IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

 

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

 

Dated: 17th day of May 2023                                          SUIT NO:   NICN/PHC/06/2022

 

BETWEEN:

 

MR. KALU CHUKWUEMEKA ENI           -----------------                       CLAIMANT

 

AND

MERIDIAN HEIGHTS INTERNATIONAL SCHOOL     ------- DEFENDANTS

 

Representations:

Awa Ndubuisi Esq. with H. T. Ebere-Young Esq. for the Claimant.

Olaiya Owotiba Esq. for Defendant.

Judgment.

This suit was commenced by way of a general form of Complaint filed on the 17th of January 2022 along with a verifying affidavit, statement of facts, list of witnesses, witness statements on oath, list of documents and copies of the said documents to be relied upon at trial.

 

Arising from the complaint and statement of fact, the Claimant is claiming against the Defendant as follows:

1.         Payment of the sum of N80, 000.00 being balance of the salary for the one month the claimant worked for the defendant, together with additional sum of N160, 000.00 as salary for one month in lieu of notice.

2.         The sum of N5, 000,000.00 (five Million Naira) as compensation for unfair labour practices, by which the defendant injured the claimant.

3.         The sum of N5, 000. 000. 00 (Five Million Naira) as general damages.

4.         The sum of N1, 000, 000.00 (One Million Naira) as cost of this action.

In reaction to the claims, the Defendant on the 1st day of March 2022 filed a memorandum of appearance accompanied by statement of defence, list of witness and witness statement on oath, list of documents and copies of the said documents to be relied upon at trial.

 

In reaction to the statement of defence, the claimant on the 28th day of July 2022 filed a reply to the statement of defence.

 

Trial in this suit commenced before this court on the 5th day of December 2022 with the Claimant opening his case and was called as the sole witness (CW1) thereafter he adopted his witness statements on oath marked as C1 (a) & (b). Through the said CW1, 7 documents were tendered in evidence which were marked and admitted in evidence as Exhibits C2 – C8.

Arising from the statement of fact and witness statements on oath, the case of the Claimant is that he was initially an employee of Eminentville Schools Port Harcourt where he worked as a computer teacher and I.T manager until the 30th day of August 2021 when the defendant induced and pressurized him to resign from his then employers and to relocate to Umuahia to work for the defendant and that the defendant offered to pay N160, 000. 00 as monthly salary which made him resign from the employment of the Eminentville Schools and relocated to Umuahia. He averred that his employment took effect from 9th September 2021. The claimant averred further that the defendant coerced him to teach as classroom teacher in addition to his work as I. T. head which was not stipulated on his employment letter, and on the 27th day of September, 2021, about two weeks of resumption of duty, the defendant handed over a termination letter to him, purporting to have terminated his employment for no just cause and paid him N80, 000.00 He further averred that the manner in which the defendant treated him was not only against international best practices relating to labour, but smacks of unfair labour practices which render the defendant liable in damages because it has caused him financial, economical, psychological, and emotional trauma.

Upon cross examination, CW1 posited that based on the termination letter he worked for the Defendant for about 2 weeks, but it was 18 days and that he was interviewed for the job by zoom and he passed all the questions, and that the interview for the job of the defendant was conducted by Roundcube. That he did not know that there was terms and conditions document and didn’t request for it, and that he was not on 3 months probation. He added that the problem he had with the Defendant was not that he was asked to teach, but that his job description was to be I. T. head and not to manage class room or teach students. That there was no query for inability to teach, he also affirmed that he worked for Eminentville Schools. And that he was paid only N80, 000.00 based on the document of the defendant but he actually worked for 18 days and that he made a demand for the payment of an additional N80, 000.00 as the balance of his salary. He affirmed that his employment is subject to review. He stated that he had no agreement to be on probation, and that there was no oral interview or classroom test because the employer had confidence in him.

Upon the discharge of CW1, Claimants closed their case while the Defendant opened theirs by presenting one witness in the person of Edegbe Osa Austin as DW1. The witness accordingly adopted his witness statement on oath marked as D (1). Through DW1, 3 documents were tendered by the Defendant and admitted in evidence as Exhibit D2 to D4.

