IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
28TH DAYOF APRIL, 2023 SUIT NO. NICN/CA/01/2020
Mr. Oko Michael Obono …………………………………………………..… claimant
1. The Cross River Institute of Technology &
2. The Government of Cross River State defendants
3. The Attorney General and Commissioner for Justice,
Cross River state
1. Vide a general form of complaint dated 6/1/2020 and filed on the 7/1/2020, accompanied by witness statement on oath, list of witnesses, list of documents to be relied on by the claimant, the claimant prays as per paragraph 16 of the statement of facts as follows:-
a. A declaration that the termination of his employment contained in the letter dated 7/10/2019 is null and void having not been complied with the condition of the contract of employment.
b. An order setting aside and cancelling the letter dated 7/10/2019 for same being a violation of the claimant’s right of fair hearing.
c. A declaration that the claimant is still in the employ of the defendant; especially the 1st defendant.
d. An award of N610,000.00 (Six Hundred and Ten Thousand Naira) being claimant’s unpaid salary of ten months from January to September 2019 and the July, salary of 2018 at N61,000. Per month.
e. An award of N5,000,000.00 (Five Million Naira) damages for breach of contract.
f. An award of N200,000.00 cost of action.
2. The case of the claimant is that he was initially employed by the 1st defendant as a part time lecturer prior to his conversion in the civil engineering department as an adjunct staff. Following a complaint titled ‘A call to rescue CR-ITM’’ the claimant was suspended via a letter dated 7/2/2019, with title ‘Academic Programme Restructuring’. At the end of the 2nd semester the claimant was not recalled in line with the position in the letter of suspension. The claimant wrote a letter of reminder dated 8/7/2019. According to the claimant the letter of reminder led to termination of his employment by the 1st defendant on the advice of the 3rd defendant.
3. According to the clamant the 1st defendant withheld his salary for the month of July 2018, in the sum of N61,000.00 when he was on part time. The claimant also stated that during the period he was on suspension he was not paid his basic emolument or any sum at all.
4. According to the claimant he never breached any condition in his letter of employment to warrant termination of his appointment and the defendant failed to issue or give him the due length of notice in lieu of salary and vice versa. The claimant further stated that prior to his suspension he was not issued with any query. He was not tried or heard by any panel contrary to the staff handbook of the 1st defendant and the enabling Act that established 1st defendant and regulates the condition of service of the claimant. The claimant also stated that he was not given opportunity to defend himself prior to termination of his employment.
5. In reply to the statement of defence, the claimant stated that he orally complained to Bursar about July 2018, the Bursar promised to rectify, but, did nothing till termination of his employment. The claimant denied ever being issued with cheque No. 00266355 or any cheque at all. He stated that payment of staff salaries is through online banking facility where salaries and emoluments are electronically transferred to employees including the claimant.
THE CASE FOR THE DEFENDATS.
6. For the defendants, the claimant was engaged as a part time lecturer prior to his conversion to an adjunct staff in Civil Engineering Department of the 1st defendant. The claimant had never been a full time staff of the 1st defendant. The claimant is not still in the employment of the 1st defendant as his employment was terminated through the letter of 7/10/2019 titled Re: Academic Programme Restructuring. The defendants deny being in possession of letter from the claimant tiled ‘A call for Rescue CR-ITM’ dated 7/2/2019. The termination of claimant’s employment was because his services were no longer required. The claimant’s salary for July 2018 was paid on 13/9/2018. The claimant was not paid salaries for the period he was put on hold as his services were no longer economically viable to the 1st defendant. The defendants are not indebted to the claimant.
7. The claimant’s employment is governed by his letter of employment. The claimant was neither issued a query nor heard by any disciplinary panel because there was neither a complaint nor disciplinary action lodged against the claimant at any time by the 1st defendant. The cheque in the sum of N59,111.68 being claimant’s salary for one month in lieu of notice was raised in favour of the claimant. The 1st defendant’s accountant tried all means through phone calls and inquiries from friends and colleague of the claimant to deliver the said cheque but, no one knew the whereabouts of the claimant as the claimant’s phone could not be reached. The claimant’s wife also refused to collect it on behalf of the claimant. The 1st defendant does not pay salary in lieu of notice through bank. The defendants denied breach of any conditions of service.
THE SUBMISSION OF THE DEFENDANTS.
