IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

 BEFORE HIS LORDSHIP HON. JUSTICE J.D. PETERS

 

DATE: 7^TH APRIL, 2022                                                   SUIT NO:NICN/LA/90/2014

BETWEEN:

Mr. Abdul-Hakeem A. Olasewere             -           -           -           -           Claimant

 

AND

Airtel Networks Limited    -           -           -           -           -           -           -        Defendant

REPRESENTATION

Dr. Kemi Pinheiro, SAN with Kehinde Daniel

& Thaddeus Idenyi for the Claimant

OladapoAdeosun, SAN with Victoria Alonge,

Bashiru A. Ramoni & Samuel Olawepo for the Defendant

 

 

            JUDGMENT

1.         Introduction & Claims

1.         The Claimant by his General Form of Complaint dated 24/2/14 together with witness deposition, list and copies of the documents to rely on at trial sought the following reliefs against the Defendant –

 

1.         A declaration that the termination of the employment of the Claimant by the Defendant is wrongful and without any justifiable basis.

2.         An order for the payment of special damages in the aggregate sum of =N=1,354,156,364.42 (One Billion, Three Hundred and Fifty Four Million, One Hundred and Fifty Six Thousand, Three Hundred and Sixty Four Naira Forty Two Kobo) by the Defendant to the Claimant.

3.         An order for the payment of the sum of =N=100,000,000.00 (One Hundred Million Naira) only by the Defendant to the Claimant as general damages for the breach of the contract of employment and disciplinary policy and procedure.

            4.         The cost of this action.

5.         Interest on all sums due to the Claimant at the rate of 21% per annum from the date of institution of this action till Judgment is delivered and thereafter at the same rate or any other rate this Honourable Court may deem fit till final liquidation of the Judgment sum.

 

2.         Defence & Counter claims

2.         The Defendant reacted to this suit by entering an appearance to same on 10/3/14. It also filed a statement of defence and counterclaim along with witness statement on oath, list and copies of the documents to rely on at trial. The Defendant counter claimed as follows –

 

1.         An order of this Honourable Court directing the Defendant to the Counter –claim to pay to the Counter-Claimant the sum of =N=4,986,419.98 (Four Million, Nine Hundred and Eighty Six Thousand, Four Hundred and Nineteen Naira and Ninety Eight Kobo) being the outstanding balance due to the Counter-claimant Vehicle Purchase Loan

2.         The cost of this action.

3.         Interest at 21% per annum on the Judgment sum in (a) above until final liquidation.

 

3.         Case of the Claimant

3.         The Claimant opened his case on 6/5/15 and adopted his witness deposition of 24/2/14 as his evidence in chief. He also adopted his further witness statement on oath of 6/5/15 as his further evidence in chief. Witness tendered 24 documents as exhibits. The documents were admitted in evidence and marked as Exh. C1-Exh. 24.

 

4.         The case of the Claimant as revealed from the pleadings and evidence led is that he was employed by the Defendant on 1/2/08; that he had a stellar career with the Defendant culminating in promotions for him; that he was promoted to the position of V. P, Operations and Support; that the Chief Executive Officer of the Defendant Mr. Segun Ogunsanya took deliberate steps to ensure the removal of Nigerian local talents who may in future be considered for the position of Chief Executive Officer; that as an integral part of the Nigerian local talents initiative and/or localization, he was consistently ranked as one of the Defendant’s top managers of human resources responsible for over 32 senior and general managers and over 600 external human capital resources and was only 2 steps away from the position of Chief Executive Officer in the management organizational chart; that to his surprise he received an internal communication dated 11/11/13 copied to the company wherein he was informed that he had been removed as V.P, Operations and Support and made V. P, Special Projects Site Optimisation which was a reduction in responsibility not responsible for any senior and general managers or external human capital but reported only to the Chief Executive Officer; that he nonetheless continued to carry out his duties; that the Defendant CEO engaged more vendors and contractors in the preceding 12 months than the previous Chief Executive Officers did in the last three years and most of the contractors were contracted without due process and that his employment was terminated in order for the Defendant’s top management to facilitate their inordinate and inappropriate command and control of operational and procurement processes related to the company’s network operation.

 

5.         It is the case of the Claimant that in order to give effect to his agenda the CEO Mr. Segun Ogunsanya repeatedly threatened to audit his Department and each time he expressed his preparedness for the audit as he had nothing to hide; that on 11/11/13, he was summoned to a meeting with the Chief Technology Officer and Director Human Resources where he was informed that some Integrated Site Maintenance (ISM) vendors had sent in some petitions and the evidence was so damning that the Claimant needed to step aside for three to four days for proper investigation to be carried out; that nothing was communicated to him after ten days and he wrote to request for a meeting for disclosure of the allegations against him and he was informed that there was at least one petition bordering on wrongful dismissal and another allegation of improper conduct unbecoming of someone in the Claimant’s position; that on 11/12/13 he was again summoned to a meeting with the Chief Executive Officer, Chief Operating Officer, Chief Finance Officer, SCM Director and Jubril Saba of Human Resources Department where he again requested  for disclosure of the allegations against him but same was again refused; that on 24/12/13 his employment was wrongfully terminated without notice; that the termination of his employment was wrongful and in breach of his contract of employment and the Defendant’s Disciplinary Policy and Procedure; that the termination of his employment was accentuated by malice, pre-meditated and a deliberate attempt and machination of Mr. Segun Ogunsanya to oust any possible likely successor to the office of the Chief Executive Officer in the event of the impending expiration of his contract of employment.

 

6.         The Claimant averred further that the wrongful termination of his employment by the Defendant carried with it some stigma on his character and stellar career as he received numerous messages and visits from persons within and outside the telecommunication industry who showed concern about the abrupt termination of his employment; that the Defendant’s actions and unreasonable conduct in this matter have cast severe aspersions on his integrity, reputation and professionalism and tainted him with guilt over undisclosed allegations of ‘improper conduct’ bordering on immorality, illegality and/or unethical conduct; that he has been exposed to utter ridicule and become the subject of vicious and unkind speculation about his character and integrity not only within the company but throughout the telecommunications sector; that in consequence of the Defendant’s wrongful termination of his employment his future employment prospects have been handicapped and blighted as a result of which he has suffered loss and damage and that he has made spirited efforts to obtain remunerative employment commensurate with his skills, experience and knowledge without success.  

 

7.         Under cross examination CW1 testified that he was employed in February of 2008; that there is no organogram for the Defendant Company; that the CEO is the Head of the organization; that he did not fall under the next set of officers of the Defendant; that he was Vice President, Special Project Switch Site Optimisation before he left; that before then he was VP Netwoek Operation and Support; that he was moved from one VP position to the other; that there was no reduction in his salaries and emoluments in-spite of the movement though there were reductions in his responsibilities and authorities; that the office he was moved to had always been there before he was moved there; that it was not created for him; that movement of staff in the Defendant Company is a normal thing; that the Defendant has the right to move an employee from one unit to another and that his employment was not for a term certain.

 

8.         The witness added that he did not receive any written query from the Defendant; that he was not arraigned before any Panel of Investigation of the Defendant; that Exh. C10 contained his transfer; that two other people were transferred by Exh. C10; that disciplinary procedure begins with a query; that it is not unusual for the Defendant to receive petitions against a staff; that when the Defendant feels that a petition has no merit, it will simply let it go without further investigation otherwise it calls on the person concerned to answer if it is a severe allegation and if the employee is found guilty, the responsibility of the employee is reduced or the employee is dismissed; that he did not go through any disciplinary procedure with the Defendant and that Exh. C14 is not a letter of dismissal.

 

9.         It is the evidence of the Claimant under cross examination that he was part of Disciplinary Committee while with the Defendant; that he did not compel the Defendant to employ him and cannot also compel them not to sack him; that he was not qualified for the office of the CEO even if vacant at the time of he left; that he had a loan with the Defendant while he was there; that it was a Car loan in the sum of =N=13.2 Million; that he bought a Toyota Landcruiser with it; that at the time of the termination of his employment about =N=11 Million was outstanding on the loan. According to the witness, he did not receive any letter or internal memo demoting him; that no reason reason was stated for terminating his employment; that the letter of termination offered him his entitlement in lieu of notice.

 

10.       It is the evidence of CW1 under cross examination that Project WOW met its target before he left the Defendant; that the reward for Project WOW was not fixed before he left the Defendant; that he is entitled to compensation on Project WOW; that there is no document to the effect that he is entitled to compensation on Project WOW; that the Defendant sent him an e-mail that he had an outstanding 45 days paid vacation; that by Exh. C22 he is not entitled to 45 days leave and that the claim for =N=4.5 Million is an estimate.

 

11.       Witness further added that he worked for 6 years with the Defendant; that he earned about =N=13 Million a year while with the Defendant; that he also earned about =N=4 Million per annum as bonuses coming to about =N=17 Million a year; that his annual salary before he left the Defendant was about =N30 Million; tha he earned about =N=25 Million per annum for 2 years and =N=30 Million for the 3^rd year; that based on Counsel calculation his earnings for 6 years was about =N=131 Million approximately; that the Defendant is not fair to him and that he has legal claims against the Defendant.29/6/15

 

12.       The Director of Human Resources and Administration of the Defendant Mr. Gbenga Owolabi testified as CW2. He was invited to Court on subpoena. He was to produce certain documents and also testify. CW2 produced and tendered one document and was admitted in evidence and marked as Exh. C25. He claimed that the remaining documents requested were not available. In particular he testified that there was no petition written against the Claimant by any Site Maintenance Vendor; that he does not have a document similar to Exh. C25 for 2009-2013 in the format presented; that he has authority of the Defendant to testify in this case; that he is familiar with administration and human resources processes of the Defendant; that he has access to the data of staff and of former staff of the Defendant; that the Claimant was promoted to the Head of Department of Network Operations Centre (NOC); that he could not recollect if the Claimant was promoted to the position of Head of Department, Network Operation and Support in May, 2010; that he does not know if the Claimant was promoted to the position of General Manager, Network Operations and Support in July 2011; that Claimant was promoted in June 2012 to the position of Vice President, Network Operations and Support; that an appraisal does not necessarily preceed promotion; in some cases an appraisal preceeds promotion; that it is not the policy of the Defendant to promote non-performing staff; that only performing staff can be promoted; that Exh. C2 is the Disciplinary Procedure of the Defendant; that Ibirogba Adekola was a staff of the Defendant; that he could not recall his position when he left the Defendant; that he does not know one Olu Akanmu and not aware if he is a staff of the Defendant; that he heard of the name Tolu Ojo but does not know his position or when he left the Defendant; that Jubril Shaba, Gbenga Rotimi and Olagoke Olasoko are no longer staff of the Defendant; that Ragh Gupta is presently in charge of sourcing and reports to the Chief Executive Officer.

