IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP: HON. JUSTICE P. I. HAMMAN
DATE: WEDNESDAY 27TH JULY, 2022 SUIT NO: NICN/PHC/114/2020
COMRADE AKPAN PAULINUS ANIEDI ---------- CLAIMANT
PORT HARCOURT ELECTRICITY DISTRIBUTION COMPANY ---- DEFENDANT
1.1. This Complaint together with the Statement of Facts was filed by the claimant against the Defendant on the 11th day of September, 2020 wherein the claimant claims the following reliefs against the Defendant:
a. A Declaration that the Defendant is in breach of the contract of Employment/Job Description entered between the Defendant and the Claimant on November 1, 2013.
b. A Declaration that the purported termination of employment of the Claimant by the Defendant is unlawful and mere victimization of the Claimant.
c. An Order directing the Defendant to pay to the Claimant the sum of N1,608,023.24k (One Million, Six Hundred and Eight Thousand, Twenty Three Naira, Twenty Four Kobo) representing the unpaid leave allowances from 2014 to 2020.
d. An Order directing the Defendant to withdraw its purported termination of employment and reinstate the Claimant with full payment of all accrued salaries and allowances from May, 2020 to date.
e. An Order directing the Defendant to promote the Claimant to the appropriate grade level 14 (Administrative) which is long overdue.
f. An Order directing the Defendant to pay to the Claimant the sum of N22, 297.47 (Twenty Two Thousand, Two Hundred and Ninety Seven Naira, Forty Seven Kobo) every month, representing uncontributed pension fund for the Claimant from May 2020 till date.
g. The sum of One Hundred Million Naira (N100,000,000) representing the cost of litigation and general damages for breach of contract of employment.
h. 10% post judgment interest till judgment sum is liquidated.
1.2. Upon receipt of the Originating Processes, the Defendant filed Memorandum of Appearance, Statement of Defence, List of Witness, Witness Statement on Oath, List of Documents and frontloaded documents on the 19th of November, 2020 which were however deemed by the court on the 3rd of February, 2021. The claimant filed a Reply to the Statement of Defence together with an additional deposition on the 3rd of February, 2021. With the leave of court granted on 28th of June, 2021 the Defendant filed an Amended Statement of Defence together with witness statement on oath, List of additional documents and frontloaded documents on the 14th of July, 2021. The claimant then filed a Reply to the Amended Statement of Defence together with an additional witness statement on oath on the 26th of July, 2021.
1.3. Trial in this suit started on the 28th of July, 2021 when the claimant opened his case by testifying for himself as CW. The witness affirmed to speak the truth before he identified and adopted his two depositions filed on the 11th of September, 2020 and 26th of July, 2021. The following documents were then tendered through the Claimant and admitted by the court:
1. National Electric Power Authority Offer of Temporary Appointment as enumerator dated 16th May, 2005 --- exhibit CW1.
2. PHCN Offer of Temporary (Non Pensionable) Appointment dated 11th October, 2006 ------ exhibit CW2.
3. Letter of promotion dated 4th August, 2010 ----- exhibit CW3.
4. PHCN Offer of Six Month Contract of Employment dated 21st October, 2013 ---- exhibit CW4.
5. Port Harcourt Electricity Distribution Company Extension of Employment Contract dated 22nd April, 2014 ----- exhibit CW5.
6. Port Harcourt Electricity Distribution Company Offer of Provisional Employment dated 31st May, 2014 -------- exhibit CW6.
7. Port Harcourt Electricity Distribution Company Confirmation of Appointment dated 22nd December, 2014 ------ exhibit CW7.
8. Memo of redeployment dated 31st December, 2014 --- exhibit CW8.
9. Port Harcourt Electricity Distribution Company Draft Conditions of Service ----- exhibit CW9.
10. Document on Leave allowance dated 21st March 2020 ----- exhibit CW10.
11. Memorandum of Understanding of 11th September, 2019 --- exhibit CW11.
12. Senior Staff Association of Electricity and Allied Companies letter dated 13th February, 2020 ------------- exhibit CW12.
13. Query dated 6th May, 2020 ----------- exhibit CW13.
14. Invitation to appear before Disciplinary Committee dated 13th of May, 2020 --------- exhibit CW14.
15. Solicitor’s letter of Atlaw Solicitors dated 26th May, 2020 -- exhibit CW15.
16. PHED letter dated 2nd June, 2020 ----------- exhibit CW16.
17. Solicitor’s Cash Receipt of Atlaw Solicitors dated 20th August, 2020 ---- exhibit CW17.
18. Letter of Senior Staff Association of Electricity and Allied Companies dated 20th March, 2020 --- exhibit CW18.
19. PHED Performance Appraisal Report (2018) dated 26th July, 2019 ---- exhibit CW19.
20. PHED Requisition for Advance dated 28th April, 2020 ------ exhibit CW20.
21. Claimant’s Response to Query dated 6th May, 2020 ----- exhibit CW21.
22. PHED Memo dated 11th May, 2020 ------- exhibit CW22.
23. PHED Letter of Termination of Appointment dated 15th May, 2020 -------- exhibit CW23.
24. Solicitor’s letter of Higher King Chambers dated 30th May, 2020 ------- exhibit CW24.
25. Letter of Senior Staff Association of Electricity and Allied Companies dated 23rd June, 2020 ----------- exhibit CW25.
26. PHED letter dated 9th July, 2020 ---------- exhibit CW26.
27. Letter of Senior Staff Association of Electricity and Allied Companies dated 5th August, 2020. --------- exhibit CW27.
28. PHED Requisition for Advance dated 7th February, 2017 --- exhibit CW28.
29. The Distribution Code for the Nigeria Electricity Distribution System ---- exhibit CW29.
30. PHED energy Reconciliation Meeting dated 10th June, 2016 ---- exhibit CW30.
The witness was cross-examined by the Defendant’s counsel and discharged without any re-examination. The Claimant closed his case on the 5th day of October, 2021.
1.4. The Defendant opened its defence on the 9th of November, 2021 by calling its sole witness Jubilee Edegbai (the Lead Employee Relations) who testified as DW. The witness affirmed to speak the truth before she adopted her Witness Statement on Oath made on the 14th of July, 2021. The following documents were tendered through the witness and admitted by the court:
1. Port Harcourt Electricity Distribution Plc Condition of Service June, 2020 ------ exhibit DW1A.
2. Port Harcourt Electricity Distribution PHED People Handbook October 2015 ------ exhibit DW1B.
3. PHED Leave Application Form ------- exhibit DW1C.
4. PHED Leave Application Form for 2018 ----- exhibit DW1D.
5. PHED Leave Application Form for 2019 ---- exhibit DW1E.
6. PHED Leave Application Form dated 24/10/2016------ exhibit DW1F.
7. CTC of Return of Allotment (Post Incorporation) Form CAC 2A for Port Harcourt Electricity Distribution Company Plc ---- exhibit DW1G.