8. Likong Apuye, Esq; State Counsel ii, ministry of Justice Calabar, representing the defendants formulated twin issues for resolution. They are:-
a. Whether the claimant’s employment had statutory flavour entitling him to the rights of a permanent staff.
b. Whether given the evidence of the claimant, he has proved his case to entitle him to the reliefs sought.
9. Issue 1: Whether the claimant’s employment had statutory flavour entitling him to the rights of a permanent staff.
10. In arguing this issue counsel submitted that in a contract of service, the terms stipulated within the contract decide the rights and obligations of the parties. In support of this submission counsel relied on the case of Francis Adesegun Katto v CBN (1999) LPELR-1677(SC). Counsel submitted that the claimant was first employed as a part time academic staff. Vide exhibit D the claimant was converted from part time to adjunct academic staff. The claimant as adjunct staff is not entitled to other accrued benefits due to full time staff. Under exhibit D, the contract of employment could be terminated by the service of notice or payment of salary in lieu of notice. Exhibit D is the contract of service between the parties.
11. The claimant admitted under cross examination that the 1st defendant did not at any time convert claimant’s employment from adjunct academic staff to full time staff and that from the 3/9/2018 until his employment was terminated, the claimant remained an adjunct academic staff and was never a permanent or full time staff of the 1st defendant.
12. It is submitted that the fact that the claimant was an adjunct staff is significant as both the very dictionary meaning of the word ‘’adjunct’’ and its usage within the 1st defendant implied that which is added or attached to a faculty in a secondary, subordinate or temporary position.
13. Counsel refers to the 3 types of contract as enunciated in the case of CBN V Igwilo (2007) LPELR-835(SC) and submitted that in the instant case the contract of employment falls within the second category i.e at pleasure of employer who could determine same at any time the claimant’s services are no longer needed.
14. Counsel submitted that from exhibit D the claimant’s employment did not enjoy statutory flavour and as such, the 1st defendant had the right to terminate the services of the claimant whenever the claimant’s services were no longer economically viable to the 1st defendant.
15. Issue 2: Whether given the evidence of the claimant, he has proved his case to entitle him to the reliefs sought. It is submitted claimant gave several reasons for termination of his employment. The reasons are considered separately.
16. On the submission that termination of claimant’s employment violated right to fair hearing. It is the submitted that issue of fair hearing could only arise where there is allegation of misconduct against the claimant and he was not given adequate opportunity to defend himself. The claimant has not put before the court any evidence to the effect that he was ever accused of misconduct or that a disciplinary committee was constituted to address any such misconduct. The claimant admitted under cross examination that his employment was not terminated on the basis of misconduct. It is submitted having not proved the absence of fair hearing, his claim fails.
17. On the claimant’s employment was terminated because of a purported complaint he wrote to the 1st defendant. It is submitted that exhibit F tendered to prove that the termination of claimant’s employment was because he purportedly complained about the misadministration of the 1st defendant was never served on the 1st defendant or any of the defendants as there is no such proof even on the face of the exhibit. The content of exhibit F could not have prompted the termination of the claimant’s employment. It is submitted that prior to termination the claimant was sufficiently informed through exhibit C that the number of lecturing hours available to him is no longer economically viable to the 1st defendant.
18. On the sum of N610,000.00 being claimant’s unpaid salaries for July 2018 and January to September 2019. It is submitted this claim is false as July 2018 adjunct staff salaries were paid in September 2018. In proof of these assertions the defendant tendered in evidence exhibits D3, D2 and exhibit G claimant’s statement of account which according to counsel confirmed claimant was credited on 13/9/2018.
19. It is also submitted that the claimant is not being owed salaries from January 2019 to September 2019, as his services had been put on hold and he had not rendered any service to the 1st defendant within the said period. It is further submitted exhibit C revealed that the suspension of claimant’s services was communicated to him. Exhibit C specifically asked claimant to be on hold with immediate effect pending the availability of more courses to teach. The claimant cannot be heard to say that he was owed any salaries within the period he was put on hold, as claimant has not adduced evidence to show he has been given classes to tech within the said period. It is submitted claimant has not proved this claim.
20. On adequate notice of termination was not served on him since salary is paid via bank transfer and not through cheque. It is submitted the terms of the contract of service covenant to pay salary and never indicated methods via which such payment were to be made. This is a matter solely at the discretion of the employer, the 1st defendant. The claimant cannot impose particular mode or method of payment on the 1st defendant.
