IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP:                            HON. JUSTICE M. N. ESOWE

 

DATE:  March 7, 2023                                             SUIT NO. NICN/LA/122/2021

 

BETWEEN

MR CHARLES EBENUWAH                                                 CLAIMANT

 

AND

FSDH MERCHANT BANK LIMITED                          DEFENDANT

 

REPRESENTATION

Ope Olatinwo, Esq with Oluwabomi Fanoiki, Esq for the Claimant.

Chisom Ndubuisi, Esq for the Defendant.

 

JUDGMENT

INTRODUCTION

1.      The Claimant was employed as an Assistant Manager of the Defendant vide a contract of employment dated 08.10.2009. He worked with the Defendant for a period of about 10years until his employment was terminated by the Defendant on the 31.01.2019. The Claimant however alleges that the termination of his employment by the Defendant was not proper as there was no reason or valid reason given for the termination, in addition, that his employment was terminated by the Defendant without giving him the required length of notice.

 

2.      It is on the basis of the above that the Claimant is seeking the following as per his Complaint and Statement of Facts filed on 15.03.2021:

 

a)     THE SUM OF N3,489,000.00 (Three Million, Four Hundred and Eighty-Nine Thousand Naira) as three months’ basic salary in lieu of notice for the failure of the Defendant to give the contractual three months’ notice to the Claimant before terminating the Claimant’s employment.

b)     THE SUM OF N1,000,000.00 (One Million Naira) as damages for the failure of the Defendant to pay the Claimant’s three months’ basic salary in lieu of notice contemporaneously with the termination of the Claimant’s employment.

c)     A DECLARATION that the termination of the Claimant’s employment with the Defendant amounts to unfair termination as the Defendant failed to give any reason or valid reason for the termination of the Claimant’s employment contrary to International Best Practice.

d)     THE SUM OF N5,000,000.00 (Five Million Naira) as general damages for the unfair termination of the Claimant’s employment without adducing any reason or valid reason.

e)     THE SUM OF N5,000,000 (Five Million Naira) as general damages against the Defendant for the breach of duty of care owed the Claimant which resulted in the development of terminal health issues by the Claimant.

f)      Interest on the entire sum claimed in this suit at the rate of 10% per annum from the date of Judgment until the entire sum is finally liquidated.

g)     Cost of this Action.

 

TRIAL

3.      Hearing in this suit commenced on 08.02.2022 with the Claimant testifying as CW1. CW1 adopted his written statement on oath as his evidence in chief. Through him, a total of fourteen (14) documents were tendered and admitted in evidence marked as Exhibits C1 to C14 respectively. CW1 was duly cross-examined after which the Claimant closed his case.

 

4.      On behalf of the Defendant, one Olubukola Lanipekun-Lawal testified as DW1. She adopted her written statement on oath as her evidence in chief. Through her, four documents were tendered and admitted in evidence and marked as Exhibit D1 to D4 respectively. DW1 was duly cross-examined after which the Defendant closed its case. The matter was then adjourned to enable parties file and exchange their respective final written addresses which were adopted on 17.11.2022.

 

5.      DEFENDANT’S FINAL WRITTEN ADDRESS

6.      The Defendant in its Final Written Address filed on 29.08.2022 formulated two issues for determination, namely:

 

7.      Whether the termination of the Claimant’s employment contract was wrongful?

 

8.      Whether having regard to the terms of the Claimant’s employment, the Claimant is entitled to any of the reliefs sought in this suit?

 

9.      On issue one, Learned Defence Counsel submitted that the termination of the Claimant’s employment was valid because it was carried out in accordance with the provisions of the contract of employment, particularly clause 22 which entitled either party to terminate the contract at any time by giving a three-month notice to the other. The law is to the effect that when an employee complains that his employment has been wrongfully terminated, he has the onus to place before the Court the terms of the contract and prove in what manner the said terms were breached by the employer and not the duty of the employer to prove any of those facts.- Ziideeh v. R.S.C.S.C (2007) 3 NWLR (Pt. 1022) 554 at 570 (SC).

 

10. Counsel submitted that the Claimant had failed to lead any evidence (oral or documentary) to support his claim that his employment was wrongfully terminated by the Defendant. The effect of Clause 22 of Exhibit C1 is that even if there is a rule of law or convention or practice which required the Defendant to assign a reason for terminating the employment of the Claimant, such rule of law, convention or practice cannot be imported into the contract of employment which clearly and unambiguously provided that either party may at any time terminate the relationship by paying three-month notice or paying three-month salary in lieu of notice.

 

11. Learned Defence Counsel contended that the International Labour Organization Convention No. 158 is not domesticated as part of Nigerian Law and cannot be enforced by this Court. Upon a critical examination of the provisions of Section 254C of the Constitution of the Federal Republic of Nigeria (Third Alteration Act), it is clear that this Honourable Court is empowered to apply international treaties that have been ratified by Nigeria - Aero Contractors Company of Nigeria Ltd v. NAAPE & Ors. (2014) 42 NLLR 664, pages 724. The Claimant has woefully failed to plead and prove the existence of the alleged international best practices applicable to his claim in line with the provisions relating to proof of custom in the Evidence Act. Section 16 of the Evidence Act, Oyo State v. Alhaji Apapa & Ors (2008) 11 NLLR (Pt. 29) 284.

 

12. Counsel submitted that since Exhibit C7 (a copy of the Convention No. 158 and Recommendation No. 166 of the International Labour Organization printed from the internet) was a computer-generated evidence, it is not admissible as evidence except it complies with the provisions of Section 84 (4) of the Evidence Act, 2011 which requires a certificate authenticating the computer-generated evidence to accompany the said evidence- Shaukat and Raza (Pty) Ltd v Govt of Gombe State & Anor (2021) LPELR-55265 (CA). Also, exhibit C14 is inadmissible and should be expunged from the record as it does not bear any endorsement showing that it was filed in the registry of this Court - Gbadeyan v. FRN (2021) LPELR-55001 (CA).