8. PHED Pay Advice for December, 2019 ------- exhibit DW1H.
9. PHED Pay Advice for January, 2020 ------- exhibit DW1J.
10. PHED Pay Advice for February, 2020 -------- exhibit DW1K.
11. PHED Pay Advice for March, 2020 ---------- exhibit DW1L.
12. PHED Sanction Grid (Revised) --------- exhibit DW1M.
13. Oceanic Health Management Limited Client Data Form dated 16th July, 2019- ------ exhibit DW1N.
14. PHED Internal Memo dated 14th May, 2020 --------- exhibit DW1P.
15. PHED Internal Memo dated 11th May, 2020 --------- exhibit DW1Q.
16. PHED Internal Memo dated 13th May, 2020 --------- exhibit DW1R.
The witness was cross-examined by the learned counsel to the claimant during which two documents which are the PHED letter of termination of appointment in the name of Olatunde Olusoji Michael dated 25th November, 2020 and the PHED letter of termination of appointment in the name of Udofia Richard Maurice dated 10th December, 2020 were admitted under protest and marked as exhibits DW1S and DW1T respectively. The witness DW was discharged on the 8th of December, 2021 without any re-examination. The Defendant then closed its case on the 8th of December, 2021.
1.5. When the matter came up on the 26th day of May, 2022 for adoption of final written addresses, B. Chukwudi appeared for the Claimant while S. I. Nengia appeared for the Defendant. Parties thereafter adopted their Final Written Addresses. The Defendant’s Final Written Address dated 29th December, 2021 was filed on 11th January 2022, while the Final Written Address of the Claimant dated 1st February, 2022 was filed 14th February, 2022. The Defendant filed a Reply on Points of Law on the 18th of February, 2022.
THE CASE OF THE CLAIMANT:
2.1. The Claimant avers that he was employed by the defunct Power Holding Company of Nigeria Plc, Port Harcourt Distribution Zone on the 5th of May, 2005, and after the six months period of probation he was issued letter of temporary appointment as officer II (Level 8) on 11th October, 2006, and later promoted from officer II to Officer I (Level 9) on 4thAugust, 2010.
2.2. That as a result of the reforms in the power sector and the privatization of the Power Holding Company of Nigeria Plc, the Port Harcourt Electricity Distribution Company (the defendant in this suit) offered to him another six-month contract of employment on 21st October, 2013 which was extended vide letter dated 4th April, 2014. The employment was confirmed on the 22nd of December, 2014, before he was redeployed as an Energy Accounts Analyst on 31st December, 2014.
2.3. According to the claimant, he was never granted any annual leave despite his several applications, and no leave allowance has ever been paid to him even as he is entitled to cash conversion of the 21 (Twenty-one) days annual leave as contained in the conditions of service and PHED Hand Book amounting to the sum of N1,608,023.24k from the period of 2014 to 2020. That in view of the defendant’s poor working relationship with the workers and the numerous punitive measures and sanctions put in place against workers, the Claimant as the branch President of Senior Staff Association of Electricity had to interface with the management of the Defendant on the global best practices on labour and conditions of service for members, as a way of settling grievances to prevent picketing and/or strike action. That some of such interventions are the Memorandum of Understanding held on September 11, 2019 between PHED Management and the Union on the August 2019 salaries, resolution on part payment of January 2020 salary held on February 13, 2020 and PHED revised sanction grid and objections to the provisions directly trampling on employees individual/group existence held on March 20, 2020.
2.4. That on 30th April, 2020 the Claimant with the approval of the Defendant and in lieu of the May 1, 2020 workers day celebration that could not be celebrated due to the COVID-19 pandemic, as the branch President of Senior Staff Association of Electricity and Allied Companies (SSAEAC), South/South Zone called for a briefing of all union members in commemoration of the workers day in advance and addressed them on issues of welfare and security of electricity workers during the Rivers State partial lockdown. The members at the gathering of April 30, 2020, unanimously agreed not to accept the Defendant's proposal to pay 40% salary to workers. After the briefing the claimant embarked on an official trip to Akwa-lbom to carry out an official assignment of monthly boundary meter reading of the Energy Audit Unit for the purpose of transparency of the energy billing process by the Market Operators (MO).
2.5. The Claimant avers further that despite the approvals for the trip, on return he was issued a query by the Defendant for embarking on the trip without approval which he responded to. That a Disciplinary Committee was constituted on the 8th of May, 2020 which invited him and he appeared before the Committee including some of the staff who were also invited and interrogated. That even though he was exonerated in the report of the disciplinary committee of 8th May, 2020, the Defendant was not comfortable with the report and immediately directed that the committee members should further deliberate on the matter and to report as prescribed. The committee in the bid to carry out the instruction of the Defendant served on him on 13th May, 2020 a notice for second sitting of the committee on the same subject matter which the committee had deliberated upon and found him not guilty. The Claimant acknowledged the second invitation and appeared before the Disciplinary Committee. That in the committee’s report dated 13th May, 2020 he was now indicted.
2.6. That it was based on the second report of the Disciplinary Committee of 13th May, 2020 that the claimant was issued a purported termination letter dated 15th May, 2020 which was sent through his personal email address and also through his guarantor, Mr. Akan George Okon who resides at Uyo, Akwa-lbom State. That since the guarantor insisted that the letter be given to the Claimant personally, it was then sent to the premises of the Claimant through a courier company.
2.7. That despite his letters which were responded to by the defendant vide its letter of 2nd June, 2020, the invitation of the defendant by the Akwa-lbom State House of Assembly on the issue of the purported termination and general welfare of workers under Akwa-Ibom State’s slot that are working with the Defendant and the letter of the Senior Staff Association of Electricity and Allied Companies dated 23rd June, 2020 to the Defendant appealing for reconsideration of the termination of the Claimant by the Defendant which the defendant replied vide its letter of 9th July , 2020, the defendant has not rescinded its decision.
2.8. That the Senior Staff Association of Electricity and Allied Companies also wrote to the Zonal Controller Federal Ministry of Labour and Employment Port Harcourt Zone for intervention letter dated 5th August, 2020, and in reaction the Federal Ministry of Labour and Employment invited both parties vide its letter dated 19th of August, 2020, and the M.D/C.E.O of the Defendant Mr. Henry Ajagbawa sent some representatives who informed the Federal Ministry of Labour and Employment that all issues raised cannot be determined by them unless they report back to the M.D/C.E.O, hence the meeting was inconclusive.
2.9. That the Claimant has been the personnel assigned for energy audit and accounting since November 2013 till the purported termination of the employment as inter disco/boundary meter reading/check has been his regular routine every month as contained in the Distribution Code of Nigeria Electricity Distribution System approved by the Nigeria Electricity Regulatory Commission (NERC).
