required for termination of contract of employment depends on the intention to be gathered from their contract and in the absence of any express provision, the court will always imply a term that the employment may be terminated by a reasonable notice (from either of the parties)…
The defendant in paragraph 22 of their statement on oath testified that the claimant was entitled to three months notice or be paid three month’s salary in lieu of notice. This period satisfies the reasonable notice rule. The defendant in his letter of termination appropriates the two months salary advance paid to the claimant, as part of a three months salary in lieu of notice. He used the third month to set off the alleged debt of the claimant. I have carefully reviewed the facts surrounding this issue. I do not accept that a two months salary in advance paid to the claimant when there was no intension express or implied, when it was paid that it would be used as part of salary in lieu of notice can effectively be re- applied as salary in lieu of notice in the event of termination of the appointment of the claimant. The two months salary paid for the month of April and May 2013 remains what it is, i.e. ‘salary in advance’. It is not contested that the defendant did not give the claimant the 3 months notice, he admits he ought to give the claimant, this court holds that the defendant failed to give the claimant three months salary in lieu of notice on the termination of the appointment of the claimant in this suit.
This leads us to the quantum of damages awardable by the court in this circumstance. The claimant in his relief No 2 seeks an order of this court directing the defendant to pay the claimant salaries from the date of termination till the date of this judgment. The law is that where the wrongful termination is as a result of failure to give the required notice or the salary in lieu of notice as I have adjudged in this case, the damages is assessed by awarding the salaries the employee would have earned during the period of notice. In the case of Chukwu V. NITEL [1996] 2NWLR (pt.430) the court of appeal affirmed this position of the law when it held.
It is well settled that the normal measure of damages recoverable by any employee whose contract has been wrongly terminated is the amount he
would have earned under the contract for the period until the employer
would have lawfully terminated it, less any amount he could reasonably
be expected to earn in other employment.
In the case of OSISANYA V. AFRIBANK [1999] LPELR-5206 (CA) The Court of Appeal put it more succinctly when it held;
The law is well settled that where a contract of employment or service is terminable on notice and the employee whose employment is terminated
has not been served with the requisite notice, what the employee could
have earned during the period of notice is the requisite damages that the employee is entitled to.
See also the case of International Drilling Co. Ltd. Vs. Ajijala [1976] 2 SC 115 at 129. Western Nig. Corporation V. Jimoh Abimbola [1966] NMLR 381 at 382.
This court is unable to award salaries to the claimant from the date of termination to the date of this judgment in favour of the claimant. The claim of the claimant under this head fails and is accordingly dismissed.
However, the claimant in relief No 4 claims N200,000 as general damages for wrongful termination of the contract of employment. Having adjudged that the termination was wrongful for failure to give the requisite 3 months notice to terminate and also failure to pay 3 months salary in lieu of notice, in consonance with the position of the law the court is inclined to award the claimant three months salary in lieu of notice. Accordingly this court hereby orders the defendant to pay the claimant the sum of N750,000 (Seven Hundred and Fifty Thousand Naira) being 3 months salary as damages for the wrongful termination of the contract of employment.
I have taken note of the fact that the defendant in paragraph 25 of the statement of defence is alleging that the claimant is owing the defendant the sum of N 246,000 as set off. In exhibit C20-b where the defendant computes the severance package they allege the claimant is owing the defendant, they however put a figure of N96,000 as the amount the claimant has to refund to the defendant which the claimant has denied. These figures are very conflicting. Apart from the fact that the defendant offered no strict proof of any of the conflicting figures, they also did not counter claim any of those figures in this suit. Therefore, this court cannot consider this issue as a proper item of claim in this suit. This can therefore not defeat or affect the order already made by this court as to the damages payable by the defendant to the claimant.
The claimant in this suit seeks his relieves in the alternative. The law is that a court can only consider and award an alternative relief when it is practically impossible to award any of the items sought in the main relief. See the case of Holborn Nigeria Limited VS. 0. C. Chris Enterprises Ltd. [2014] LPELR-23972. The rule is either the plaintiff succeeds in the main claim or the alternative claim. Since one of the items in the main claim has succeeded, any item in the alternative claim cannot be granted. Accordingly, the alternative claims are hereby dismissed.
On the whole, this suit succeeds in part. The court hereby declares as follows;
(1) That the defendant is in breach of the contract of employment between the claimant and the defendant for failure to give the required 3 months notice to terminate the employment or payment of three months salary in lieu of notice.
(2) The defendant shall pay to the claimant the sum of N 750,000 (seven hundred and fifty thousand naira) being three months salary in lieu of notice as damages.
(3) The sum hereby awarded by this court shall be paid within 30 day s from the date of this judgment. Failure of which it shall attract interest at the rate of 10% until the liquidation of the sum.
Judgement is entered accordingly.
Sign ——————————————————
Hon. Justice (Dr.) I. J. Essien
(Presiding Judge)
