IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFIORE: HONURABLE MR. JUSTICE SANUSI KADO

3RD DAY OF DECEMBER, 2025                                           SUIT NO. NICN/CA/51/2023

BETWEEN:

Esther Barong Obi …………………………………………………..………………………………………… claimant

AND

Chief Gabriel Umodem

(Doing business under the  name and style

Access Group of Schools) ………………………………………………………………....………….. defendant

JUDGMENT.

1.      Vide a general form of complaint dated 8/11/2023 and filed on the same date accompanied by statement of Facts, witness statement on oath, list of witnesses, list of documents and photocopies of documents to be relied on at the trial, the claimant claims against the Defendant as follows:-

1.      Arrears of salaries of N115,000.00 (One Hundred and Fifteen Thousand Naira).

2.      The sum of N99,000.00 (Ninety-Nine Thousand Naira) being 3 months’ salary in Lieu of Notice.

3.      The sum of N20,000,000.00 (Twenty Million Naira) being general damages for unlawful termination of Claimant’s employment with the Defendant.

4.      Cost of this action assessed at N500,000.00 (Five Hundred Thousand Naira).

2.      Upon being served with the general form of complaint commencing this suit, the defendant filed memorandum of conditional appearance and statement of defence out of time, deemed properly filed and served by order of court made on 23/4/2024. In the statement of defence the defendant denied the entirety of the claim of the claimant.

3.      On 28th day of May, 2024, the claimant filed motion on notice for for leave to filed reply to statement of defence out of time and call additional witness, the application was granted by the court on 26/4/2024, the reply to statement of defence filed out of time on 28/5/2024, was deemed properly filed and served by order of the court.

4.      On 3/12/2024, the claimant testified as CW1 in proof of her case. three documents were tendered in evidence through CW1 and were admitted in evidence and marked as exhibits CW1, CW2 and CW3. One Priscila Bassey testified on 27/2/2025, as CW2, in proof of the case of the claimant. No any document was tendered in evidence through CW2. At the end of her testimony, CW2, in the absence of re-examination was discharged.

5.      On 8/5/2025, one Adenye Asumpta vice Principal Administration testified in defence of the defendant. Five documents were tendered in evidence through DW1, the documents were admitted in  evidence and marked as exhibits DW1A to DW1E. The cross examination of DW1, by the counsel for the claimant was concluded on 19/6/2025.

6.      On 16/10/2025, counsel for the parties adopted their final written addresses.

THE CASE OF THE CLAIMANT.

7.      The Claimant was employed by the Defendant as a nursery teacher on April 12, 2023, at a monthly salary of N33,000.00. The Defendant operates a business known as Access Group of Schools. According to the Claimant salary payments were irregular and intermittent, exposing her to hardship as she was forced to walk long distance from 8 miles where she resides to No. 1 Kadana Road, State Housing, Calabar and later to Atimba Road, Calabar causing her hardship. This compelled the claimant to approach the Defendant’s wife to request that she talk to the Defendant on the Claimant’s behalf to pay the Claimant, as the Claimant could no longer survive without salary. The Claimant was shocked when the defendant instead of paying her arrears of salaries, the Defendant came to school on the 12th  day of September, 2023 in a fury and told the Claimant that her appointment has been terminated. The termination of claimant’s employment was contrary to the terms of employment, the Claimant caused her counsel to write to the Defendant a demand letter for the Claimant’s arrears of salaries in the sum of N115,000.00 (One Hundred and Fifteen Thousand Naira); N99,000.00 (Ninety Nine Thousand Naira) being 3 months’ salary in lieu of notice and a token of N1,000,000.00 (One Million Naira) as compensation to the Claimant for the unlawful termination of Claimant’s employment.

THE CASE OF THE DEFENDANT.

8.      The defendant denied the claim of the claimant and stated that the Claimant was offered Temporary Appointment as a Nursery Teacher with effect from Wednesday, the 12th day of April, 2023, on a salary of N33,000.00 (Thirty-Three Thousand Naira) per month. It was expressly stated in the letter of Temporary appointment, that should the claimant decide to relinquish or resign her appointment with Access Group of Schools, she should give One(l) Month notice in writing at the end of the school year or forfeit Two (2) Months’ wages in lieu of proper notice. The Hours of Duty was 7:30am – 3:30pm on Monday to Friday and 9:OOam – 3:OOpm on Saturdays. The temporary appointment was on probation and has not been confirmed till date. The Access Group of Schools is a subsidiary of Access Schools Limited, a company duly registered under the laws in force in the Federal Republic of Nigeria. There is no contractual relationship between the Claimant and the Defendant on record. The Claimant was paid salaries as and when due when she was reporting for duties regularly. In the months of July, August and September, 2023, the Claimant failed to diligently carry out her assigned teaching duties as she displayed high level of non-satisfactory, performances of her assigned duties. At all times material, the Claimant reported for work late and left before the official closing time. The claimant absconded from her duties and has not served the Defendant with her resignation letter based on the terms of engagement. The Defendant specifically stated that the claimant is not his employee, but an employee of Access Group of Schools.

9.      The Claimant never worked for Access Group of Schools for 6 months. The Claimant was paid two and a half months wages for the Period 15 – 04 – 2023 to 30 – 06 – 2023. The lackadaisical offensive attitude of the Claimant in discharging her assigned teaching duties, as averred in paragraph 5 of this Statement of Defence above, kick started mid-July, 2023 and lingered till the 11/9/2023 when she absconded from her duty post. The claimant was never consistent in coming to work and she comes to work whenever she feels like coming right from mid-July, 2023 to 11/9/2023. The claimant is not entitled to any arrears of salary, as she has not worked for the months of 12/7/2023-12/8/2023 and 12/8/2023-12/12/9/2023 as required by the terms and conditions of her Letter of temporary appointment’s offer. The management of Access Group of Schools considered the claimant’s unrepentant persistent attitude of coming to work whenever she pleases as an intolerable gross misconduct.

10. The Defendant avers that at the trial of this case, he is going to challenge the competence of this suit on the ground that he is not the proper person to be sued; but Access Group of Schools, as Access School Limited is a juristic person, being an independent person in law and the employer of the claimant.