2.10. That even though four of them including Mr. Robert Ojeka from Regulatory Department, a security man (Mopol) and a driver embarked on the official trip and were all paid individual travel allowances, only the Claimant was issued query and had his employment terminated. That the Defendant stopped the Health Maintenance Organization (HMO) of the Claimant and made it impossible for the Claimant and the family to have access to health facility when his wife was having health complications in respect of her seven months pregnancy which was lost due to actions and inactions of the Defendant. That he has suffered both psychological trauma and economic hardships occasioned by the Defendant's action of victimization on him which made him to engage the services of some Solicitors at a very high cost to handle the matter for him.
3.1. The Defendant avers that it was licensed in 2013 by the Nigerian Electricity Regulatory Commission (NERC) for the distribution of electricity in Akwa Ibom, Bayelsa, Cross River and Rivers States, and commenced business on the 1st day of November, 2013. That it employed the claimant on the 31st of May, 2014 which the claimant accepted on the 3rd of June, 2014. That the claimant’s employment was duly terminated for gross misconduct on the 15th of May, 2020 based on the recommendation of a Disciplinary Committee.
3.2. That there are two labour Unions in the defendant namely- the Senior Staff Association of Electricity and Allied Companies (SSAEAC) and the National Union of Electricity Employees (NUEE) to which interested employees of the defendant belong. That the defendant only had a draft Conditions of Service which was to come into effect upon execution by the representatives of the two unions, but while the representatives of SSAEAC signed the proposed Conditions of Service on 10th June, 2020, the NUEE representatives identified some areas they wanted amended hence did not sign the document. This necessitated another review of the document as the defendant cannot afford to have two different Conditions of Service for the same set of employees. That the proposed condition of service as amended at the request of NUEE was signed by NUEE on 7th of October, 2020.
3.3. According to the defendant, the claimant is only entitled to 20 days annual leave under his contract of employment and went on leave in 2016, 2017, 2018 and 2019 and was paid his leave allowances. The Claimant was not qualified for leave in 2015 and did not apply for year 2020 leave before his exit on 15th of May, 2020. That the leave allowance payable to the Claimant has always been prorated and paid monthly together with the Claimant's basic salary and other allowances. That the defendant is therefore not indebted to the Claimant in the sum of N1,608,023.24 or any sum at all as leave allowance or allowance for unutilized leave period.
3.4. That the defendant provides a safe and comfortable working environment for all of its employees and insists on a work environment that prioritizes safety and enables all its employees to perform optimally, and the defendant among other packages has health insurance scheme which the Claimant and his family benefited from before the termination of the Claimant’s appointment.
3.5. The defendant further avers that it used to spend huge sums of money every month on hotel bills, transportation, out of station allowances to have its employees in the Energy Audit Unit domiciled at its headquarters in Port Harcourt travel to different states where the defendant operates for boundary meter reading every month, and also that the monthly travels undertaken by its employee in Port Harcourt to the states was grossly inefficient as a result of delays in preparing for the trip, hiring of mobile policemen, occasional breakdown of vehicle on the road and therefore undesirable given that meter reading could also be undertaken by its employees in those other states seamlessly. In March, 2020 the defendant decentralized monthly boundary reading of meters and reassigned the role to its employees in each of the states it operates who had previously been trained for the role which was communicated to the Claimant by his superiors verbally and by email.
3.6. That notwithstanding the notice of the decentralization and re-assignment of the role of boundary meter reading to the employees of the respective states where the defendant operates, the Claimant in May, 2020 falsely represented to the newly engaged head of Energy Audit Unit (Mr. Canice Obi) that traveling to other states which the defendant operates for boundary meter reading was an existing routine job of the Energy Audit unit. That the trip undertaken by the claimant to Akwa Ibom State in May, 2020 for the purported boundary meter reading was not duly authorized by the defendant but obtained through concealment, suppression and misrepresentation of material facts, hence the query to the claimant. That a Disciplinary Committee (DC) was set up for the claimant because the defendant was not satisfied with the claimant's reply to the query issued to him, and the claimant was given adequate opportunity to express himself and to answer the questions put to him in all the sittings of the Disciplinary Committee. The Disciplinary Committee in its final report found that the claimant deliberately suppressed and misrepresented facts relating to monthly boundary meter reading in order to get his new head of department/immediate supervisor approve his application for travel allowance and by extension, the trip to Akwa Ibom State for the purported boundary meter reading. That the employment of the Claimant was duly terminated on the recommendation of the Disciplinary Committee and in accordance with the defendant's extant HCM Handbook and Sanction Grid. The termination was communicated to the Claimant vide electronic mail through email@example.com and hard copy sent to the claimant’s last known address in his employee's file on the receipt of which the claimant through his solicitors wrote to the defendant.
3.7. That at no time did the defendant’s MD/CEO had conversation with the Claimant wherein the MD/CEO threatened to dismiss the Claimant or in any way whatsoever indicated that he will show the Claimant the way out from the Defendant. That the defendant duly replied to the letters written by the Union and also honoured the invitation by the Port Harcourt Zonal office of the Federal Ministry of Labour and Employment for a meeting over the disengagement of the Claimant where it was proposed to the defendant that the Claimant be given an opportunity to resign instead of termination after which the meeting was adjourned to 23rd September, 2020, but before the return date the claimant had commenced this suit in court.
3.8. That the Claimant was not employed by the Defendant as Energy Account Analyst but as a Marketing Officer (MKT 1) and only subsequently deployed to Energy Audit Unit, and the contract of employment permits the defendant to withdraw and re-assign any role it had previously assigned to the Claimant to perform to any of its employees. The Court was urged to dismiss this action in its entirety for being frivolous, speculative and lacking in merit.
4.1. The learned counsel to the Defendant submitted this sole issue for the determination of the court, to wit: Whether the claimant has proved that the termination of his employment was not in accordance with the terms of his employment to be entitled to the reliefs sought.
4.2. It was submitted on the lone issue that since the claimant is alleging wrongful termination of his employment, the onus is on him who asserts to prove same by establishing through credible evidence that he entered into a contract of employment with the Defendant, lay before the Court the terms of the said contract and state the way or manner the Defendant breached the contract. See Texaco Nigeria Ltd V. Kehinde (2002) FWLR (Pt.94) 143 at 157 para E –G.
4.3. That even though the Claimant tendered several documents relating to his contract of employment, none of the documents shows that the Defendant entered into a contract of employment with the Claimant on 1st of November, 2013 as alleged by him. That even if the Defendant had any working relationship with the Claimant on 1st of November, 2013 such working relationship or contract was rescinded by the exhibit CW6 which duly terminated the employment relationship between the parties, and the termination of the contract is not a breach of contract of employment as alleged by the claimant.
