IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE E.N.N AGBAKOBA

 

DATE:            28TH MARCH 2023                                                     SUIT NO: NICN/ABJ/389/2019

 

BETWEEN:

MR. OMOZUSI IYOBOSA                                                                          CLAIMANT

 

AND

 

1. OGBEBOR CONCRETE INDUSTRY LTD

2. PAULOSA NIG. LTD                                                                              DEFENDANTS

REPRESENTATION

JUDGEMENT

The Claimant via a General Form of Complaint, Statement of Facts and other frontloaded process dated and filed 10th December 2019 commenced this suit against the Defendants seeking from the Honorable Court the following reliefs:

1.     A DECLARATION that the termination of the Claimant’s employment or dismissal of the Claimant by the Defendants without notice and/or without justifiable reason is wrongful.

2.     A DECLARATION that the Claimant is entitled to pension contributions from the Defendants in accordance with the Pension Reform Act.

3.     AN ORDER directing the Defendants to immediately pay to the Claimant the sum of N4, 478, 120 (Four Million, Four Hundred and Seventy-Eight Thousand Naira) only being outstanding arrears of salaries and allowances spanning 64 (Sixty-Four) months.

4.     AN ORDER directing the Defendants to immediately pay to the Claimant the sum of N100, 000 (One Hundred Thousand Naira) only being payment in lieu of notice of termination of the Claimant’s employment.

5.     AN ORDER directing the Defendants to immediately pay to the Claimant the sum of N300, 000 (Three Hundred Thousand Naira) only being out of pocket expenses he incurred renovating the Defendants house (the AGM Quarter, Paulosa Camp, Life Camp, Abuja).

6.     AN ORDER directing the Defendant to immediately calculate the Claimant’s severance benefits and pay to the Claimant.

7.     AN ORDER directing the Defendants to immediately compute and remit to the Claimant or to any Pension Fund Administrator of the Claimant’s choice 9 (Nine) years and 2 (Two) months pension contributions due to the Claimant.

8.     AN ORDER directing the Defendants to immediately pay to the Claimant the sum of N10, 000, 000 (Ten Million Naira) only being general damages for breach of contract of employment, psychological trauma, emotional distress suffered by the Claimant and/or for wrongful conduct of the Defendants.

9.     The cost of this action to be assessed at the point of Judgment.

NB. The Defendants may pay the amount claimed with costs to the Claimant or the Claimant’s Counsel within the time allowed for appearance and that upon such payment the proceedings shall terminate.

 

In response to this suit commenced, the Defendants filed a Memorandum Conditional Appearance, Statement of Defence and all frontloaded document dated and filed 6th March 2020 which was initially out of time, however by an application extending the time within which to file the processes the Defendants sought an extension of time. The Court granted the application and the processes were regularized.

Claimant did filed a Reply to the Defendants Statement of Defence dated and filed 19th March 2020. With these pleadings filed, parties joined issues.

Before proceeding, I will give a brief summary of the complaints of the Claimant and the defenses of the Defendant to the complaints.

 

CLAIMANT’S CASE

Claimant averred that on 25th August, 2010 the 1st Defendant employed him as an Accountant. A formal letter of Offer of Employment dated 13th September, 2010was issued to the Claimant. The 1st Defendant fixed the Claimant’s net monthly salary in the sum of N40, 000 (Forty Thousand Naira) only. By the terms of the contract of employment, and in view of the poor salary, the Claimant was entitled to free accommodation. Also, although not captured in the letter of Offer of Employment, by convention of the 1st Defendant, the Claimant is entitled to monthly allowance of N20, 000 (Twenty Thousand Naira) only. The Claimant averred that on 30th May, 2015 by a letter of even date he was appointed as the Acting General Manager of the Defendant. He was further appointed as the Acting Area General Manager of the Defendants by the President of the Defendants. The Defendants through their top management verbally agreed to pay to the Claimant monthly salary in the sum of N100, 000 (One Hundred Thousand Naira) only and monthly allowance in the sum of 50, 000 (Fifty Thousand Naira) only as Acting Area General Manager. He requested to the Defendant to put the agreed remuneration in writing, but the President of the Defendants kept assuring him that he will do so but never did. The Claimant averred that since his employment with the Defendants in August, 2010 he served the Defendants and carried out his duties over the years with integrity, diligence and competence; and there has never been any course for him to be queried for any reason whatsoever by the Defendants or anybody else. And since his employment with the Defendants, the Defendants have failed, neglected and/or refused to pay his salaries and allowances as at when due. On several occasions the Claimant was not paid at all and on some other occasion the Claimant was paid percentage salaries which were not up to the agreed amount. In fact, since the Claimant’s appointment as Acting General Manager he has not received a kobo from the Defendants as salary or allowance or entitlement.

The Claimant averred that following his appointment as the Acting Area General Manager (AGM), he was directed by the Defendants to move into the AGM house quarter situate Paulosa Camp, Life Camp, Abuja; however he could not move into the house because of the deplorable conditions of the house then. With the approval of the Defendants, the Claimant expended out of his own pocket the sum of N300, 000 (Three Hundred Thousand Naira) only in renovating the house. The Claimant still could not move in because of very high unpaid utility bills on the house running into about N500, 000 (Five Hundred Thousand Naira) only. The Claimant continued that surprisingly on 9th November, 2019 the 1st Defendant, through its Managing Director, terminated his employment with immediate effect without giving the Claimant any notice on alleged ground that a purported disciplinary committee investigated the Claimant’s purported case and discovered purported gross misconduct, incompetence and fraudulent activities. The reason for the termination of his employment is not only ridiculous but false as the Claimant is not aware of any disciplinary committee set up to investigate his case and neither was he informed of any nor invited to defend any allegation against him. The Claimant has done nothing wrong to warrant the imputation in the letter of termination. Consequently he wrote response letter dated 11th November, 2019 to the 1st Defendant which letter was served on the Defendants on 12th November, 2019 vide Red Star Express courier company. Till date the Defendants have failed to respond to the Claimant’s said letter dated 11th November, 2019.

The Claimant averred further that by law the Defendant is mandated, on monthly basis, to contribute at least 7.5% (Seven and half Percent) of the Claimant’s basic salary as pension contributions and remits same to a Pension Fund Administrator (PFA) of the Claimant’s choice. A request by the Claimant to the Defendant to nominate a PFA for the remittance of his monthly pension contributions was bluntly rebuffed by the Defendant.

1ST DEFENDANT DEFENCE

On the other hand, the 1st Defendant admitted that the Claimant is staff of the 1st Defendant. It however denied that at no time did it agreed with the Claimant for the N20,000 monthly allowance nor did it agreed with any sum as monthly allowance and has not in any time approved the payment of same for Claimant or any staff of the company and the Claimant is not entitle to any allowance. 1st Defendant nor any of it top management agreed verbally or in any form with the Claimant any increased in his salary and nor did it or management agreed for the payment of N50, 000.00 monthly allowance or any sum whatsoever.