11. The Defendant denies paragraph 14 of the Statement of Facts and states that the Claimant is not entitled to any of the reliefs sought, same being speculative and an abuse of the process of court and ought to be dismissed with substantial cost.

THE CLAIMANT’S REPLY TO STATEMENT OF DEFENCE

12. In reply to the statement of defence, the claimant stated that Access Group of Schools is not a subsidiary of Access Schools limited. There is no where it is so stated in the Memo and Articles of Association of Access School. A group cannot be a subsidiary of a single one, it is one that can be a subsidiary of a group. Access group of schools is not a juristic person.

13. The Claimant maintained that there is a contractual relationship between the Claimant and the Defendant as shown by Letter of Appointment dated 12th April, 2023. Through the said letter, the Defendant through Access Group of Schools (a non-juristic person) employed the Defendant as a nursery school teacher which has a contractual relationship with the Claimant.

14. The Defendant does not pay salaries as at when due. The Defendant is in the habit of owing salaries for several months and when such salaries indebtedness have accumulated, the Defendant would look for any flimsy excuses to terminate the appointment of staff owed, so as to evade payment of such legitimate debt.

15. The Claimant avers that she reported to work early throughout the period of the Claimant’s employment with the Defendant. The Defendant in a desperate bid to paint the Claimant in a bad light, presented attendance register of the Claimant during vacation when Claimant was not expected to go to work daily but only when the occasion demands. The desperation of the Defendant led him to exhibit attendance register of groups other than the Claimant’s group. From 22nd August 2023 to 26th August, 2023 only management staff were asked to come to school and the Claimant was not a management staff on 30th to 31st August, 2023 teaching staff were asked to come to school for a specific duty which when the task was finished, the Vice Principal dismissed every teaching staff as it was during vacation.

16. The attendance registers of the group exhibited for 4th – 7th September, 2023 is not a group the Claimant belonged. The Claimant having been dismissed from her employment on 11th September, 2023 and threatened to stay away from the Defendant’s premises cannot continue to attend work thereafter.

17. In response to paragraph 2 (g) and (h) which are denied, the Claimant states that she has never reported late for work nor left work before closing time. The Defendant is addicted to using his staff for a purpose other than the purpose for which a staff was employed. For instance, during the month of August, all teaching staffs were used by the Defendant to go to town and advertise the school through outreaches using flyers. The teaching staffs including the Claimant were exploited by the Defendant and no allowance is given for staff for those odd jobs not included in staff schedule of duties. At other times teaching staffs including the Claimant are used as cleaners or to do other odd jobs as the Defendant may ask staff to do and any staff that raised eyebrow to those exploitations would be violently attacked by the Defendant.

18. The Defendant lied when he stated that the Claimant absconded from duty. It was the Defendant who without any justification whatsoever terminated the Claimant’s appointment verbally and threatened to do harm to the Claimant if the Claimant was ever seen within the Defendant’s premises. This the Defendant did in the presence of many staffs including Mrs. Prescila Bassey. The Claimant’s paragraph 10 of the Statement of Defence is admission that the Defendant has not paid the Claimant for the months of July, August and September. The Defendant’s explanation to the effect that he refused to pay the Claimant her arrears of salaries because the Claimant did not attend to her duties one day in July, 2023 and one day in the month of August, 2023 is denied. The Claimant attended her duties every day and on time but the Defendant on some days including days referred to in July and August ordered all teaching staff to report at a location different from the address of their regular duties for outreach in advertisement program of the Defendant wherein staffs of the Defendant are ordered to go to a particular location to advertise the services of the Defendant Flyers were given to every staff to distribute in a particular location in a given date. All staff usually meet in a given rendezvous and any staff who fails to attend and do it passionately will be sacked. Those involved do not clock in the time book as they do not meet in the school premises, head count is rather taken. If the Claimant failed to attend her duties as alleged, she should have been instantly queried.

19. The Defendant cannot after giving reasons why the Claimant’s appointment was terminated, deny terminating the Claimant’s appointment. The Defendant is only denying terminating the Claimant’s appointment because there is no cogent reason why the Claimant’s appointment was terminated.

20. The Claimant avers that the Defendant admitted in paragraphs 16 of his Statement of Defence that Access Group of Schools is not a juristic person. Only Access School which is an off-shoot of Access Group of Schools that is a juristic person. The Defendant is the proper party to be sued in the extant suit.

THE SUBMISSION OF THE DEFENDANT

21. A.G. Robert, Esq; counsel for the defendant who franked the defendant’s final written address in oral adumbration adopted the said final written address of the defendant as his argument. In the written address seven issues were formulated for determination. They are:-

1.      Whether considering the fact that the 4 claims/reliefs of the Claimant are all ancillary reliefs which can only be granted upon the claim for cum successful proof of wrongful termination of contract of employment vis-à-vis the fact that a Court of law is not a Father Christmas to grant reliefs not claimed in view of the fact that the Claimant has no claim for a declaration of wrongful determination of contract of employment, it can be rightly adjudged that the claims of the Claimant are bound to crumble?

2.      Whether considering the totality of the evidence adduced by parties before the Court, it can be rightly adjudged that the Claimant has successfully proved that her contract of employment was unlawfully terminated/wrongfully terminated?

3.      Whether considering the totality of the evidence adduced by parties before the Court, it can be rightly adjudged that the Claimant has proved her relief 1 against the Defendant?

4.      Whether considering the totality of the evidence adduced by parties before the Court, it can be rightly adjudged that the Claimant has proved her relief 2 against the Defendant?

5.      Whether considering the totality of the evidence adduced by parties before the Court, it can be rightly adjudged that the Claimant has proved her relief 3 against the Defendant?

6.      Whether cost of action or litigation is grantable in law?

7.      Whether considering the totality of the evidence adduced before this Court, it can be rightly adjudged that the Defendant is not the proper person to be sued?

ARGUMENT:

22. ISSUE 1: Whether considering the fact that the 4 claims/reliefs of the Claimant are all ancillary reliefs which can only be granted upon the claim for cum successful proof of wrongful termination of contract of employment vis-à-vis the fact that a Court of law is not a Father Christmas to grant reliefs not claimed in view of the fact that the Claimant has no claim for a declaration of wrongful determination of contract of employment, it can be rightly adjudged that the claims of the Claimant are bound to crumble?