4.4. Learned counsel referred to exhibit CW23 and submitted that the reason stated for the termination of the Claimant’s employment is “Gross misconduct i.e. deliberate misrepresentation which has or could have the potential to destroy the employment and trust relationship”. That deliberate misrepresentation simply denotes intentional non-disclosure or concealment of a fact or information as defined by the Webster Dictionary. That at common law and by exhibit DW1M misrepresentation of fact/information by an employee on his employer’s business operation amounts to a misconduct. See also Article 4 and Article 91(1) of exhibit DW1B which makes breach of any core value of the defendant a ground for termination, and the Defendant is therefore entitled to terminate an employee for breach of the company policy under Article 90 of exhibit DW1B.
4.5. That the fact misrepresented and suppressed by the Claimant is the decision of the Defendant to decentralize boundary meter reading which was communicated to the claimant orally as well as through the internet/email which are Defendant’s modes of dissemination of information to its employees vide Article 13 (12.4) of exhibit DW1B which the claimant replied to as stated in exhibit CW21. That the claimant failed to disclose to his newly employed supervisor that the defendant had decentralized meter boundary reading. That the claimant’s denial of misrepresenting or suppressing any fact is not correct in view of exhibit CW21, and since averment in pleadings do not translate into evidence in law, the court should not place reliance on such averments of the claimant. See Bassey V. Pamol (2009) 6 NWLR (Pt. 1136) 36.
4.6. With respect to the assertion that the Defendant breached the job description issued to the claimant, it was argued that by exhibit CW8 and Article 66(1) and (2) of exhibit DW1B, the Claimant was not originally employed in the Energy Audit Unit but was subsequently deployed/assigned to a role in the unit, and the defendant is entitled to reassign or change the Claimant’s job description as well as transfer the Claimant at any time within a state or to any other state where the defendant carries on business. That the claims for declaratory reliefs are not granted as a matter of course; the Claimant must lead credible evidence to prove same. See A.G Federation V. Ajayi (2000) 12 NWLR (Part 682) 509 at 527 C – D.
4.7. It was further posited that in addition to the common law right of an employer to terminate its employee, clause 7 of exhibit CW6 expressly confers this right on the defendant when it stipulates that the Defendant shall have the right to terminate the Claimant's employment without being liable for compensation or damages for misconduct. That since the employment is not one with statutory flavour, the termination cannot be adjudged unlawful, referring to the case of Union Beverages V. Owolabi (1998)1 NWLR (Pt. 88) 128.
4.8. That the claimant also failed to prove the allegation of victimization because by Article 77 of exhibit DW1B the defendant’s CEO or his designated officer has the power to review report of investigations/hearings and approve disciplinary recommendations. He may approve or send the report back to the committee to address any issue which no finding has been made and may even reject the entire report. That it was based on this power that the M/D of the Defendant requested the Disciplinary Committee to make specific findings on the issues the Committee had failed to make specific findings on, and this cannot by any standard amount to or be adjudged victimization as speculated by the Claimant. That the claimant’s conduct affected the operation of the Defendant in severally ways including unwarranted expenditure (travelling allowance, etc.), and also amounts to working against the interest of the defendant which amounts to gross misconduct. See Babatunde Ajayi V. Texaco (1987) 3 NWLR 577 at 579 ratio 12.
4.9. That since the claimant failed to prove the principal reliefs, he is also not entitled to the other reliefs in this action. That to succeed on the claim on unpaid leave Allowance amounting to the sum of N1,608,023.24k from 2014 to 2020, the claimant must show that he is entitled to leave allowance, the amount payable and show that he has not been paid the allowance from 2014 to 2020, as well as how he arrived at the said sum of N1,608.023.24. That the claimant failed to establish this claim and same should be refused. That while by exhibit CW6 the Claimant’s employment was effective 1st June, 2014, by exhibit DW1B he was not qualified for any annual leave in 2014 having not worked up to 12 months, by exhibit CW23 he is not entitled to leave in 2020 having been disengaged before the first half of 2020 and by exhibits DW1C – DW1F the Claimant took his leave periodically. That by exhibits DW1H – DW1L the Defendant prorated the claimant's leave allowances and paid same to the Claimant together with his monthly salary.
4.10. On the claim for reinstatement and promotion it was posited that the court does not foist a servant on an unwilling employer and vice versa. That reinstatement is not a remedy for termination of employment not governed by statute. See: Opuo V. NNPC (2001) FWLR (Pt. 84) 11 at 27 paras. G-H. That promotion in the Defendant is at the discretion of the Defendant and it cannot be granted to an employee whose conduct undermines the operation of the Defendant and who has received a query. The court was urged to refuse these reliefs.
4.11. With respect to the claim for pension contribution amounting to the sum of N22, 297.47 every month representing the un-contributed pension fund for the Claimant from May 2020 till date, it was submitted that the claimant has not placed anything before the court to show that the Defendant contributes the said N22,297.47 on behalf of the Claimant monthly. The court was urged to refuse this claim.
4.12. On the claim for N100,000,000 as cost of litigation and general damages, it was argued that even if the court finds that the Claimant’s employment was not duly terminated, he would not be entitled to the sum claimed because damages is not a claim to be awarded as a matter of course. See UBA V. Ekanem (2010) 2 NWLR (Pt. 1177),181 at 196 para. C-D. That in the unlikely event the court holds that the employment was wrongly terminated, the claimant would only be entitled to one month’s notice. See Olatunbosun V. NISER (1988)3 NWLR (Pt. 80) 25 at 29 and exhibits CW6 and DW1B which permit the Defendant to terminate the employment with one month notice, and also summarily for misconduct without incurring any liability. That by the decision in the case of S.S. Co Ltd V. Afropark (2008)18 NWLR (Pt. 1118) 77 speculative, sentimental and injured feelings cannot be considered in assessment for wrongful dismissal/termination. The court was urged to dismiss the suit.
5.1. The learned counsel to the Claimant submitted two (2) issues for the determination of this court, to wit:
1. Whether considering the state of pleading and evidence led in this suit, the claimant has not proved his case and entitled to the reliefs sought.
2. Whether the claimant was granted fair hearing in the outcome of the panel findings upon which the claimant’s employment was terminated.
5.2. The learned counsel argued on issue one (1) that the claimant who has the onus of proving his case with credible and cogent evidence and to discharge the burden on the balance of probability has proved his case, and is entitled to the reliefs in this suit. See Sections 131, 132 and 134 of the Evidence Act, 2011 and Abayomi V. Saap - Tech (Nig.) Ltd (2020) NWLR (Pt. 1706) P. 453 at 468 Ratios 11 and 12, Augustine Ikem V. Vidal Packaging Ltd and Anor. (2011) All FWLR (Pt. 601) PG. 1476 at 1512 Paras. D-E.