 

13.       CW2 added that he was recruited in 2015; that he has heard of Segun Ogunsanya, CEO, of the Defendant before he joined the Defendant; that he does not know if those who exited the Defendant did so because they were not willing to bend to the pressure of the CEO; that he worked with the Coca Cola from 1994-2007; that he could not remember if Mr. Segun Ogunsanya worked with Coca Cola because he was not in the same company; that he did not work with Mr. Segun Ogunsanya; that he worked with Nigerian Bottling Company while Segun Ogunsaya worked with Coca Cola Company; that Nigerian Bottling Company produces Coca Cola brand of drinks; that he did not know Segun Ogunsanya while he worked with NBC Limited though he knew he was with Coca Cola then; that Segun Ogunsaya did not employ him at the Defendant because of his previous relationship with Coca Cola; that he knew some former staff of Coca Cola presently working with the Defendant; that one is Segun Macauly as V.P, Distribution; that he does not know if Tayo Oladimeji had background in Coca Cola; that his position is very strategic in the Defendant; the the position of V.P, Sourcing is not strategic in the Defendant because Directors only set strategy; that there is nobody acting the office of V.P, Special Project & Site Optimisation and that the position no longer exist.

 

14.       Witness stated that Companies create position to address particular needs and once fulfilled the occupier is taken to another office; that the position of V.P, Special Project, Site Optimisation is not a reduction of responsibilities for the Claimant; that Tolu Awofeko is the General Manager, Retail Sales of the Defendant and it is not a strategic position in the Defendant and was a former staff of NBC Limited; that Ade Adedoyin is presently V.P, Network Operations; that notwithstanding Exh. C18 he stands by his position that there was no petition against the Claimant and hence no investigation and that he was not in the employment of the Defendant when Exh. C18 was written because there was no written petition in the Claimant’s file.

 

15.       Under cross examination, CW2 stated that there are about 40 people who are roughly 2 steps away from the position of CEO of the Defendant; that while the Claimant was with the Defendant there were about 30 staff of 2 steps away from being the CEO; that there can only be one CEO of the Defendant at a time; that there has not been another CEO since the time of the Claimant with the Defendant; that the Claimant was not removed from V.P, Operations & Support but was only transferred to another role; that at the time of the transfer his salaries and allowances were not adversely affected; that it is a normal practice for the Defendant to transfer its staff; that the position the Claimant was transferred to was not a humiliating one within the Defendant but was indeed a key position to the Defendant as a telecom company; that he could not confirm if the Claimant was the first to occupy the position he was transferred to; that the site which the Claimant was to manage by virtue of his last position, the network towers of the site have been sold to another company; that once the site was sold the accountability disappeared and that the sale of the network site rendered the officer in charge redundant.

 

16.       Witness confirmed that he knows Mr. Tayo Oladimeji as one of the outstanding staff of the Defendant from the days of Econet; that Mr. Segun Ogunsanya met Tayo Oladimeji at the Defendant; that Mr. Oladimeji is presently the V. P, Sourcing and has been moved about 5 times before; that the appraisal for 2012 and 2013 were in different formats from the one of 2008; that in 2009 and 2010 because the Company Zain was being bought over by the Defendant, there was no appraisal; that what he brought for 2010 was salary increase given to all staff; that no reason was given for terminating the employment of the Claimant; that the Defendant has had its name and ownership changed over time; that this was bound to affect the processes and procedure of that Company; that as a senior staff as the Claimant the claims of the Claimant are not reasonable; that the Claimant is ordinarily entitled to his length of notice; that the Company may also make ex gratis payment; that the norm is for a month pay for each year of service and that he understands that the Claimant was so offered.

 

17.       In re-examination, the witness stated that base stations are different from switch sites; that base stations were sold and not switch site and that Claimant’s last position was V.P, Special Project, Switch Site Optimisation.

 

18.       Mr. Jubril Saga, a Principal Consultant with Afrissant Consulting was called on subpoena as CW3. Witness testified that he was an employee of the Defendant from July 2001 to February 2005 as Director of Human Resources and Administration for 6 years; that in that capacity he was familiar with the Claimant; that Exh. C18 was in response to an e-mail from the Claimant; that he had no knowledge of investigation against the Claimant; that upon investigation he discovered that there was at least one petition against the Claimant; that at the time of investigation there was no complaint against the person of the Claimant and he continued in his role at the time; that the Defendant received information from a second source against the Claimant and that led to the communication the Defendant had with the Claimant; that further allegation was verbal and the person making the allegation presented some documents and he was requested to reduce the allegation into writing as that was the only mode through which the Defendant could commence any disciplinary hearing and that though verbal he and Claimant’s line manager had a discussion with him.

 

19.       According to the witness, there was a meeting on 11/12/13 in which Mr. Segun Ogunsanya the CEO, the COO, CFO, Mr. Raman Krishnah were present during the discussion which took place after Exh. C18 dated 20/11/13; that there was no investigation of the said improper conduct because there was no written complaint; that the verbal allegation was unsubstantial as far as the Defendant was concerned; that this conclusion was reached after at the end of financial year in March, 2014; that as at 24/12/13 the verbal allegation was still unsubstantiated; that to the best of his knowledge, the decision to terminate the employment of the Claimant has no link with the verbal allegation; that the decision was Management decision and not his own; that demotion of responsibility is a decision that could arise from disciplinary process and same with reduction of responsibilities; that he heard the term Coca Cola boys while he was at the Defendant; that there are about 30 to 35 employees reporting to V.P, Operations and Support; that to the best of his knowledge office of V.P, Special Project, Site Optimisation did not have any direct report and that movement from V.P, Operations and Support to V.P, Special Projects is not reduction of responsibility.

 

20.       CW3 testified further that there is a difference  between Base Station and Site Optimisation; that Base Stations were sold to American Towers and that Switch Sites were not sold; that to the best of his knowledge there is Data Retention Policy with the Defendant; that there was no appraisal of the Claimant in 2009/2010; that he does not know if there was an appraisal of the Claimant for 2010/2011; that if there was one it should be with the Human Resources of the Defendant and that he could not confirm of the Claimant’s 45 days outstanding leave. Witness added that he is familiar with Project WOW but not familiar with Project Hawkeye; that he recalls that members of the team were sent on all expenses paid trip to Dubai as a reward for achieving their objectives; that he does not know if that was Project Hawkeye; that he recollects that to be for Project wow; that he could not recollect that the Dubai trip was for Project Hawkeye; that there was no sent-forth party for the Claimant when he left the Defendant; that he is not in a position to say whether or not the Claimant was led out of the premises by Police escort on 24/12/13; that he recalls members of Executive Committee when Mr. Segun Ogunsanya COO came on Board to include I. Adekoya, Yinusa Bello, O. Akanmu, Osondu Nwokoro and himself; that others were Ramath Krishnah, Jaideep Paul, Mr. Sanjeeb and Emeka Opara; that at the time of his exit, the following were still with the Defendant Mr. Emeka Opara, Mr. Osondu Nwokoro out of the 12 Mr. Segun Ogunsanya met; that some resigned while others were transferred out of Nigeria to other operations and that he resigned.

 

21.       Under cross examination, DW3 testified that he is the 3^rd of the 3 persons left of the 12 Executive members Mr. Segun Ogunsanya met; that reduction of responsibility is usually taken when the Defendant realised a person is promoted beyond the level of his competence; that Claimant was not promoted above his level of competence; that in the case of the Claimant, the fact that he had no one reporting to him did not amount to reduction in responsibility; that his former V. P position and the one he subsequently occupied were the same; that his salary was not reduced; that his terms and conditions of employment remained the same; that the position of V.P, Special Projects was a strategic one at the time; that it was a project with an end date; that a South African was initially playing the role but the Defendant needed someone with experience to handle the role that was why the Claimant was moved there; that the Claimant was not the first to occupy that position; that the project was not sold; that it only ended and was subsumed under normal operation; that the office was not created to push the Claimant aside as alleged and that it was created long before the Claimant occupied it.

 

22.       It was the evidence of DW3 under cross examination that Project wow had a reward attached to it upon successful completion and was given to members at successful completion; that the project ended in March, 2014; that the Claimant left 3 months before the project ended; that because the Claimant was not there at the time of completion, he could not be entitled to any reward under the project; that on 24/12/13 he presented the Defendant Management decision to the Claimant; that Claimant refused to accept same; that there was no altercation between himself and the Claimant; that he did not call in the Police to escort the Claimant out of the premises; that he had a third party witness to the meeting in a representative of the Legal Department; that his recollection of reward for Project wow was an economy class ticket to Dubai; that he is not aware of any monetary reward in addition; that if there was any monetary reward it is possible for his office not to know; that the transfer of the Claimant to V.P Special Project is a normal thing; that he had also been moved from time to time and apart from himself one Tayo Oladimeji has also been moved about six times.

 

23.       The witness stated further that the procedure for investigation is as contained in Exh. C2; that he could not say if the Claimant would have moved to America Towers if he had remained in the Defendant; that the Claimant had a status car with the Defendant; that the Claimant had an outstanding loan on the car at the time; that he does not know exactly how much  was left on the loan; that the Claimant did not request the Management of the Defendant to waive the loan while he was leaving; that while he was with the Defendant, the CEO of the Defendant did not demand of him any personal loyalty; that while he was with the Defendant salary increment for staff was not automatic; that salary increment was based on performance, market adjustment and cost of living adjustment; that he was higher in placement than the Claimant while he was with the Defendant; that at the time he left the Defendant he was not entitled to the amount that the Claimant is asking for in this suit as compensation; that based on the Claimant’s contract with the Defendant he could not have earned what he was claiming from the books; that while at the Defendant a disengaged staff would be paid any unpaid portion of the salary if he was disengaging mid month, unutilized leave days in cash, payment in lieu of notice, in case of the Claimant 3 months and 13^th month salary; that if the staff has any outstanding financial obligation to the Defendant it would be deducted automatically; that these are what was paid to him plus ex gratis that he negotiated.

 

24.       Under cross-examination the witness stated that he was not in a position to say what award was attached to the Project Hawkeye; that he does not know if monetary award was attached to Project wow; that he could not say if $15,000 was made for that project; that he recalls that there is a quarterly review procedure; that as at December when Claimant exited a quarter had ended and that he had no specific recollection the date project being handled in the office of V.P, Special Project ended.