1st Defendant averred that the Claimant’s integrity, honesty, loyalty and dedication to the work was in doubt, as Claimant compromised, diverting, company resources and materials to execute his personal contract on the same premises and tools of defendants without disclosing this to his employer and he was caught red handed and after that offered to pay commission to the 1st defendant for using it premises and material to execute a contract worth Four Million Naira, N4, 000, 000, 00. One Mrs. Osanede Edosomwan, reported the matter to the police station for further investigation, at the police station the Claimant admitted all allegations and pleaded that the defendant should not prosecute him

The 1st Defendant averred that it did pay all it staff their monthly salary through the Claimant who is the manager/ accountant and responsible for the payment of salaries and other expenses on behalf of the company and also pay himself and it is not possible for him to pay other staff and denied himself salary and he has not communicate it to the Board either through writing or any other forms that the company is owing him any salary. Therefore it did not owe the Claimant any salaries or any allowances nor owe any staff any salaries or allowances up to the period of disengagement.

The 1st Defendant averred that it did not at any time approved the renovation of the house nor does it permit Claimant to use his personal money to renovate the staff quarters nor is the defendants aware of any accumulated utility bills.

The 1st Defendant averred that the company received the latter dated 11th November, 2019 and but is yet to respond because termination of contract on the procedure need no further explanation, since it is not disciplinary committee investigation. The Claimant was also approached with a month salary in lieu of notice for termination of employment but to the defendant’s surprise the Claimant turned down the offer.

1st Defendant averred that the Claimant was in charge and given the responsibility of day to day running of the defendant and he received his salary in full and had never for once informed the Board of Director of the 1st Defendant the need to enlist any staff or him under any PFA for pension contribution. The Claimant collected all his salary, thus percentage or pension contribution cannot be done alone by the defendant and therefore cannot complain of not remittance to the pension fund because he collected his full salary. The 1st Defendant averred that the Claimant is the accountant, manager and sees to the day to day activities of the defendant, the Claimant paid other workers’ salaries and he paid himself and the defendant did not own the Claimant any salaries and allowances because the defendant neither approved any allowances for any staff nor the Claimant.

 

CLAIMANT’S REPLIES TO THE DEFENDANTS’ STATEMENTS OF DEFENCE

 

REPLY TO THE 1ST DEFENDANT’S STATEMENT OF DEFENCE

In his reply to the 1st Defendant’s Statement of Defence, the Claimant reiterated that his integrity, honesty, loyalty and dedication to work were never in doubt. And in fact he was always at the beck and call of the President and top management of the Defendants and has always carried out their instructions down to the letter without objection and the reason he was never queried. It was even because of the loyalty the Claimant had for the Defendants that he continued to work for the Defendants despite being owed several months of salaries and allowances.

The Claimant stated that he never compromised nor diverted the Defendants’ resources and/or materials to execute his personal contract or any contract on the same premises or any premises and neither did he use any tools of the Defendants without disclosing to his employers nor was he (the Claimant) caught red handed or at all nor did he ever offer to pay commission to the Defendant for using its premises and material to execute a contract worth Four Million Naira (N4, 000, 000) or any amount at all.

Claimant further stated that contract in his personal name or in the name of any company he is the owner or shareholder or director has ever been performed at the premises of the 1st Defendant or anywhere else. He denied that he ever admitted any wrong doing at any police station nor pleaded that the Defendant should not prosecute He however admitted that as the accountant, salaries of staff were handed over to him by the management of the Defendants for payment to himself and other staff, but that he only pays according to specific instruction of the management of the Defendants and that the Board of the Defendant is fully aware that staff are being owed litany of arrears of salaries. And every payment is countersigned by the staff receiving the salaries anchor allowances including himself.

The Claimant stated that at no time at all did the Defendant’s representative met him on any issue at all bothering on mismanagement of fund, diversion of company material to execute personal contract, dealing privately with the company’s customer without the knowledge of the company’s management or on any issue at all as alleged. And he did not at any time offer to pay any commission on any contract to the Defendants. The President of the Defendant agreed that a percentage (to be agreed) of profit made from any contract sourced by any third party in partnership with the 1st Defendant shall be paid to the 1st Defendant. And to the best knowledge the sum of N200, 000 (Two Hundred Thousand Naira Only) was paid to the President of the 1st Defendant as deposit for expected profit from the contract referred to in paragraph 6. He finally stated that it is completely false that the Defendants or anybody else at any time or in any manner whatsoever approached the Claimant with a month’s salary in lieu of notice of termination.

 

 

REPLY TO THE 2nd DEFENDANT’S STATEMENT OF DEFENCE

In his reply to the 2nd Defendant’s Statement of Defence, the Claimant stated that the ownership, staff, management, operation and day to day running of the 1st and 2nd Defendants are largely fused especially in Abuja Region. And since his employment pursuant to the 1st Defendant’s letter of employment has been working for both the 1st and 2nd Defendant especially in area of Acting General Manager. Both companies, until on 12th February, 2020, were under the chairmanship of Col. Paul Ogbebor (Rtd) whose unfortunate death occurred about 12th February, 2020. The Claimant further stated that he has executed several documents including Court documents in Suit filed by the 2nd Defendant at the Federal High Court on behalf and for the 2nd Defendant as an employee of the 2nd Defendant.

 

At the trial which commenced on 27th October, 2021, the Claimant testified as CW1 and as the sole witness, he adopted his Witness Statement on Oath filed on 10th December, 2021 as well as his Additional Witness Statement on Oath filed on 19th March, 2020 which was then admitted in evidence as Exhibit CW1 and Exhibit CW2 respectively. The Witness also tendered the following document;

 

Exhibit C3: Letter of Offer of Employment

Exhibit C4: this is the Defendant’s letter dated 30th May, 2015 appointing the Claimant as Acting General Manager.

Exhibit C5: these are receipts evidencing expenses incurred by the Claimant in renovating the Defendants’ Area General Manager’s Quarters.

Exhibit C6: this is the Defendant’s letter dated 9th November, 2019 terminating the Claimant’s employment. It is titled: “Termination of Employment.”

Exhibit C7: this is the Claimant’s response letter dated 11th November, 2019 and served on the Defendant vide courier.

Exhibit C8: these are copies of some books of account of the Defendants showing the Defendants’ pattern of paying salaries with clear evidence of percentage payment and none payment.

 

The Claimant Witness was cross-examined and discharged. The Defendant on the 18th July, 2022 entered its defence and called its sole witness one Mr. IKPOMWOSA PAUL OGBEBOR, one of the Executive Director of the 2nd Defendant. Defendant Witness adopted his Witness Statement on Oath deposed to on the 6th March 2020 which was then admitted in evidence as Exhibit DW1. The Defendant Witness did not tender any documents. The Defendant Witness was cross-examined by the Claimant’s counsel and discharged. However upon the application of the Defence Counsel, the matter was further adjourned to 20th October, 2022 for continuation of defence. On 20th October, 2022, the Defendants were absent in Court and unrepresented by Counsel and no reason was given to explain their absence. The defendants were thereafter foreclosed from further defending this suit and parties were directed to file written addresses.

 

The Claimant filed his Final written Address on the 2nd December 2022.

The Defendant filed his Final Written Address on the 13th December 2022. No Reply on Points of Law was filed.