5.3. That from exhibit CW13 the alleged misconduct against the Claimant is his failure to inform his supervisor (Mr. Canice Obi) about the management’s previous decision to decentralize monthly boundary meter reading and that Energy Audit Staff are not required to travel at the end of every month; and the claimant secured approval to travel for the monthly boundary meter reading thereby violating section GMC 38 of the Defendant's Sanction Grid i.e. “General Indiscipline”. That since the proceedings of the Disciplinary Committee of 8th May, 2020 was fairly conducted and the panel exonerated the Claimant as contained in exhibit CW22, the subsequent findings of the Disciplinary Committee on 13th of May, 2020 is an afterthought and a party cannot approbate and reprobate at the same time. See Osemeikhian V. Edionwele (2016) All FWLR (Pt. 838) S.C. Pg 942 at 946 ratio 5. That the findings of the Disciplinary Committee on 13th of May, 2020 clearly showed that it was only reconvened to indict the Claimant and victimize him, and the termination of the Claimant’s employment on the basis of the Disciplinary panel findings of 13th of May, 2020 is unlawful, discriminatory and an act of victimization. See Chartered Bank V. Adegbite (2019) NWLR (Pt. 1653) P. 348 at 354 Ratio 5.
5.4. It was further argued that the Defendant who alleges that the Claimant was aware and informed of the decentralization of boundary meter reading failed to produce any internal memo sent to the Claimant, and the Defendant granted the approval not only to the Claimant but also to others from other departments that accompanied the Claimant on the trip. That under Section GMC 38 of the Defendant’s Sanction Grid even if the Defendant was to act on the finding of Disciplinary Committee of 13th of May, 2020, it ought to issue the Claimant final written warning and not termination letter. That in law the employer is not bound to give reason for the termination of the employee’s employment, but where he elects to give reason such reason must be proved for the termination to be lawful. See Coca-Cola (Nig.) Ltd V. Akinsanya (2017) 17 NWLR (Pt. 1593) P. 74 at 117.
5.5. That since reliefs ‘d’ and ‘e’ are auxiliary to reliefs ‘a’ and ‘b’, and the claimant has proved reliefs ‘a’ and ‘b’ he is entitled to reliefs ‘d’ and ‘e’. See Ogoke V. Nduka (2020) 4 NWLR (Pt. 1715) P.509 at 515 Ratio 2 and Government of Kwara State V. Lawal (2007)12 NWLR (Pt. 1051) P. 365.
5.6. For reliefs ‘c’ and ‘f’ the claimant’s counsel referred to paragraphs 14 and 15 of the Statement of Facts and paragraph 16 of the witness deposition filed on 11th of September, 2020 as well as paragraph 5 of the additional witness deposition filed on 3rd February, 2021 and posited that since the Claimant has shown that he was not allowed to proceed on annual leave he is entitled to the cash conversion of the 21 days annual leave from year 2014 to 2020 totaling N1,608,023.24k as contained in the leave allowance breakdown dated 21st March, 2020 attached to exhibit CW9. That exhibits DW1D, DW1E, DW1F, DW1H, DW1J, DW1K, DW1S and DW1T all go to show that the Claimant was entitled to leave allowance from 2014 to 2020, and the Defendant never paid any leave allowance to the Claimant, and that leave allowance is not part of monthly salary. That in law where documentary evidence supports oral testimony such oral testimony becomes more credible, referring to the case of Okunta V. Odeyh (2015) All FWLR (Pt. 764) C.A. Pg. 136 at 141 Ratio 7.
5.7. It was further argued that where the termination of a contract of service is wrongful, the Claimant is entitled to damages for the length of time during which the notice of termination would have been given in accordance with the contract of employment, and also entitled to other legitimate entitlements due to him at the time the employment was brought to an end. See Reliance Telecommunication Ltd V. Adegboyega (2017) 8 NWLR (Pt. 1567) P. 319 at 322 Ratio 3.
5.8. In response to paragraph 5.2 of the Defendant’s Final Written Address it was argued that Article 5.1 at Page 26 of the condition of service (exhibit CW9) makes annual leave an entitlement of all employees whose employments have been confirmed, and by exhibit CW7 the Claimant’s employment was confirmed by the Defendant in 2014. That exhibits DW1C-DW1F are only application forms without any evidence of approval, and the payments in exhibits DW1H-DW1L are monthly salary payments and not the annual leave entitlements.
5.9. In response to paragraphs 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 4.0,4.1,4.2,4.3,4.4,4.5 and 4.6 of the Defendant’s Final Written Address it was contended that exhibits CW6, CW7 and CW8 show that the Claimant was employed by the Defendant and redeployed as Energy Accounts Analyst, and exhibit CW9 is the condition of service applicable to the Claimant’s employment with the Defendant. The court was urged to resolve issue one (1) in favour of the Claimant.
5.10. With respect to issue two (2) it was argued that two different proceedings were conducted leading to the termination of the Claimant’s employment, and the outcome of the second proceeding was used in terminating the employment. That the claimant was not given fair hearing before the termination of his employment. See Ugwu and Ors. V. Alaebo and Ors. (2016) LPELR-41510(CA) and Kotoye V. C.B.N. (1989) 1 NWLR (Pt. 98) Page 419 at 444.
5.11. That the defendant did not observe the principles of fair hearing because the panel was constituted from among the staff of the defendant who are answerable to the M/D of the Defendant who took the decision of terminating the employment of Claimant without any review or reference to the Board of the Defendant. That the Defendant acted as the complainant, the prosecutor and the judge. That section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) applies not only to a Court or a tribunal established by law but also to any panel or body set up to determine the civil right or obligation of a citizen whether administrative, judicial, quasi-judicial or executive. See Jubril V. Mil. Admin. Kwara State (2007) 3 NWLR (Pt. 1021) page 357, Bakare V. L.S.C.S.C. (1992) NWLR (Pt.262) Page 641 and NJC V. Yerima (2014) LPELR-24208 (CA). The court was urged to resolve issue two (2) in favour of the Claimant.
5.12. That the claimant has proved his case and is therefore entitled to his claims, and the Court was urged to enter judgment for the Claimant.
DEFENDANT’S REPLY ON POINTS OF LAW
6.1. It is pertinent to note that the Defendant filed a Reply on Points of Law on the 18th day of February, 2022.
6.2. With respect to the Claimant’s argument that he was not granted fair hearing prior to the termination of his employment, it was replied that on the authority of Imonkhe V. Unity Bank Plc (2011)12 NWLR (Pt. 1262) 624 an employee who was issued a query and he replied, and also given opportunity to defend himself before a Disciplinary Committee without any hindrance prior to his disengagement, cannot legitimately complain of breach of fair hearing.