 

4.         Case of the Defendant

25.       The Defendant opened its defence to this case on 12/10/21 when it called one Joachim Okere as its lone witness. The witness adopted his witness deposition dated 1/7/21 and his further witness depositions of the same date as his evidence in chief and tendered 15 documents as exhibits. The documents were admitted in evidence and marked as Exh. D1-Exh. D15.

 

26.       The case of the Defendant as revealed in the pleadings and evidence led is that the Claimant was employed by the Defendant on 1/2/08; that he was promoted through the ordinary career trajectory of the Defendant to the position of Vice President, Special Projects, MSC Site Optimisation the position he occupied until 24/12/13 the date of separation with the Defendant; that under clause 18 of the Condition of Employment Agreement binding on the Claimant upon his employment, the Defendant is empowered to validly terminate the employment of the Claimant after probation period, either by one month notice period communicated in writing or remuneration in lieu of the notice period; that in strict adherence to the contractual term of the Claimant’s employment, it issued the Claimant a letter dated 24/12/13 for termination of employment effective from same day and Claimant given remuneration in lieu of notice; that it attached to the notice of termination an End of Service Account presenting a detailed schedule of the Claimant’s remuneration in lieu of notice; that prior to the separation the Claimant had obtained Staff Loan for Vehicle Purchase from the Defendant in the sum of =N=13,200,000.00; that by the loan agreement the outstanding sum on it has become immediately due upon separation from the Defendant; that the balance on the loan is =N=11,093,385.05; that it applied the remuneration due to the Claimant in lieu of notice and other entitlements to defray Claimant’s existing liability to the Defendant and that the outstanding indebtedness to the Defendant is the sum of =N=4,986,419.98.

27.       The Defendant averred that it is not under any contractual obligation to state the reason, cause or the basis for the termination of Claimant’s employment; that its Chief Executive Officer is not on a fixed term contract of two years as alleged; that promotion in the Defendant is not automatic and does not follow the purported systematic hierarchy; that the reassignment of the Claimant to a new role does not amount to demotion, victimization or disciplinary sanction; that it has not had any communication with any employer that might be willing to employ the Claimant neither has any company requested the Defendant to give any recommendation or report on the conduct or job performance of the Claimant while in the employment of the Defendant; that the Defendant did not by any agreement, undertaking or promise commit itself to retain the Claimant for a fixed term of employment with a guarantee of automatic promotion to the position of the Chief Executive Officer; that every employee has the opportunity to become the Chief Executive Officer; that in the unlikely event the Court holds that the employment of the Claimant was wrongfully terminated the only remedy available to him is the award of salary for the period of notice which has already been paid to the Claimant; that by the loan agreement between the parties, Claimant was to repay the loan of =N=13,200,000.00 to the Defendant at a monthly installment of =N=275,000.00 within 48 months from the date of acceptance of the loan; that after applying the remuneration due to the Claimant in lieu of notice to the loan the outstanding is the sum of =N=4,986,419.98 and the Claimant has failed, refused and/or neglected to pay the said outstanding sum to the Defendant.

 

28.       Under cross examination, DW1 testified that he joined the Defendant in March of 2014; that the events leading to this case occurred 3 months before he joined the Defendant; that he was originally employed as General Manager, Litigation; that Mrs. Ibirogba Adekola was the Head of Litigation before him; that he was not at the meeting referred to in Exh. C12, C11 and C17 and neither was his predecessor in office; that he was not the first choice witness for the Defendant; that it is not the practice of the Defendant to promote incompetent staff; that yearly promotion is not a reward for competence and value added; that it is not the practice of the Defendant to delegate authority to incompetent subordinate; that there is no policy of the Defendant founded on competence and ability; that the reward policy of the Defendant is for past action and not for the future; that Project wow approved in January2014 was not for reward of action 2013; that he was not privy to any discussions that took place between the Claimant and the CEO of the Defendant; that there is no individual designated as V.P (A) in Exh. C9 page 1; that Claimant was shown as V.P Special Project on Exh. C9; that there is no designation as V.P (A) on page 2 of Exh. C9; that notwithstanding the content of Exh. C23, he stands by his deposition that the Claimant was not entitled to the benefits and bonus of Project wow; that Human Resources Department does not report to him; that the Head of Human Resources does not report to him; that V.P Operation does not report to him; that the Department of Operation does not report to him and that all Contractors engaged report to the supply chain management; that the Director of the supply chain is not under the Legal Department; that in terms of Human Resources issues, Legal Services Department does not know more than the Human Resources Department; that Human Resources Help Desk is an e-mail group containing all Human Resources Staff who manage various functions; that Legal Service is not part of that group; that notwithstanding Exh. C22 page 2, he stands by his deposition in paragraph 5 of the further statement on oath and that both Exh. C22 and paragraph 5 of his further statement on oath are not at variant at all.

 

5.         Final Written Addresses

29.       The Defendant/Counter Claimant filed its 35-page final written address on 8/11/21. It was dated same day. Learned Senior Counsel commenced the final submission by presenting argument on preliminary point of law on the probative value to be attached to Claimant’s documentary evidence. According to the learned Counsel the evidence outlined in paragraph 21(i-viii) of the Claimant’s Statement on Oath are completely irrelevant and too remote to be material to the facts in issue in this case.

 

30.       Counsel submitted and rightly too, that relevance is the hallmark of admissibility citing Nwabuoku & Ors v. Onwordi & Ors. (2006) LPELR-2082 SC; that the main controversy in the suit borders on the purported wrongful termination of the Claimant’s employment; that a cursory interrogation of the documentary evidence listed in paragraph 21 (i-viii) reveals that the said body of evidence do not directly or indirectly provide qualitative assistance to the court in the resolution of the allegation of wrongful termination of employment made out by the Claimant and that the Court should not belabor itself in considering those documentary evidence as they do not effectively assist the court in the resolution of the main controversy. Learned Senior Counsel prayed the court to discountenance the evidence enumerated in paragraph 21 citing PDP & ANOR V. INEC & ORS (2019) LPELR-48101 (CA).

 

31.       Learned Senior Counsel then set down three issues for determination s follows -

1.         Giving the terms of the Claimant engagement by the Defendant as contained in the contract of employment dated 1^st Feb, 2008, was the Claimant’s employment terminated unlawfully?

2.         In the unlikely event that the answer to issue 1 above is negative, is the Claimant legitimately entitled to the grant of the monetary and compensatory reliefs  he seeks in this case?

3.         Considering the Claimant/Defendant to Counter Claim’s admission of obtaining a car loan from the Counter Claimant and his acknowledgment of indebtedness for same, should the counter Claimant’s claim for N4,986,419.98 ( Four Million, Nine Hundred and Eighty Six Thousand, Ninety Eight Kobo) not be called and sustained by this Honourable Court?

 

32.       On Issue 1, learned counsel submitted that the contract of employment, where existing, is the primary regulator of the employment relationship between an employer and the employee citing Adekunle v. UBA Plc (2016) LPELR-41124 (CA) and Nigeria Gas Company Ltd v. Dudusola (2005) LPELR-5958 (CA); that the contract of employment between the parties is governed by Exh. C1 and that the employment of the Claimant was terminated in accordance with that Exhibit. Counsel prayed the court to hold so.

 

33.       Counsel added that the provision of Clause 18 of Exh. C1 was complied with in terminating the employment of the Claimant; that Clause 18 of Exh. C1 conferred unfettered right on the Defendant; that the Claimant was accordingly issued a letter of termination dated 24/12/13 (Exh. C16) and an End of Service Account (Exh. D2) reflecting a detailed schedule of the Claimant’s remuneration in lieu of notice; that the motive of the party that terminates the employment is irrelevant provided that the provision as expressed in the contract of employment is strictly complied with; that in this case the sole requirement for the termination of the Claimant’s employment is as contained in Clause 18 of the Contract of Employment and that this court ought to validate and enforce same citing Layade v. Panalpina World Transport Nigeria Ltd (1996) LPELR -1768 (SC) [which held that the giving of the agreed or specified period of notice or paying of salary in lieu thereof prevents the termination from being wrongful and actionable] and that since the Defendant issued the termination letter and also offered the Claimant his salary in lieu of notice and other terminal benefits due to him simultaneously, the Defendant’s responsibilities regarding the termination were discharged and same cannot be questioned or faulted.

 

34.       Counsel submitted that the Claimant was not dismissed as insinuated as there was no written petition or allegation to justify any need for investigation alleged by the Claimant or to warrant the invocation of the Defendant’s Disciplinary Policy and Procedure; that Clause 4.5 of the Defendant Disciplinary Policy and Procedure summarizes when termination would be conducted in accordance with the disciplinary policy and procedure but that it does not apply to situation such as the Claimant’s circumstance where the Defendant voluntarily decided to severe employment relationship with any of its employees; that Claimant was not investigated pursuant to any petition and that the termination of his employment was a voluntary action of the Defendant even though there were some petitions against the Claimant and that Claimant’s employment having been terminated in accordance with the termination of employment process as outlined in clause 18 of the employment contract and salary in lieu of notice with terminal benefits paid, he cannot successfully raise the issue of lack of fair hearing in his termination process citing Shuaibu & Ors v. NBC Plc (Coca-Cola) (2020) LPELR-521 (CA)  which relied on the earlier cases of David Osuagwu v. Anambra State (1993) 4 NWLR (Pt. 285) 13 and Angel Spinning & Dyeing Ltd v. Ajah (2000) 13 NWLR (Pt. 685,) 532. Counsel prayed the court to resolve this issue in favour of the Defendant and against the Claimant

 

35.       On whether Claimant is legitimately entitled to the grant of the monetary and compensatory reliefs he seeks, the learned Senior Counsel submitted that the Claimant is not entitled to the request for damages in the sum of =N=100,000,000.00; that even if the Claimant’s employment was terminated contrary to the provisions of the contract of employment, the appropriate relief or measure of damages that can be granted in Claimant’s favour is the amount the Claimant would have earned for the period of notice agreed for terminating the employment and  other legitimate entitlements due to the Claimant and nothing more citing Idufeko v. Pfizer Products Ltd &Anor (2014) LPELR-22999 SC, Offornishev. Nigerian Gas Co. Ltd (2017) LPELR-42766 (SC) and Obanye v. Union Bank (2018) LPELR-44702 SC, and that “… any general damages granted by this court contrary to the judicially approved/recognized quantum of damages for wrongful termination would foist a position of impossibility or create a situation whereby the court’s order would be nugatory and unenforceable by force of law. The Defendant urges this Honorable court not to fall into such error” ; and that the law admonished the court to refrain from granting orders that are impossible to enforce citing Adeniyi v. Ifelodun Local Government  & Ors (2018) LPELR-44050 CA.