 

13. On issue two, Learned Defence Counsel submitted that the Claimant is not entitled to any of the reliefs sought in this suit because he has failed to prove his entitlement to the reliefs sought. On the first claim, Counsel stated that the Claimant’s basic monthly salary was N96,916.67 and three months basic salary amounted to N290,750.00 and not N3,489,000.00 in the circumstances, the Claimant has not proved his entitlement to that relief. The Defendant admits that the Claimant was entitled to the three months basic salary in lieu. However, the Claimant was already paid the sum of N889,295.01 after deducting his outstanding indebtedness from his net monthly pay. Counsel then urged the court to dismiss this relief as there is no evidence before the court to support it and where a claimant fails to prove his case, by credible evidence, the court has a duty to dismiss the claim.- Densy Industries Nig. Ltd v. Uzokwe (1998) LPELR-6402(CA), NNPC v. Klifco Nig. Ltd (2011) LPELR- 2022(SC).

 

14. On relief two, Learned Defence Counsel submitted that the disbursement/retention of the terminal benefits of the Claimant, including his three months basic salary complied with the terms of his employment. Therefore, the claim for general damages is not available to the Claimant as claim for damages can only arise if there is a breach of a legal duty owed to the Claimant as damages are sums of money awarded to a successful Claimant as compensation for loss or harm of any kind.- Eastern Breweries Plc, Awo Omamma & Ors v. Henry Nwokoro (2012) LPELR-7949(CA). On the third claim, Counsel submitted that the Claimant has failed to establish his case to be entitled to a declaratory relief which is not granted on mere admission of the other party or default of defence. A Claimant must succeed on the strength of his case and not the weakness of the Defendant’s case or the admissions of the Defendant- Clay Industries (Nig) Ltd v Aina (1997) 8 NWLR (Pt.516) 208 at 228.

 

15. On the fourth claim of the Claimant, Learned Defence Counsel submitted that there is no basis for this relief because (a) the termination of the Claimant’s employment complied with the terms of his employment; (b) the Claimant has not established that the ILO Convention that he anchors his claim for this relief on has been ratified and forms part of Nigerian law; and (c) the Claimant has failed to plead and establish the existence of the alleged international best practice he sought to rely on. Counsel further stated that a claim for damages could only arise where there is a breach of a legal duty owed to the Claimant and the Claimant having failed to establish how his rights have been breached by the Defendant, cannot be entitled to damages and urged the Court to so hold.

 

16. On the fifth claim of the Claimant, Counsel submitted that the Claimant is not entitled to the claim of N5,000,000 or any amount whatsoever as general damages for the tort of negligence because the claim is not supported by any evidence before the Court. A Claimant must plead the fact and particulars of negligence and lead credible evidence to establish same.- Koya v. U.B.A (1997) 1 NWLR (Pt. 481) 251 at 291. There was no piece of evidence to support the Claimant’s allegation of negligence. Though the Exhibit C2 (medical report dated 27.08.2018) stated that the Claimant was on intensive management since 16.08.2018 for hypertension and suspected heart condition, it did not state that the health condition was caused by a default on the part of the Defendant to discharge his duty of care to the Claimant. Also, the allegation that the Defendant failed to allow the Claimant seek urgent medical care by refusing to grant the Claimant leave despite presenting a medical report is also not true or proved.

 

17. Under cross-examination, CW1 admitted that there was no other medical correspondence or report in between Exhibits C2 and C8. The Claimant also admitted that it was when Exhibit C8 was issued that he was granted a 20-day medical leave. With these admissions, Counsel submitted that the basis of the Claimant’s claim for negligence has been destroyed and his claim in this regard must fail because the Claimant has failed to provide evidence to support his pleadings and relief on the issue of negligence. As such, his claim and relief sought should consequently be discountenanced.- Access Bank Plc v. Trilo Nigeria Company Ltd & Ors (2013) LPELR-22945(CA).

 

18. On the sixth claim of the Claimant, the Learned Defence Counsel submitted that the relief sought, being a post judgment interest claim, depends on the success of the monetary claims sought in the suit. Although, the Court is empowered by the Rules of court to award post-judgment interest, that power can only be exercised in favour of a successful Claimant in relation to sums awarded against the Defendant. However, the Claimant has failed to lead credible evidence to support his claims and as such, his claims must necessarily fail. In relation to relief seven, Counsel contended that a claim or relief for cost of action or Solicitor’s fees is in the realm of special damages which must be specially pleaded and strictly proved - Naude & Ors v. Simon (2013) LPELR-20491(CA). The Claimant has neither pleaded at all nor led any evidence whatsoever in support of his claim for cost of this action. As such, Counsel urged the Court to so hold and dismiss the Claimant’s claims with substantial costs.

 

19. CLAIMANT’S FINAL WRITTEN ADDRESS

20. The Claimant in response to the Defendant’s final written address filed his final written address on 15.11.2022 wherein he raised two issues for determination namely:

 

21. Whether the termination of the Claimant’s employment by the Defendant amounts to unlawful termination of employment/unfair labor practice?

22. Whether having regard to the totality of the evidence before this Honourable Court, the Claimant is entitled to the claim before the Court.

 

23. On issue one, Counsel to the Claimant submitted that the Claimant has proven by preponderance of evidence that the Defendant terminated his employment with no reason or valid reason, contrary to the applicable laws and International Best Practices. The position canvassed by the Defendant was not the law and would at best be described as an old law. The National Industrial Court of Nigeria had eradicated the traditional common law rule and now holds that international best practice dictates that every employer must give valid and justifiable reasons for termination of private employment; and that, globally, it is no longer fashionable in labor relations law and practice to terminate private employment contracts without adducing a valid reason.- Ebere Aloysius v. Diamond Bank Plc (2015) 58 NLLR (Pt. 199); Pengassan v Schlumberger Anadril Nigeria Ltd (2008) 11 NLLR (Pt.29) 164. 