21. It is further submitted that exhibit A dated 7/10/2019 stated that the claimant’s employment was to terminate with immediate effect and that the Bursar had been instructed to pay the claimant one moth salary in lieu of notice. Exhibit A did not indicate how the said salary was to be paid. The 1st defendant pays salary in lieu of notice via cheque rather than electronic bank transfer. This has been explained by DW2 under cross examination, cheque payment of salary in lieu is adopted because it creates records which reflect signature of affected staff as he must sign and collect the cheque. Having refused and neglected to collect the said cheque, the claimant cannot now be heard to complain that the 1st defendant refused to pay him his salary in lieu of notice. Counsel urged the court to so hold.
22. On the claimant’s claim that he is still in the employ of the 1st defendant. It is submitted that claimant’s employment is at the pleasure of employer who could determine the relationship when his services were no longer required. The claimant ceased to be in the employ of the 1st defendant same having been terminated.
23. On N5,000,000.00 damages and N200,000.00 cost of this action. It is submitted damages are awarded/granted on proof of substantive case. Damages arise naturally and in accordance with the natural cause of things from the breach of the contract or reasonably deduced by both parties. In support of this contention reliance was placed on the case of UBN Plc V Sparkling Breweries Ltd (1997) 5 NWLR (Pt.505) 344. The claimant has not placed before the court the cost of the action to him neither has he sufficiently proved his claim in this suit.
24. In concluding his submission counsel urged the court to dismiss claimant’s case in its entirety because his employment did not enjoy statutory flavour, but rather held at pleasure of his employer and he has not been able to show that the defendants are liable to him.
THE SUBMISSION OF THE CLAIMANT
25. Patrick Ofem, Esq; counsel for the claimant formulated three issues for determination; they are:-
a. Whether from the facts of this case and the relevant documents before this court the termination of claimant’s employment aligned with his letter of appointment.
b. If issue one above is considered in the negative, whether the said termination of the claimant’s employment contained in the letter dated 7/10/2019 is not a nullity and liable to be set aside.
c. Whether the claimant has proof his case to be entitled to judgment.
26. Issue 1: Whether from the facts of this case and the relevant documents before this court the termination of claimant’s employment aligned with his letter of appointment. In arguing this issue counsel submitted that what regulate the relationship between an employer and employee like the claimant and defendants in this case is the service agreement or the contract of service. In support of this submission reliance was placed on the case of UBN Plc V Soares (2012) LPLR-8018(CA).
27. It is also submitted that a master can terminate contract of employment with his servant at any time provided the terms of the contract of service between them are complied with, as the court can only give effect to the contract of service. To support this contention counsel relied on the cases of Bamgboye V University of Ilorin (1999) 70 LRCN 2146, Fakuade V OAUTH Complex Management Board (1995) 5 NWLR (Pt.291) 47.
28. It is submitted that employee has duty to place before the court the terms of contract of employment as per the decision in F.M.C. Ido Ekiti V Alabi (2012) 2 NWLR (Pt.411). It is the submission of counsel that the contract of service in this case is exhibit D already before the court, titled conversion letter from part time to adjunct. According to counsel exhibit D has provided for length of notice to be given in case of termination and circumstances on which claimant’s employment can be terminated.
29. Counsel submitted that vide exhibit D appointment may be terminated by either giving months’ notice or by payment of cash equivalent. Counsel submitted that the use of apostrophe in the word months’ means plurality. If the defendant intends to give one month notice or salary equivalent, it would have been clearly stated. In this case appropriate notice will be at least two months’ notice. One moth notice is a fundamental flaw and breach of the service contract.
30. It is further submitted that the phrase months’ notice in exhibit D is devoid of any ambiguity and should be given literal interpretation. As the duty of court in interpreting contract of employment is to confine itself to the plain words used. Mohammed V Mohammed (2012) 11 NWLR (Pt. p.1
31. It is submitted the conditions or grounds upon which the claimant’s employment can be terminated are clearly spelt out in the said contract exhibit D as is incompetence or breach of rules of the 1st defendant. It has not been shown that clamant has defaulted.