 

36.       With respect to claim for special damages counsel submitted that the sensitive nature of the grant of special damages is such that its grant can only be predicated on existing facts and not on mere conjectures, anticipatory events/injuries/loss, speculations or sentiments; that Claimant’s request for special damages in this case is predicated on events that never crystallized during the Claimant’s employment with the Defendant referring to paragraph 47 of the Claimant’s Statement of Claim (where Claimant claims anticipated earnings of =N=1,354, 156,364.43 for the next 15years); that the Defendant had no contract to retain the Claimant for the period of 15 years or that there is no factual basis for him to assume that he would still be in the Defendant’s employment for the next 15 years; that the alleged conjecture of future promotion  and assumption of the position of CTO or CEO of the Defendant is a farce and otiose referring to paragraph 28 of the Statement of Defence of 1/4/14 and paragraph 35 of DW1 Statement on Oath of 1/7/21 and adopted on 12/10/21; that under cross examination Claimant admitted that he was not qualified for the office of the CEO even if vacant at the time he left; that it is strange to premise monetary damages on the position which he was not qualified to assume; that in awarding special damages the courts do not grant such on the basis of speculative claims, conjectures and uncertainties citing Eneh v. Ozor & Anor (2016) LPELR-40830 (SC) and Union Bank v. Nwankwo & Anor (2019) LPELR-46418 (SC) and that to grant the relief is a disguise and tantamount to asking this court to promote him to the position of the CEO which the Defendant has not promoted him citing Nwoye v. FAAN (2019) LPELR-46402(SC) (holding that promotion is a privilege granted an employee at the discretion of the employer thus the court cannot compel an employer to promote his employee). The learned Senior Counsel urges the Court to refuse and dismiss the claim for special damages because they are salaries Claimant did not earn at the time of his separation from the Defendant.

 

37.       On issue 3 which is the counter claim, it was argued on behalf of the Defendant/Counterclaimant; that parties are bound by the terms and conditions of any agreement entered between them and same must be enforced by the court citing Nwobodo v. Okolie (2020) LPELR 51267 (CA); that it is in evidence that the Claimant/Defendant to Counterclaim took a loan in the sum of =N=13,200,000.00 from the Defendant/Counterclaimant and the terms and conditions of the loan reduced to Exh. D3 dated 11/12/12 by which the Claimant would pay a monthly installment sum of =N=275,000.00 within 48 months; that the parties agreed by Exh. D3 that if any outstanding balance exists on the loan as of the date of separation from the company the outstanding balance would become immediately due and payable and would be deducted from any terminal benefits/entitlements that may be due from the company to Defendant to Counterclaim; that the outstanding indebtedness on the loan as at the day Claimant left Defendant was =N=11,093,385.05 while his total entitlement was =N=6,106,965.07; that Claimant under cross examination on 6/5/15 admitted to the fact that he had about =N=11 Million outstanding on the loan as at the day he left Defendant. Counsel urged the court to resolve this issue in favour of the Defendant/Counterclaimant and order the Claimant/Defendant to Counterclaim to pay same to the Counterclaimant. On the claim for 45 days unutilized leave claimed, Counsel submitted that the Claimant/Defendant to Counterclaim is not entitled having so admitted under cross examination on 29/6/15. In much the same vein the learned senior Counsel for the Defendant submitted that the Claimant is not entitled to the bonus paid to the employees who participated in the implementation of the project WOW/HAWK for the reason that he did not participate in the implementation stage of the project referring to Exh. C19; that the relationship between the Claimant and the Defendant had ended before the project was approved in January, 2014 and that Defendant to the Counter claim cannot be paid for work he never performed for the Counter Claimant citing Abdulraheem & Ors v. Olufeagba & Ors (2006) LPELR-11817 CA. Learned Counsel prayed the court to dismiss the entire case of the Claimant and enter Judgment in terms of the Counterclaim.

 

38.       The 34 page Final Written Address of the Claimant was dated 22/12/21 but filed on 5/1/22.  In it, the learned Senior Counsel gave a response to the preliminary point raised by the Defendant; raised some preliminary issues on behalf of the Claimant and then set down 3 issues for the just determination of this case.

 

39.       Reacting to the preliminary point raised by the Defendant, the learned Senior Advocate of Nigeria for the Claimant submitted that an exhibit or a document would be deemed relevant where a party has pleaded facts which relate to that document; that the relevancy of a document relates to the admissibility of a document at the point of tendering same in evidence and it is determined by the Judge citing Royork (Nig) Ltd.  v. A.G. & CJ, Sokoto State & Anor. (2017) LPELR – 42506 (CA) [holding that what makes a piece of evidence relevant is when sufficient facts relating to the piece of evidence or documentary evidence are copiously pleaded.  This goes to show its relevancy to the case of the party in question and once the piece of evidence is competent, that is to say that there are no legal bar to its admissibility, then the document is admissible …]; that Exhibits C10, C11, C13, C14, C17, C18, C21, C24 and C25 were all pleaded and admitted into evidence and there is no reason adduced by Defendant as to why the exhibits are inadmissible or should be expunged.  Counsel urged the court to discontinuance the Defendant’s argument.

 

40.       Counsel raised 2 preliminary issues for determination (1) the admissibility of Exhibits D4-D7 and (2) the effect of the failure of the Defendant to controvert/challenge aspects or the claimant’s evidence relating to malice and unfairness in addition to the failure of Defendant’s Managing Director/Chief Executive Officer to honour the subpoena served on him.

 

41.       On the inadmissibility of Exhibits D4-D7 computer generated documents, Counsel submitted that the Exhibits were tendered through DW1, that after admission as exhibits learned Counsel then tendered a certificate of identification which was admitted and marked as Exhibit D12; that Exhibits D4-D7 being computer generated evidence were admitted in evidence without accompanying same with the prerequisite certificate of identification and worse still they were admitted independently without any certificate and so marked; that the preconditions under Section 84 of Evidence Act, 2011 was not fulfilled; that it is unknown practice for Counsel to lay foundation for the purpose of tendering a secondary evidence or document after the said document had been admitted in evidence by the court.  Counsel urged the court to discountenance and expunge Exhibit D4-D7 from records of Court citing Command and Ors v. Doolor (2020) LPELR – 50363 CA and Capital Hotel Plc & Ors v. Abdullahi (2020) LPELR –52315 (CA)

 

42.       On the effect of failure of the Defendant to controvert/challenge aspects of the Claimant evidence relating malice and unfairness, respecting the act of victimization perpetrated by Mr. Segun Ognsanya counsel referred to paragraphs 23, 30-35, 38 and 42 of Claimant’s witness statement on oath; that these are extremely weighty allegations of reprehensible conducts of Mr. Segun Ogunsanya which conduct is prohibited under Defendant’s Disciplinary Policy and Procedure and Defendant Ethics and Compliance Code; that they represent direct evidence of the Claimant which were further supported by Exhibits C11, C12, C17, C18 and Exhibit 21, that they are in relation to the direct actions of Mr. Segun Ogunsanya in his capacity as the Chief Executive Officer of the Defendant and not action reduced into writing in any official document; that rebuttal of same can only be by oral evidence citing Section 126 Evidence Act, 2011; that  DW1 or any staff who did not see, hear or perceive directly any of the conducts referred to by the Claimant or at any of the meetings referred to cannot give any reliable or cogent evidence to which the Court can ascribe probable value in rebuttal citing Rufai v. Arik Air Ltd(2019) LPELR – 48009 (CA) and that it is only Mr. Sequn Ogunsanya whose conduct has been directly put in issue that can give evidence to rebut or challenge the evidence of the Claimant citing  Mr. Chanles Ughee v. Access Bank Plc suit Ni. NICN/LA/287/2014 Judgment of which was delivered by B.B. Kanyip J in which the court questioned the weight to be attached to testimony of a witness/employee who was not directly in the transaction in question or personally aware of the circumstances; that Mr. Segun Ogunsanya in abuse of his office, used his position as Managing Director to instigate and facilitate the exit of the Claimant acting unfairly out of malice; that it is a trite law that the acts of an officer or member of a company (in this case the Managing Director of the Defendant) would be deemed to be the act of the company citing S.65 Companies & Allied Matters Act, 2004 and IfeanyiChukwu (Osondu) Co Ltd v. Soleh Boneb (Nig) Ltd (2000) LPELR – 1432 SC.

 

43.       The learned silk added that the Court is allowed to look at the contents of its file or records in order to do substantial justice between the parties citing Agbareh v. Mimrah (2008)2 NWLR (Pt.1071) 378, 411-412; that the Defendant resisted all opportunities afforded it to rebut these weighty allegations when a subpoena was served on Mr. Segun Ogunsanya on 7/11/17; that the Defendant acting through its Lawyers resisted the opportunity by initially filing a Motion on Notice dated 5/1/18 seeking to set aside the Subpoenas against Mr. Segun Ogunsanya and the Rulings of the Court of 13/6/18 and 25/1/21; that the evidence of the Claimant respecting the conducts of Mr. Segun Ogunsanya remain unchallenged though Defendant had opportunity to do so and that  the Court is entitled to act on it citing Ogunyade v. Osunkey e& Anor (2007) LPELR-2355(SC) and Kayili v. Yilbuk & Ors (2015) LPELR – 24323 SC. Counsel prayed the Court to deem the oral evidence of the Claimant vide paragraphs 23, 30-35, 38 and 42 of the CW1 witness statement on oath as well as Exhibits C11, C12, C17, C18 and C21 admitted citing Interdrill (Nig) Ltd &Anor v. U.B.A. Plc (2017) LPELR-41907.

 

44.       The learned Senior Advocate of Nigeria then set down these 3 issues for determination as follows -

1.      Whether in the prevailing circumstances of this suit, the Claimant’s termination from the employment of the Defendant is wrongful.

2.      If yes, whether the Claimant is not entitled to the grant of the monetary and compensation reliefs he seeks in this case.