 

24. On the applicability of the International Labour Organization of No 158, Counsel submitted that Exhibit C7 is clearly the International Labour Organization Convention of 158 and No 166 which the Defendant further attempted to streamline to convention No. 158 only. Section 254(1) of the Constitution of the Federal Republic of Nigeria (Third Alteration Act) conferred exclusive jurisdiction on this Court to adjudicate on any matter arising from the work place - Mr Abdul Hakeem A. Olasewere v Airtel Networks Limited NICN/LA/90/2014 where the Court found that failure to provide reason for terminating the employment of the Claimant makes it wrongful for being in contravention of the globally accepted practice. Counsel also stated that the Claimant’ claim of unlawful termination of employment/unfair labour practice is hinged on Section 7(1) of the National Industrial Court Act, 2006 which empowered the Court in exercising its jurisdiction to have due regard to good or international best practices in labour or industrial relations and what amounts to good or international best practices in labour or industrial relations shall be a question of fact. This Court has the power in appropriate circumstances to apply and enforce international best practices in employment disputes brought before the Court for adjudication.

 

25. The focus of Order 14A of the Rules of this Court 2017 is on action for breach of international treaty or protocol and in the instant case, the cause of action is on the unlawful termination of employment/unfair labour practice. Therefore, the conditions precedent listed under Order 14 does not apply in the circumstance. Counsel stated that the termination of the Claimant’s employment without any justifiable reason connected with his performance is unfair in the circumstance as the Claimant had put in over 9 laborious years in the employment of the Defendant and the Defendant then decided to abruptly terminate the Claimant’s employment in a manner obviously inconsistent with plethora of decisions by this Honourable Court and International Best Practice.

 

26. Counsel submitted that the Defendant in a bid to deceitfully cure its act of illegality decided to make payments to the Claimant, after the invitation to the Federal Ministry of Labour (A consequential effect of Exhibit C4). This cannot correct or undo the act of the unlawful termination of the Claimant employment- Oforishe v. Nigerian Gas Co Ltd (2017) LPELR-42766 (SC). Counsel then urged the Court to find and hold that the termination of the Claimant’s employment without any reason amounts to unlawful termination of employment and it is an act of unfair labour practice.

 

27. On issue two, Counsel to the Claimant submitted that the Claimant has proved his case on the preponderance of evidence and has thus shifted the burden to the Defendant to show why judgment ought not to be entered against them as prayed- Section 136(1) and (2) of the Evidence Act. Counsel stated that the evidence of the Claimant, CW1 is clear, direct and irresistibly point to the conclusion that the Claimant suffered untold and varied acts of victimization in the hands of the Defendant. The Claimant sufficiently pleaded the factual basis of his claim and further led uncontroverted evidence to prove his case. Exhibits C1-C14 tendered by the Claimant further established the Claimant’s case as unassailable.

 

28. Counsel stated that the position of the law in civil cases is to the effect that the onus of proof is not static but will shift from the Claimant to the Defendant. Thus, where a Claimant has led credible evidence in proof of her case, the burden will shift to the Defendant to show why the Claimant should not succeed and why judgment should not be entered against the Defendant- Orji v D.T.M (Nig) Ltd (2009) 18 NWLR (Pt. 1173) 467 at 489. Flowing from the above, Counsel submitted that the Claimant had shown that he is entitled to judgment while the Defendant failed to rebut the overwhelming and direct evidence of the Claimant but rather, their doublespeak and contradictory evidence lends credence to the case of the Claimant.

 

29. Counsel to the Claimant further stated that a Claimant who seeks a declaration that the termination of his appointment was wrong among all other claims must prove that: (a) that he is an employee of the Defendant; (b) the terms and conditions of his employment, and (c) the way and manner and by whom he can be removed - Anifowoshe v. Wema Bank Plc (2015) LPELR-24811(CA). The above conditions have been proven by the Claimant in this suit by the preponderance of evidence before this Honorable Court.

 

30. Counsel to the Claimant further submitted that the act of the Defendant to exercise its rights of termination by Exhibit C2 was malicious as payment in lieu was not made contemporaneously as expected as it was made after the termination of the Claimant’s employment. Counsel further stated that the payment did not in any way cure the illegality perpetrated by the Defendant as an act of illegality cannot be rectified by partial legal action- Abdul-Hakeem A. Olasewere v. Airtel Networks Limited (Supra). Counsel then urged the Court to grant the Claimant’s prayers.

 

31. On the admissibility of Exhibit C-14, Counsel to the Claimant submitted that the submissions contained in paragraphs 4.13-4.16 of the Defendant’s Final Written Address were frivolous and urged this court to disregard same. Counsel stated that Exhibit C14 tendered before this Honourable Court does not fall under the terrain of accompanying documents to be filed along with the Complaint as provided in Order 3 Rule 9 of the National Industrial Court of Nigeria Civil Procedure Rules, 2017. It is a document to certify the computer generated documents tendered in Court.

 

32. Counsel further stated that in the case of Gbadeyan v. FRN (2021) LPELR-55001 (CA) cited by the Defendant, the issue in that case arose about whether a written Address of Counsel which did not bear the stamp of the Court’s registry can be relied upon by the Court in its judgment. The Court held that a Written Address not filed at the Registry of Court is not a process before the Court and should be struck out. As such, Exhibit C4 in this case is a Certificate of Identification that can be tendered on its own without being frontloaded or filled at the Registry as provided by Section 84(2) of the Evidence Act 2011.

 

33. Counsel went on to say that the Certificate of Compliance tendered herein does not in any way run foul of the clear provisions Section 84 of the Evidence Act and an attempt to describe or attach a certificate of identification as one of the originating processes or defence processes should be discountenanced with strong reprimand. As such, Counsel submitted that the objection of the Defendant as to the admissibility of Exhibit C14 is one of its numerous ways of avoiding the principal issue and claim in this matter. Hence, Counsel urged this court to dismiss this objection. Counsel respectfully urged the Court to grant the Claimant’s reliefs entirely and wholly dismiss the Defendant’s claims as they are not only vexatious but also misleading.