32. It is also submitted that in a contract of service without statutory flavour, once the master complies with the agreement, he may relieve the servant of his job. But where the master gives reason, the burden rest on him to establish that reason. Such a servant must be given fair hearing. To support this contention reliance was placed on the case of UBA Plc V Oranuba (2014) 2 NWLR (Pt.1392) 1. According to counsel in this case, the situation is that the employer has not complied with the contract of employment by justifying the reason thereto. Counsel insisted termination of claimant’s employment is contrary to the contract of employment exhibit D.
33. Issue 2: If issue one above is considered in the negative, whether the said termination of the claimant’s employment contained in the letter dated 7/10/2019 is not a nullity and liable to be set aside. In arguing this issue counsel refers to the letter of termination dated 7/10/2019 and submitted that paragraph 3, is instructive, it provides that Bursar is hereby requested to pay claimant one month salary in lieu of notice. It is the submission of counsel that there is nowhere such condition was stated. The defendant cannot unilaterally alter the content of the contract of service. The length of notice in exhibit A is at variance with the letter of appointment exhibit D. Counsel urged the court to set aside the letter of termination.
34. It is the submission of counsel that the defendants, particularly the 1st defendant has admitted that the claimant was under suspension via a letter dated 7/1/2019, exhibit C. but still argued that the claimant was not entitled to payment during the whole period of his suspension and even if he is being owed the arrears of salaries, the claimant has not demanded for such prior to instituting this action. See paragraphs 4.4.3and 4.4.4. of the defendants’ written address.
35. It is the contention of counsel for the claimant that every employee is entitled to salary when he is on suspension. This is the position of the law as held in Yusuf V Volkswagen Nig. Ltd (1996) 7 NWLR (Pt.463) 746 @ 753-754, ratio 5, where it was held that ‘’the employee has a right to salary during period of suspension’’. Counsel urged the court to hold that the claimant is entitled to salaries as from when exhibit C was served on him. On demand counsel submitted defendants are economical to truth as exhibit F clearly established that claimant has made demand. Counsel went on to argue exhibit F qualifies as business letter and the refusal of the defendant to reply means admission. On this counsel relied on Nagebu Company Nig. Ltd V Unity Bank of Nigeria Plc (2013) All FWLR (Pt.698) 871.
36. On the claim that defendant have sent one month salary, but the claimant refused to collect same. Counsel asked how was the said negotiable instrument sent? Was it through courier, by post or by hand? Counsel answered the posers’ n the negative that the defendants did not give any cheque to the claimant. They are only claiming so, because of this suit. There is no law that says or provides that payment of terminal benefit must be by cheque. Counsel argued it is even more convenient and cost effective for payment to be made online. Counsel urged the court to hold that defendants never gave claimant any cheque or even attempted to do so. Counsel also urged the court to mandate defendants to compute the arrears of the claimant’s salaries from when he was served with exhibit C till when his employment will be determined in accordance with his contract of service dated 3/9/2018 exhibit D.
37. Issue 3: whether the claimant has proof his case to be entitled to judgment. Counsel submitted that the claimant has placed credible evidence before this court to be entitled to the resolution of the issues herein and the reliefs.
38. In concluding his submission counsel submitted that the claimant has discharged the onus of proof placed on him and the defendant did not comply with length of notice in exhibit D as exhibit provided. The claimant never paid claimant arrears of salaries during his suspension and is still indebted to the claimant. Counsel urged the court to grant the claimants reliefs.
39. In reply on points of law counsel submitted that the claimant in paragraphs 4.07 and 4.16 of final written address is obviously relying on an typographical error in exhibit D to attempt to alter the clear intendment of the document. As claimant has pointed to the placement of the apostrophe after rather than before the letter ‘s’ in the word ‘’months’’’ in exhibit D to mean that more than one month was intended as length of termination notice. By employing such a literal interpretation, he has failed to interpret the exact notice or number of months intended and has failed to tell the court or lead the court to determine the exact amount of money in salary accruing to the claimant in lieu of notice.
40. Counsel submitted that the law is settled that where language used in couching a document are clear and unambiguous, the court must give the operative words their simple ordinary and natural meaning. It is not the duty of the court and neither the right of a party to ascribe meaning to clear plain and unambiguous provisions of a statute or the contents of a document in other to give them a slant which accord with a perceived view. To support this contention reliance was placed on the case of Adamu V Leedo Presidential Motel ltd & Anor (2015) LPELR-25918(CA).
41. It is also submitted that exhibit D cannot be read in isolation. The exhibit cannot be confine to the plain words of ‘’months’ as it does not offer any explanation on the exact length of notice which is a fundamental issue.