6.3. On the claimant’s argument at paragraph 3.5 of his final written address that the failure to tender an internal memo showing that the decentralization of boundary meter reading was communicated to him shows that he was not aware of and/or not notified of the decentralization of boundary meter reading, it was replied that facts admitted by a party needs no further proof. That by exhibit CW13 the Claimant stated that he received a mail on the boundary meter decentralization and replied to it which means that the decentralization of the boundary meter reading was duly communicated to the Claimant.
6.4. That the Claimant who urged the court to rely on his evidence and enter judgment in his favour stated in exhibit CW13 that he received an email notifying him of decentralization of boundary meter reading, and in another breathe stated in paragraphs 16 and 17 of his written statement of oath filed on 26th of July, 2021 that he was not aware of the decentralization of the boundary meter reading. That where there are discrepancies and contradictions in the evidence of a witness on a material issue the court should reject the evidence of such a witness in its entirety. That it is not the duty of the court to choose and pick from the contradictory evidence but to disbelief the testimony of the witness and to reject such evidence. See Okafor V. Ilukwe (2013)16 NWLR (Pt.1363) 465 at 488, Paras. F and Ekweozor V. Reg. Trustee, SACN (2014)16 NWLR (Pt. 1434) 433 at 475, paras. B - C.
6.5. The court was urged to reject the submissions of the Claimant and dismiss the suit.
7.1. Having pored over the pleadings, evidence and submissions of both learned counsel to the parties, it is noted that the defendant’s lone issue is identical to the claimant’s issue one (1) submitted for the court’s determination. That being the case, the single issue that calls for determination in this suit is whether from the state of pleadings and evidence the claimant has proved his case to be entitled to the reliefs he is seeking in this suit. The claimant’s second issue relating to alleged breach of fair hearing shall be considered in the course of resolving the sole issue identified by the court.
7.2. It could be recalled that during the cross-examination of the Defendant’s witness Jubilee Edegbai on the 8th of December, 2021 the learned counsel to the Defendant informed the court of his intention to object to the admissibility of exhibits DW1S and DW1T during closing addresses. I have however scanned through the entirety of the Defendant’s Final Written Address filed on the 11th of January, 2022 and the Reply on Points of Law filed on the 18th of February, 2022 and have not seen such argument challenging either the admissibility or even the issue of the weight to be attached to the said exhibits. That being the case, it is taken that the Defendant has waived any challenge on the admissibility of the exhibits, and they shall be countenanced in this judgment. I so find and hold.
7.3. With respect to the issue identified by the court for determination in this suit, in order to establish his case before the court the claimant gave evidence for himself vide his statement on oath of 11th September, 2020 and the further statement on oath filed on the 26th of July, 2021, and also tendered exhibits CW1 to CW30 as well as exhibits DW1S and DW1T through the Defendant’s witness. During his cross-examination the claimant answered that he cannot recall the exact date his employment was confirmed but that it was between 2014 and 2015. He affirmed stating in exhibit CW21 that the decentralization of boundary meter could undermine transparency, and also that based on the agreement between the various Distribution Companies and the Transmission Company of Nigeria (TCN) the boundary meter reading is solely the responsibility or mandate of the Energy Audit Department. He mentioned the risks he took in boundary meter reading to include the issues of communal clashes between communities especially between Ebonyi and Cross-River States where he was attacked for more than four times, road accident and kidnapping. That he informed the defendant of the attacks in the reports even though he did not have the reports in court, and that both the employer and the employee suffer the consequence of not sponsoring an employee for boundary meter reading. That while the employer may be fined if the report is not submitted on or before 5th of every month to the market operators TCN and NBET, the employee may be queried for not doing his job. He further answered that it was only the Adhoc Committee and himself that attended the meeting with the MD, and refuted stating in paragraph 11 of his Reply to the Statement of Defence that a certain employee was sacked, but affirmed stating in his deposition that the defendant has poor conditions of service becaue he was last promoted in 2010 and only few individuals benefit from the medical scheme. That he worked for the defendant from 1st of November, 2013 after the unbundling till when his appointment was terminated in May, 2020. That rather than staying idle and indulge in criminal activities, he will accept an employment by any company with the conditions of service like that of the defendant even though it is poor.
7.4. The evidence in chief of the defendant’s witness Jubilee Edegbai is as stated in her statement on oath filed on the 14th of July, 2021 which the witness adopted on the 9th of November, 2021. The defendant also tendered exhibits DW1A to DW1R. The highpoints of the answers elicited from the witness during her cross-examination are that when the claimant was with the defendant he was in the Energy Audit and Accounting Department and he was given job specification as an Energy Accounts Analyst, but that she is not in the claimant’s department. That nothing changed in the claimant’s job description except the boundary meter reading that they were asked to stop due to safety reasons which was communicated via email from the supervisor Aderonke Dawusi. That while inter-state boundary meter reading is the sole responsibility of the Energy Audit and Accounting Department, their HOD may permit an officer of any Department to go with them for the reading depending on the request, and that the Energy Department is independent of the Regulatory Department. That from exhibit CW28 the approval was for the Energy Audit and Accounting Department alone, but that the Security and Transport Department also go for the inter-state boundary meter reading. The witness refuted the insinuation that the claimant’s appointment was terminated because he went for inter-state boundary reading, but that the appointment was terminated based on the outcome of the Disciplinary Committee for misrepresentation of facts in accordance with the company policy. That the claimant presented to his new HOD that he needed to travel for inter-state boundary meter reading without informing the new HOD that the exercise had been decentralized, and the penalty for such misrepresentation is termination in line with the Sanction Grid of the Defendant. That the section of the Sanction Grid stated in exhibit CW13 is GMC38 General Indiscipline, and that the Disciplinary Committee was based on exhibit CW13 which was the only query ever issued to the claimant. The witness further informed the court that she was the secretary of the Disciplinary Committee which sat two times and produced two reports. That by exhibit CW22 which is the first report of the Disciplinary Committee the claimant was exonerated but that the 2nd report is an addendum to the 1st report after it was further reviewed to cover some grey areas. That in the 2nd report (Exhibit CW23) the section of the Sanction Grid used is GME52. That while the claimant is entitled to 20 days leave, the defendant is not owing the claimant any leave allowance because the leave allowance is pro-rated and paid along with the monthly salary to employees, and that exhibit DW1D is the leave request. The witness affirmed knowing Mr. Olatunde Olosoji Michael who was the Head of Energy Audit and Accounting Department and Mr. Udofia Richard Maurice, and that the two officers are no longer in the services of the Defendant, but that exhibits DW1S and DW1T show that the leave is cumulative which means that the officers did not go on leave. That she does not know if by the defendant’s Handbook promotion is done every three years, and she also does not know when last the claimant was promoted but that no employee of the defendant was promoted between the period of 1st November, 2013 to 2019. That while at the time of the decentralization of the inter-state boundary meter reading the claimant was reporting to Mr. Olatunde Olusoji Michael, the misrepresentation of the information on the decentralization of inter-state boundary meter reading was made to one Mr. Canice Obi who took over from Mr. Olatunde Michael. That the termination letter was sent to the claimant’s e-mail and also to his last given address. That she does not know if the claimant was picked because he is a union leader and she is also not aware if the claimant was the Branch President of the Senior Staff Association of Electricity and Allied Companies. That she is not aware if the claimant was denied access to the defendant’s premises to take his personal belongings on 15th of May, 2020.