 

34. DEFENDANT’S REPLY ON POINTS OF LAW TO CLAIMANT’S FINAL ADDRESS

35. The Defendant in response to the Claimant’s Final Address filed its reply on points of law on 17.11.2022 wherein it reiterated that the case of the Defendant is that the Claimant’s employment was regulated by the contract of employment and the termination of the Claimant’s employment was valid. The jurisdiction of this Court to apply International best practices and International treaties is not at large.

 

36. Unlawful termination and wrongful termination are distinct concepts with distinctive consequences for each. The remedy for unlawful dismissal/termination is different from the remedy for wrongful dismissal/termination. While unlawful dismissal/termination yields reinstatement, wrongful termination yields only damages.- UTC v. Nwokoruku (1993) 3 NWLR (Pt. 281) 295 at 309. The Claimant’s contract of employment with the Defendant, having not been one with statutory flavor, the issue of unlawful termination as argued by the Claimant does not and cannot arise.

 

37. The decision of the National Industrial Court in the unreported case of Mr. Abdul Hakeem A. Olasewere v Airtel Networks Limited does not apply to this suit and as such is not a precedent for this instant case. The case of Mr. Abdul Hakeem A. Olasewere v. Airtel Networks Limited should not be applied as precedent for this instant case. Counsel urged the Court to discountenance the submissions of the Claimant in his Final Written Address and dismiss this matter with substantial cost against the Claimant.

 

 

38. RESOLUTION

39. Upon a careful review of facts and circumstances of this case, the various processes filed by the respective parties, the evidence adduced and the submissions of Learned Counsel on both sides this Court distils the issues below for determination:

 

40. Whether considering the facts and evidence before this Honourable Court, the termination of the Claimant’s employment by the Defendant amounts to unlawful termination of employment/unfair labor practice?

 

41. Considering the evidence adduced by the Claimant whether he has discharged the burden of proof to be entitled to the reliefs sought.

 

42. It is a fundamental principle in our legal jurisprudence that civil cases are hinged and decided on the preponderance of evidence. That is, the burden of proof in civil cases is discharged on the preponderance of evidence or the balance of probability. See A.G. Federation v Anuebunwa [2022] 14 NWLR [Pt. 1850] 211 SC. In Amadi v Orisakwe [2005] 7 NWLR [Pt 924] 385 SC the apex Court held inter alia:

 

43. “In civil matters, the standard of proof required is that of preponderance of evidence only. When such a matter is put on an imaginary scale and it tilts to one side, the side to which it tilts has the weightier material and the facts and law elicited would then preponderate in favour of the facts that the party is putting across.”

 

44. The law requires that he who asserts or alleges must prove the existence of the fact and situation he has alleged. As such, any person who alleges the existence of a particular fact in his pleadings is duty bound to lead substantial evidence to prove the existence of such fact and if he fails, the case will collapse. See Akinola v Lafarge Africa Plc [2022] 12 NWLR [Pt. 1844] 379, Sections 131-134, 136(1) of the Evidence Act, 2011. The Claimant in this suit is amongst other things seeking a declaration that the termination of his employment by the Defendant amounts to unfair labour practice given the fact that no reason or valid reason was given for the termination contrary to International Best Practice. The Claimant also seeks damages for this alleged breach.

 

45. Counsel to the Defendant conversely argues that since Exhibit C7 (a copy of the Convention No. 158 and Recommendation No. 166 of the International Labour Organization printed from the internet) was a computer-generated evidence, it is not admissible as evidence except it complies with the provisions of Section 84 (4) of the Evidence Act, 2011 which requires a certificate authenticating the computer-generated evidence to accompany the said evidence. In addition, Exhibit C14 – the certificate of compliance does not bear any indication that it was authenticated at the registry of this Court. Learned Claimant’s Counsel contends to the contrary that it is admissible and the case cited and relied upon by the Defendant is not applicable to the instant case.

 

46. The hallmark of admissibility of evidence in a Court of law is relevancy, but this criteria does not apply to completely inadmissible evidence or documents – Akubo v Nigerian Army (2022) 1 NWLR (Pt. 1811) 377. So, if a document is relevant to the determination of a matter before the Court, except where it is obviously inadmissible, it is usually admitted in evidence, the weight to be attached to it would be subject to a law and a taint of facts. See Abubakar v Chuks (2007) 18 NWLR (Pt. 1066) 386. In admitting a document in evidence, the Court normally considers whether the document is relevant, admissible and was pleaded. The surrounding circumstances of the case would determine what evidence is relevant or not. The pleadings of the Claimant in the instant case clearly indicates that Exhibit C7 is relevant to the Claimant’s case.

 

47. Nonetheless, the relevance of a piece of evidence or document is not tantamount to its probative value – Jwan v Ecobank (Nig) Plc (2021) 10 NWLR (Pt. 1785) 449. From the provisions of Section 84 of the Evidence Act, 2011 it is obvious that the intendment is to make electronically generated evidence admissible in Court. It is not the law that a party who relies on an electronically generated evidence must prove its authenticity by tendering a certificate under Section 84(40 of the Evidence Act, 2011 and calling oral evidence under Section 84(1) of the Act. See IGP v Bello (2023) 1 NWLR (Pt. 1865) 265. Exhibit C7 though a computer-generated document is a law, although the Defence Counsel contends that there is no evidence before the Court that it has been domesticated or ratified by the National Assembly.

 

48. The presumption of due regularity should inure in its favour. See Sections 145 and 152 of the Evidence Act, 2011. Learned Defence Counsel has not disproved that Exhibit C7 is a Convention enacted by the International Labour Organization or that the copy tendered by the Claimant has a different author or is not the same with that on the ILO’s website. The Court ought to know the law and by virtue of the combined effect of Section 7(6) of the National Industrial Court Act, 2006 and Section 254C(__) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) this Court can safely draw inference from the provisions of any of the ILO’s Conventions as evidence of best international labour practice.