23. In arguing this issue counsel submitted that the Claimant's four reliefs are secondary and contingent upon a primary claim for a declaration of wrongful termination of employment. The Defendant argues that since the Claimant did not explicitly seek such a declaration, the Court cannot grant the ancillary reliefs, as courts are not empowered to award what has not been claimed. According counsel the Claimant's four reliefs (arrears of salary, salary in lieu of notice, general damages, and cost of action) are all ancillary and dependent on a successful claim for wrongful termination of employment.

23.counsel submitted that the Claimant's Originating Complaint and Statement of Facts do not contain a specific prayer for a declaration that her contract of employment was wrongfully determined.

24. Counsel further argued that a court of law is not a 'Father Christmas' or a charitable institution and cannot grant reliefs that have not been sought by the claimant. Citing case law; C.G.G. (NIG) LTD V. AUGUSTINE & ORS (2010) LPELR-8592(CA), JEMIDE V. NWANNE & ORS, (2008) LPELR-3941(CA), PATIRA & ORS V. LAGOS ISLAND LOCAL GOVT COUNCIL & ORS, (2006) LPELR-11710(CA), FCMB V. LAFIA & ORS), (2017) LPELR-45129(CA), according to counsel a claimant gets only what they have claimed and proved, and courts cannot award reliefs not prayed for. The failure of the Claimant to seek a declaration of wrongful termination is fatal to her ancillary claims, as the Court lacks the jurisdictional competence to grant them without such a foundational claim.

25. It is submitted that considering the ancillary nature of the claims and the absence of a claim for a declaration of wrongful termination, the Claimant's claims are bound to crumble. Counsel argued that the above longstanding principle of law further finds judicial implementation cum pronouncement in the following judicial authorities: TUKUR & ORS V. INTERGLOBAL PROCUREMENT ENGINEERING SERVICES LTD (2014) LPELR-22450(CA); ALLIANCE INTL LTD V. SAAM KOLO INTL ENT LTD (2010) LPELR-3749(CA); ODULAJA & ANOR V. WEMA BANK LTD & ORS (2014) LPELR-23816(CA); OKONKWO V. EZEONU & ORS (2017) LPELR-42785(CA); PDP V. UMAR (2020) LPELR-51390(CA); OLAOPA V. OAU, ILE-IFE (1997) LPELR-2571(SC); ETC.

26. Counsel submitted that flowing from the above axiomatic enunciated principle of law conveyed by the above authorities and its application to the case of the Claimant in this case, it is submitted that the failure of the Claimant to ask for a Declaration that her contract of employment has been wrongfully determine/terminated by the Defendant is fatal to her 4 reliefs/claims which success is absolutely dependent upon the grant of the relief of Declaration of wrongful determination of contract of employment. The Claimant’s 4 reliefs are ancillary reliefs which can only find success upon a successful declaration that her contract of employment was wrongfully determined by the Defendant, but since she did not ask for such relief, this Court is devoid of the jurisdictional competence to grant such relief having not prayed for same by her originating Complaint and Statement of Facts.

27. ISSUE 2: Whether considering the totality of the evidence adduced by parties before the Court, it can be rightly adjudged that the Claimant has successfully proved that her contract of employment was unlawfully terminated/wrongfully terminated?

28. It is the submission of counsel that issue 2, probes whether the Claimant has met the burden of proof to establish that her employment was wrongfully terminated, considering the evidence presented by both parties.

28.Counsel submitted that the Claimant's employment relationship with the Defendant is a master-servant contractual relationship, not one with statutory flavor. Any termination can only be wrongful, not unlawful, illegal, or null and void. And in an action for wrongful termination of employment, the burden of proof rests solely on the Claimant and never shifts to the Defendant. In support of this submission counsel relied on the cases of NIGERIAN ROMANIAN WOOD & ANOR V. AKINGBULUGBE, FMC IDO-EKITI & ORS V. ALABI (2010) LPELR-9140(CA). counsel argued that the employee must place the terms of employment before the court and prove how they were breached. To prove wrongful termination, a Claimant must plead and lead evidence to establish four conditions precedent: (a) being an employee, (b) the terms and conditions of employment, (c) the agreed mode of determination, and (d) the manner of wrongful determination contrary to the agreed mode.

29. According to counsel, the Claimant has only proven two of these ingredients: that she was an employee and the terms and conditions of her contract (Exhibit C2). The Claimant has failed to prove the requisite agreed mode of determination and the manner of wrongful determination contrary to that mode. It is further argued that exhibit C2 (Letter of Temporary Appointment) does not stipulate a 3-month notice or salary in lieu for termination by the Defendant. Instead, it requires the Claimant to give 1 months’ notice or forfeit 2 months' wages if she resigns. The Defendant is not required by Exhibit C2 to give the Claimant 1-month notice or 2-month salary in lieu of notice upon termination. The mode and manner of termination by the Defendant are left to the Defendant's discretion as per Exhibit C2.

30. It is the contention of counsel that the Claimant, having accepted Exhibit C2 (via Exhibit DW1C), is bound by its terms and cannot complain about its unfavorability. In support of this submission counsel relied on the cases of ENYONG & ORS V. IDIBI & ANOR (2015) LPELR-25742(CA), JALBAIT VENTURES (NIG) LTD & ANOR V. UNITY BANK PLC (2016) LPELR-41625(CA), SACOIL 281 (NIG) LTD & ANOR V. TRANSNATIONAL CORPORATION OF (NIG) PLC (2020) LPELR-49761(CA), AMRI MEDICAL RELIEF LTD & ORS V. E-BARCLAYS MICROFINANCE BANK LTD (2015) LPELR-24722(CA), UDO V. GOVT OF AKWA IBOM STATE & ORS (2012) LPELR-19727(CA). counsel maintained that parties are bound by their agreements, and court cannot rewrite contracts or import terms not agreed upon.

31. Counsel also argued that the Claimant's testimony under cross-examination confirms that exhibit C2 does not state a requirement for 3-month notice or salary in lieu from the Defendant.