 

CLAIMANT’S FINAL SUBMISSION

 

the Claimant addressing the Court raised two issues for determination;

 

1.     Whether or not the termination and/or summary dismissal of the Claimant’s employment is not wrongful in law; and

 

2.     Whether or not the Claimant has proved his case on the balance of probability and should succeed in all his claims against the Defendants in this suit

 

ISSUE ONE

 

Whether or not the termination and/or summary dismissal of the Claimant’s employment is not wrongful in law

On this issue, Counsel to the Claimant submitted that the termination and/or dismissal of the Claimant’s employment by the Defendants is wrongful in law the Defendants having failed to give notice and having not given good, truthful or valid reasons for the termination or dismissal; the Defendants failed to prove their allegation of wrong doing (crime or fraud) by the Claimant. Counsel argued that the position of the law before now, and prior to the 1999 Constitution of the Federal Republic of Nigeria (as amended by the Third Alteration Act, 2010) as well as the National Industrial Court Act, 2006, is regulated by the common law principle of master/servant relationship which is that an employer has the prerogative to hire and fire for good, bad or no reason at all. The courts had relied on the harsh and rigid common law procedure of “at will” employment relation, allowing employers to terminate employments for bad or no reason at all. OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 299 @ 685. He submitted that this principles however no longer applies as the National Industrial Court of Nigeria, distinguishing the earlier cases which were decided before or without considering the National Industrial Court Act and the Constitution, has held in recent decisions that an employer can no longer dismiss or terminate an employee’s employment for bad or no reason at all. As employees can no longer be lightly discarded (for good, bad or no reason at all) as employers are now required to give valid and justifiable reasons for determination of the employments of their employees. Where reason is supplied for termination or dismissal, such reason must be shown to be truthful and proved.

 

Claimant’s Counsel submitted that the concept of unfair labour practice is not expressly provided for in the Nigerian Labour Laws. However, the concept has gained recognition through the Nigerian Labour Courts (this Honourable Court) pursuant to Section 254C of the 1999 Constitution of the Federal Republic of Nigeria (as amended by the Third Alteration Act, 2010), Section 7 (6) of the National Industrial Court Act, 2006.

 

One of such international convention which has been enforced by this Court in a number of recent decisions is Article 4 of the International Labour Organization Convention on Termination of Employment – Convention, 1982 (No. 158) (ILO Convention) which stipulates as follows:

 

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

 

Also Articles 5 and 6 of the ILO Convention listed, inter alia, what shall not constitute a valid reason for termination of employment. The provisions of Articles 4, 5 and 6 of the ILO Convention is a clear departure from the general common law position that an employer has the right to terminate an employee with or without reason even though the termination constitutes a breach of contract. MIX & BLAKE V. NUFBTE (2004) 1 NLLR (PT. 2) 247; PETROLEUM AND NATURAL GAS SENIOR STAFF ASSOCIATION OF NIGERIA V. SCHLUMBERGER ANADRILL NIGERIA LTD (2008) 11 NLLR (PT. 29) 164, where the Court applied the provision of Article 4 of the ILO Convention and held that the common law principle that gives an employer the right to terminate a contract of employment without reason is unfair labour practice. Counsel again submitted that it can never be just where an employer of labour, without just and established cause, impugned the integrity of an employee and based on this impugnation, goes ahead to peremptorily terminate his employment. As the law has moved from the narrow confines of common law in master / servant relationship to a more proactive approach that secures the rights of both parties to an employment contract. GODWIN OKOSI OMOUDU V. PROF. AIZE OBAYAN& ANOR (UNREPORTED SUIT NO. NICN/ABJ/03/2012) MR. EBERE ONYEKACHI ALOYSIUS V. DIAMOND BANK PLC (2015) 58 NLLR 92; AFOLAYAN ADERONKE V. SKYE BANK (UNREPORTED SUIT NO. NICN/IB/08/2015, JUDGMENT DELIVERED ON 17TH MAY, 2017); MARIAM V. UNIVERSITY OF ILORIN TEACHING HOSPITAL MANAGEMENT BOARD (UNREPORTED, SUIT NO. NICN/LA/359/2012). Counsel submitted that what constitutes valid reason for termination of employment is a question of fact to be determined on case-by-case basis. He established that no clear notice of termination was given to the Claimant in violation of the Section 11 of the Labour Act which provides that where no length of time is stated in the contract of employment, a month’s notice shall be imputed in the case where the employee has been in employment for five years or more. Counsel argued that the Defendant took a whole lot of time and could have seized the opportunity to call credible witnesses but failed to lead any evidence of wrong doing against the Claimant. He submitted that there is presumption of unfavourableness of evidence of material witness not called by a party. USUFU V. STATE (2007) 1 NWLR (PT. 1020) 94 AT 118.

 

The Claimants argued that the Defendants alleged that they reported the Claimant to the Police and the Claimant made statement admitting the alleged crime but there is no evidence of such admission before the Court. He submitted that the position of the law is that there is presumption that a document withheld will be unfavorable to the party who withheld it when produced. It is also the law that where a party alleges the existence of a material evidence but fails to produce it, it is to be presumed that the evidence does not exist otherwise, it would have been produced Section 167 (d) of the Evidence Act, 2011. UBN PLC V. OFAGBE FARMS LTD &ORS (2003) FWLR (PT. 142) AT 49 C.A. Counsel stated that the Defendants’ claim in their pleading that the Claimant was offered salary in lieu of notice is nothing but an after-thought; and an afterthought in judicial trial has been held not to be relevant. He submitted that the law is that facts admitted needs no further proof and the Court can act on it. OKOROAFOR V. EMEKA (2015) 34 WRN 45 AT 121-122, LINES 40 -5; ADEFARASIN V. DAYEKH (2007) 11 NWLR (PT. 1044) 89.

 

Claimant Counsel submitted that the law is trite that a disciplinary hearing (whether in public service or private employment) must be conducted fairly; that is, in accordance with the rule of law. Section 36 (6) of the Constitution of Nigeria, 1999 (as amended). To achieve this, a number of rules of natural justice must be observed:

a.     The employee is entitled to know the nature of the charge against him, in order to be able to prepare his case;

b.     The employee should be given an opportunity to state his case, no matter what the circumstances are;

c.      Although, it is not essential that he should be present in person throughout the hearing, the employee should be permitted the right to have a trade union representative or a legal practitioner to speak on his behalf. A failure to permit representation may render the proceedings a nullity and subsequent dismissal unfair; and

d.     The employee should be informed of his right to appeal to a higher level of management, if any.

Citing the English authorities of HITCHINS V. BRITISH RAILWAY BOARD (1974) IRLR 303; SHARMA V. WEST YORKSHIRE PASSENGER TRANSPORT EXECUTIVE (1977) IRLR 1B; TESCO V. HILL (1977) 1 IRLR 63; AND BANK XEROX (UK LTD) V. GOOD CHILD (1979) IRLR.

 

Counsel to the Claimant  further submitted that the Supreme Court of Nigeria has held in plethora of authorities that where an employer dismisses or terminates the appointment of an employee on grounds of misconduct, in order to justify its action the employer must establish before the court that the allegation was disclosed to the employee; that he was given fair hearing, that is to say, that the rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure, if any, and accepted that he committed the act after investigation. YUSUF V. UNION BANK OF NIGERIA (1996) 36 NWLR (PT. 457) 632 SC.; UNIVERSITY OF CALABAR V. ESSEIN (1996) 10 NWLR (PT. 477) 225 AT 226 SC; OLATUNBOSON V. NISER COUNCIL (1988) 3 NWLR (PT. 80) 25 SC; AIYETAN V. NIGERIAN INSTITUTE FOR OIL PALM RESEARCH (1987) 3 NWLR (PT. 59) 48 SC; AND ADEDEJI V. POLICE SERVICE COMMISSION (1968) NMLR 102 SC.