 

49. More so, the Registrar/litigation officer or Commissioner for Oaths is not necessarily from the intendment of the law such a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities. The law requires that it shall be sufficient if the signatory of the certificate states that to the best of his knowledge and belief, the facts stated in compliance with Section 84 of the Evidence Act has been complied with.

 

50. The practice by Counsel to have the certificate filed at the registry of the Court before which the certificate is to be used or tendered, in my humble view, is a surplus-age, a way of erring on the side of caution by giving the impression that the certificate was signed before a Commissioner for Oaths. The wordings of Section 84 of the Evidence Act, 2011 are clear and unambiguous, it would therefore be wrong to import meanings or words which do not form part of its provisions. Sometimes, some Counsel take the path of including the stipulations or requirements set out in Section 84(1) and (5) of the Evidence Act, 2011 in the witness statement on oath in addition to attaching a certificate of compliance or authentication. Besides, the entire processes of the Claimant were filed at the registry of this Court, the oversight or inadvertence of the registry cannot be visited on the litigant. It is in the light of the above that I find no merit in the objections of the Learned Defence Counsel on the admissibility of Exhibits C7 and C14 respectively, same is hereby overruled. Defence Counsel submissions in respect to same are accordingly discountenance. I so hold.

 

51. Having resolved the propriety or otherwise of the objections to Exhibits C7 and C14, consideration would now be made of the merits or otherwise of the Claimant’s claims in no particular order but in the light of the issues distilled by this Court for determination. Learned Defence Counsel has contended that there is a difference between the concepts of wrongful termination and unlawful termination and the Claimant cannot be seeking reliefs for the latter since his employment lacks statutory flavour. Also, that the Claimant is bound by the terms in Exhibit C1 and cannot seek the invocation of Article 4 of the International Convention on Termination of Employment, No. 158 ILO Convention. Part of the claims of the Claimant, particularly, relief 3 is for a declaration, and the law is declaratory reliefs are not granted as a matter of course, even in the face of admission by the Defendant or in default of defence. The Claimant must necessarily discharge the burden of proof placed on him by law to be entitled to the grant of his claims. See Adesina v Air France [2022] 8 NWLR Pt 1833, 523 SC, Adamu v Nigerian Airforce [2022] 5 NWLR Pt [1822] 159 (SC).

 

52. There is no doubt that the concepts of unlawful termination and wrongful termination though sometimes used interchangeably are distinct. The former largely arises in cases of contractual employment with statutory flavour while the latter from common law – master-servant relationship or private employment contracts. In cases of unlawful termination, where it is shown that there has been a breach of the provisions of the statute regulating the contract of employment, the employee can be reinstated but this is largely not the case in situations of wrongful termination where the Court considers the contract of service to determine which provisions were breached, if any, and award damages usually to the tune of the employee’s salary in lieu of notice as per the contract of employment.

 

53. A cursory look at the Claimant’s claims reveals that there is no claim principally centred on the issue of unlawful termination, relief three (3) is on unfair labour practice, relief four (4) is for damages for such unfair labour practice, relief two (2) is for damages for failure to pay the Claimant his salary and or terminal benefits contemporaneously with the termination of his employment. There is therefore no need, in my humble view, to delve further into the issues of the distinction of the concepts of unlawful termination and wrongful termination of employment. The content of Exhibit C1 – letter of offer of employment is clearly indicative that the employment relationship that existed between the Claimant and the Defendant was one founded on the common law principles of master-servant relationship.

 

54. In law, a contract of employment is the bedrock, foundation establishing and setting out the terms and conditions in a contractual relationship between and employer and its employee. In a claim for wrongful or unlawful termination of employment, the law requires the employee to adduce credible evidence that he was an employee of the Defendant, the terms and conditions of employment as contained in his letter of appointment or staff handbook as the case may be and what terms were breached by the termination of his employment. See Katto v CBN [1999] 6 NWLR [Pt. 607] 390 SC, Umera v NRC [2022] 10 NWLR [Pt. 1838] 349 at 385-386 SC.

 

55. The Claimant in a bid to prove his entitlement to the reliefs sought by him testified and tendered in evidence, fourteen documents. Each and every piece of evidence adduced in the course of this proceedings is subject to be tested for credibility, weight or cogency by the trial Court before it becomes acceptable or accorded any evidential value. See Yakubu v Omaiboje [1998] 7 NWLR [Pt. 539] 708, Akaniwon v Nsirim [1997] 9 NWLR [Pt. 520] 255 at 290. Paragraph 22 of the said Exhibit C1 provides that the employment may at anytime be terminated by either party by giving the other party three (3) months notice of termination in writing or upon either party paying the other party three (3) months basic salary in lieu of such notice. CW1 was employed on 08.10.2009. On 31.01.2019, the Defendant issued to the Claimant, a letter of termination of employment (Exhibit C3) dismissing the Claimant with immediate effect from its employment.

 

56. On the issue of the contention by the Defence Counsel that parties are bound by the provisions of Exhibit C1, having contracted out of the law (that is, Article 4 of the International Convention on the Termination of Employment, ILO Convention No. 158). The position of our laws are quite unequivocal that parties are bound by the provisions of their agreement where they entered into it freely without any fraud or deception, mistake – Obanye v UBN Plc (2018) 17 NWLR (Pt. 1648) 375, Abdulaziz v Garba (2021) 3 NWLR (Pt. 1764) 379. The Court has a duty not to read into any contract such terms on which there is no agreement- Antonio Oil Co. Ltd v Access Bank Plc (2020) 17 NWLR (Pt. 1752) 99. In other words, it is not the duty of the Court to write or rewrite the contract for the parties. The Court must treat as sacrosanct the terms of an agreement freely entered into by parties; so long as such agreements are lawful.