32. Counsel also submitted that the evidence from Exhibits DW1D (Reply to Query) and DW1E (Sign-in/Sign-out Records) demonstrates the Claimant's poor performance, absenteeism, lateness, and early departures, which constitute a breach of her contract and led to her probationary appointment not being confirmed.

33. It is submission of counsel that the Claimant's relief 3, seeking general damages for unlawful termination, further indicates her intention to claim unlawful termination, which is inappropriate for a master-servant relationship. According to counsel, the Claimant has failed to prove that her contract of employment was unlawfully or wrongfully terminated.

34. It is the submission of counsel that the Claimant cannot import into exhibit C2 what is not actually agreed upon between her and the Defendant to say that she ought to be given 3-month notice or 3-month salary in lieu of notice; or that what is good for the goose is also good for the gander or that she ought to be given 1-month notice or 2-month salary in lieu of notice. The Claimant, the Defendant and this Court are bound by the terms and conditions of exhibit C2 in the determination of this suit and this Court cannot go on a voyage of discovery to import into the parties contract what was never agreed by the parties or rewrite the contract of the parties for the parties. Exhibit C2 is very explicit cum unambiguous.

35. ISSUE 3: Whether considering the totality of the evidence adduced by parties before the Court, it can be rightly adjudged that the Claimant has proved her relief 1 against the Defendant?

36. It is submission of counsel that the Claimant's relief 1 seeks an order for the Defendant to pay #115,000.00 as arrears of salary. The burden of proof lies on the Claimant to prove the facts asserting her legal right to this relief, as per sections 131(1), 132, and 133(1) of the Evidence Act.

37. In contract law, a party alleging breach must plead the agreement, identify the breached terms, explain the manner of breach, and lead evidence to prove it. According to counsel none of the Claimant's exhibits constitute a statement of account showing that she is owed arrears of salary by the Defendant. There is no evidence before the Court to prove the Claimant's allegation and relief 1 that the Defendant is owing her arrears of salary.

38. Counsel also argued that under cross-examination, the Claimant admitted she has nothing before the Court to substantiate her testimony about irregular salary payments or that the Defendant owes her arrears of salary. The testimony of CW2 (Precilia Bassey) also does not provide evidence of the Defendant owing the Claimant arrears of salary. The Defendant's exhibits (DW1D and DW1E) demonstrate the Claimant's poor performance and absenteeism, which would negate any claim for salary for unworked periods. It is submitted that the Claimant has failed to prove her relief 1 against the Defendant.

39. ISSUE 4: Whether considering the totality of the evidence adduced by parties before the Court, it can be rightly adjudged that the Claimant has proved her relief 2 against the Defendant?

40. Counsel submitted that the Claimant's relief 2 seeks an order for the Defendant to pay #99,000.00, being 3 months' salary in lieu of notice. It is submitted that based on the arguments presented in Issues 1 and 2, the Claimant has failed to prove this relief. Exhibit C2 (Letter of Temporary Appointment) does not show that the Defendant contracted to terminate the Claimant's employment by issuing a 3-month notice or paying 3-month salary in lieu of notice. Exhibit C2 explicitly states that the Claimant is required to give the Defendant a 1-month notice or forfeit 2 months' wages if she decides to terminate the contract. It is submitted that there is no provision in exhibit C2 requiring the Defendant to give the Claimant 1-month notice or 2-month salary in lieu of notice upon termination. As the mode and manner of termination by the Defendant are left to the Defendant's discretion. The Claimant, by accepting Exhibit C2 (via Exhibit DW1C), agreed to its terms and cannot object to them or resile from the agreement. Counsel submitted that the Claimant has failed to prove her relief 2 against the Defendant.

41. ISSUE 5: Whether considering the totality of the evidence adduced by parties before the Court, it can be rightly adjudged that the Claimant has proved her relief 3 against the Defendant?

42. In relief 3, the claimant is seeking for an order directing the Defendant to pay the sum of #20,000,000.00 (Twenty Million Naira) as general damages in favour of the Claimant for unlawful termination of the Claimant’s employment with the Defendant. Counsel submitted that on the strength of the arguments as canvassed in issues 1 and 2 herein, the Claimant has failed completely to prove her relief 3 against the Defendant. There is nowhere in the Claimant’s Originating Complaint or Statement of Facts where the Claimant prays this Court for: A Declaration that the Claimant’s Contract of Employment was unlawfully terminated by the Defendant or A Declaration that the Claimant’s Contract of Employment was wrongfully terminated by the Defendant.

43. Counsel further argued that the Claimant has also failed to prove that her contract of employment was unlawfully or wrongfully terminated by the Defendant. Consequently, relief 3, being an ancillary relief that can only be granted upon the successful proof of wrongful determination of contract of employment, cannot be granted by this Court in view of the fact that a Declaration for wrongful Termination of Contract of Employment was not asked for and proved by the Claimant. The Claimant has failed to prove her relief 3 against the Defendant; and we pray this Court to so find and hold.

44. ISSUE 6: Whether cost of action or litigation is grantable in law?

45. Counsel submitted that the Claimant, by her relief 4, is praying this Court to award the sum of #500,000.00 (Five Hundred Thousand Naira) as cost of action in her favour against the Defendant.  The law is trite that it is unethical for any Court of law to grant a claim for cost of litigation/action under Nigerian Legal System. This is because costs of litigation/action do not form part of the cause of action ventilated. To support his contention counsel relied on the cases of DHL INTERNATIONAL NIGERIA LIMITED v. OBIAGELI EZE-UZOAMAKA & ANOR (2020) LPELR-50459(CA); UNITED BANK FOR AFRICA PLC v. VERTEX AGRO LIMITED (2019) LPELR-48742(CA).

46. It is also the submission of counsel that the Claimant’s relief 4 falls within the realm of special damages, which, by law, it is required to be specifically pleaded and particularized and strictly proved to be entitled to it. In support of this submission reliance was placed on the cases of AJIKAWO v ANSALDO (NIG.) LTD [1991] 2 NWLR (PT.173) P.362@373, PAR. C; FEDERAL HOUSING AUTHORITY v WARNER AND WARNER INTERNATIONAL ASSOCIATES (NIG.) LTD [1986] 5 NWLR (PT.42) 473; ATTORNEY-GENERAL ANAMBRA STATE v C. N. ONUSELOGU ENTERPRISES LTD [1987] 4 NWLR (PT.66) 547; DUYILE v OGUNBAYO AND SONS LTD [1988] 1 NWLR (PT.72) 601.