7.5. Let me restate for the sake of emphasis as rightly submitted by the parties that the onus of proof is on the claimant who is alleging wrongful termination of employment to prove same by producing before the court the terms and conditions of the employment, and also show how the defendant contravened the said terms and conditions in bringing the employment to an end. There are numerous cases on this trite position of the law. It is the law that he who asserts must prove. See sections 131, 132, 133 and 134 of the Evidence Act and the cases of Adesoye Olanlege V. Afro Continental Nigeria Limited (1996) LPELR-2568(SC), Dr. Tunde Bamgboye V. University of Ilorin and Another (1999) LPELR-737(SC) and Nigerian Romanian Wood and Another V. J. O. Akingbulugbe (2010) LPELR-9140(CA).
7.6. I have seen from the pleadings and evidence on record that the Claimant was first employed by the defunct National Electric Power Authority (NEPA) as Enumerator vide letter dated 16th of May, 2005 (exhibit CW1), and subsequently by the now defunct Power Holding Company of Nigeria Plc (PHCN) as Officer II (Marketing) vide letter dated 11th of October, 2006 (exhibit CW2) and promoted to Officer I (Marketing) vide letter dated 4th of August 2010 (exhibit CW3), and another Offer of Six Month Contract was given to the claimant by PHCN vide letter dated 21st October, 2013 (exhibit CW4). With the unbundling of the power sector, the defendant further engaged the claimant vide exhibits CW5 and CW6 and the appointment was confirmed vide exhibit CW7, while exhibit CW8 is the letter redeploying the claimant to the Headquarters of the Defendant as Energy Accounts Analyst. It is therefore clear that the claimant was not employed as an Energy Accounts Analyst but merely posted to the Energy Audit and Accounting Department vide exhibit CW8. This means that it is within the discretion of the defendant to deploy him to any office and any other officer can as well be posted to the claimant’s beat or schedule within the defendant.
7.7. While I am convinced that the claimant has established that he was actually employed by the defendant and worked until the termination of his employment vide exhibit CW23 dated 15th May, 2020, the issue of whether the said termination contravenes the terms and conditions of the employment in exhibits CW1- to CW7 and exhibits DW1A, DW1B and DW1M is what the court shall now look into in this judgment. The terms and conditions of the employment are governed by exhibits CW1 – CW7 and DW1A, DW1B and DW1M. I do not see the relevance of exhibit CW9 in this suit because same is merely a draft Conditions of Service not endorsed or signed by anybody. It is in evidence as pleaded by the defendant in paragraph 4 of the Amended Statement of Defence and paragraphs 10, 11, 12 and 13 of the Defendant’s Witness Statement on Oath that the Conditions of Service only came into effect after the representatives of the two trade unions (Senior Staff Association of Electricity and Allied Companies (SSAEAC) and National Union of Electricity Employees (NUEE) signed the Conditions of Service on 10th June, 2020 and 7th October, 2020 respectively. Exhibit CW9 is therefore of no evidential value, and same is hereby discountenanced and expunged from the records of the court. I so find and hold.
7.8. I have seen that what spurred the instant suit is the claimant’s trip for inter-state boundary meter reading in April 2020 which according to the claimant was duly approved and paid for by the defendant. The contention of the defendant is that since inter-state boundary meter reading had been decentralized to the claimant’s knowledge, the claimant failed to inform his new boss of the decentralization thereby misleading his boss Mr. Canice Emeka into approving the trip for him. That the claimant misrepresented the fact of the decentralization of the inter-state boundary meter reading to his new boss which amounts to an act of gross misconduct and a violation of section GME52 of the Defendant’s Sanction Grid (exhibit DW1A).
7.9. It is in evidence that the claimant was issued a query vide exhibit CW13 dated 6th of May, 2020 which he answered vide exhibit CW21 also dated 6th May, 2020. Having not been satisfied with the claimant’s response, the defendant set up a Disciplinary Committee and from exhibits CW22 and DW1Q which are the same, the claimant appeared before the Disciplinary Panel and made representations afterwhich he was exonerated by the defendant. It would seem that the defendant’s MD/CEO was not pleased with the claimant’s exoneration and therefore instructed the Disciplinary Committee to further look into the matter because of some “serious gaps bordering on integrity”. Sequel to the instruction, the Disciplinary Committee further invited the claimant vide exhibit CW14 which is the same as exhibit DW1R, and in the second report of the Disciplinary Committee (exhibit DW1P) the claimant was found to have violated section GME52 of exhibit DW1A, and therefore had his employment terminated vide exhibit CW23.
7.10. The contention of the claimant’s counsel is that having been exonerated in the first report, the 2nd sitting and report of the Disciplinary Committee was only aimed at victimizing him. I cannot agree more with the claimant on this contention. Having heard from the claimant and a report was made on 11th May, 2020 exonerating him of the allegations against him, it is obvious that the Defendant’s MD/CEO by instructing the Disciplinary Committee to further consider the matter influenced the work of the Committee into ensuring that the claimant was disengaged from the defendant. The alleged “serious gaps bordering on integrity” are not disclosed by the defendant to enable the court decipher whether there was the need for the second sitting and report of the Disciplinary Committee. The Committee was clearly working towards a predetermined answer or outcome in its second sitting and report of 14th May, 2020.
7.11. That aside, I have seen that while the query issued to the claimant in exhibit CW13, his answer to the query in exhibit CW21, his invitations and appearances at both the 1st and 2nd sittings of the Disciplinary Committee as evidenced by exhibits CW22, DW1Q, CW14, DW1P and DW1R were all based on section GMC38 of the defendant’s Sanction Grid exhibit DW1A under ‘General Indiscipline’, the defendant however terminated the claimant’s employment under section GME52 under ‘General Misconduct i.e. Deliberate misrepresentation which has or could have the potential to destroy the employment and or trust relationship.’