Arising from the statement of defence, the case for the Defendant is that the defendant offered employment to the claimant with a monthly salary of N160, 000. 00 but never induced or pressurized the Claimant to resign from Eminentville Schools Port Harcourt as the Claimant did not disclose to the Defendant that he was a staff of the said school before his employment. And that in line with the practice of the defendant the claimant was given an accommodation within the school premises. The defendant avers that she never coerced the Claimant, but that in line with his schedule of employment he must teach the students. The defendant stated that it was observed that the Claimant could not teach the pupils and students when he was called upon to teach, on that basis the defendant terminated the employment of the Claimant on the 27th day of September, 2021 and that the claimant had only worked for two (2) weeks and he was paid accordingly. The defendant further stated that in line with the Terms and Conditions of Claimant’s employment incorporated in the claimant’s employment letter, the three months of his employment is probationary and the Defendant reserves the right to terminate the employment of the Claimant without cause or notice and the Defendant has no further obligation financial or otherwise upon termination of employment within the said period.

Upon cross examination of DW1, he posited that upon issuance of offer of employment, one doesn’t need to sign any endorsement and return copy and there is no regulation to that effect. And that the employment letter with the terms and conditions of employment (which is Exhibit D2) was the one given to the claimant. That the employment of the claimant was terminated based on incompetence, but that no query was issued based on incompetency and no reason was stated in the termination letter. And that the Claimant was employed to work as both I. T Manager and as a teacher and the job description said so, and that the claimant was employed on a monthly salary basis. He further stated that the claimant vacated the defendant’s premises on his own and the claimant was paid according to what he worked.

Upon the discharge of DW1, the matter was adjourned for adoption of final written address and arising from the Address of the Defendant which was filed on the 9th day of Febraury, 2023, counsel to the Defendant J. Olaiya Omotiba Esq., formulated 2 issues for the determination of this suit to wit:

(a)       Whether the Claimant’s cause/reliefs are proven or sustainable within the purview of the pleadings, evidence adduced by the parties, the documentary evidence and the law governing master-servant relationship.

(b)      Whether the Claimant’s vague claim for damages be it compensation for unfairly labour practices, general damages and cost of the suit are legally sustainable in the context of master-servant relationship.

In arguing issue one, counsel submitted that the burden of proof in civil cases is on the person who asserts a fact.  It is the law that where a party alleges the existence of a material fact, the burden is on him to squarely prove the existence of those facts, counsel cited SECTIONS 131 AND 132 EVIDENCE ACT (2011) and NNPC VS SAMFADEK & SONS LTD (2019) ALL FWLR PT 1002 PG. 975 R.4.

Counsel stated that the basis upon which burden of proof in civil cases is discharged is on the balance of probabilities, that is to say that judgment is given to the party with the greater weight and stronger evidence, counsel cited SECTIONS 134 EVIDENCE ACT (2011) AS AMENDED and INTERDRIL (NIG) LTD VS U.B.A PLC (2017) ALL FWLR PT. 904 PG. 1177 R.8, and submitted that from the available evidence before the court, the Defendant has a greater weight and stronger evidence in support of their defence than the Claimant.

Counsel further stated that that the Claimant is not questioning the termination of his employment, moreso, that the employment of the Claimant is that of master and servant relationship and that in master-servant relationship both parties can terminate the contract at any time and for any reason, or for no reason at all, so long as the proper notice is given, or salary in lieu of Notice counsel cited TEXACO NIG LTD VS KEHINDE (2002) FWLR PT 94 PG. 143 @ 160. Counsel added that the only way the termination of the Claimant’s employment can be wrongful is if the termination is inconsistent with the terms of employment/agreement. Counsel cited GBOBAH VS BRITISH AIRWAY PLC (2017) ALL FWLR PT 908 PG. 1913 R.1.

Counsel further stated that where an employee complains of wrongful termination, it is the duty of the employee to show the court that his termination was done in violation of the conditions of service, and that the Claimant has failed to prove this in his case.