47. It is submitted that a painstaking perusal of the Claimant’s Statement of Fact will clearly show that there is nowhere therein where the Claimant specifically pleaded and particularized her relief 4 of #500,000.00 (Five Hundred Thousand Naira) cost of action.

48. It is further submitted that out of the 3 exhibits tendered in evidence by the Claimant, there is none that constitute receipts showing how the Claimant expended or incurred the sum of #500,000.00 (Five Hundred Thousand Naira) as cost of instituting this action.

49. ISSUE 7: Whether considering the totality of the evidence adduced before this Court, it can be rightly adjudged that the Defendant is not the proper person to be sued?

50. In arguing this issue, counsel submitted that a scrupulous perusal of exhibits  C2, DW1A, DW1B, DW1C AND DW1D clearly show that Access Group of schools is the employer of the Claimant, as there is nowhere in those exhibits where the name of the Defendant was mentioned/stated.

51. Counsel submitted that the claimant under cross examination stated that her employer was access Group of Schools. The above testimony of the Claimant under cross-examination indisputably proves that the Claimant is fully aware that Access Group of Schools is her employer and not the Defendant. Thus, the Claimant having sued the Defendant instead of Access Group of Schools, this action is bound to fail.

52. Counsel urged the court to on the strength of the above evaluation of evidence cum our argument, submit that considering the totality of the evidence adduced before this Court, it can be rightly adjudged that the Defendant is not the proper person to be sued.

53. In concluding his submission counsel urged the court to hold that the Claimant has failed to prove her claims against the Defendant and consequentially dismiss this action with a grave cost of #200,000.00 (Two Hundred Thousand Naira) for lacking in merit.

THE SUBMISSION OF THE CLAIMANT.

54. Austin Okeja, Esq; counsel for the claimant in the final written address of the claimant formulated three issues for resolution. They are:-

1.      Whether the termination of the Claimant’s employment with the defendant without notice is not wrongful.

2.      Whether the Claimant has not proved being owed arrears of salaries of the sum (N115,000.00) One Hundred and Fifteen Thousand Naira by the Defendant to entitle the Claimant for same.

3.      Whether where any of issue 1 or 2 is found in favour of the Claimant, whether the Claimant is not entitled to cost of this action.

ARGUMENT:

55. Issue 1: Whether the termination of the Claimant’s employment with the Defendant without notice is not wrongful?

56. In arguing this issue counsel submitted that the termination of the Claimant’s employment by the Defendant on the 11th day of September, 2023 is wrongful, as the claimant’s employment is governed by exhibit C2 or DW1A, which the defendant has not disputed. And it was provided in exhibit C2 that on length of notice to be given during the period of temporary appointment, exhibit C2 provides:- “Should you accept our temporary appointment offer, you are expected during the period of your employment to give one month notice in writing at the end of the school year or forfeit two months wages in lieu of proper notice, if you should decide to relinquish or resign your appointment with our school”.

57. It is submission of counsel for the claimant that notice as provided in exhibit C2, is one month notice in writing or two months’ salary in 1ieu of notice. The notice required is vice versa. In this case the Defendant even denied ever terminating Claimant’s employment obviously because the Defendant knows that he did not give the Claimant the required notice or salary in lieu of notice as provided for in exhibit C2.

58. It is further submitted that the Claimant in her deposition on Oath of 9th day of November, 2023 in paragraph 7 thereof gave evidence of walking from 8 Miles, Calabar to Atimbo Road, Calabar upon her transfer to Atimbo Road Branch and the Defendant through his sole witness DW1, (Adinye Assumpta), during cross examination on the 19th June, 2025 admitted that she works at the Defendant’s branch at No. 1, kadana Road, State Housing Estate, Calabar while the Claimant was transferred to Atimbo Road Branch of the Defendant shortly after her employment and worked at Atimbo Road Branch until the day of the termination of her employment. The evidence was not contradicted as DW1 even testified under cross examination that on 11th September, 2023, she went work at No. 1 Kadana Road, State Housing, Calabar on the 11th September, 2023. While claimant work at Atimbo Road, where her employment was terminated.

59. Counsel submitted that it is an unimpeachable fact that the Defendant’s Sole witness DW1, Adinye Assumpta Awori did not have a direct knowledge of the facts she testified to. It is either that she got the knowledge of those facts through clairvoyance or someone else gave her the information. Either way, the evidence of the Witness is inadmissible. Both clairvoyance and hearsay evidence is inadmissible. In support of this contention counsel relied on the cases of ONOVO v, MBA (2014) 14 NWLR (PT.1427) at 391 MANCHA & ORS V. EMUKOWATE (2017) LPELR-431113. Counsel urged the court to strike out the testimony of the DW1 and attach no weight to such hearsay evidence. In the circumstances, the situation leaves the evidence of the claimant unchallenged.

60. Counsel also argued that assuming, but not conceding that, the evidence of DW1, Adinye Assumpta Awori is admissible, the Defendant did not deny the fact that the Claimant is entitled to notice, but, rather lamely denied terminating the Claimant’s employment because the Defendant knew that the said termination was wrongful and contrary to contract of parties.

61. Counsel urged the court to find and hold that the termination of the Claimant’s employment was wrongful and award two months’ salary in lieu of notice in accordance with the contract of parties in exhibit C2 and award general damages in line with relief (iii), as award of general damages is discretionary. Counsel urged the court to exercise its discretion in favour of the claimant.

62. Issue 2: Whether the claimant has not proved being owed arrears of salaries in the sum of (N115,000.00) One Hundred and Fifteen Thousand Naira by the Defendant to entitle the claimant to same.