42. The claimant tendered and relied on exhibit H staff handbook which regulates his relationship with the 1st defendant. Exhibit H provide clarification on length of notice page 43 of exhibit H under heading termination stated that an employee whose appointment is terminated shall be given one month’s notice or one month’s salary in lieu of notice in case of unconfirmed employee and three months’ salary in lieu of notice in case of confirmed employee and any benefit due to him. Since exhibit D clearly stated claimant is not entitled to other accrued benefits due to full time staff and has admitted under cross examination he was never confirmed or made a full time staff he remained temporary adjunct staff, he is clearly entitled to only 1 month notice or 1 month salary in lieu of notice. As provided in exhibit H.
43. It is submitted conjunctive reading of exhibit D and exhibit H the termination of claimant’s employment aligned with his letter of appointment.
44. It is submitted that contrary to paragraphs 4.11, 4.12 and 4.19 of the final written address, the need for hearing never arose as the clamant was neither disciplined nor suspended. As suspension arises when some issues of misconduct is being looked into. In support of this view counsel relied on the case of Galadima v Governor Yobe state (2018) LPELR-47172(CA).
45. It is also submitted that the claimant was never suspended as no disciplinary action was ever taken against him. Rather, because his services were no longer profitable to the 1st defendant, he was asked to wait or be on hold pending when his services will be needed.
46. It is argued by counsel that being a servant holding an office at the pleasure of the employer the claimant’s employment was governed by the terms under which the parties agreed to master and servant. Galadima v Governor Yobe state (supra).
47. In concluding his submission counsel contended that the claimant has not proved his case and urged the court to dismiss the case in its entirety. As his employment did not enjoy statutory flavour rather it is at pleasure of his employer and has not shown defendants are liable to him.
48. I have considered the processes filed, the evidence led by the parties in the course of the trial, the final written addresses and the oral submissions of counsel for both parties in adumbration of the position of their respective clients.
49. Let me start with the submission of the defendants in their final written address to the effect that the claimant did not file reply to the amended statement of defence dated 3/11/2020 which was filed on 16/11/2020. The presumption is that claimant is not contesting the averments in the amended statement of defence.
50. The defendants initially filed their statement of defence dated 26/2/2020 on 27/2/2020. The claimant’s reply to the statement of defence was received at the registry of the court on 29/6/2020 and the processing fees were paid on 10/7/2020. The law is well settled that an amendment takes effect from the date the initial process amended was filed. In view of this counsel has misconceived the law by submitting that there is no reply filed to amended statement of defence. Since, the amended process takes effect from when it was initially filed on 3/11/2020. This means there is a reply to the amended statement of defence already before the court. I find no merit in defendants’ submission, same is hereby discountenance.
51. I should also deal with a simple but fundamental issue to which the parties differ i.e. whether the claimant’s employment is invested with statutory flavour or not.
52. The claimant insisted that his contract of employment with the defendant is one with statutory flavour. While the defendant is of the view that the employment of the claimant is one that is at the pleasure of the 1st defendant, such that it can be determine at any time when the claimant’s services are no longer required.
53. The law is trite that for an employment to enjoy the status of statutory flavour, the manner of employment and termination must be specifically provided for in the statute creating the employment. See FMC, Ido Ekiti V Olajide (2011) 11 NWLR (Pt.1258) 256. However, it must be noted that the mere fact that employer is a creation of statute or that it is a statutory corporation or that the government has shares in it does not elevate its employment into one of statutory flavour. Rather, there has to be a linkage or nexus between its employee’s appointment with the statue creating the employer or corporation. See Power Holding Company of Nigeria Plc v Offoelo (2014) 3 ACELR 1 @ 20 paras 25-30, Comptroller of Customs & Ors. Gusau (2017) 18 NWLR (Pt.1598) 353
54. In fact it has been held, the fact that an appointment is pensionable or made by a statutory body does not mean that an appointment enjoys statutory protection or is one with statutory flavour. See Imolome V WAEC (1992) 9 NWLR (Pt.265) 303; Jirgbagh V UBN Plc (2001) 2 NWLR (Pt.691) 11 CA; NEPA V Adesaaj (2002) 17 NWLR (Pt.797) 578(CA); Ilobacie V Philips (2002) 14 NWLR (Pt.787) 264(CA).