Counsel submitted that the Defendant in proof of her case tendered the following exhibits Exhibit D2 (Employment Letter with the Terms and Condition of employment), Exhibit D3 (Claimant’s Termination Letter) and Exhibit D4 (Claimant’s acceptance Letter). And that by paragraph 16 of exhibit D2, the defendant is to assess the claimant’s fitness within the first three (3) months of his employment which will constitute a probationary period and that at any time during this probationary period, the defendant may terminate the claimant’s employment without cause and without advance Notice or pay in lieu of Notice.  Counsel submitted that where there is a valid agreement, parties must be held bound by this agreement and by all its terms and conditions.

On issue two, counsel submitted that that before the court can look at the other reliefs of the Claimant and grant them, the termination must have been declared wrongful, in the instant case, there is no relief challenging the termination of employment. Counsel added that the reliefs for damages and compensation cannot stand on their own.

Counsel submitted further that a claim for compensation and damages being consequential reliefs are dependent on the success of the declaratory reliefs and other order sought, hence if the principal reliefs failed, (even in this case as there is no principal relief) then the consequential reliefs stand to suffer the same fate, counsel cited YUSUF VS COOPERATIVE BANK LTD (1994) 7 NWLR PT 359 PG 676 R.11. And that the claims for damages have been held to be improper head of damages in breach of contract, master-servant relationship cases, counsel cited OKONGWU VS NNPC (1989) 4 NWLR PT 115 PG 296 R.11. And that damage is measured by the loss flowing naturally from the breach, that is to say such loss that is reasonably foreseen by the parties at the time of entering into the contract. Counsel cited EKPEOGU VS ASHAKA CEMENT CO.(1997) 6 NWLR PT 508 PG 280 @ 293 and CHUKWUMAH VS SHELL PETROLEUM (1993) 4 NWLR PT 289 PG 512 @ 538 PARAS D-G.

Counsel finally urged the Honourable Court to dismiss the Claimant’s case with cost.

Reacting to the foregoing address, the Claimant on the 13th day of March, 2023 filed his final written address and arising from same, counsel to the Claimant, Sir Awa Ndubuisi Esq formulated a lone issue for determination to wit:

Whether the Claimant is not entitled to the reliefs sought, regard being had to the pleadings evidence before the court and applicable laws as regards master-servant relationship.

In arguing this issue counsel submitted that, Claimant is entitled to all the reliefs sought regard being had to the pleadings evidence before the court and applicable law. And that proof in civil cases is on preponderance of evidence. Counsel cited First Bank Plc v. Momoh (2021) All FWLR (Pt. 1080) 979 @1002, Paras D-H.

Counsel submitted that the evidence adduced when place on the imaginary scale of justice the pendulum of justice tilts in favour of the Claimant, that the DW1 was not a witness of truth as it relates to Exhibits C4 and D2, and called upon the court to disbelieve the evidence of the Defendant that the offer letter given to the Claimant was Exhibit D2 (schedule) and to believe the evidence of CW1 that Exhibit C4 was the offer letter, which had no schedule.

Counsel further submits that Exhibit C4 would show that the payment of salaries was on monthly basis, and that there was no provision for weekly or daily payment. Thus, having worked into a period of one month the claimant is entitled to full month’s payment, irrespective of the number of weeks worked since the basis of payment is on monthly basis, as weekly payment is excluded.

Counsel further states that an employer can terminate the service of an employee with or without reason. But where a reason is given, the employer must prove the reason. Counsel cited OSISANAYA V AFRIBANK NIG PLC. (2007) 6 NWLR (PT. 1031) PAGE 565 PER OGUNTADE JSC.  Counsel added that the Defendant alleged that the Claimant was terminated for incompetence, but it contradicts Exhibit C6 which is the termination letter issued to the claimant.

Counsel further submits that DW1 lied when he stated that he did not state the reason for termination for obvious reasons whereas, reason was actually stated in the Exhibit C6, which reason is different from the reason given by the Defendant in its pleading and oral evidence, consequently that the Defendant having contradicted itself on the reason for termination has failed to prove same.

With regards to claim for general damage, counsel submitted that a dismissed employees are entitled to general damages if they can establish that their dismissal is likely to destroy or seriously damage their future employment prospects or reputation and thereby cause them financial loses. Again, employees are entitled to general damages if they can establish that their employer’s wrongdoing, for example, fraudulent practice is so publicized that their prospects of obtaining a fresh employment are slim. Counsel cited Foley v. Interactive Data Corp (1988) 254 Cal RPtr 211 at 246.