63. In arguing issue 2, counsel submitted that the claimant has established by valid evidence that she is being owed arrears of salaries in the sum of (N115,000.00) One hundred and Fifteen Thousand Naira, for which this Honourable Court is invited to order payment of same to the Claimant, as the claimant had testified in line with paragraph (8) Eight of her deposition on Oath of 8th day of May, 2023 “that I aver that from the 12th day of April, 2023, till the 11th day of September, 2023 when my employment was terminated without query or any justification whatsoever, I received a total sum of (N83,000.00) Eighty Three Thousand Naira made up of installments of (N33,000.00) Thirty Three Thousand Naira on 2 occasions and (N17,000.00) Seventeen Thousand Naira on one occasion, instead of (N198,000.00) One Hundred and Ninety Eight Thousand Naira which I was entitled to as salaries for the period of (6) six months which I served the Defendant “

64. Also in paragraph (4) four of the claimant’s deposition on oath of 28th day of May, 2024, the Claimant stated  “that in answer to paragraph 2 (e) which I deny, state that the Defendant does not pay salaries as at when due. The Defendant is in the habit of owing salaries for several months and when such salaries indebtedness have accumulated, the Defendant would look for any flimsy excuses to terminate the appointment of staff owed, so as to evade payment of such legitimate debt. Notice is hereby given to the Defendant to produce my salary vouchers of the Defendant in respect of the claimant from the month of April, 2023 to September, 11th 2023.’’

65. It is submission of counsel that the Defendant admitted that the Claimant was his employee, employed on 12th day of Aril, 2023, the Claimant worked from 12th day of April 2023 till 11th day of September, 2023. The Claimant stated that she was paid a total of (N83,000.00) Eighty-Three Thousand Naira for the period made up (3) three payments of (2) two payments of (N33,000.00) Thirty-Three Thousand Naira each and (1) one payment of (N17,000.00) Seventeen Thousand Naira. However, the Defendant who stated that he has a system that ensures that salaries are paid regularly and on time did not tell this Court what that system was or produce any evidence of payment of the claimant’s salaries or at all.

66. It is further submitted that every employer has a payment voucher. But, the Defendant did not produce any evidence of payment to the Claimant. For counsel, it follows that if the Defendant has payment vouchers or other evidence of payment but failed to produce it in Count, by provisions of section 149 (d) of the Evidence Act, if that evidence is produced it will work against the Defendant. counsel in support of this contention relied on the decisions in the cases of Bakari v, Oljundipe & Ors 2020 LPELR 49571; Gudusu v, Abubakar 2017 LPELR 43007.

67. Counsel also argued that the Claimant had in paragraph 4 of her additional deposition on Oath filled on 28th day of May, 2024 put the Defendant on notice to produce the Salary vouchers of the claimant from the date the claimant was employed i.e 12th April, 2023 to 11th day of September 2023, the date the Claimant’s employment was terminated by the Defendant but the Defendant withheld the document because the Defendant knows that if the payment vouchers were produced it will work against the Defendant.

68. For counsel, the truth is that the Defendant is owing the Claimant arrears of salaries to the tune of (N115,000.00) One Hundred and Fifteen Thousand Naira as claimed and proved by the Claimant.

69. Counsel also submitted that proof in civil cases is on balance of probabilities. It is proof that is on the preponderances of evidence. If the Claimant’s evidence is more likely to be true than that of the Defendant then the Court takes the case of the Claimant as proved, as per the decision in the case of OIL SERVE LTD vs, IBEANU & COMPANY NIG. LTD & ANORS 2007I,PELR 61491.

70. It is submitted that the Claimant stated in paragraph 7 of her deposition on Oath filed on 8th day of November, 2023 that as at 11th day of September the date of termination of her employment with the Defendant, the Claimant had only received a total sum of (N83,000.00) Eighty-Three Thousand Naira only as salary from the Defendant for the (6) six months she was in the Defendant’s employment paid to the on (3) three occasions, (N33,000.00) Thirty Three Thousand Naira on (2) two occasions and (N17,000.00) Seventeen Thousand Naira on the last occasion. The Defendant evasively controverted that fact by stating that the Defendant have a system that ensures regular payment of staff salaries without stating what that system was. The Defendant did not also state the total amount the Defendant had paid to the Claimant for the (6) six months duration the Claimant was in the Defendant’s employment. The Defendant by the evasive pleadings circumstantially admitted the Claimant’s Claim of arrears of salaries of (N115,000,000.00) One Hundred and Fifteen Thousand Naira being the difference between the (N83,000.00) Eighty-Three Thousand Naira she received for the period and (N198,000,00) One Hundred and Ninety-Eight Thousand Naira she ought to have earned as salaries for the same period,

71. Issue 3: Whether where any of issue 1 or 2 is found in favour of the Claimant, whether the Claimant is not entitled to cost of this action.

72. Counsel submitted that it is trite that cost follow events. A successful party is entitled to cost except there is an exceptional circumstance to warrant depriving him of his entitlement. Cost is actually meant to compensate the successful party for part of the loss incurred in the litigation. As in the extant suit, if the defendant had complied with the terms of the Contract between parties and given the Claimant the notice as therein stated, and as well paid the Claimant her arrears of salaries, the claimant wouldn’t have had the need to retain a counsel to litigate this present action and incur expenses by so doing. It is an obvious fact that the claimant spent more than the (N500,000.00) Five Hundred Thousand Naira cost the Claimant is praying this Hunuurable Court to grant the claimant in this suit.  This meagre amount prayed is to compensate the Claimant for part of the loss the claimant incurred litigating this suit It is the law that a party who is in the right is to be indemnified for the expenses to which he has been necessarily put in the proceedings, as well as compensate for his time and effort in coming to Court. On this submission counsel relied on the cases of MOONTRENDS LTD v,  OANDO 2012 LPELR (2) MASTER HOLDINGS NIG. LTD & ANOR  V:  OKEFIENA 2010 LPELR 8637; IBE & ANOR v, BONUM NIG. LTD 2019 LPELR-46452.

73. Based on the facts and circumstances of this case, authorities cited and relied on and very cogent legal arguments, counsel urged the court to find merit in claimant’s claim and grant reliefs sought.