3.      Whether the Defendant has made out a case for the grant of its counterclaim.

45,       On issue I, Counsel submitted that the burden of proof is on who asserts citing Dalhatu v. A.G, Katsina State (2008) All FWLR (Pt. 405) 1651 at 1677-1678; that the burden of proving wrongful termination of employment is on the employee who alleges citing Ajuzie v. FBN Plc (2016) LPELR – 40459 (CA); that in support Claimant tendered Exhibits C1 and C2 and led direct evidence of the acts of malice leading to the unfair termination of his employment referring to paragraphs 21-39 of the Claimant’s statement on oath adopted as evidence in chief; that it is no longer the law that a master is entitled to dismiss his servant from his employment for good or for bad reasons or for no reason at all as the decided by Chuswumah v. Shell Petroleum (1993)4 NWLR (Pt.289) 512 as Defendant canvassed in its final written address; that the narration has changed as the Court is now entitled to apply International best practice and International Labour Standards in resolving employment dispute as  in the instant case citing Section 254C(1)(f) and (h) of the 1999 Constitution, as amended, section 7(6), National Industrial Court Act, 2006 and Ebere Onyekachi Aloysuis v. Diamond Bank Plc. (2015) 58 NLLR (Pt. 199) 92 per Kola-Olalere J where the Court relied on Termination of Employment Convention, 1982 (No.158) and Recommendation No.166; that the Court of Appeal has affirmed the power of National Industrial Court of Nigeria to apply international best practices in resolving employment dispute citing Sahara Energy Resources Ltd v. Oyebola (2020) LPELR – 51806 (CA) and that the harsh Common Law position which allows for termination of employment without any reason or without regard to the malicious circumstances surrounding same is now history and no longer hold sway.

46.       With regard to the instant case, Counsel submitted that on 11/11/13 Claimant was told that due to some damning petitions/allegations received against him he needed to step aside for three to four days for proper investigation to be carried out thereby initiating the disciplinary process against the Claimant; that the allegation against the Claimant being a serious or intolerable act of misconduct is governed by the specific provisions of Clause 6.7 of Defendant’s Disciplinary Policy and Procedure – Exh. C2 - the outcome of which may be transfer and/or reduction in responsibility levels or Dismissal; that without the conduct of a disciplinary hearing Claimant was by Exh. C10 informed that he had been transferred from the position of V.P Operations and Support to V.P Special Projects Site Optimization which Defendant contended was not a demotion but that by the wordings of Clause 6.2.20 of Exh. C2 it is Transfer and/or reduction in responsibility; that the new posting of the Claimant has no direct reports while by his former position Claimant was responsible for over 24 Site Managers, 4 Regional Technical Officers, 12 Zonal Technical Officers, 5 Managers and over 1000 external human capital resources referring to Exh. D4 and evidence of CW3; that the transfer of the Claimant was unjustified and a punishment citing Mr. Monday Itodo v. GTI Registrar Ltd suit No. NICN/LA/602/2016 Judgment of which was delivered on 15/6/21 per Obaseki-Osaghae J. Counsel prayed the Court to examine the trends of events leading to the termination of employment of the Claimant and  infer wrongfulness of the conduct of the Defendant citing Ogbuanyinya & Ors. v. Okudo & Ors (1990) LPELR – 2294(SC)and that a Judge is entitled to draw any inference or deductions from facts that emerge from the documentary or oral evidence proffered before him as postulated on the pleadings of the parties citing Ume & Ors. v. Ibe (2016) LPELR -40080 (CA). Counsel urged the Court to hold that on the strength of evidence adduced, the termination of the Claimant’s employment is accentuated by malice, wrongful, unjustifiable and therefore contrary to international best practices.

 

47.       On issue 2, whether the Claimant is not entitled to the grant of the monetary and compensation reliefs he seeks in this case, Counsel submitted that Claimant has by unchallenged evidence proved his entitlement to the monetary and compensatory reliefs sought; that under the former legal regime before the Third Alternation Act and upheld by Supreme Court in Obanye v. Union Bank (2008) LPELR- 44702 SC all that an employee would be entitled to as damages is one month salary in lieu of notice; that under the current legal regime in which the Court is entitled to apply international labour standards, damages and other monetary reliefs sought can be granted citing Godwin Okosi Omoudu v. Prof. Aize Obayan & Anor unreported suit No. NICN/ABJ/03/2012, Sahara Energy Resources Ltd v. Oyebola (2020) LPELR-51806 (CA) and Captain Benedict Olusoji akanni v. The Nigerian army & 3 Ors. Suit No. NICN/ABJ/125/2018 [where Defendants were ordered to pay the sum of =N=75,000,000.00 being general damages for loss of expectation in the Claimant chosen career training and psychological trauma suffered as a result of the arbitrary action of the Nigerian Army].

 

48.       Counsel referred to Exh. C10 which was copied to the entire company on the removal of the Claimant as V.P Operations and Support and made V.P Special Projects Site Optimization which was a drastic reduction in status and responsibility; that the Claimant informed the Defendant that its actions have caused aspersions to his person, reputation, integrity, professionalism and tainted him with guilt over undisclosed allegations of “improper conduct” bordering on bribery, illegality, corrupt practices and/or unethical conduct referring to Exh.C11 and Exh. C17 and that in consequence of the wrongful conduct of the Defendant, the Claimant’s future employment prospects have been handicapped and slighted as a result of which he has suffered loss and damage, that Claimant participated in project War on waste, project hawkeye and ought to be remunerated like other staff and that Claimant’s unpaid bonus was equally not put into consideration by the Defendant in its collation of Claimant’s End of Service Account – Exh.D2. Learned senior counsel prayed the Court to find for the Claimant.

 

49.       On issue 3, counsel submitted that an examination of the Defendant’s evidence in support of its Counterclaim show that it has failed to prove it; that the Defendant cannot ground its claims on the unclear “admission” of the Claimant and that the Court ought to be wary of placing any value on the insubstantial evidence of the Defendant and/admission of the Claimant citing Uwaka & Ors v. Sampson & Ors (2016) LPELR. 41216 (CA). Counsel urged the Court to refuse and dismiss the Counter claim sought and grant all the reliefs sought by the Claimant.

 

50.       Defendant/Counter Claimant filed a 24 paragraph Reply address on 9/2/22. It is dated same date. In it the learned silk made three man submissions. Firstly, that the Defendant satisfied the condition stated in section 84 of Evidence Act, 2011 for admissibility of Exhibits D4 – D7 by the production of a certificate of authenticity (Exh.D12) which identified Exhibits D4 – D7 as the documents it authenticates. Secondly, that in the absence of clear evidence of the domestication of international treaties such as the Termination of Employment Convention, 1982 (No. 158) relied upon by the Claimant same cannot be applied by this court in view of the appellate decisions cited and the provisions of section 12(1) of the Constitution. Thirdly, that the Claimant failed to plead the application of the alleged international best practice and cannot take the Defendant by surprise and finally that the court is bound to act on the Claimant’s failure to contradict the fact of his indebtedness to the Defendant/Counter Claimant.

6.         Decision

51.       The simple facts of this case as revealed from the pleadings and evidence led by the parties are that the employment of the Claimant was terminated after working for the Defendant for about 6 years; Claimant alleged malice in the events leading to his disengagement; that he was a victim of the CEO of Defendant’s malice and threat; that first his responsibilities were reduced; that there were alleged petitions against him, none was given to him to react to and none was investigated; that both his transfer to another position and eventual disengagement were in breach of the existing disciplinary policy and procedure of the Defendant and that no reason was given for disengaging him. To the Defendant the Claimant’s employment was terminated in accordance with the terms and conditions of his engagement; that movement of staff within the establishment is a routine and normal practice; that the Defendant is not obliged to give any reason for disengaging the Claimant from its employ and that the Claimant has outstanding indebtedness on loan he took from the Defendant yet unpaid. I have read and understood all the processes filed by both parties. I heard the oral testimonies of the witnesses called at trial and also watched their deamenour. I patiently reviewed and evaluated all the exhibits tendered and admitted. Having done all this, I narrow the issues for the just determination of this case to be the following -   

 

1.         Whether Exh. C10, C11, C13, C17, C18, C21, C24 & Exh. 25 tendered by the Claimant are relevant and admissible in this proceedings.

2.         Whether in view of the provisions of Section 84(2), Evidence Act, 2011, Exh. D4-D7 tendered by the Defendant and admitted should be discountenanced and expunged from the records of the Court.

3.         Whether considering the whole circumstances and gamut of this case, the termination of employment of the Claimant by the Defendant was wrongful.

4.         Whether or not the Claimant has adduced sufficiently cogent and credible evidence in support of his claims.

5.         Whether the Defendant has proved entitlement to all or some of the counter claims.

 

52.       The first issue for determination is whether Exh. C10, C11, C13, C17, C18, C21, C24 & Exh. 25 tendered by the Claimant are relevant and admissible in this proceedings. It is the argument of the learned senior counsel to the Defendant that these exhibits are completely irrelevant and too remote to be material to the facts in issue and that the Court should not belabor itself in considering these exhibits as they do not effectively assist the Court in the resolution of the main controversy in this suit.

 

53.       In Chinedu Oguejiofor v. Access Bank Plc (2020) LPELR-49583(CA), the Court of Appeal reiterated the point that the law on the admissibility of a document is settled beyond any form of dispute. It is trite that the test of admissibility is relevance. Once a document is relevant to the proceedings, that document will be admitted as it has passed the test of admissibility. Relevancy is therefore core to admissibility. It is for Counsel to argue for or against the admissibility of documents on whatever ground which ground may include relevancy. The final decision on whether or not a document tendered is relevant for the purpose of admissibility is taken by the Court after examining the case of the party concerned and his pleadings and the nexus or relationship between the document sought to be admitted and the case of the party. I dare say that once there is a nexus or connection between the case and the document tendered for admission the Court will admit same. It must be borne in mind however that there is a world of difference between admissibility and the probative weight to be attached to the document admitted. Again the weight to be attached is at the instance of the Judex which decision is taken at the point of evaluation of the exhibits.

 

54.       I have examined Exh. C10, C11, C13, C17, C18, C21, C24 & Exh. 25. Are these exhibits relevant to the case of the Claimant? In answering this question, I elect to examine the exhibits individually vis-à-vis this case. Exh. C10 is the announcement made by the Defendant respecting the movement of the Claimant from his former position to the new one. In Exh. C11 an e-mail by the Claimant to senior management staff of the Defendant, Claimant had said inter alia, ‘… I will like to call for a session to discuss this with you and the team so I can fully understand the circumstances of this matter and in particular why I am being penalized before I am informed of the allegations against me and before the conclusion of the investigations’. The Claimant was one of the addressees of Exh. C13 nominating him along with some other senior staff of the Defendant for an Executive Coaching Program. Exh. C17 was the complaint of the Claimant on why he was yet to hear anything from the Defendant after 10 days of stepping aside while Exh. C18 was a reply to Exh. C17. The content of Exh. C21 is official communication between the Claimant and members of staff of the Defendant. While Exh. C24 is a letter from Segun Ogunsanya CEO & MD of the Defendant congratulating the Claimant on his performance, Exh. C25 is the Individual Staff Scorecard of the Claimant.