With regards to the second issue raised by the defendant’s counsel, Claimant counsel stated that, there is no law that says damages for wrongful termination of employment cannot be awarded in the absence of a declaratory relief. That the duty of the court is to sail through the pleadings and evidence in arriving at a conclusion that the Defendant’s conduct towards the claimant is such that entitles the Claimant to damages. That is the basis of granting reliefs for damages. And that the relief claiming the balance of the claimant’s salary is a principal relief, because it is not even dependent on whether the termination is wrongful or rightful. It is dependent on the fact that the Claimant is entitled to same by the operation of the law since his employment was not a weekly based employment. Counsel cited Allison v. Clever (2016) ALL FWLR (PT. 855) 153@172 Paras G-H, First Bank v Momoh (2021) ALL FWLR (PT. 1080 979 @ 1002. To portrait that civil proceeding are hinged on pleading and supporting evidence presented before court.

Counsel further added that it is also the law that failure to reply a letter where a reply is required is deemed admission. Counsel cited TILLY GYADO & CO (NIG) LTD V. ACCESS BANK PLC (SUPRA) AT 409, PARAS A-B. Counsel finally urged the court to grant the reliefs as sought.

In replying the claimant’s counsel, the defendant stated that the law is trite that the court in construing a document will read the whole content of the document and all the surrounding circumstances, that Exhibit C4 tendered by the claimant at paragraphs 3 and 5 of the said document specifically mentioned schedule A attached to the said Exhibit C4. And that there is no evidence coming from the Claimant as to whether he asked for the said schedule A referred to twice in his  employment letter.

Counsel further argued that, the Claimant did not at any place in his pleading pleaded the fact that he returned a signed copy the employment letter, neither did the Claimant frontloaded any, hence no issue was joined in the pleading on the issue and that parties are bound by their pleadings and evidence led on facts not pleaded goes to no issue. Counsel cited OKOKO VS DAKOLO (2006) 14 NWLR PT. 1000 PG. 401 @ 422. Counsel added that the claimant having written an acceptance letter which is Exhibit D4 there was no need of signing of counterpart as stated by the claimant.

With regards to the contention of the claimant’s counsel in view of the contradictory evidence to the reason for termination of claimant’s employment, counsel stated that the reason for determination of the Claimant’s employment is as stated on the face of Exhibit D3 and the law is also fairly settled that oral evidence cannot be used to vary the contents of a documentary evidence. Counsel cited OGUNDELE VS AGIRI (2009) 40 NSCQR 427 @ 449-450.

Upon a careful evaluation and understanding of all the processes filed by the parties in this suit, I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and painstakingly examined all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the sole issue for the determination of this suit is to wit:

Whether or not in view of the facts and evidence before this court, the Claimant is entitled to the reliefs sought.

In determining the sole issue, I find it apposite to highlight that the facts before this court centers around the fact that the Claimants have alleged that the Defendant employed him and coerced him to teach as classroom teacher in addition to his work as I. T. head which was not stipulated on his employment letter, and that 2 weeks after his employment the defendant terminated his employment, and that the defendant having terminated his employment paid him only N80, 000.00 instead of N160, 000.00 contrary to the agreement of the parties. He further averred that the manner in which the defendant treated him was not only against international best practices relating to labour, but of unfair labour practices and has caused him financial, economical, psychological, and emotional trauma.

The claimant is thereby claiming Payment of the sum of N80, 000.00 being balance of the salary for the one month the claimant worked for the defendant, together with additional sum of N160, 000.00 as salary for one month in lieu of notice, along with general damages, cost of litigation.

While it is the case of the defendant that the defendant school offered the claimant employment as I.T head, but that in line with his schedule of employment, he must also teach the students. The defendant stated that it was observed that the Claimant could not teach the pupils and students on that basis the defendant terminated the employment of the Claimant and that the claimant had only worked for the Defendant for two (2) weeks and he was paid accordingly. The defendant contends that in line with the Terms and Conditions of Claimant’s employment incorporated in the claimant’s employment letter, the first three months of the claimant’s employment is probationary and the Defendant reserves the right to terminate the employment without cause or notice and the Defendant has no further obligation financial or otherwise upon termination of employment within the said period.