74. In reaction to defendant’s final written address filed on 6th June, 2025 wherein the Defendant submitted seven issues for determination, counsel for the claimant submitted that in Defendant’s issue No. 1, Defendant argued that all (4) four claims/reliefs are ancillary reliefs which can only be granted upon successful proof of wrongful termination of contract and that since the Claimant has no claim for declaration of wrongful termination of contract of employment, the Claimant’s claims must crumble. It is submitted that the Claimant’s claims/reliefs are substantive claims/reliefs. To demonstrate and highlight the absurdity of the Defendants position, assuming but not conceding that the Defendant gave the Claimant the necessary one month notice or two months’ salary in lieu of notice but is in arrears of more than (3) three months’ salary to the Claimant as in the extant case, has the Claimant no right to sue the Defendant for arrears of her salary only? Counsel submitted that the Claimant has a right to claim for even arrears of salary only.

75. Counsel further submitted that the reliefs sought by the Claimant are not ancillary reliefs as posited by the Defendant, they are substantive.

76. It is submitted that the Defendant having not counter claimed is bound to restrict himself to issues the Claimant submitted to this Court for adjudication. While the defendant is free to donate issues for determination, it is submitted that most of the issues raised by the Defendant do not flow from the Claimants Claim.

77. In concluding his submission counsel argued that on the strength of the convincing and compelling evidence of the Claimant, authorities cited and relied on, find merit in the Claim of the Claimant and grant all reliefs sought.

DEFENDANT’S REPLY ON POINTS OF LAW.

78. In reaction to the Claimant’s final written address filed on the 25th of July,2025, the defendant filed reply on points of law. Counsel started by submitting that the Claimant, by paragraphs 16 to 20 under Issue 1 of her Final Written Address dated and filed on the 25th of  July, 2025,  has argued extensively,  but without merit,  that because DWI was not at the  Atimbo Branch Office of Access Group of Schools, the employer of the Claimant, on the 11th of September 2023 when the facts leading to the institution of this action transpired, the evidence of DWI amounts to hearsay evidence and as such, same should be expunged from the records of this Court.

79. In reaction to the above submission, counsel submitted that DW1 testified in her official capacity as the Vice Principal (ADMIN) of Access Group of Schools, the employer of the Claimant. And the law is trite that an officer of a company is a competent witness on behalf of the company and his/her “- evidence cannot be designated as hearsay evidence. In support of this submission counsel relied on the cases of SENATOR GODWIN & ANOR v IKEDI GODWIN OHAKIM & ANOR (2009) LPELR – 4206 (CA), SALEH VS. BANK OF THE NORTH LTD.(2006) LPELR-2991(SC), UNION BANK OF (NIG) PLC V. JASE MOTORS (NIG) LTD & ANOR (1997)(CA); BRILA ENERGY LTD V| FRN (2018) LPELR-43926(CA);STEMCO  LTD  V,  ESSIEN  (2019) LPELR-47475(CA);CHEMIRON INTL LTD V. STABILINI VISINONI LTD (2015)LPELR-45741(CA); ETC,

80. Counsel contended on the strength of the above enunciated principle of law fully fortified cum amplified by the above judicial authorities, the evidence of DW1, cannot be treated as hearsay evidence, as same is admissible evidence on which this Court can act on it.

81. It is submitted, the Claimant,  by paragraphs 6 to 12 and 20 under Issue 2 of her Final Written Address dated and filed on the 25th of July, 2025, has also argued extensively, but without merit,  that the failure of the Defendant to produce the salary vouchers of the Claimant despite the Claimant giving the Defendant Notice to Produce the said vouchers will operate against the Defendant, as the failure of the Defendant to produce them amounts to withholding evidence that will operate against the Defendant and relieves the claimant of her burden of proof of proof of arrears of salary.

82. In reaction to the above argument, counsel for the defendant submitted that, the law is both statutorily and judicially trite that, by virtue of Sections 89(a), 91 and 245 of the Evidence Act, as Amended, a party whom notice to produce is served is not under any legal obligation or mandatory statutorily obligation to produce the said documents. Furthermore, the failure to comply with the notice to produce does not in any way relieve the party serving the notice to produce of his legal obligation to tender in evidence the secondary evidence of the documents required to be produced or to lead evidence to prove its contents. The only consequential legal effect of noncompliance with notice to produce, by virtue of Section 245 of the Evidence Act, as Amended, is that the defaulting party is prevented from placing reliance on the said document he/she is given notice to produce without the consent of the party serving him notice to produce or without the order of Court. Therefore, noncompliance with notice to produce cannot in law be adjudged as withholding unfavourable evidence when the party who served the notice to produce failed to tender in evidence the secondary evidence of the documents and also fails to lead evidence to prove the contents of the documents. In support of his contention counsel relied on the cases of VENN V. ACCESS BANK PLC & ORS (2014) LPELR-24077(CA), JURASSIC COMMUNICATIONS (NIG) LTD V-ADEYEYE (2019) LPELR-46498(CA), AROCOM GLOBAL INVESTMENTLTD V UNITED PARCEL SERVICE LTD (2021) LPELR-52891(CA),

83. It is also submitted that the above enunciated principle of law further finds judicial pronouncements in the following judicial authorities: FASSASSI V ZAMFARA STATE GOVT & ANOR (2019) LPELR-49323(CA);IBIRONKE V MTN (2019) LPELR-47483(CA); BUHARl_V:OBASANJO (2005) 13 WIR (910) PAGE 241; UBN V LDRIS (1999) 7 NWLR (PT 609) PAGE 10-5; ONYE V. KEIVIA (1999) LPELR-6562 (CA); CIWKWUKA_ V: NDUKA (2008) LPELR 3985(CA); LAWAL V. MAGAJI (2009) LPELR-4427, CPC V INEC (2011) LELR-9085; ADEGBUYI V: MUSTAPIIA (2010)LPELR-3600, UKAEGBU V. NWOLOLO (2009) 3 NWLR (1127)194;  JOLAYEMI V. OLAOYE (2004) 12 NWLR (887) 322, (2004)18 NWLR NSCQR, 682; ETENE V: N YONG (2012) LPELR-8031 (CA).

84. Counsel argued that in the light of the above judicial authorities, the failure of the Defendant to produce the said salary vouchers places a mandatory statutory cum legal obligation on the Claimant to tender in evidence the secondary evidence of the salary vouchers and also/or to lead evidence to prove the contents of the said salary vouchers. And the Claimant having failed to tender in evidence the secondary evidence of the said salary vouchers or lead evidence to prove the contents of the said salary vouchers, this Court cannot adjudge that the failure of the Defendant to produce the said documents after service of notice to produce amounts to withholding unfavourable evidence.