 

55.       I have deliberately taken time to bring to the fore the contents of these exhibits. From all the review of these exhibits and the attack on them by the learned senior counsel for the Defendant can it be said that these exhibits are not relevant and cannot assist the Court in the resolution of this case? I answer in the negative. I find sufficient connection between the case of the Claimant and these exhibits. Accordingly, I overrule the argument of the learned senior counsel for the Defendant urging the Court to expunge these exhibits. The basis of the argument is faulty. It lacks merit. Accordingly, I resolve the first issue in favor of the Claimant. I hold that the exhibits are admissible. They remain admitted and will be used for just determination of this case.

 

56.       The second issue for determination is    whether in view of the provisions of Section 84(2), Evidence Act, 2011, Exh. D4-D7 tendered by the Defendant and admitted should be discountenanced and expunged from the records of the Court. These exhibits were tendered on 12/10/21. The documents were tendered and admitted without any certificate of authentication in compliance with S. 84(2), Evidence Act, 2011. After being admitted, learned senior counsel to the Defendant urged the Court for a stand down, according to him, to ‘enable me retrieve a document at the Court Registry’. When the case was recalled, the learned senior counsel tendered a certificate as required by the Evidence Act to back these exhibits already admitted. It is the submission of the learned senior counsel to the Claimant that Exhibits D4 - D7 were admitted without compliance with section 84 of the Evidence Act, 2011 and they should be expunged from records of this case. There is no doubt that respecting electronically generated piece of evidence, section 84(2) of the Evidence Act is a condition precedent that must be complied with otherwise no weight will be attached to such evidence. That is the current state of the law as aptly expressed by the Court of Appeal in Capital Hotels Plc & Ors. v. Abdullahi (2020) LPELR-52315.

 

57.       I have been urged by the learned senior counsel to the Defendant to retain the exhibits pursuant to the provisions of Section 12(2)(b), National Industrial Court Act, 2006 notwithstanding failure to meet the precondition as laid down in Section 84(2) of the Evidence Act. Now, Section 12(2)(b),National Industrial Court Act, 2006 is an interest of justice provision. The provision allows the Court to depart from the provision of the Evidence Act in order to meet the justice of the case at hand. The concept of interest of justice is an all embracing one which has at least three perspectives. Firstly, it is in the interest of justice for a litigant approaching the Court for judicial intervention to be afforded opportunity to present his case and all evidence he relies on both oral and documentary to the Court without let or hindrance. Secondly, the interest of justice also dictates that a Defendant to a suit is obliged all material facts and evidence which his adversary relies on in order for him to appropriately defend the suit against him and to be able to put forward all his defence. Lastly, it is in the interest of justice that a Court of law is afforded opportunity of access to all facts and evidence relating to the case before it. For, it is then and then only that the Court will be able to make a reasoned and informed decision between the parties as to who is right and who is wrong. I therefore refuse to discountenance and expunge the exhibits from records as urged by the learned Counsel to the Claimant in the interest of justice both to the parties and the Court. I hold that the exhibits are admissible and would be used as such in this Judgment. Accordingly, I resolve this second issue in favour of the Defendant and against the Claimant.

 

58.       The third issue for determination is whether considering the whole circumstances and gamut of this case, the termination of employment of the Claimant by the Defendant is wrongful. The law is trite and beyond argument that the burden is on an employee who claims the termination of his employment is wrongful to adduce sufficiently cogent and credible evidence in support. This is in accord with the notorious principle of law which has both statutory and case-law backing that he who asserts must prove same. It was argued on behalf of the Defendant that the employment of the Claimant was terminated in accordance with the provisions of the contract of employment dated 1/2/08 – Exh. C1 Clause 18; that the Defendant is not obliged to give any reason for the termination; that the Defendant can so terminate the employment of the Claimant for good, for bad or for no reason at all the employment being one of master/servant citing Isheno v. Julius Berger (Nig.) Plc (2008)-1544.  

 

59.       The employment of the Claimant was brought to an end by Exh. C14 on the Christmas Eve of 2013. The first and operative paragraph of that exhibit simply states –

 

“This serves as formal notification on this 24^th day of December, 2013, that your employment with Airtel Networks Limited, as Vice President, MSC Site Optimisation is hereby terminated effective today 24^th December, 2013, in line with your contractual terms of employment. Your last day at work will therefore be today 24^th December, 2013”.

 

60.       No reason was given for the termination. Indeed the learned senior counsel to the Defendant had submitted in his final written address that the Defendant is not obliged to offer any reason for ending the employment relationship with the Claimant. With a great difference from the senior counsel that position was as obtained under the Common Law where the master has the unhindered right to hire and to fire for good, for bad or no reason at all. That harsh position has since been consigned to the dustbin of history by both the Constitution and the case-law. For, with the enactment of the Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2010, this Court, the National Industrial Court of Nigeria is empowered by section 254C(1) thereof to exercise jurisdiction to the exclusion of any other Court in civil causes and matters -

 

(f).      relating to or connected with unfair labour practice or international best practice in labour, employment and industrial relation matters;

(h).     relating to, connected with or pertaining to the application or interpretation of international labour standards”.

 

61.       Throughout this case there was no shred of evidence provided by the Defendant pointing to incompetence or dereliction of duty against the Claimant. I also find no query issued to him in the discharge of his duty. There is indeed bundle of evidence pointing to satisfactory discharge of the duties assigned to him. Exh. C3 for instance written by the Director Human Resources & Administration of the Defendant to the Claimant states in the last paragraph thus –

“Let me use this opportunity to thank you for your invaluable contribution to the success of Airtel Nigeria”.

 

62.       In Exh. C4 the Chief Operating Officer & Executive Director of the Defendant while congratulating the Claimant on this promotion again said on behalf of the Defendant to the Claimant –

           

“We take this opportunity to thank you for delivering your best in the 2011/2012 financial year and are confident that you will discharge your new responsibilities effectively”.

 

63.       I also find that even the Chief Executive Officer of the Defendant has had cause to have and had poured accolades and encomiums on the Claimant in very strong words. I refer to Exh. C24 where Mr. Segun Ogunsanya the CEO/MD of the Defendant had written thus –

 

“In the last financial year, we made significant progress towards achieving our business KPI’s. We grew in both customer and revenue market share, achieved growth in our subscriber base, won several accolades in Brand, Customer Services, HR and redefined telecoms landscape with our 5x promotion.

 

All these could not have been possible without your contribution.

 

In this envelope, please find enclosed your Adjustment & Bonus letter which is our appreciation for what YOU have contributed to the success of Airtel Nigeria.

 

I wish to congratulate you on a successful review and I am confident that with your continued dedication and hard work, we will exceed all our key performance indicators and targets for the financial year 2013/2014.

Let’s continue to Win Smartly and Execute Brilliantly”.

 

64.       I have brought all this to the fore to show that indeed the Claimant was not just a performing but a reliable and dependable staff of the Defendant. In the absence of economic downturn calling for the Defendant to reduce its workforce, the Defendant (and indeed any other employer for that matter) owes it a duty to provide justifiable reason for just suddenly throwing the Claimant into the job market in a festive period and the eve of Christmas. It is against the international best practice as well as international labour standard to lay off a performing staff without justifiable reasons.

65.       At the global level termination of employment at will and without reason is no longer fashionable or acceptable. We must bear in mind that no nation can be an island to herself and any nation that seeks to do so will be doing so at her own peril. Therefore the need to ensure that the Nigerian labour jurisprudence is in tandem with what is obtainable at the international scene found reflection in the National Industrial Court Act, 2006. Thus the Act in section 7(6) provides this Court (that is National Industrial Court of Nigeria) shall, exercising its jurisdiction or any of the powers conferred upon it by this Act or any other law, have due regard to good or international best practice in labour or industrial relations and what amounts to good or international best practice in labour or industrial relations shall be a question of fact'. More importantly, by section 254C1(h) Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act 2010 the court is endowed with power to have and exercise jurisdiction to the exclusion of any other court in civil causes and matters 'relating to or connected with or pertaining to the application or interpretation of international labour standards'. One method of gauging or determining international labour standards is an examination of Conventions of the International Labour Organisation. Indeed the International Labour Organisation has for a long time frown at any act of termination of employment without giving reason. Thus Termination of Employment Convention, 1982 (No. 158) and Recommendation No. 166. In this regard, the Termination of Employment Convention expressly provides in its Article 4 that –

 

“The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of undertaking, establishment or service”.

66.       This Court has held as such in Ebere Onyekachi Aloysuis v. Diamond Bank Plc (2015) 58 N.L.L.R (Pt. 199) 92 which placed heavy reliance on Termination of Employment Convention, 1982 (No. 158) and Recommendation No. 166. I strongly align myself with that Judgment of my learned brother Kola-Olalere J. I have no hesitation in applying the sound reasoning in that Judgment to the case at hand. I so do. I am not however oblivious of the argument of the learned senior counsel to the Defendant that until a Convention or international Treaty is ratified by the country such is not enforceable here referring to Section 12, Constitution of the Federal Republic of Nigeria, 1999, as amended.  That argument loses sight of the fact that the power of this Court to exercise jurisdiction as conferred by Section 254C(1)(f) & (h) of the Constitution is

 

Notwithstanding the provision of Sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly …”

 

the opening words of section 254C(1) of the Constitution. Thus the exercise of the jurisdiction in subsection f and h is not in any way or manner hindered by section 12 of the Constitution. It is indeed notwithstanding the provisions of Section 12 of the 1999, Constitution, as amended. Nigeria is a member of the international community. She cannot operate as an island on her own. In order therefore to continue to be relevant in comity of Nations she must be amenable to international labour standard and comply with international best practice in labour and industrial relations. My finding is that failure to provide reason for terminating the employment of the Claimant makes it wrongful being in contravention of the globally accepted practice in such situation. I resolve this issue accordingly in favour of the Claimant and against the Defendant.

 

67.       It suffices having so found and held to close the chapter on the issue of wrongful termination. However, there are more than one or two reasons to declare the termination of Claimant’s employment as wrongful. Thus, out abundant of caution I find it imperative to examine the other reasons.