It is imperative that I start by understanding the type of contract of employment between the parties. In COMPTROLLER GENERAL OF CUSTOM & ORS v. COMPTROLLER ABDULLAHI B. GUSAU (2017) LPELR-42081(SC) the court stated that, "There are three categories of contracts of employment. They are: (a) Purely master and servant relationship, (b) Servants who hold their office at the pleasure of the employer. (c) Employments with statutory flavor.

Based on the pleadings before this court, it is obvious that the type of contract of employment between the parties is a master and servant relationship. And it is expedient to state that in a purely master and servant relationship devoid of any statutory flavor and in which the relationship is purely contractual, as in the instant case, a termination of employment by the employer cannot be wrongful unless it is in breach of the terms and conditions of the contract. See PETER ONYEACHONAM OBANYE v. UNION BANK OF NIGERIA PLC (2018) LPELR-44702(SC).

The claimant has annexed Exhibit C4 which is the letter of offer of employment issued to him by the Defendant and contended that the letter of offer of employment was the only document issued to the claimant by the defendant. On the other hand the defendant had pleaded same document which includes Exhibit D2, but the said Exhibit D2 has an annexure which is the terms and condition of the contract and argued that the letter of offer of employment issued to the Claimant had an annexure which the claimant failed to disclose.

At this juncture I have perused the said Exhibit C4  and  Exhibit D2 and have observed that on the said letter there is a prescription that says “ The details of our offer, including the terms and conditions of your employment, are attached as Schedule A”. Imperatively the letter of offer of employment is expected to have an annexure which should be the terms and condition of the contract and the claimant has the duty and obligation to demand for it even if it was omitted, as it is expressly written that he is to carefully review their offer. The offer of employment document further stated that “this letter along with the enclosed schedules outlines the obligations of both Meridian Heights International School and yourself with respect to your employment conditions, and is governed by the laws of the Federal Republic of Nigeria. It details the terms and conditions of your employment with Meridian Heights International school, and will form our agreed upon employment contract with you once signed”.

Based the foregoing, it goes without saying that there are terms and condition of contract between the parties, ExhibitC4 is incomplete hence Exhibit D2 is the correct and complete document, because it bears the letter of offer of employment along with the terms and conditions of contract vital to this proceedings and I so hold.

The claimant in his pleading averred that the manner in which the defendant treated him was against international best practices relating to labour, and unfair labour practices. From the pleadings of the claimant it can be inferred that the claimant in other words is saying that the termination of his employment was wrongful. Per Mohammed Baba Idris ,JCA  in CHINA CIVIL ENGINEERING AND CONSTRUCTION COMPANY (C.C.E.C.C.) NIGERIA LIMITED v. INNOCENT IGILA & ORS (2020) LPELR-51183(CA) held that "...In matters of this nature where an employee complains to the Court that his dismissal was wrongful, what the Court is expected to look out for first is whether the dismissal was in accordance with the terms of his employment, and secondly, whether the principles of audi alterem partem which imposes a duty on the employer to act fairly was observed.”

In UNION BANK OF NIGERIA PLC v. CHARLES OLUSOLA TOYINBO (2008) LPELR-5056(CA) the court held that, "Now, it has to be stressed that like in all other civil cases, the Plaintiff/Respondent who complained of wrongful termination of his employment with Appellant, has the onus to place before the lower Court the terms and conditions of his employment and further demonstrate with concrete and credible evidence how the terms of the agreement have been breached."

I need to state clearly that the law still remains that the relationship between a master and his servant or employer and his employee, is a contractual one and it is governed and regulated by the terms and conditions of the contract between them, and the rights, obligations and liabilities of the parties to such a contract, are to be determined on the basis of the terms and conditions to which they have freely and voluntarily agreed to govern and regulate the relationship between them.

Though the claimant has failed to place before this Court the terms and conditions of his employment and to establish how the terms of the agreement have been breached, this court will place reliance on Exhibit D2 to determine if the claimant is entitled to the reliefs sought.  