 

Counsel finally submitted that it is good law that formal letters deserved to be replied unlike social correspondence. Thus, a Court is entitled to infer, and we humbly urge my Lord to so infer, that failure to reply a formal letter amounts to admission of facts stated therein on the principle that what is not denied is deemed admitted. TRADE BANK PLC V. KHALED BARAKAT CHAMI (2003) 13 NWLR (PT. 836) 219 – 220, PARAGRAPHS E-A.

 

ISSUE TWO

 

Whether or not the Claimant has proved his case on the balance of probability and should succeed in all his claims against the Defendants in this suit

 

On this issue, Learned Counsel to the Claimant repeated his argument on issue one and submitted further that the Claimant has proved his case on the balance of probability and ought to succeed in all his claims against the Defendants. The law is clear, and facts admitted need no further proof. ACHIMUGU V. MINISTER OF FCT & ANOR (1998) 11 NWLR (PT.574) 467 AT 477; IRIRI V. ERHURHOBARA (1991) 22 NSCC (PT.1) 314 AT 321.

The standard of proof required of the Claimant in this case, in establishing his claims, is minimal proof the Defendants haven not offered any material nor credible evidence in rebuttal of the Claimant’s case. NWABUOKU V. OTTIH (1961) 1 ALL NLR 987. The Claimant’s Counsel submitted that the Claimant has proved his case beyond minimal proof. As the Claimant has sufficiently established before this Honorable Court by way of credible evidence that the dismissal / termination of his employment was wrong and damages flew therefrom and ought to be awarded all the reliefs claimed. ANAKISM V. UNION BANK OF NIG. LTD (1994) 1 NWLR (PT. 322) 557 CA; IYERE V. BFFM LTD (2008) 18 NWLR (PT.119) 300 @ 345AND 347; DARE V. FAYBAMILA(2009) 14 NWLR(PT.1160) 177 @ 202; AND C &C CONSTRUCTION CO. LTD V. OKHAI (2003) 18 NWLR (PT.851) 79 @ 105-106.

 

On relief (E) claimed, Claimant submitted that the Claimant is entitled to full remittance of his pension fund to his Pension Fund Administrator from inception of his employment in August, 2010 to the date of termination of his employment. Counsel argued that the right to pension is a Constitutional one and cannot be taken away from a citizen without just cause. The Claimant is entitled to his full pension contributions outstanding since when he was employed. MOMODU V. NIGERIAN UNION OF LOCAL GOVERNMENT EMPLOYEES (NULGE) (1994) 8 NWLR (PT. 362) 336 AND NIGERIA SECURITY AND MINTING CO. LTD V. ADEKOYA &ORS (2003) 16 NWLR (PT. 845) 128. He submitted that the Constitution of Nigeria, 1999 (as amended) and International Labour Conventions makes payment of pension or severance benefit compulsory for employers. Although there is no provision for payment of pension or severance benefit in Exhibit C3, payment of pension or severance benefits is now an international best practice, that an employer cannot escape, where an employment is terminated without the fault of the employee.

 

Counsel submitted that several jurisdictions all over the world now enforce the provision of Article 12 of the ILO Convention to award pension or severance benefits even if there is no express provision for payment of same in the contract of employment. The payment is to cushion the effect of the sudden disengagement as the employee may not be prepared for it.  Furthermore, the governing pension law was the Pension Reform Act, 2004 which make compulsory pension contribution applicable to private organizations with Five (5) employees or more. The Claimant was employed in August, 2010 while the Pension Reform Act, 2014 was signed into law by the then President of the Federal Republic of Nigeria Goodluck Ebele Jonathan (GCFR) specifically on 1st July, 2014 which increased contribution by employers to 10% (Ten Percent). Under both laws, the Defendants compulsorily ought to remit the Claimant’s pensions.

 

On relief (E) being claim for N300, 000 being cost of renovation is proved as special damages for which the Claimant tendered unchallenged Exhibit C5.

 

On relief (H) claimed, Counsel submitted that the termination or dismissal of the Claimant’s employment being wrongful and without justification, the Claimant is entitled to the full sum of N10, 000, 000 (Ten Million, Five Hundred Thousand Naira) only being general damages for breach of contract of employment, psychological trauma and/or emotional distress. Article 10 of the ILO Convention.

 

DEFENDANTS’ FINAL SUBMISSION

 

Defendant in addressing the Court raised a sole issue for determination;

 

Whether the Claimant has proven or established a case or any entitlement to the claims sought against the defendants to enable this Honourable Court grant the reliefs sought.

 

On this issue, Learned Counsel for the Defendant submitted the law is trite that where a party seeks to persuade the Court to accept a certain state of affairs, it must prove same. Thus the Claimant has not established before this court neither did it place the necessary material facts and documents before the court in support of his claim to enable the court to grant his prayers. ABDULLAHI V HASHIDU [1994] 4 NWLR (Pt. 600) 638 at 646. It is Counsel submission that it is not a mandatory rules that before an employer can summarily dismisses his employee from his service under the common law principle, the employee must be tried before a court of competent jurisdiction  all they need to do if the misconduct is a gross misconduct the principle of fair hearing must be adopted. Where the employee complaint of wrongful termination of his employment to categorically mention the position of the law breached by his employer in termination of his service and the Claimant has not stated any breaches by the defendants. ONWUSUKWU V CIVIL SERVICE COMMISSION (2020) 10 NWLR PART 1731 P182. Counsel stated that the Claimant did not complaint of any breach of specific condition of service or any breach of his term of employment by the defendants. What the Claimant is complaining of is the one-month salary in lieu of termination of his service.

 

Defence Counsel argued that Claimant has not place any material evidence before the Honourable court to support his claim of N4, 478,120 as outstanding arrears of salary. He also made reference to the chart table in the paragraph 10 of his witness statement on oath which contained his salary, allowance, outstanding and the date, but my Lord Claimant failed to tender any material evidence such as his pay roll, statement of account or credit alert to show he was actually paid according to the chart table nothing of such. He submitted that the Claimant has not discharged the burden of proof impose by SECTION 131(1) AND (2) OF THE EVIDENCE ACT. The also Claimant must adduce evidence worthy of belief as evidence does not become credible merely because it is unchallenged. BENJAMIN BILLE VS. MULTILINKS LTD. NICN/LA/175/2011 (UNREPORTED) DELIVERED 6TH JULY 2012. SEE SECTION 131(1) AND (2) EVIDENCE ACT 201, OGUNYADE VS. OSHUNKEYE [2007] 15 NWLR (PT. 1057).  AKALONU VS. OMOKARO [2003]8NWLR (PT.821) 190. Counsel submitted that uncontroverted evidence does not in any way take way the duty imposed on the Claimant to prove his case in accordance with the minimum evidence rule. NICN/LA/275/2012 A.G. OSUN STATE VS. NLC (OSUN STATE COUNCIL) & 2 ORS (UNREPORTED).