 

57. Exhibit C1 was entered into freely by the Claimant and the Defendant through its representatives, while, CW1 worked for the Defendant he was bound by the terms of Exhibit C1 and Exhibit D5 respectively. For almost ten (10) years, CW1 worked for the Defendant on the terms and conditions set out in Exhibits C1 and D5 respectively, he was never heard to protest that it was entered into fraudulently, by mistake or deception. The provisions of Article 4 of the ILO Convention C158, Termination of Employment Convention is and has been held by this Court as prima facie evidence of international best labour practice. See Ebere v Diamond Bank Plc (supra). But, its applicability is a question of facts – Section 7(6) of the National Industrial Court Act, 2006. Given the fact that Defendant refuted the Claimant’s position that on the applicability of international best labour practice requiring that a valid reason for termination of a worker’s employment must be stated, the onus now shifts on the Claimant to prove otherwise.

 

58. The Claimant vide Exhibit C3 did show the Court that the Defendant did not adduce any reason or valid reason for the termination of his employment but, respectfully, failed to show how that by contracting outside the provision of Article 4 of the ILO Convention, C158, Termination of Employment Convention, it was still applicable to his contract of employment with the Defendant. Notwithstanding the provisions of Order 14A of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 the fact that the ILO Convention C158, Termination of Employment Convention has not been domesticated or ratified is not, in my humble view, pari material given the pleadings of the Claimant of same as evidence of international best labour practice. International best labour practice is not a concept left to the imagination evidence of same is sourced from ILO Conventions, statutes, laws and in some cases, recently decided foreign cases.

 

59. In the light of the foregoing, I am of the considered view that notwithstanding the fact that the Defendant failed to give a valid reason for the termination of the Claimant’s employment in Exhibit C3, which is prima facie evidence of best international labour practice, I find that the Claimant did not adduce satisfactory evidence to refute the claims that he contracted outside Article 4 of the ILO Convention, C158, Termination of Employment Convention, to make its provision binding and applicable in the instant suit. The facts of this case required CW1 not only to show that it is evidence of best international labour practice but that his contract of employment did not restrict its enforcement. See UTC (Nig) Plc v Peters (2022) 18 NWLR [Pt. 1862] 297On this note, the Claimant’s relief three (3) fails and is hereby dismissed. I so find and hold.

 

60. Relief four (4) is ancillary and or incidental to the grant of relief three (3), it is a claim for general damages for unfair labour practice arising from the Defendant’s failure to give a valid reason for the termination of the Claimant’s employment. The position of our laws remains, where a principal claim for declaratory order fails, any ancillary relief based on the declaratory relief sought must fail. See CBN v Okemuo (2018) 15 NWLR [Pt. 1642] 367, Yil v Ngumar (1998) 8 NWLR [Pt. 560] 125, Nwanze v NRC (2022) 18 NWLR [Pt. 1862] 265. In the light of this, I find and hold that the Claimant’s relief four (4) fails and is hereby dismissed. I so find and hold.

 

61. The Claimant’s relief two (2) is for the sum of N1,000,000.00 (One Million Naira) as damages for the failure of the Defendant to pay the Claimant’s three months’ basic salary in lieu of notice contemporaneously with the termination of the Claimant’s employment. Damages connotes money usually claimed by or ordered to be paid to a person as compensation for loss or injury and are awarded to a successful Claimant as compensation for loss or harm suffered. See Toyinbo v Union Bank Plc [2023] 1 NWLR [Pt 1865] 403 SC, Jaiyesimi v Darlington [2022] 9 NWLR [Pt 1835] 335 SC. I have said it earlier that parties are bound by their agreement, the Court has a duty not to import meaning or words that do not form part of the terms of parties agreement, where the wordings of the agreement are clear and unambiguous, in addition, the agreement was not entered into by fraud, mistake or deception. Clause 22 of Exhibit C1 is clear and unambiguous, it should therefore be given its plain and ordinary meaning. The latter part of Exhibit C3 (termination of appointment letter dated 31.01.2019) states unequivocally: “…In accordance with the provisions of the same Clause 22, the Company shall pay you three months’ basic salary in lieu of notice.”

 

62. Exhibits D3 and D4 dated 10.04.2019 and 16.05.2019 respectively indicate that CW1 was paid way long after his employment was terminated with effect from 31.01.2019. With or without the Claimant signing the initial letter of termination, the content of which was categorical that CW1 would be paid his three months’ basic salary in lieu notice. The law is well settled that “When a contract of service gives a right of termination of the contract by either party, the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice at the time of termination of the contract. Where this is not done, the termination, the termination of the Appellant’s employment would be unlawful…” See Oforishe v N.G.C. Ltd (2018) 2 NWLR (Pt. 1602) 35, NNPC v Idoniboye-Obu (1996) 1 NWLR [Pt. 427] 655, Chukwumah v Shell Petroleum (1993) 4 NWLR [Pt. 289] 512.

 

63. So, it is not enough that the employer state or promise in the termination of appointment letter to pay the employee’s salary in lieu of notice where it decides to terminate the employee’s employment with immediate effect, as is the case in the instant suit. Where payment of salary of the employee is not made contemporaneously with the issuance of the termination of appointment letter, the usual remedy to the aggrieved employee is in damages and the measure of damages is what the employee would be entitled to in the amount of money in lieu of notice. It is apparent from Clause 22 of Exhibit C1 that the Claimant is ordinarily entitled to three (3) months salary in lieu of notice. Clause 2 of Exhibit C1 (offer of employment letter) provides that the Claimant’s basic salary per annum is N1,630,000.00 (One Million, One Hundred and Sixty-three Thousand Naira) only.