55. It is now trite that conditions of service which give statutory flavour to a contract of service cannot be a matter of inference. They must be conditions which are expressly set out by statute. That the rules and regulations, which are claimed by an employee to be part of the terms of his employment capable of giving it statutory flavour and be of protection to the employee, must
I. Have statutory reinforcement or at any rate be regarded as mandatory;
II. be directly applicable to the employee or persons of his cadre;
III. be seen to be intended for protection of that employment, and
IV. have been breached in the course of determining the employment before they can be reled on to challenge the validity of that determination. See Idoniboye-Ovbu V NNPC 92003) NWLR (Pt.805) 589; Ogieva V Igbinedion (2004) 14 NWLR (Pt.894) 467 CA; Ujam V IMT (2007) 2 NWLR (Pt.1089) 470 CA; Azenabor V Bayero University Kano (2009) NWLR (Pt.1169) 96.
56. Now whether the employment of the claimant in this case is temporary, part-time or full time is of no moment, what is important is the employment protected by statute?.
57. The 1st defendant in this action was established by the Cross River State Institute of Technology and Management, Ugep. Law of 2012. The law has expressly made provisions for employment and discipline of members of staff of the 1st defendant. Sections 22 makes provisions for removal of employee on ground of misconduct. Section 34 empowers the 1st defendant to makes regulations governing employment of members of staff of the 1st defendant. it is in the exercise of the powers conferred on it by section 34(b) of the Cross River State Institute of Technology and Management, Ugep. Law of 2012, that exhibit H was made by the council. This has made the employment of the claimant have statutory flavour, since it was made pursuant to the powers derived from the Cross River State Institute of Technology and Management, Ugep Law of 2012. Having regard to the provisions of the Cross River State ITM law of 2012, the principles of law enunciated in above stated cases on statutory flavour, I have no hesitation in coming to the conclusion that the claimant’s employment in this case has statutory flavour because it has protection of the law.
58. The law is trite where a servant/employee is to be removed in a contract with statutory flavour, the first question the court would ask is: has the servant’s employment been determined in accordance with the way and manner prescribed by statute. Or, is the contract governed by an agreement of the parties and not under any statute? Thus, where the servant is sought to be removed in a contract with statutory flavour, that is, a contract of employment wherein the procedures for employment and discipline, including dismissal, are clearly spelt out in the relevant statute or regulations made pursuant to statute, such a contract must be terminated in the way and manner prescribed by the statute or regulations. Any other manner of termination, which is inconsistent with the relevant statutory provisions is void and has no effect. In other words, in an employment with statutory flavour, the employer must comply strictly with its provisions in terminating the employment or in dismissing the employee. Any other manner of terminating the employment, which is inconsistent with the statute, is null and void and of no effect. See Bamgboye v. Unilorin (1999) 10 NWLR (Pt. 622) 290;Olatunbosun v. N.I.S.E.R. Council (1988) 3 NWLR (Pt. 80) 25;Comptroller General of Customs v. Gusau (2017) 18 NWLR (Pt. 1598) 353.
59. In cases governed only by agreement of the parties and not by statute, removal of a servant by termination or dismissal would be in the form agreed to. Any other form of dismissal or termination connotes only wrongful termination or dismissal. It therefore does not warrant a declaration of such dismissal as void. Without any reason, the employer can terminate the employment of his servant and render himself liable to pay damages and such other entitlements of the employee that accrued at the time of the termination only.
60. I shall now determine the case as put forward by the patties.
61. The law is well settled that a claim before the court is prescribed by the reliefs being sought and the claimant is only duty bound to adduce evidence to establish his case. Thereafter, the burden of proof shift on to the defendants. See sections 132, 133 and 134 of the Evidence Act. In the circumstances I shall consider the reliefs being sought by the claimant.
62. Reliefs 1, 2 and 3, are interwoven they would be considered together. In these reliefs the clamant is seeking for declaration and nullifying termination of his employment, setting aside of the termination and declaring claimant is still in the employ of the 1st defendant.
63. According to the claimant an employer can terminate contract of his employee provided the terms of the contract of service between them are complied with as the court will only give effect to the contract of service between the parties. According to the claimant exhibit D contract of service has provided the duration of notice to be given and circumstances upon which claimant’s employment can be terminated. According to counsel the defendant did not give the clamant requisite notice or payment in lieu of notice. And the conditions on which contract can be terminated are spelt out i.e if claimant failed to meet up with the job demands or by violation of any of its rules.