 

Defence Counsel stated that the Claimant is not a Director, Secretary nor did he show any material evidence authorized him to prepare the so call record book and as such failed to comply with the provisions of Section77 of CAMA. Arguing e Defendnat’s witness DW is an authorized officer by the company. GATEWAY HOLDINGS LTD VS. A.M &T LTD (2016)9 NWLR PART 1518P 497. Counsel argued that the Claimant failed to show his payment slip or that of any other employee of the company nor did he show his statement of account to show the inflow of salary payment on a monthly basis to enable court assuming without conceding that there were actually outstanding arrears of salary to be paid to him by the defendants. He submitted that Exhibit C8 has been discredited during the cross examination of the Claimant and cannot be relied upon in this case and the Court has discretion to disregard Exhibit C8 though admitted in evidence. Counsel submitted that the Claimant has the great obligation to establish to the court that he is actually entitled to the money claimed on his case strength and not on the weaknesses of the defendants. OGUNYADE VS. OSHUNKEYE [2007] 15 NWLR (PT. 1057). 

 

Counsel to the Defence again submitted that Exhibit C5 was a personal document of Claimant as the receipt bears the Claimant’s name and no evidence that the Claimant was actually authorized to do that, the document is speculative as there is no evidence before this court that such amount of money or the document was procured at the instant of the defendant. Thus where a document is speculative in content the court is entitled not to rely on it to make an award or order. The Claimant failed to tendered memo showing that he actually sought the approval of the management to renovate and to buy those material and expenses claimed to have incurred in the process. OLALOMI INDUSTRIES LTD V. NDIC (2002) FWLR (Pt. 131) 1984. 

 

Defendant Counsel submitted that it is trite law that the pension contribution is the both the duty of employer and employee to ensure the smooth running of the program. It is the duty of the employee to notify it employer Pension Fund Manager of his choice. The Claimant failed to establish before this court that he actually communicated to the defendant the Pension Fund manager of his choice. Section 11(2) of the Pension Reform Act 2014 which provided that the employee to whom this Act applies shall notify his employer of the Pension fund Administrator chosen by him. NATIONAL PENSION COMMISSION V MATECK COMPUTERS LIMITED. Counsel submitted that it is trite law that for Claimant to be entitled to the contribution Pension Fund, it must be established that he actually entitled to it. The Pension Reform Act make it clear that a private company like the defendant must have at least three staff before it can qualify to be a pensionable company and nothing in evidence shows that the defendant has three staff or more and Claimant failed to establish that and same was not pleaded and evidence was not called to establish that. NATIONAL PENSION COMMISSION V MATECK COMPUTERS LIMITED. Counsel cited the case of NATIONAL PENSION COMMISSION V. TRADEWAYS EXPRESS INTERNATIONAL LIMITED (UNREPORTED) SUIT NO. NICN/LA/424/2014; NATIONAL PENSION COMMISSION VS FAMAKS INTERNATIONAL SCHOOL SUIT NO. NICN/ABJ/128/2015 (unreported) delivered on the 4th of June, 2016 by HON. JUSTICE E. N. AGBAKOBA where the Court stated that;

Under section 2(2) of the PRA 2014, for the PRA to apply to an organization in the Private Sector (the defendant is one such organization), it must have 15 or more employees. The PRA 2004 in section (2)(b) puts the minimum number of employees for organizations in the Private Sector to be 5 or more. In paragraph 3 of the statement of facts (and paragraph 4 of the statement on oath of CW), the Claimant simply stated that the Defendant is an employer of labour with over five persons in its employ. On face value, there is no doubt that the defendant as a going concern and an employer of labour, is bound to adhere to the provisions of the PRA, if it comes within the minimum threshold laid down by the law itself. However, by this averment, the Claimant is not certain of the number of employees the defendant has. This means that there is no proof before the Court of the exact number of employees the Defendant has upon which and on whom the Claimant is claiming pension contributions. The minimum pension contribution for any employee is provided for in section 4(1) of the PRA 2014 as 10% of the employee’s monthly emoluments by the employer and 8% of same salary by the employee. (Under section 9(1)(a) of the 2004 PRA the minimum pension contribution is 7.5% of the employee’s monthly emoluments by the employer and 7.5% by the employee.”

Counsel submitted that for any organization to be bound by the provisions of PRA, it must have up to three employees and this must be established in any action to enforce the provisions of the PRA. OGIJNYE V. TI-IE STATE (1999) 68 LRCN 699. OKONJI V. NJOKANMA (1999) 73 LRCN 3632; ONYIRIMBA V. STATE (2002) 11 NWLR (Pt. 777) 83: ACB PIE V. EMOSTRADE LTD (2002) 1 NWLR (Pt. 770) 501.

Counsel again submitted that the fact that the 2nd Defendant was foreclosed to give evidence does not naturally give the victory to the Claimant because he must succeed on the strength of his own case and not rely on the weakness of the Defendants case or on the fact that there is no Defence placed before the court. BENJAMIN BILLE VS MULTILINKS LTD NICN/LA/175/2011 (UNREPORTED) DELIVERED 6TH JULY 2012; SECTION 131(1) AND (2) EVIDENCE ACT 2011, OGUNYADE VS OSHUNKEYE (2007) 15 NWLR (PART 1057); AKALONU VS OMAKARO (2003) NWLR (PT 821) 190.

He cited the case of A.G OSUN STATE VS NLC (OSUN STATE COUNCIL) & 2ORS delivered 19th December 2012 where this court held that;

Order 15 of the National Industrial Court Rules 2017 (using the present Rules) enjoins a party served with a complaint and accompanying originating processes and who intends to file a defence process as provided therein. Order 15 therefore recognizes the right of a Defendant not to defend an action filed against him or her. And by order 38 rule 2 where the Defendant is absent at the trial and no good reason is shown for the absence, the Claimant may prove his/ her case as far as the burden of proof lies on him upon her. These Rules, of course accord with the minima evidential requirement, which is to the effect that a plaintiff cannot assume that he is entitled to automatic judgement just because the other party did not adduce evidence before the trial court as held in LAWRENCE AZENABOR VS BAYERO UNIVERSITY KANO (2011) 25 NWLR PART 70 CA AT 69 AND OGUNYADE OSUNKEYE supra at 247.”

Counsel state that the Claimant failed to establish the nexus between the 1st and second defendant. He could not tender material facts like the certificate of incorporation was not tender, particulars of Directors and shareholders of both companies was not tender to shows the nexus nor did he tender any employment letter appoint him as employee of the 2nd defendant. He submitted that it is trite law that in the civil proceeding the Claimant must proof his case with preponderance of evidence. DIBIAMAKA V OSAKWE (1989) 3 NWLR (PT.107) 101 AT 113; FARAJOYE V HASSAN (2007) ALL FWLR (PT. 368 1070 AT 1094. PARAS A- C. SECTIONS 132 & 133 (1) EVIDENCE ACT, 2011. LRONBAR VS. C.R.B.R.D. (2004) 2NWLR (PT.857) P 411 AT 417.