Relief 1 is for, Payment of the sum of N80, 000.00 being balance of the salary for the one month the claimant worked for the defendant, together with additional sum of N160, 000.00 as salary for one month in lieu of notice.

In establishing wrongful termination of employment the court in OAK PENSIONS LIMITED & ORS v. MR. MICHAEL OLADIPO OLAYINKA (2017) LPELR-43207(CA) held that, "The law is now trite that in cases for claims based on alleged wrongful or unlawful termination of employment, the burden is on the claimant to satisfactorily prove that: - (a) He was an employee of the defendant; (b) The terms and conditions of the employment and; (c) That the employer in fact breached the terms and conditions of the employment and the manner in which the breach occurred in the termination of the employment.

In the instant case, there is no contention to the fact that the claimant was formerly an employee of the defendant, as the claimant has alleged that the defendant offered to pay N160, 000. 00 as monthly salary but that the defendant coerced him to teach as classroom teacher in addition to his work as I. T. head which was not stipulated on his employment letter, and that on the 27th day of September, 2021, about two weeks of resumption of duty, the defendant handed over a termination letter to him and paid him only N80, 000.00 instead of 160,000.00 as agreed.

While the defendant is of the view that in line with the schedule of employment, the Claimant has to teach the students. But that it was observed that the Claimant could not teach the pupils and students, on that basis the defendant terminated the employment of the Claimant and that the claimant had only worked for the Defendant for two (2) weeks and he was paid accordingly. The defendant averred further that line with the Terms and Conditions of Claimant’s employment incorporated in the claimant’s employment letter, the three months of his employment is probationary and the Defendant reserves the right to terminate the employment of the Claimant without cause or notice and the Defendant has no further obligation financial or otherwise upon termination of employment within the said period.

It is considered expedient to decipher the job description of the claimant, I have carefully considered the terms and condition of the employment contract and observed that number 4 on the outline of the terms and condition stipulates that, ”Your job responsibilities include managing the classroom, the pupils/students, facilitating teaching.-learning process as well as performing every other responsibility as would be required by your role from time to time. A copy of your position job description is attached as Schedule B.” it need not be said that the role or job description of the claimant was explicitly stated, in that the claimant is expected to teach students. In other words by the terms and condition of contract the claimant is also employed to teach student as well as an I.T Head as stated on the offer letter.

It should be noted that the rules governing the general principles in master/servant relationship is that a master who no longer savours the services of his servant can call it quits, at any time, and does not even owe the servant any explanation or reason, to dispense with his (servant's) services, provided he (master) respects the agreed terms of the contract of employment, which, under common law, is satisfied, once the requisite notice or salary in lieu of notice, is given to the party affected. See KWARA STATE POLYTECHNIC, ILORIN & ANOR v. MR KAMARU GBADEBO SHITTU (2012) LPELR-9843(CA)

The defendant has alleged that the claimant will be subjected to three months’ probation upon employment and that the Defendant reserves the right to terminate the employment of the Claimant without cause or notice. Then it is imperative to also consider the terms and condition of contract to determine whether the Defendant is empowered to do so. And having carefully considered the terms and condition of contract, I observed that outline 16 of the terms and condition stipulates that “to access your fitness within MHIS, the first three (3) months of your employment will constitute a probationary period. At any time during this probationary period, MHIS may terminate your employment without cause and without advance notice or pay in lieu of notice. If this occurs, we would have no further obligation to you, financial or otherwise”.

Based on the foregoing terms and conditions of contract, it is crystal clear that the claimant is to undergo three months’ probation upon employment and during which the defendant reserves the right to terminate the claimant’s employment without cause and without advance notice or pay in lieu of notice. In addition, I would add that the law does not permit a Court to alter, by subtraction or addition, or re-write the terms and conditions of a contract entered into by the parties, on the pretext of exercising a judicial discretion that completely ignores the sanctity of their agreement. See Owoniboys Technical Services Limited vs. UBN Limited (2003) 15 NWLR (844) 545, OAK PENSIONS LIMITED & ORS v. MR. MICHAEL OLADIPO OLAYINKA (Supra). JOWAN & ORS VS DELTA STEEL COMPANY LTD (2010) LPELR-4377 (CA). The termination of the contract has not been established to be in breach of any of the terms, consequently, the termination of the claimant’s employment was not wrongful and I so hold.