 

68.       Secondly, the events culminating in the termination of the employment of the Claimant are instructive and worth examining. It is the averment of the Claimant that he was told by two management staff of the Defendant on 11/11/13 that some ISMs Vendors had sent in petitions to a member of EC and that the evidence was so damning that he needed to step aside for about 3 to 4 days for a proper investigation to take place. See page 2 of Exh. D7. The result of that alleged investigation is unknown. At least it is not available to this Court. However by Exh. C10 the Claimant was moved from his position to that of Vice President, Special Project. It is important to note that notwithstanding the fact that the Defendant promised to oblige the Claimant a hearing or fair hearing with respect to the petitions against him that was never done. Even Exh. C11 by which the Claimant requested to know why he was being investigated and the nature of the investigation was never addressed by the Defendant.  

 

69.       The established Disciplinary Policy of the Defendant is Exh. D6. There is no evidence before me to attest to the fact that the procedure set out in the Disciplinary Policy was ever complied with respecting the Claimant. Till date, the Claimant was not informed of who his accusers are; the nature of the allegations against him; neither was he afforded an opportunity to rebut same. Yet Jubril Saba had in Exh. D7 informed the Claimant on 20/11/13 that …

 

“The only commitment we made to you at the time, was that the company’s normal process for dealing with issues such as this will be allowed to run its full course following conclusion of our investigation and as per normal procedure, you will be allowed to have your say in the matter”.

 

70.       The Claimant was never allowed to have a say in the matter as promised him. It is trite that where an employer has a disciplinary process or procedure in place, the least it could and should do is to comply with the same in dealing with its workforce. All this process was to be followed up with Exh. C14 a letter of termination of employment served on the Claimant on 24/12/13. It is thus my finding here that the termination of employment of the Claimant without compliance with Exh. D6 – Defendant’s Disciplinary Policy is wrongful.

 

71.       Thirdly, in contending that the termination of his employment is wrongful, Claimant had alleged malice and abuse of office against Mr. Segun Ogunsanya the Chief Executive Officer & Managing Director of the Defendant. In support of his position, the Claimant had testified in chief to the effect that Mr. Segun Ogunsanya took deliberate steps to ensure the removal of Nigerian local talents who may in future be considered for the position of Chief Executive Officer; that Mr. Segun Ogunsanya engaged more vendors and contractors in the preceding 12 months than the previous Chief Executive Officers did in the last 3 years and most of the contractors were contracted without due process; that most of the contractors engaged were the ones in whom Mr. Segun Ogunsanya had interest even though they had no background in telecommunications and have negatively impacted the network and that the termination of his employment was accentuated by malice, pre-meditated and a deliberate attempt and machination of Mr. Segun Ogunsanya to oust any possible successor in the event of impending expiration of his contract of employment. The Claimant went ahead to provide the particulars of malice as claimed in paragraph 42 of his witness deposition. According to the Claimant, he has in the past successfully championed an opposition crusade against underperforming contractors connected to the Defendant’s top management; that he in the past vigorously resisted the unconscionable efforts for the Defendant’s top management to promote only their own parochial interest; that the Defendant unceremoniously removed him as Vice President, Operations and Support; that he was repeatedly summoned by Mr. Segun Ogunsanya as CEO of the Defendant for meetings wherein Claimant was humiliated and variously accused as showing a rather poor understanding of company policies and of conduct unbecoming of his position; that he was never allowed to make any input during the investigations and that no disciplinary hearing took place after the purported investigations.

 

72.       These are serious depositions respecting the events culminating in the disengagement of the Claimant by the Defendant. I find series of documentary evidence, (for instance Exh. C11 & C12, Exh. C17 & C18 and Exh. C21 in particular) which further give fillip to the evidence in chief of the Claimant. This evidence, I dare say, is damning and so weighty that no corporate establishment as the Defendant should condone, sweep under the carpet or feign ignorance of. These pieces of evidence raise the issue of competence of Mr. Segun Ogunsanya to fairly preside over the affairs of the Defendant in an unbiased manner. The reaction of the Defendant to this evidence was the evidence led by its lone witness, Joachim Okere as DW1. Under cross examination DW1 testified clearly and unambiguously thus –

 

“I was not at the meeting referred in Exh.C12, C11 and C17 and neither was my predecessor in office.… I was not privy to any discussions that took place between the Claimant and the Chief Executive Officer of the Defendant”.

 

73.       The bottom line of the evidence of this witness is that he has no information on the events of malice alleged to have led to the termination of the employment of the Claimant. He was not part of any meeting involving the Claimant and Mr. Segun Ogunsanya. He, DW1, was not privy to any of the documents emanating from such meetings and neither was he part of any discussions involving the two parties. By this evidence of DW1 it also means that he was not in a position to either deny or confirm the contents of Exhs. C11, C12 and C17 and to that extent the pieces of evidence remain valid for the Court to rely and act upon. One is constrained to ask of what utility or evidential value is the evidence of DW1 to the case of the Defendant in general and particularly respecting the allegations of malice and abuse of office against its Chief Executive Officer. By his testimony he was a wrong person to call and has provided no positive reactions to the allegations of malice and abuse of office against Mr. Segun Ogunsanya the CEO of the Defendant. In order for the Defendant to rebut this direct evidence it requires a similarly direct evidence. For as Section 126, Evidence Act, 2011 provides, oral evidence shall in all cases be direct as to what a person saw, heard, perceived and where it is as to an opinion, then it must be the evidence of the person who holds that opinion on that ground.

 

74.       The Jos Division of the Court of Appeal, per Tani Yusuf Hassan, in Mohammed Waziri ''M'' v. The Commissioner of Police, Plateau State Command (2020) LPELR-51951(CA) stated the position of the law as follows -

 

"...By virtue of Section 126 of the Evidence Act, 2011, oral evidence shall in all cases be direct if it refers to: (a) A fact which could be seen, it must be the evidence of a witness who says he saw that fact; (b) A fact which could be heard, it must be the evidence of a witness who says he heard that fact; (c) A fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner; (d) An opinion or to the ground on which that opinion is held, it must be the evidence of the person who holds that opinion on that ground."

 

75.       Aside from the fact that evidence of DW1 did not provide a rebuttal to the weighty allegations against Mr. Segun Ogunsanya, it means for all intents and purposes that the evidence of the Claimant in that regards remain unchallenged. The Court is thus at liberty to rely and act upon same in the determination of this case. The Defendant had the opportunity of calling the said Segun Ogunsanya as a witness to rebut the allegations against him. For reasons best known to the Defendant it elected not to call him. Even when a subpoena was issued inviting Mr. Segun Ogunsanya to come and testify, the senior Counsel to the Defendant did everything possible to frustrate that move. After applications by the learned senior Counsel to set aside the subpoena were refused and dismissed, Counsel was to later file Notice of Appeal dated 11/2/21 – Exh. D13, Motion for Stay of Execution of Rulings of 13/6/18 & 25/1/21 – Exh. D15 & Notice of Appeal dated 11/3/21 – Exh. D14. The only plausible inference available to the Court is that the Defendant was afraid of the evidence of Mr Segun Ogunsanya as it would have worked against it if allowed to be heard. Accordingly, I hold that the evidence of the Claimant on allegations of malice leading to the termination of his employment remain intact, unchallenged and uncontroverted. A Court of law is allowed to act on such evidence. In the circumstance, I hold that malice was the basis for the termination of the employment of the Claimant and that it is wrongful not having any bearing on the conduct of the Claimant in the discharge of his duties. I resolve this issue in favor of the Claimant.

 

76.       Having so resolved issue 3, it is imperative that I make some consequential orders to give life and meaning to this Judgment thus far. A consequential order is made consequent upon a decision being made in order to give effect to the said Judgment. A consequential order cannot be made before a decision is taken. Thus, a consequential order is part and parcel of the Judgment.

 

77.       Ebiowei Tobi JCA took time out to espouse on the nature, meaning and purpose of consequential order in Bulama Alhaji Adam v. Mustapha Kime (2021) LPELR-55271(CA). According to his lordship -

 

“The law allows this Court to make consequential orders even if it is not asked for. The purpose of a consequential order is to give life to the judgment of the Court. Consequential orders are orders which a Court is at liberty to make to give effect or life to the judgment of the Court. In APC & Ors vs Karfi & Ors (2017) LPELR-47024 (SC), the apex Court held as follows: "The power of a Court of law to make consequential orders is inherent and flows from its jurisdiction to try the case. All superior Courts of record possess inherent powers not necessarily derivable from any law. It is embedded in a Court to ensure and enhance a free flow of justice to end users. A consequential order is therefore an order which gives effect to the judgment already given by the Court. It is not granted as a fresh, unclaimed or unproven relief. See Awoniyi v. Regd. Trustees, AMORC (2000) FWLR (Pt. 25) 1592, (2000) 10 NWLR (Pt. 676) 522, (2000) 6 SC (Pt. I) 103, (2000) 6 SCNJ 141”.

 

78.       This Court has found the termination of the employment of the Claimant wrongful. Not only is the termination wrongful, the conduct of the Defendant as exemplified or represented by its CEO Mr. Segun Ogunsanya is despicable and a stain on the corporate image of the Defendant to have allowed personal ambition and self serving interest to overshadow the overall interest of the entire corporate entity. From the pleadings and evidence led by the parties, I see also some elements of fraudulent activities being covered by those who wanted the Claimant out of the Defendant by all means. Whether it is called fraud or corruption it amounts to one and the same thing. One of the mantras of the present administration for governance is one of undisguised fight against corruption. The Judiciary as an important arm in the trinity of govenance cannot but continue to contribute its quotas towards that end be it in public or private establishments. The learned senior Counsel to the Defendant had submitted that this Court could not award more than what the Claimant could have earned as damages in event of a finding that the termination of Claimant’s employment is wrongful. That submission is not a reflection of the current state of labour and employment jurisprudence in this country as at today. That submission is an expression of the old old, archaic, harsh and outdated Common Law position which judicial authorities have consigned to the dustbin of history. See Sahara Energy Resources Limited v. Mrs. Olawumi Oyebola (2020) LPELR-51806(CA). This Court cannot but express its disgust for the way and manner the Claimant was treated by awarding exemplary damages against the Defendant.

 

79.       According to Power Holding Company of Nigeria (PHCN) Plc & Anor v. Atlas Projects Limited (2017) LPELR-43622(CA) Exemplary damages are damages whose purpose extends beyond compensation to punitive or admonitory functions. Its object is to punish the defendant for breaching the legal right of the Plaintiff. Again as the Court noted in First Inland Bank v. Craft 2000 Limited & Anor (2011) LPELR-4167(CA) relying on the Supreme Court decision in Odogu v. Att. Gen. of the Federation (1996) 6 NWLR (Pt. 456) 508, “exemplary damages are usually awarded whenever the Defendants' conduct is sufficiently outrageous to merit punishment such as instances where malice, fraud, cruelty, insolence, flagrant disregard of the law are disclosed”.