Counsel finally submitted that it is trite law that once the main claim of the Claimant failed others reliefs sought by him will also failed. NATIONAL PENSION COMMISSION VS OMATEK COMPUTERS LIMITED NICN/LA/545/2016 (UNREPORTED) where it was held that once it is not known if the defendant comes within the purview of the PRA 2014, then all the other reliefs, cannot be considered and granted. The claim for general, exemplary and/or aggravated damages is also baseless on another ground. The Claimant in this case did not plead the numbers of staff of the Claimant nor did he lead evidence to establish the number of staff of the Claimant and therefore his claim fall outside the pension reform Act.

On the            1st February 2023 parties adopted and adumbrated their respective processes and this matter was adjourned for judgement.

 

Court’s Decision

I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind are the issues formulated by the Claimant to wit:

 

1.     Whether or not the termination and/or summary dismissal of the Claimant’s employment is not wrongful in law; and

 

2.     Whether or not the Claimant has proved his case on the balance of probability and should succeed in all his claims against the Defendants in this suit

These  issues encompass the Defendant issues.

 

Before I delve into the merits of this case there is a need to address some misconceptions

In arguing a lack of fair hearing the Claimant referenced Section 36 of the 1999 CFRN (as amended) however hearing With regard to fair hearing, thePosition of the law as per the  recent decision of the Supreme Court in REV. PROF. PAUL EMEKA V. REV. DR. CHIDI OKOROAFOR & ORS [2017] 14 NWLR (PT. 1577) 410, where the Supreme Court, relying on BAKARE V. LSCSC [1992] 8 NWLR (PT. 266) 641 AT 699 - 700 and EKUNOLA V. CBN [2013] 15 NWLR (PT. 1377) 224 AT 262 - 263, held that breach of a fundamental right under section 36(1) of the Constitution arises only where the denial of fair hearing has been charged against a Court or tribunal established by law and not before a domestic or standing ad-hoc tribunal raised departmentally by parties. In other words, there would be no case of infringement of the right to fair hearing under Section 36(1) of the 1999 Constitution when the decision alleged to have violated one’s constitutional right to fair hearing, is that of a non-judicial body. 

 While I hold “that a careful reading of REV. PROF. PAUL EMEKA V. REV. DR. CHIDI OKOROAFOR & ORS. Supra will reveal that the Supreme Court acknowledged that fair hearing comes in two forms: the constitutional form under Section 36 of the 1999 Constitution; and the common law form in terms of the rules of natural justice as expressed in the Latin maxims - audi alterem partem and nemo judex in causa sua”. The former relates to criminal trials in Courts of Tribunals whilst the latter is the yardstick of the domestic tribunes and administrative panels. I also find and hold that “The reliance by lawyers on Section 36 of the 1999 Constitution when challenging the disciplinary processes of employers is accordingly uncalled for and wrong. They have unwittingly taken to the realm of constitutional law what is rightly of the realm of administrative law. Under administrative law, by judicial review, the court can always set aside any disciplinary process that does not adhere to the common law rules of natural justice” See HONOURABLE JUSTICE BASSEY TAMBU EBUTA V. NATIONAL JUDICIAL COUNCIL & 3 ORS unreported Suit NO. NICN/ABJ/301/2016, the judgment was delivered on 13th July 2017. So the Claimant references to Section 36 of the 1999 CFRN is of no import in this matter. I find this submission is of no moment as the test is one of whether the twin pillars where observed. Bulkachawa JCA held in Jibrin v NEPA (2003) LPELR-7267(CA) Pg. 19.

 

Secondly, with regards to` International Labour Organization Convention on Termination of Employment – Convention, 1982 (No. 158) (ILO Convention), it is pertinent to note that although the NICN is empowered to apply international best practice by virtue of section 7(6) of the NIC Act 2006 and section 254C(1)(f) and (h) and (2) of the 1999 Constitution, Convention No. 158 should be applied thereby. The NICN had had cause to resist this argument given that Convention No. 158 has not been ratified by Nigeria. As such, it is not of automatic application in virtue of section 254C(1)(f) and (h) and (2) of the 1999 Constitution. The NIC had gone on to hold that if the desire of the employee is to have Convention 158 applied as good international practice, then he/she must plead and proof it as enjoined by section 7(6) of the NIC Act 2006 See JOSHUA ABIODUN BABALOLA V. STATE SECURITY SERVICE unreported Suit No. NICN/LA/605/2015, the judgment of which was delivered on 10th July 2017 as well as OYO STATE V.  ALHAJI APAPA & ORS [2008] 11 NLLR (PT. 29) 284 and  AERO CONTRACTORS CO. OF NIGERIA LIMITED V. NATIONAL ASSOCIATION OF AIRCRAFTS PILOTS AND ENGINEERS (NAAPE) & ORS 2014] 42 NLLR (PT. 133) 664 NIC.

 

 

 

Now, to the merits of this case; - Issue 1 is: Whether or not the termination and/or summary dismissal of the Claimant’s employment is not wrongful in law;

The Claimant was issued with Exhibit C6 Letter of termination, reproduced below

 

 

The Claimant wrote a response to the Letter of Termination dated 11th November  2019, Exhibit C7.

 

The question of whether this “Termination” is wrongful or not, would depend on the nature of the employment relationship between the parties in this suit. In support of his case the Claimant also tendered Exhibit C3 and C4. Also reproduced below.

 

Exhibit C3 Offer of Employment.

 

 

 

 

 

 

 

Exhibit C4 Letter to act as GM of 1st Defendant

 

 

 

 

 

The law recognizes three types of employment in fact the Supreme Court in the case of LONGE Vs. FBN LTD [2010] LPELR 1793 SC held that “…. there are three categories of employment

(a) Purely Master and Servant relationship

(b) Servants who hold their office at the pleasure of the employer

(c)  Employment with statutory flavour….”

 

A determination of above which of these classifications the Claimants falls is required and necessary in this suit at this time is also pertinent to Issue 2 considering the nature of the Claimants reliefs.

A careful reading of the contents of Exhibit C3 and C4 indicate. And I have made a determination that the Claimant was in an Employer / Employee relationship commonly referred to as Master and Servant relationship.

In a master servant relationship parties are bound by the terms of their contract SASEGBON’S LAWS OF NIGERIA, AN ENCYCLOPAEDIA OF NIGERIAN LAW AND PRACTICE, FIRST EDITION, VOLUME 16. PARAGRAPH 233- DETERMINATION OF MASTER AND SERVANT RELATIONSHIP.  Stated that “… In other cases governed only by, agreement of the parties and not by statute as in the present case, removal by way of termination of appointment or dismissal will be in the form agreed to between the parties in the agreement binding on them.

Looking at Exhibit C3 I find that it is bereft of any condition of employment, not manner in which the contract could be terminated nor the salary of the Claimant neither does it refer to any handbook or condition of service. The Claimant made reference to the Labour Act, however this only applies to workers and that law went on to define worker; "worker" means any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, and whether it is a contract of service or a contract personally to execute any work or labour, but does not include -

(a) any person employed otherwise than for the purposes of the employer's business; or

(b) persons exercising administrative, executive, technical or professional functions as public officers or otherwise;

Which means that the Labour Act would not apply to the Claimant, as an Accountant being both technical and professional functionary or Acting General Manager as a projection of Management . It was held by the Supreme Court in S.S. CO. LTD V. AFROPAK [2008] 18 NWLR (PT. 1118) 77 AT 82 that “ –The Labour Act, Cap. 198, Laws of the Federation on Nigeria, 1990 which applies to workers, strictly to the exclusion of the management staff, defines a contract of employment as any agreement, whether oral, written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker”.