However the claimant is asking for the Payment of the sum of N80, 000.00 being balance of the salary for the one month the claimant worked for the defendant, together with additional sum of N160, 000.00 as salary for one month in lieu of notice. Generally the Labour Act itself stipulated that notice must be given for termination of employment or salary in lieu of notice is paid and by section 11 of labour Act, the length of notice is one month, where the contract of employment had continued for five years or more. In this instant case the claimant was only 2 weeks, hence the provision of the Labour Act does not apply. Also the terms and conditions of contract made no provision for payment of one month salary in lieu of notice for an employee of 2 weeks, hence the relief sought for payment of N160, 000.00 as salary for one month in lieu of notice has no merit and the said relief is hereby refused.

With regards to the Payment of the sum of N80, 000.00 being balance of the salary for one month. I reckon that the claimant had stated in paragraph 7 of his statement of facts that about two weeks of resumption of duty, the defendant handed him termination letter and paid him the sum of N80, 000.00 instead of N160, 000.00 which is the basis upon which the claimant is seeking for this relief. The Claimant has also tendered Exhibit C6 which is the termination of employment letter to prove his assertions.

The fact that the claimant was placed on probation is a way of proving his ability to the employer, in PAUL UHUNMWANGHO SIMEON v. COLLEGE OF EDUCATION EKIADOLOR BENIN (2014) LPELR-23320(CA) stated that, "The term temporary appointment means the employee will be placed on probation until his employer is satisfied with his conduct to be given a permanent appointment. The sole purpose of putting an employee on probation or giving him a temporary appointment is to give the employer an assurance that the employee is a fit or proper person to be placed on permanent appointment. It is note worthy that probationary period is a period of observation by any employer. It therefore follows that once the condition laid down for the termination of appointment during the probationary period is satisfied or complied with, an employee cannot without any justification complain”.

In the instant case the defendant terminated the appointment of the claimant for reasons best known to them, the question is whether it was done in accordance with the terms and condition of the contract. It has rightly been stated that, an employer is entitled to bring the appointment of his employee to an end for any reason or no reason at all. As long as he acts within the terms of his employment, the terms of his employment or motive for doing so is irrelevant. A servant as in this case, who complains that his employment has been wrongfully terminated must found his claim on the contract of service and show what manner the wrong was done. It is therefore not the duty of the employer as defendant to prove that the termination was not wrongful. See PAUL UHUNMWANGHO SIMEON v. COLLEGE OF EDUCATION EKIADOLOR BENIN (supra). It is worthy to note that the claimant in their relief did not ask the court to determine whether the termination of his employment was wrongful. Hence the defendant has no obligation to give reasons for such termination.

Having considered the said terms and condition of contract between the parties, the defendant reserves the right to terminate the claimant’s appointment in accordance with outline 16 of the terms and condition of their contract and the claimant having worked only for 2 weeks is entitled to the days he worked for as the court is not vested with the power to award an employee’s claims for the period that he did not work.  In MR. C.C. NWAFOR v. ANAMBRA STATE EDUCATION COMMISSION & ORS (2017) LPELR-42026(CA) the court held that, "An employee is entitled to wages and salaries/allowances during the period of his or her lawful engagement in service. No employer is under any obligation to pay salaries/wages/allowances to an employee who has not worked for the period of his employment. For example, a dismissed employee can only claim emoluments he had worked for in the course of his employment. " 

In the light of the foregoing authority, and Consequent upon the foregoing facts, evidence and position of the law, it is clear that the defendant acted in conformity with the terms and condition of the contract. Relief one lacks merit and is hereby refused and same is dismissed accordingly.

Relief two is for, the sum of N5, 000,000.00 (five Million Naira) as compensation for unfair labour practices, by which the defendant injured the claimant.