7.12. The pertinent question is whether the claimant having been tried under section GMC38 of exhibit DW1A which attracts a lesser punishment of final written warning for the first offence or termination for the second offence can be found culpable under a different section GME52 which attracts outright termination of appointment for the first offence. I do not think so. There is nothing before the court to suggest that the claimant is a second offender. Having queried him to which he responded and tried him in the first report under section GMC38 of the defendant’s Sanction Grid, the defendant cannot try him for the second time under a different section with a higher sanction and then terminate his employment. While I agree that the defendant can mete out a lesser punishment on its employee different from the one for which the worker was tried, it cannot give a punishment higher than the one under which the worker was tried. Even in criminal trials, accused persons can only be found guilty in respect of the offence for which they are charged. See Augustine Nwolisa V. The State (2015) LPELR-24371(CA). In the case of Charles Udegbunam V. Federal Capital Development Authority and Others (2003) LPELR-3291(SC), the apex court held as follows on the discretion of an employer to give a higher punishment at pages 14 – 15 paragraphs F – A of the report “Although the appellant was by paragraph 4202 of the Federal Civil Service Rules due for outright dismissal from the service, the respondent’s magnanimity resulted in the termination of his appointment. This is in order. An employer has a discretion to give lesser punishment to an employee but it has no discretion to give a higher punishment. Since termination of appointment is a lesser punishment, the appellant has no right to complain.”
7.13. It is therefore obvious that the claimant was not afforded fair hearing before his employment was terminated by the defendant. The contention of the defendant that the employment was terminated in accordance with the terms of the employment because the defendant has the right to terminate the appointment at any time is misconceived and baseless. The employment was not terminated pursuant to Article 88 of the defendant’s Handbook exhibit DW1B but under exhibit DW1A which are two different documents. The scenario in this suit is such that since the termination was based on an alleged infraction of the Conditions of Service, then the defendant must ensure that the appropriate procedures and processes are followed. It would have been different if the claimant was disengaged without any allegation and trial and given the requisite notice or the payment in lieu of notice. The termination of the claimant’s employment is not in accordance with the defendant’s Sanction Grid as provided in exhibits DW1A and DW1M. I so find and hold.
7.14. Having held that the termination of the claimant’s employment is wrongful because he was not given fair hearing by the defendant, it is now otiose to consider the point relating to whether the claimant actually misrepresented facts by not informing his new boss of the decentralization of the inter-state boundary meter reading which led to the approval for him and others to travel for the exercise. In any case, I have seen from exhibits CW20 and CW28 that approvals were given for the claimant to travel for inter-state boundary meter readings on the 7th of February, 2017 and 28th of April 2020 respectively. If the application by the claimant on the 28th of April, 2020 for the official trip could be approved not only by his immediate superior Mr. Canice Obi who the defendant is claiming was new in the office and the approval passed through all the defendant’s vetting processes including the Accounts/Finance Department and paid without being queried, then the defendant would need to have a second look at its internal vetting mechanisms. I have also seen in exhibit CW25 that the report of the inter-state boundary meter reading which the Defendant alleged is illegal and upon which the claimant was disciplined by having his employment terminated was curiously utilized by the defendant and forwarded to the Market Operators (MO) and the Nigeria Bulk Electricity Trader (NBET) for billing. Having taken advantage or benefit of the report of the trip, it will be unfair, unjust and unconscionable for the defendant to turn around and punish the officer that produced the report on the allegation that he misrepresented facts to his superior. I so find and hold.
7.15. With respect to the reliefs in this suit I hold that reliefs ‘a’ and ‘b’ for declarations that the defendant is in breach of the contract of Employment/Job Description entered into between the Defendant and the claimant, and that the purported termination of employment of the claimant by the defendant is unlawful and mere victimization of the claimant are granted with the slight modification that the said termination of the claimant’s employment is wrongful.
7.16. For relief ‘c’ for an order of court directing the defendant to pay to the claimant the sum of N1,608,023.24K (One Million, Six Hundred and Eight Thousand, Twenty Three Naira, Twenty Four Kobo) representing the unpaid leave allowances from 2014 to 2020, I have seen that while exhibits DW1C to DW1F are the Claimant’s Leave Application/Request Forms, exhibit CW10 is the alleged leave allowances owed to the claimant by the defendant. The contention of the defendant on this relief is that by the practice of the defendant leave allowances are pro-rated and paid to the employees along with the monthly salaries. I have seen from exhibits DW1H to DW1L which are the claimant’s pay advice that the sum of N12, 762.09K was included and paid to the claimant together with his monthly salaries. I find no merit in this relief and same is hereby refused.
7.17. As for reliefs ‘d’ and ‘e’ for orders of court directing the defendant to withdraw the termination letter and reinstate him with full payment of all accrued salaries and allowances from May, 2020 to date, and to promote him to the appropriate grade level 14 (Administrative), may I make it clear that these reliefs cannot be granted by the court because the employment is not one with statutory flavour. Being master/servant employment the claimant is neither entitled to reinstatement nor promotion as claimed in this suit. These reliefs are accordingly refused. See P.C. Imoloame V. West African Examinations Council (1992) LPELR-1500(SC) and First Bank of Nigeria Plc V. Mr. Efobi Effiong Bam (2010) LPELR-4160(CA).
7.18. With respect to relief ‘f’ for an order directing the defendant to pay to the claimant the sum of N22,297.47 (Twenty Two Thousand, Two Hundred and Ninety Seven Naira, Forty Seven Kobo) every month representing uncontributed pension for the claimant from May 2020 till date, I have seen that since pension is statutorily contributory the defendant was deducting pension from the claimant’s monthly salaries, and also that from exhibits DW1H to DW1L the claimant is registered with Stanbic IBTC Pension Managers as his PFA. Since the claim is for pension from May, 2020 when the claimant’s employment was terminated, he is not entitled to the relief. He is not asking for the payment of the contributions in his PFA Account. Relief ‘f’ is therefore refused.
7.19. For relief ‘g’ for the sum of One Hundred Million Naira (N100,000,000) representing the cost of litigation and general damages for breach of contract of employment, May I state that while I am of the considered view that the claimant is entitled to damages, I however feel that the sum of One Hundred Million Naira is unjustifiable considering the circumstances of this case. The defendant has argued that even if the termination of the claimant’s employment is found to be wrongful he is only entitled to salary in lieu of notice because the defendant has the right to terminate the employment at anytime with or without notice. While I agree that by the provisions of Articles 80 and 88 of exhibit DW1B and exhibit CW6 the employment of an employee may be terminated by notice or salary in lieu, that is not the situation in this case where the claimant’s employment was terminated for alleged act of deliberate misrepresentation under GME52 of exhibit DW1A. In the circumstance, the court hereby orders the defendant to pay to the claimant his salary for two (2) years (less statutory deductions) as compensation for wrongful termination of employment and breach of the employment contract between the claimant and the defendant.
7.20. Failure to compute and pay to the claimant the two years salary as ordered by the court within 30 days from the date of delivery of this judgment shall attract 10% simple interest on the sum per annum until fully liquidated.
7.21. Judgment is entered accordingly. I make no order as to cost.
Hon. Justice P. I. Hamman
B. Chukwudi for the Claimant
S. I. Nengia for the Defendant