In the instant case, I find that the Claimant agreed to serve the defendants as their Accountant and then later on as their General Manager. I find that the Claimant was governed by a contract of employment between him and the defendants and thus the Claimant’ action is founded on simple contract of employment. It is also the law that in the absence of a written contract of employment resource may be had to relevant trade custom and practice. DANIELS VS. SHELL BP. PET. DEV. CO. [1962]1 ALLNLR 19. Which in this case would be common law principles and relevant case law

The Defendant in Exhibit C6 terminated the Claimant’s appointment with immediate effect. Termination with immediate effect has been held to be Dismissal    See

Furthermore that in BRITISH AIRWAYS V. MAKANJUOLA [1993] 8 NWLR (PT. 311) 276, the Court of Appeal held that where a wrongful termination/dismissal carries with it some stigma on an employees character, the employee shall be entitled to substantial damages far beyond the amount the employee would have earned. I will come back to this later on in this judgement.

In this letter, Exhibit C6, the Defendant in the 2nd line of the 1st paragraph, stated “The disciplinary committee investigated your case and discovered to their dismay your gross misconduct, incompetence and fraudulent activities.” The position of the law is that where a reason is stated by the employer, why an appointment is being terminated, the burden of proving or establishing that reason will be on the employer or master. One who alleges must prove. OLANIYAN & ORS Vs. UNIVERSITY OF LAGOS &ORS 2NWLR (Pt.9) 599. RIDGE Vs. BALDWIN [1964]3 ALL E.C." per Owade JCA WAEC Vs.NKANTA 2006 LPELR 11752 CA pp 19-20 para BB Also “in order to justify the dismissal or termination of appointment of an employee, the employer must be in a position to prove to the court’s satisfaction:

a.      That the allegation was disclosed to the employee;

b.      That he was given a fair hearing;

c.      That the employer believed that the employee committed the offence after hearing witnesses. Bamgboye V. University of Ilorin (1999) 10 NWLR (pt. 622) 290 referred to.] (p. 145, paras. A-B)

In the instant case the defendants had  pleaded  that company received the latter dated 11th November, 2019 and but is yet to respond because termination of contract on the procedure need no further explanation, since it is not disciplinary committee investigation.   The Claimant was not at any time given a query and there is nothing before the Court to indicate that he Claimant was ever given a query or even invited to appear before the Disciplinary Committee referred to in Exhibit C6.  I can answer (a) and (b) of the above in the negative. This Claimant’s Termination is wrongful as the procedure which cumulated with the termination evolved devoid of the observation of the rules of Natural Justice. I find and hold relief 1 therefore succeeds,

In issue 2 the following question was raised: Whether or not the Claimant has proved his case on the balance of probability and should succeed in all his claims against the Defendants in this suit. For ease of reference the Claimant’s reliefs are as follows; -    

1.     A DECLARATION that the termination of the Claimant’s employment or dismissal of the Claimant by the Defendants without notice and/or without justifiable reason is wrongful.

2.     A DECLARATION that the Claimant is entitled to pension contributions from the Defendants in accordance with the Pension Reform Act.

3.     AN ORDER directing the Defendants to immediately pay to the Claimant the sum of N4, 478, 120 (Four Million, Four Hundred and Seventy-Eight Thousand Naira) only being outstanding arrears of salaries and allowances spanning 64 (Sixty-Four) months.

4.     AN ORDER directing the Defendants to immediately pay to the Claimant the sum of N100, 000 (One Hundred Thousand Naira) only being payment in lieu of notice of termination of the Claimant’s employment.

5.     AN ORDER directing the Defendants to immediately pay to the Claimant the sum of N300, 000 (Three Hundred Thousand Naira) only being out of pocket expenses he incurred renovating the Defendants house (the AGM Quarter, Paulosa Camp, Life Camp, Abuja).

6.     AN ORDER directing the Defendant to immediately calculate the Claimant’s severance benefits and pay to the Claimant.

7.     AN ORDER directing the Defendants to immediately compute and remit to the Claimant or to any Pension Fund Administrator of the Claimant’s choice 9 (Nine) years and 2 (Two) months pension contributions due to the Claimant.

8.     AN ORDER directing the Defendants to immediately pay to the Claimant the sum of N10, 000, 000 (Ten Million Naira) only being general damages for breach of contract of employment, psychological trauma, emotional distress suffered by the Claimant and/or for wrongful conduct of the Defendants.

9.     The cost of this action to be assessed at the point of Judgment.

In reliefs 2 and 7 the Claimant is seeking Pension payment. The position of the law is that Pension is a constitutional entitlement which can be attained by the beneficiary as long as the necessary steps are taken.  Furthermore Section 11(4) of the Pension Reform Act 2004 provides that an employee can only have access to his retirement savings account through his Pension Fund Administrator, with regard to the Claimant praying this Court to order that the said pension contributions due to him be paid to him. Where a statute or Act, orders that remittances are to be made to a named body, it is not open to this Court to rule that such remittances to be made to an employee even if the employee is the ultimate beneficiary.

 

This Court cannot, therefore, accede to the Claimant’s prayer that the said pension contribution be paid to him. Neither can the Court order that the said pension contribution be paid to the Claimant’s PFA since there is no evidence before the Court who the PFA is. More importantly the Claimant did prove to this Court that deduction were ever made from his salary or of the staff strength of the Defendant to enable the court establish entitlement. These reliefs (Reliefs 2 and 7) therefore fail.

 

In reliefs 3 the Claimant is seeking an immediately payment of the sum of N4, 478, 120 (Four Million, Four Hundred and Seventy-Eight Thousand Naira) only being his arrears of salaries and allowances of 64 (Sixty-Four) months. The defendant argued that the                                                                                                                            Claimant, firstly, paid himself as well as others being the firm’s Accountant. Secondly, the Claimant ever made any demand for payment during the 64 months, and ought o have presented their bank statement to show the inflow of salary payment on a monthly basis to enable court.