 

64. Consequent upon the above, the Claimant is claiming the sum of N3,489,000.00(Three Million, Four Hundred and Eighty Nine Thousand Naira) as the three months basic salary in lieu of notice for the failure of the Defendant to give the contractual three months notice to the Claimant before terminating the Claimant’s employment. When the said sum is divided by twelve (representing twelve calendar months in a year) one arrives at the sum of N96,916.66 as the Claimant’s basic monthly salary. Clause 22 requires payment of three (3) months basic salary in lieu of notice, which means the Claimant ought to have been paid contemporaneously the sum of N290,750.00 excluding any other terminal benefits he might have been entitled to. It therefore means that the failure by the Defendant to make contemporaneous payment of the Claimant’s salary in lieu of notice when it issued the termination letter (exhibit C3) makes the termination unlawful, wrongful. Accordingly, I find that the Claimant is entitled to damages in the sum of N290,750.00 being his three months basic salary which he was entitled to by virtue of Clause 22 of the offer of employment letter. This claim succeeds in part and the defendant is hereby ordered to pay the Claimant the sum of N290,750.00 as damages for failure to pay the Claimant contemporaneously with the termination of the Claimant’s employment. I so find and hold.

 

65. Given the fact that issue one has been resolved in part in favour of both the Defendant and the Claimant, consideration would now be made of issue two as it relates to the remaining claims of the Claimant, namely, reliefs one, five, six and seven. Counsel to the Defendant has argued extensively that the sum sought in relief one was not arrived at from any provision of Exhibit C1 and D5. The sum the Claimant was entitled to by virtue of Exhibits C1 and D5 is his three months basic salary in lieu of notice which when calculated will amount to N290,750.00 (Two Hundred and Ninety Thousand, Seven Hundred and Fifty Naira) only. CW1 had in his Written Statement on Oath at Paragraph 7 stated that by Clause 2 of his Contract of employment with the Defendant, his basic salary amounted to N1,163,000.00 (One Million, One Hundred and Sixty Three Thousand Naira) and he was therefore entitled to the sum of N3,489,000.00 (Three Million, Four Hundred and Eighty Nine Thousand Naira) as his three months basic salary. However, during cross examination, CW1 stated that his claim was for N3,489,000.00 (Three Million, Four Hundred and Eighty Nine Thousand Naira) which represented his 3 years basic salary, relying on Clause 2 of his contract of employment (Exhibit C1) with the Defendant.

 

66. On her part, DW1 had at Paragraph 11.3 of her evidence in chief stated that the sum of N1,163,000.00 (One Million, One Hundred and Sixty Three Thousand Naira) as stated in the letter of employment was the Claimant’s salary for a year and consequently, what will amount to three months basic salary in lieu of notice as provided in Clause 22 of the offer of employment would amount to N290,750.00 (Two Hundred and Ninety Thousand, Seven Fifty Naira only) which is a quarter of the Claimant’s salary per annum and not N3,489,000.00 (Three Million, Four Hundred and Eighty Nine Thousand Naira) as claimed. In Civil cases, the burden of proof will always shift from side to side as the evidence preponderates. It oscillates and it is never static. A.G. Federation v Anuebunwa [2022] 14 NWLR [Pt. 1850] 211 SC, Ekweozor v Registered Trustees, S.A.C.N [2014] 16 NWLR [Pt. 1434] 433 CA. In Sterling Bank v Falola [2015] 5 NWLR [Pt. 1453] 405 CA, it was held inter alia: “In civil cases, the burden of proof in the sense of establishing the case may initially lie on the Plaintiff but it is not static, the proof or rebuttal of issues, which arise in the course of proceedings, may shift from the Plaintiff to the Defendant and vice versa as the case progresses”.

 

67. It is the law that parties are bound by the terms of their contract. Araromi Rubber Estates Ltd v Orogun [1999] 1 NWLR [Pt. 586] 302. As such, in determining disputes arising from the determination of a contract of employment, the Court must confine itself to the plain words and meaning which can be derived from the terms of the contract of service between the parties which provides for their rights and obligations. See Fed Poly, Idah v Egbeke [2023] 1 NWLR [Pt. 1865]227. Clause 2 of the Claimant’s letter of employment (Exhibit C1) relied upon by the Claimant clearly provides: “A salary of N1,163,000.00 per annum shall be payable during the continuance of the employment by equal monthly instalments on the last working day of each calendar month”. Clause 10.2 of the STAFF HANDBOOK further provided that “a staff member asked to resign or whose appointment is terminated shall be given 3 months notice or salary in lieu thereof. An employee who is dismissed shall be paid up until the last day worked. He/she shall be paid his/her provident fund contributions if he/she has been participating. The bank shall deduct from the above any indebtedness of that employee. If an employee has a substantial outstanding motor vehicle loan repayment then such a staff will be required to either return the motor vehicle to the bank or pay up the outstanding balance of the loan.”

 

68. Perhaps an inadvertence, the Claimant’s relief one (1) appears unfounded given the clear provision of the staff handbook and the contract of employment cited above. It is my considered view therefore that the Claimant’s relief one (1) is unfounded and has not been sufficiently proven by the Claimant. The said claim therefore fails and is hereby dismissed. I so hold.

 

69. The Claimant’s relief five (5) is for the sum of N5,000,000.00 (Five Million Naira) as damages against the Defendant for the breach of duty of care owed the Claimant which resulted in the development of terminal health issues by the Claimant. See Dare v Fagbamila [2009] All FWLR [Pt. 489] 568, Jwan v Eco Bank [Nig] Plc [2021] 10 NWLR [Pt. 1785] 449. This leg of the Claimant’s claims falls under the concept of negligence in the law of tort. Negligence arises when a legal duty, particularly the duty of care, owed by the Defendant to the Claimant is breached. Negligence is a matter of fact, it is an omission or failure to do something which a reasonable man, under similar circumstances, would do, or doing of something which a reasonable and prudent man would not do. These are all matters of fact. Oju v Gharoro [2006] 10 NWLR [Pt. 987] 173,  Odinaka v Moghalu [1992] 4 NWLR [Pt. 233] 1.