It is noteworthy that, unfair labour practice or international best practices may arise in the course of employment or in a trade dispute or industrial relations, but cannot rightly and properly be imported into the terms and conditions of a contract of service freely entered into for a servant-master relationship. The rights, entitlements and obligations of the parties in such a relationship, are in law and equity, to be and are governed by the terms and conditions voluntarily agreed to by the parties and not by sentimental conjunctures of what is fair or unfair conduct in the relationship in complete disregard of the terms and conditions. The issue of unfair labour practice or international best practice would not arise in the exercise of a right vested in the parties by their own voluntary agreement on how to end or determine the relationship between them. The Supreme Court, in the case of Nwobosi vs. ACB Limited (1995) 6 NWLR (404) 658 @ 674, held that: - "Once it is established that a relationship of master-servant exists, then it carries with it all its attendant consequences, one of which is the right of a master to terminate the services of his servant according to the terms of the contract between them." See also Amodu vs. Amode (1990) 5 NWLR (150) 356." See OAK PENSIONS LIMITED & ORS v. MR. MICHAEL OLADIPO OLAYINKA (Supra).

It would be right to say that the claimants are asking for this relief in view of Exhibit C2 (which is the appointment letter with Eminentville Schools Port Harcourt) and Exhibit C3 (which is the resignation letter to Eminentville Schools Port Harcourt). The claimant had alleged that because of the offer of employment by the defendant he resigned from his employment with the Eminentville Schools to work for the defendant. But the defendant had also alleged that the claimant never disclosed that he was still working for the Eminentville Schools. It is my view that he who knowingly enters into a contract cannot be heard to complain. I do not believe the fact that the claimant was coerced to work for the defendant, because the claimant reserves the right to accept or refuse the offer of employment made by the defendant, but the claimant chose to accept and even wrote an acceptance letter which is Exhibit C5.

I have however noted earlier that the claimant who complained of wrongful termination of his employment has the onus to place before this Court the terms and conditions of his employment and further demonstrate with concrete and credible evidence how the terms of the agreement have been breached. Consequently failure to comply with the terms of a contract of employment will amount to wrongful termination and an employee who alleged that the termination of his employment was not in accordance with the said terms and conditions is entitled to damages for the wrong. I must also add that, any right to lay claim for injuries should flow from the wrong done.

The claimant having failed to establish with concrete and credible evidence of any wrongful termination of his employment is not entitled to relief two, hence relief two is also refused and accordingly dismissed.

Relief three is for, the sum of N5, 000. 000. 00 (Five Million Naira) as general damages. I must state that general damages will be considered where the Defendant is found to have wronged the Claimant as the court in UBN PLC v. AJABULE & ANOR (2011) LPELR-8239(SC) described general damages thus:

"General damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim. They are compensatory damages for harm that so frequently results from the tort for which a party has sued; that the harm is reasonably expected and need not be alleged or proved. They need not be specifically claimed. They are also termed direct damages; necessary damages." Per FABIYI, J.S.C (P. 32, paras. C-E) see also Nwachukwu V Egbuchu (1990) 3 NWLR (Pt. 139) 433 at 445.

In the instant case of the Claimant, it is beyond conjecture that the Claimant has failed to prove that he was wronged by the defendant and having failed to establish wrongful termination of his employment. Hence Relief three must fail and is hereby refused.

Relief four is for, the sum of N1, 000, 000.00 (One Million Naira) as cost of this action. In this regard, it is noteworthy that the position of the law is that cost is granted at the discretion of the court and cost follows event. The court in the case of NNPC v. CLIFCO NIG. LTD. (2011) LPELR-2022(SC) held that:

"The award of cost is entirely at the discretion of the court, costs follow the event in Litigation. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement. In making an award of costs the court must act judiciously and judicially. That is to say with correct and convincing reasons. See Anyaegbunam v. Osaka 1993 5 NWLR pt.294 p.449 Obayagbona v. Obazee 1972 5 SC p.247" Per. RHODES-VIVOUR, J.S.C (P. 26, paras. E-G)

Bearing in mind the fact that the Claimant is not the successful party having resolved all the issue before the court against him, I consequently find that the Claimant is not entitled to cost.

Consequent upon the foregoing, the sole issue formulated for resolution of the head claims is resolved against the Claimants and in favour of the Defendant.

In the final analysis, the case of the Claimants lacks merit in its entirety and same is accordingly dismissed.

Judgment is accordingly entered.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.