64. It is submitted that the claimant has not been given opportunity to defend himself before his appointment was terminated. It is submitted that the termination is in breach of contract of employment exhibit D.
65. For the defendant, claimant is capitalizing on typographical error to turn one month salary in lieu of notice to two months’ salary in lieu of notice. Counsel urged the court not to use literal rule of interpretation. As claimant tendered and relied on handbook. As per exhibit H claimant is only entitled to one moth salary in lieu of notice.
66. It is also submitted since there is no disciplinary proceeding and the suspension did not arise from misconduct, there is no suspension.
67. In an action where the claimant is contesting validity of termination of employment, he has the onus of proving the terms and conditions of contract as well as how the conditions were violated by the defendant. In the instant case the conditions of service can be found in exhibit D, H and the CR-ITM Law. The law establishing the defendant has made elaborate provisions on disciplinary action. See sections 22 and 23 of the CR-ITM Law. In the case at hand the termination of the claimant’s employment was not based on any disciplinary action as there was no any complaint against the claimant bordering on discipline. Therefore, sections 22 and 23 are not relevant to the claimant’s case.
68. The letter of termination exhibit A clearly stated that the claimant’s employment was terminated for service no longer required. The letter further directed bursar to pay one month salary in lieu of notice. As pointed out earlier in this judgment claimant employment is one with statutory flavour in the circumstances for any purported termination to be valid it must be shown to have been done in line with the conditions of service, exhibits D and H.
69. In exhibit D it was stated either party may terminate by giving months’ notice or by payment of cash equivalent. The 1st defendant has also the right to terminate if the claimant failed to meet up with the job or by violating any of the rules of the 1st defendant.
70. Under Article 6.9(a) (b) provisions were made for termination of employment on ground of reorganization. A combine reading of exhibit A, B, C, D, H, will revealed that: Vide exhibit C the claimant was purportedly stopped from performing his duties. The action of the defendant as contained in exhibit C is ultra vires as there no provision in the condition of service that sanction taking of such action without any disciplinary action or query issued to the employee concerned.
71. It can be deduced from a holistic reading of exhibits A, B, C, and D that the termination of claimant’s employment can be attributed to alleged restructuring. In the circumstances the defendant is mandated by the provision of Article 6.(a) and (b), of the staff handbook to pay to the claimant three months’ salary in lieu of notice, his accumulated leave commuted to cash and in addition 25% of his annual emolument.
72. The defendant did not pay the claimant the requisite three months’ salary in lieu of notice as required by the staff handbook. What the 1st defendant did as per exhibit A was to request Bursar to pay claimant one month salary in lieu of notice. The payment of one month salary is not the same thing with payment of three months’ salary as provided for in the staff handbook. This means the termination of claimant’s employment by the 1st defendant was not in conformity with the extant rules and regulations governing the employment of the claimant. Furthermore, where there is conflict between letter of employment and provisions in the condition service, the condition of service prevail. Therefore, in the instant case claimant is entitled to three months’ salary in lieu of notice and not one month salary. The 1st defendant having failed to comply with the laid down procedure for terminating claimant’s employment the entire exercise is null and void and of no effect whatsoever.
73. From all I have been saying above the claimant has proved that the termination of his employment by the 1st defendant did not follow due process of law, the termination is hereby nullified and set aside. The claimant’s employment being that covered by statute he is entitled to be immediately reinstated back to his job.
74. On relief 4 payment of the sum of N610,000 being unpaid ten months’ salary. Since the 1st defendant’s stoppage of claimant’s employment has no legal basis the claimant is entitled to refund of his unpaid salary in the sum of N610,000.
75. For avoidance of doubt the order of the court is as follows:-
a. A declaration is hereby granted that the termination of claimant’s employment via letter dated 7/10/2019 exhibit A is null and void and of no effect same is hereby set aside.
b. A declaration is hereby grated to the effect that the claimant is still in the employment of the 1st defendant.
c. The claimant is entitled to his unpaid salaries from January 2019 to September 2019 in the sum of N549,000
d. The claimant is not entitled to damages in the sum of N5,000,000.00 as same will amount to double compensation. This relief failed it is hereby dismissed.
e. The claimant is entitled to cost in the sum of N200,000 only.
76. This judgment takes immediate effect.
77. Judgment is hereby entered accordingly.