 

70. For a claim for negligence to succeed, the Claimant is expected to prove that the Defendant owed him a duty of care, the Defendant breached the duty of care and as a result of the breach the Claimant suffered damage. These three factual situations must exist conjunctively to ground the Defendant’s liability in negligence Ogbiri v N.A.O.C Ltd [2014] 14 NWLR [Pt 1213] 208 CA. Therefore, it is not enough to prove damage or that the Claimant suffered damage, without proof of the corresponding duty of care and its breach on the part of the Defendant. The Claimant at paragraphs 11-13 of his written statement on oath stated that he developed some terminal health issues in the course of his employment and that the terminal health issues are attributed to the negligence of the Defendant and the Defendant failed to allow him seek urgent medical care. He went to say in Paragraph 12 that the terminal issues which arose in the course of his employment have affected his chances of being fully employed. In Paragraph 13, he prayed this court. The Claimant in support of his claim relied on two letters written by Blue Cross Hospital and addressed to the Defendant which was then marked as Exhibit C2 and C8 respectively.

 

71. I have closely examined Exhibit C2 and Exhibit C8. It is clear from Exhibit C2 that the Blue Cross Hospital informed the Defendant on the 27.08.2018 that the Claimant had been on intensive management since 16.08.2018 for hypertension and a suspected heart condition. The hospital advised that the Claimant to stay off his normal activities for eleven days and that the Claimant was still under treatment but in good shape to resume his normal duties and would need a long leave for proper recuperation. Exhibit C8 on the other hand showed that the same Blue Cross informed the Defendant on the 16.11.2018 as a follow up information that the Claimant attends the Hospital cardiology clinic and has been placed on medications with advice on lifestyle modification. It was also advised that the Claimant go on 2 months leave to have adequate rest for effective recuperation. All I can deduce from the above is just the health condition, update and recommendations on the health status of the Claimant from Blue Cross Hospital to the Defendant. There was nothing to show that the Claimant in fact developed his illness during the course of his employment with the Defendant or that the terminal illness was as a result of the negligence of the Defendant.

 

72. During cross examination, CW1 stated that there was no other medical correspondence or report in between Exhibit C1 and C8. CW1 admitted that it was when Exhibit C8 was issued that he was granted 20 days medical leave. CW1 further admitted that it was not correct that between Exhibit C2 and C8 the Defendant prevented him from proceeding on medical leave. Facts admitted need no further proof. CBN v Dinnoh [2021] 15 NWLR [Pt. 1798] 91 (SC). The law requires a party to be consistent in its testimony, CW1, respectfully, cannot say one thing in his evidence in chief and another under cross-examination, such inconsistent testimony cannot be relied upon by the Court. I must reiterate that the Claimant has failed to indeed show that there was a breach of duty of care by the Defendant and that he indeed suffered damage as a result of the breach. It is therefore my considered view that this claim by the Claimant cannot succeed because the Claimant has clearly failed to sufficiently prove the ingredient of negligence. There was no clear evidence to show that his health condition was occasioned by his employment with the Defendant. An advice on lifestyle changes is not restricted to limiting workplace duties. I therefore find that the Claimant has failed to prove his entitlement to this relief and therefore dismiss this leg of the Claimant’s claims. I so hold.

 

73. Relief 6 is for interest on the entire sum claimed in this suit at the rate of 10% per annum from the date of Judgment until the entire sum is finally liquidated. The position of our law as regards award of post judgment interest is to the effect that “the award of post judgment interest is substantially statutory and mostly derived its source in the Rules of Court and in the instant case the applicable Rule of Court is the National Industrial Court Rules. The award of post judgment interest lies entirely at the discretion of the trial Court upon delivery of judgment and the maximum percentage of interest that could be awarded on the judgment debt is as prescribed in the Rules of the Court…” See Bolanle v Access Bank Plc [2015] LPELR-40994 (CA).  The essence of post judgment interest is to compensate the successful party for the delay in receiving the judgment sum owed and it is within the exercise of the Court’s discretionary powers to award interest in respect of a judgment in favour of the successful party. See OAN Overseas Agency (Nig) Ltd v Bronwen Energy Trading Ltd [2022] 11 NWLR [Pt 1842] 489 SC.

 

74. By the provisions of Order 47 Rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules, this Court at the time of delivering its judgment or making the order is empowered to give direction as to the period within which payment is to be made or other act is to be performed and may order interest at a rate not less than 10% per annum to be paid upon any judgment. Given the circumstances of this suit, I am inclined to exercise my discretion in favour of the Claimant in this regards, accordingly, interest at the rate of ten percent (10%) per annum is awarded on the judgment sum until same is fully liquidated. I so find and hold.

 

75. The Claimant’s relief seven (7) is for cost of action or litigation, as rightly pointed out by Learned Defence Counsel, this claim is sometimes treated as one for special damages, facts of which must be particularize in the parties pleadings and credible evidence adduced in prove of same. It is also such a claim that has been held to be difficult to accept under our legal jurisprudence – Nwanji v Coastal Services Nig Ltd (2004) LPELR-2106(SC), UBA Plc v Vertex Agro Ltd (2020) (Pt. 1754) 467 at 515, para. D. In the light of the failure to adduce credible evidence in prove of this claim, I find that the claim fails and is hereby dismissed. I so hold.

 

76. On the whole, the issues for determination are resolved in favour of both the Claimant and the Defendant respectively, such that save as will be presently set out below all other claims of the Claimant fails and are dismissed. Consequently, the Court hereby orders and declares as follows:

 

a)     The Defendant is hereby ordered to pay the Claimant the sum of N29,750.00 (Two Hundred and Ninety Thousand, Seven Hundred and Fifty Naira) only as damages for the failure of the Defendant to pay the Claimant’s three months’ basic salary in lieu of notice contemporaneously with the termination of the Claimant’s employment.

b)     Interest at the rate of ten percent (10% ) per annum on all judgment sum until same is fully liquidated.

 

77. No orders as to cost, parties are to bear their respective costs.

 

78. Judgment is accordingly entered.

 

 

Hon. Justice M. N. Esowe, FCIArb

 

Presiding Judge