It is pertinent to point out at this time that it is not before the court that the defendant ever paid their staff via banks so as to generate bank statements. In furtherance of this claim the Claimant is required to put before this court Letters he wrote or any evidence wherein he had previously demanded his salary during the 5 years and 4month being 64 months claimed in this suit, with the exception of Exhibit C7, which was issued post dismissal there isn’t any evidence before this Court that the Claimant had previously demanded his salary. Court’s constantly deprecate dumping documents on the court. The law is that there has to be the necessary nexus between documentary evidence tendered and the particular purpose or aspect of the case of the party tendering same. See ACN V. NYAKO [2013] ALL FWLR (PT. 686) 424 SC, BUHARI V. INEC [2008] 12 SC 1 and HON. SEGUN ADELE & ANOR V. HON. SOLOMON OLAMILEKAN ADEOLA & ORS [2015] LPELR-25972(CA). This requirement of nexus is extended under the law to mean that a party who produces an exhibit so that the Court could utilize it in the process of adjudication must not dump it on the Court but must tie it to the relevant aspects of his case. See IVIENAGBOR V. BAZUAYE [1999] 9 NWLR (PT. 620) 552; [1999] 6 SCNJ 235 AT 243, OWE V. OSHINBANJO [1965] 1 ALL NLR 72 AT 15, BORNU HOLDING CO. LTD V. ALHAJI HASSAN BOGOCO [1971] 1 ALL NLR 324 AT 333, ALHAJI ONIBUDO & ORS V. ALHAJI AKIBU & ORS [1982] 7 SC 60 AT 62, NWAGA V. REGISTERED TRUSTEES RECREATION CLUB [2004] FWLR (PT. 190) 1360 AT 1380 – 1381, JALINGO V. NYANE [1992] 3 NWLR (PT. 231) 538, UGOCHUKWU V. CO-OPERATIVE BANK [1996] 7 SCNJ 22, OBASI BROTHERS LTD V. MBA SECURITIES LTD [2005] 2 SC (PT. 1) 51 AT 68, EZE V. OKOLAGU [2010] 3 NWLR (PT. 1180) 183 AT 211, ANPP V. INEC [2010] 13 NWLR (PT. 1212) 547, UCHA V. ELECHI [2012] 13 NWLR (PT. 1316) 330 AT 360, BELGORE V. AHMED [2013] 8 NWLR (PT. 1355) 60 AT 99 – 100, OMISORE V. AREGBESOLA [2015] 15 NWLR (PT. 1482) 202 AT 323 AND 324, MR. MOHAMMED DUNGUS & ORS V. ENL CONSORTIUM LTD [2015] 60 NLLR (PT. 208) 39 and ADEMOLA BOLARINDE V. APM TERMINALS APAPA LIMITED UNREPORTED SUIT NO. NICN/LA/268/2012 the judgment of which was delivered on 25th February 2016.

 

The Claimant tendered copious document as Exhibit C7 which were described as “copies of some books of accounts of the Defendants showing pattern of paying salaries  with evidence of percentage payment” Not only were the documents not properly explained to the Court nor tied to particulars they documents were randomly selected and in law  a party wishing to rely on documents from a series of documents is required to bring the whole or complete set document to court for the court to be satisfied of the source and sequence of the documents and that no other conclusion could be made from otherwise  the said documents, excerpts or annexes would have no evidential value. MEDICAL AND HEALTH WORKERS UNION OF NIGERIA & ORS V. FEDERAL MINISTRY OF HEALTH UNREPORTED SUIT NO. NICN/ABJ/238/2012 the judgment of which was delivered on 22nd July 2013, and SUIT NO. NICN/LA/400/2013 where this Court reasoned that because the complete set of the documents wherefrom they were extracted were not shown to the Court, to enable the Court was unable to ascertain that they are indeed part of the documents they profess to be, or neither was the Court able to ascertain whether there are any other part or provisions of the complete documents that go contrary to the positions canvassed by the party relying on themMR. OLUREMI OMOSHEIN VS.CROWNS RELOCATIONS (NIGERIA) LIMITED delivered on 25th September 2014. This relief has not been substantiate to this court satisfaction.  Relief 3 consequently fails

 

In relief 4 the claimant is asking for N 1000, 000.00 as payment in lieu of notice. I away aware of the positon of law the holds that a dismissal with immediate effect can never be a dismissal with notice. This is commonsensical See DOROTHY ADAEZE AWOGU V. TFG REAL ESTATE LIMITED UNREPORTED SUIT NO. NICN/LA/262/2013, the judgment of which was delivered on 4th June 2018, at paragraph 59. See also YUNUS ADEWALE ADEFOWOPE V. MTN NIGERIAN COMMUNICATIONS LTD UNREPORTED SUIT NO. NICN/LA/492/2016, the judgment of which was delivered on 15th May 2019 at paragraph 31. The defendant had argued that the Claimant refused to accept their invitation to collect his salary in lieu of notice. The position of the law s that where there is a conflict the Courts should resolve it in favour of the employer. See MR. KURT SEVERINSEN V. EMERGING MARKETS TELECOMMUNICATION SERVICES LIMITED[2012] 27 NLLR (PT. 78) 374 NIC

There is a distinction in Labour Law between a situation when the employer fails to accord the employee this notice or salary in lieu of notice known as constructive wrongful termination and as I had noted earlier the situation involving malpractice by the employer BRITISH AIRWAYS V. MAKANJUOLA [1993] 8 NWLR (Supra), and the Court of Appeal went on to hold that where a wrongful termination/dismissal carries with it some stigma on an employees character, the employee shall be entitled to substantial damages far beyond the amount the employee would have earned during the prescribed. Relief 4 succeeds in part.

Relief 5 for N300, 000 (Three Hundred Thousand Naira) only being out of pocket expenses he incurred renovating the Defendants house (the AGM Quarter, Paulosa Camp, Life Camp, Abuja). The Claimant tendered two receipts to represent this claim, the receipts are run of the mill sales receipts which fall short of the evidentiary requirements to ground this head of claim. The defendants are correct in arguing that the Claimant did not present evidence of prior approval. in addition to evidence of prior approval the claim would benefit from an authority to incur this expenditure or to undertake the said repairs or even a document submitting these bills for refund etc. would enable the court properly evaluate and consider this claim. Relief 5 fails  ,

 

Relief 6 is for severance pay. The Claimant has not show this Court the condition of service which entitles him to severance pay afortori how much or what are the qualifiers for payment. This relief, having nit been substantiated this relief consequently fails,

In relief 8, the Claimant is asking for general damages of 10Million Naira only, nor has the claimant shown how he Claimant arrived at this sum. General damages flow from injury. Dismissal as well as a Wrongful termination with immediate effect carries with it a cloud of infamy. In this case the claimant was dismissed on allegations of misconduct, incompetence and fraudulent activities which I have found and held were not proved.  I am of the humble view that in the instant case the dismissal of the claimant carries with it some stigma on his character, infamy and career stigma, I am therefore persuaded to award substantial damages far beyond the normal period of notice one month’s. Claims for psychological trauma and emotional distress require validation and assessment from a psychiatrist, psychologist or a mental health practitioner and this has not been brought to this court to enable the court properly compute / award damages. It is necessary to note at this time, that Section 14 of the National Industrial Court Act 2006 enjoins the court to consider all the rights and entitlements to which parties before the court are legally entitled and Section 14 provides; thus, -

“the court shall in the exercise of the jurisdiction vested in it by or under this Act, in every cause or matter have power to grant either absolutely or on such terms and conditions as the court thinks just, remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and a multiplicity of legal proceedings concerning any of

those matter be avoided”.

The man on the street when considering the claimant’s ordeal will hold that the claimant is entitled to general damages , I find. Damages put at N3 Million.

                                                           

The Claimants case succeed but only thus far; -

1.      IT IS HEREBY DECLARED that the Dismissal of the Claimant’s employment by the Defendants without justifiable reason is wrongful.

2.      BY ORDER OF this Court the Defendant shall pay Three Million Naira to the Claimant as General Damages under Section 14 NICA 2006.

3.      Cost of this suit is put at N300, 000.00 Only.

All sums are payable within 30 days thereafter 10% interest shall attach.

This is the Court’s judgement and it is hereby entered accordingly                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

……..………………….

HON. JUSTICE E. N. AGBAKOBA

JUDGE

COURT 3 ABUJA.