 

80.       I find the conduct of the Defendant in the instant case sufficiently outrageous to merit punishment which cannot only be meted in form of exemplary damages. Accordingly, considering the entire circumstances of the case, I award the sum of One Hundred Million Naira (=N=100,000,000.00) as exemplary damages against the Defendant and in favor of the Claimant. The Defendant is here ordered to pay the said sum of One Hundred Million Naira forthwith to the Claimant.

 

81.       The fourth issue for determination is whether or not the Claimant has adduced sufficiently cogent and credible evidence in support of his claims. The first relief sought by the Claimant is for a declaration that the termination of the employment of the Claimant by the Defendant is wrongful and without any justifiable basis. In the resolution of issue 3, this relief has been granted a consequential order for award of exemplary damages were also made. Accordingly, I declare that the termination of the employment of the Claimant by the Defendant is wrongful and without any justifiable basis.

 

82.       The second relief sought by the Claimant is for an order for the payment of special damages in the aggregate sum of =N=1,354,156,364.42 (One Billion, Three Hundred and Fifty Four Million, One Hundred and Fifty Six Thousand, Three Hundred and Sixty Four Naira Forty Two Kobo) by the Defendant to the Claimant.

 

83.       The Claimant provided the particulars of the special damages in paragraph 47 of his statement of facts. The sum of money claimed under this head is for anticipated earnings … over the next fifteen years. The sum of money indicated in paragraph 47 of the statement of facts is =N=1,247,722,004.10. In the particulars provided to the same paragraph the total sum claimed is =N=1,354,156,364.42. The Claimant did not provide an explanation as to the differences in the sums. Now, as relates to special damages Ajigbotosho v. RCC (2018) LPELR-44774 (SC) decided that they are such damages as the law will not infer from the nature of the act as they do not follow in the ordinary course but exceptional in their character and therefore must be claimed specially and proved strictly. A claim for special damages is a claim for a sum certain. For a claim in the nature of special damages to succeed, it must be proved strictly and the Court is not entitled to make its own estimate on such a claim. How did the Claimant arrive at the figure claimed? I do not have answer to that. Secondly what is the basis of the particulars provided in paragraph 47 of the statement of facts? Special damages are not awarded as a matter of course. Strict proof is required. That element of strict proof is not met by the Claimant. It appears to me and that is my finding that there is sufficient reason to refuse and dismiss this head of claim for absence of proof. I so do.

 

84.       The second relief sought by the Claimant is for an order for the payment of the sum of =N=100,000,000.00 (One Hundred Million Naira) only by the Defendant to the Claimant as general damages for the breach of the contract of employment and disciplinary policy and procedure. General damages are such damages as the law will presume to be the direct, natural or probable consequence of the act complained of, as they flow naturally from a proved occurrence and usually awarded to compensate the Plaintiff for injury or loss he has suffered. The manner in which general damages is quantified is by relying on what would be the judgment of a reasonable man. See the case of Ndinwa v. Igbinedion (2001) 5 NWLR (Pt. 705) 140.  There is no doubt the Defendant had wronged the Claimant. That wrong which is the shameful and disgraceful manner the Claimant was treated and the eventual termination of his employment without compliance with the laid down disciplinary policy and procedure by the Defendant deserves remedy. After all, as Court noted in Mr. Sheriff Olayiwola Sharafa v. Stanbic IBTC Bank Plc (2019) LPELR-47407(CA) it is trite that where there is a wrong there is a remedy to redress the wrong. May the day never come when a Court of law will not be able to or shy away from providing redress to an identified wrong.

 

85.       The wrong against the Clamant in this case, among others, is the stigma which his unceremonious exit from the Defendant portends. I have examined the whole circumstances of this case. I take cognizance of the unchallenged evidence of the Claimant that the action of the Defendant stigmatized his character and stellar career and ‘cast aspersions on his integrity, reputation, professionalism and tainted him with guilt over undisclosed allegation of “improper conduct” bordering on immorality, illegality and/or unethical conduct’. Finally in considering the quantum of general damages to award in this case, I further take adequate cognizance of the position of the Claimant in the Defendant, his contributions to the progress, development and prosperity of the Defendant particularly as revealed by Exh. C3, Exh. C4 and perhaps more importantly by the testimonies of Mr. Segun Ogunsanya (MD/CEO of the Defendant) as contained in Exh. C24. Under cross examination and in response to a specific question the Claimant stated that his salary before he left the employ of the Defendant was Thirty Million Naira (=N=30,000,000.00) per annum. That piece of evidence was not challenged or contradicted throughout the trial. The law is trite that evidence obtained under cross examination is reliable for the Court to act upon. The Abuja Division of the Court of Appeal in

Abdullahi Haruna, Esq. & Ors. v. Kogi State House of Assembly & Ors. (2010) LPELR-4231(CA) quoting Karibi-Whyte JSC of blessed memory in Bamgboye v. Olarewaju (1991) 4 NWLR (184) 132 at 155, emphatically reiterated the fact that evidence procured from cross examination is as valid and authentic as evidence procured from examination in-chief. Both have the potency of relevancy and relevancy is the heart of admission in the law of evidence. In Sahara Energy Resources Limited v. Olawumi Oyebola (2020) LPELR-51806(CA), a case in which the employer failed to comply with its disciplinary policy and procedure culminating in the disengagement of the employee in circumstances similar to the present case, the trial Court awarded 2 years salary as general damages in favor of the Claimant for wrongful termination of employment. His Lordship Ogakwu JCA did not hesitate to affirm the Judgment on appeal.  Accordingly, I award to the Claimant his 2 years salary in the sum of Sixty Million Naira (=N=60,000,000.00) as general damages for the wrongful termination of his employment without justifiable basis. The Defendant is ordered to pay to the Claimant the sum of =N=60,000,000.00 as general damages as awarded.

 

86.       On the claim for cost of this action, it has been long established and the principle notorious enough now that it requires no judicial authority in support that cost follows event. This case was filed in 2014. The file is in its second volume. Even the record file is filled to the brim. Aside from the cost incurred in filing the processes, the expenses incurred for transport to and fro the Court must not be overlooked. It is on record that both learned senior counsel in this case and their clients reside in Lagos. Again, the time invested in the prosecution of this case can hardly be quantified in terms of Naira and Kobo. Considering all this, I award and order the Defendant to pay to the Claimant the sum of One Million Naira as cost of this action.

 

87.       The last and final relief sought by the Claimant is for interest on all sums due to the Claimant at the rate of 21% per annum from the date of institution of this action till Judgment is delivered and thereafter at the same rate or any other rate this Honourable Court may deem fit till final liquidation of the Judgment sum. The claim for pre judgment interest of 21% per annum by the Claimant is without basis. There is no deposition to the effect that parties agreed to the payment of such interest. Secondly, no judicial or statutory authority was cited to this Court in support of the claim for pre judgment interest. Accordingly, I refuse and dismiss the claim for 21% per annum pre judgment interest. On post judgment interest, the Rules of this Court in Order 47 Rule 7, allow the Court at the time of delivering Judgment to award interest not less than 10% per annum on the sum awarded. Accordingly, all the sums of money due and payable under this Judgment shall be paid with interest at the rate of 20% per annum from the date of this Judgment until final liquidation.

 

88.       The final issue for determination is whether the Defendant has proved entitlement to all or some of the counter claims. Counter claim is akin to a fresh action. In order therefore to succeed, the burden is on the Counter-claimant to adduce cogent, credible and admissible evidence in proof of each head of the counter claims. The first head of the counterclaim is for an order of this Honourable Court directing the Defendant to the Counter –claim to pay to the Counter-Claimant the sum of =N=4,986,419.98 (Four Million, Nine Hundred and Eighty Six Thousand, Four Hundred and Nineteen Naira and Ninety Eight Kobo) being the outstanding balance due to the Counter-claimant on Vehicle Purchase Loan. There is before me unchallenged evidence to the effect that the Claimant obtained a loan of =N=13,200,000. 00 from the Defendant while in the latter’s employ. Both parties are in agreement on this fact. Both parties also agreed that the Claimant had not fully liquidated his loan indebtedness as at the time he was disengaged by the Defendant. Under cross examination, the Claimant had stated that he had some amount outstanding on the loan. There is sufficient evidence to grant this head of counterclaim. I so do. Accordingly, the Claimant/Defendant to the counter claim is ordered to pay to the Counter-Claimant the sum of =N=4,986,419.98 (Four Million, Nine Hundred and Eighty Six Thousand, Four Hundred and Nineteen Naira and Ninety Eight Kobo) as sought being the outstanding balance due to the Counter-claimant on Vehicle Purchase Loan. This sum of money shall be paid with interest at the rate of                                                                                                                                                                                           20% per annum from the date of this Judgment until final liquidation.

 

6.         Conclusion

89.       Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, –

 

1.         I declare that the termination of the employment of the Claimant by the Defendant is wrongful and without any justifiable basis.

2.         I award the sum of One Hundred Million Naira (=N=100,000,000.00) only as exemplary damages against the Defendant and in favor of the Claimant. The Defendant is here ordered to pay the said sum of One Hundred Million Naira forthwith to the Claimant.

3.         I award to the Claimant his 2 years salary in the sum of Sixty Million Naira (=N=60,000,000.00) as general damages for the wrongful termination of his employment without justifiable basis. The Defendant is ordered to pay to the Claimant the sum of Sixty Million Naira only (=N=60,000,000.00) as general damages as awarded.

4.         I award and order the Defendant to pay to the Claimant the sum of One Million Naira (=N=1,000,000.00) as cost of this action.

5.         The Claimant/Defendant to the counter claim is ordered to pay to the Counter-Claimant the sum of =N=4,986,419.98 (Four Million, Nine Hundred and Eighty Six Thousand, Four Hundred and Nineteen Naira and Ninety Eight Kobo) as sought being the outstanding balance due to the Counter-claimant on Vehicle Purchase Loan.

6.         All the sums of money due and payable under this Judgment both to the Claimant and the Counter claimant shall be paid with interest at the rate of 20% per annum from the date of this Judgment until final liquidation.

 

90.       This Judgment shall be complied with immediately

 

91.       Judgment is entered accordingly.

 

 

___________________

Hon. Justice J. D. Peters

 

Presiding Judge