85. It is also submitted that the law is statutorily trite that the burden of proof lies on the party who would fail if no evidence at all were given on either side (see Sections 132 & 133(1) of the Evidence Act, as Amended). Again, by virtue of Section 131(1) of the Evidence Act, as amended in 2023,it is mandatorily statutorily required that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. Arising therefrom, the burden of proof lies on the Claimant to prove her assertion that the Defendant is owing her arrears of salary of which she has failed completely to so do.

86. In concluding his reply on points of law counsel urged the court in the light and strength of the above principles of law ably fortified and authenticated by the above judicial authorities, to discountenance the above unmeritorious submissions of the claimant and dismiss this suit with a grave cost.

COURT’S DECISION.

87. I have considered the processes filed by the parties, the evidence adduced at the trial and the written and oral submission of counsel for the parties.

88. The counsel for the defendant formulated seven issues for determination. While the counsel for the claimant formulated three issues for determination.

89. From the claim of the claimant there are four reliefs a, b, c and d, being sought by the claimant. Relief a is for arrears of salaries in the sum of N115,000.00 (One Hundred and Fifteen Thousand Naira). Relief b is for the sum of N99,000.00 (Ninety-Nine Thousand Naira) being 3 months’ salary in Lieu of Notice. Relief c is for the sum of N20,000,000.00 (Twenty Million Naira) being general damages for unlawful termination of Claimant’s employment with the Defendant. And relief d which is the last relief sought is for cost of this action assessed by the claimant at N500,000.00 (Five Hundred Thousand Naira).

90. In civil cases, the burden of proof is on the party who asserts a fact to prove the same because he who asserts must prove. See Are v. Adisa (1967) NMLR 359; Atane v. Amu (1974) 10 S.C. 237; Obimiami Brick & Stone (Nig.) Ltd. v. African Continental Bank Ltd. (1992) 3 NWLR (Pt. 229) 260; Ibrahim v. Ojomo (2004) 4 NWLR (Pt.862) 89; International Messengers (Nig.) Ltd. v. Pegafor Industries Ltd. (2000) 4 NWLR (Pt.652) 242; Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307SC; Mbukurta v. Abbo  (1998) 6 NWLR (Pt. 554) 456; Jack v. Whyte (2000) 6 NWLR (Pt. 709) 266; Akpan v. U.B.N Plc. (2003) 6 NWLR (Pt. 816) 279; Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; Faloughi v. First Impression Cleaners Ltd. (2014) 7 NWLR (Pt.1406) 335; Osawaru v. Ezeiruka (1978) 6-7 SC 135; Odukwe v. Ogunbiyi(1998) 8 NWLR (Pt. 561) 339; Yari v. Ibrahim (2002) 5 NWLR (Pt. 761) 587; Corporate Ideal Ins. Ltd. v. Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt. 1405) 165.

91. Therefore, in the case at hand the burden of proof in the sense of establishing the case initially lies on the claimant, the proof or rebuttal of issues which arise in the course of proceedings on particular matters or issues generally may shift from the claimant to the defendant and vice versa so that if a party who has the initial burden to lead relevant evidence on a particular issue does so prima facie, he throws the burden of rebutting that evidence upon the other party and vice versa as the case progresses. This general rule is enshrined in the maxim ei qui affirmat non ei qui negat incumbit probatio. See sections 131, 132 and 133 of the Evidence Act, as amended.  

92. The burden of proof is not static but is divided between the parties one way or another and the court decide when it has shifted. It oscillates like pendulum and once it shifts, the other party ought to lead credible evidence to tilt the scale, if he fails to do so he stands the risk of having judgment given against him. Whether the burden of proof has shifted will depend upon and must be related to the issues raised on the pleadings. See Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; Faloughi v. First Impression Cleaners Ltd. (2014) 7 NWLR (Pt. 1406) 335.

93. In considering the case put forward by the parties for resolution, this court will be guided by the extant rules of evidence on burden of proof. In the instant case, the above evendetial rules will guide the consideration of the case brought by the parties for resolution.

94. Before considering the case of the claimant, I shall endeavour  to deal with some preliminary issues raised by the pleadings and submissions of counsel for the parties.

95. The first is that the defendant has in the final written address filed before the court argued that in the four reliefs being sought by the claimant there is none that is seeking or praying for a declaration that the contract of employment of the claimant was wrongfully determined by the defendant or unlawfully terminated by the defendant as is indirectly shown by the claimant’s relief 3. According to counsel the law is trite that a court is not father Christmas nor a charitable institution and as such, it cannot grant or lacks the jurisdiction competence to grant reliefs not sought for by a party. Counsel is of the view that the failure by the claimant to ask for a declaration that her contract of employment has been wrongfully determined/terminated by the defendant is fatal to the four reliefs being sought by the claimant, as according to counsel the four reliefs are ancillary.

96. In reaction to the above submission, ccounsel for the claimant insisted that the claims/reliefs sought by the claimant are substantive claims/reliefs and not ancillary.

97. In resolving the issue of whether the four reliefs sought are ancillary dependent on declaration which has not been sought, I shall refer to the definition of the word ‘ancillary’ in the Black’s Law Dictionary 10th edition as quoted by the court of appeal in two cases viz: Adebayo David Alarapon & Ors v. PRP & Ors (2019) LPELR-47052(CA; Polaris Bank Limited v Kashim Abdul Rasheed Olarenwaju & Anor. (2022) LPELR-58894(CA); in these cases, the Court of Appeal adopted the definition of ancillary as provided in "The Black's Law Dictionary, 10th Edition at page 302, where it defines "ancillary claim" as "a claim that is collateral to, dependent on or auxiliary to another claim."

98. Now, can the four reliefs sought by the claimant which have been reproduced in the earlier part  of this judgment be tagged or said to be ancillary or are they substantive reliefs standing on their own.

99. Under Nigerian labour jurisprudence, a claim for unpaid or arrears of salaries, 3 months’ notice, general damages for unlawful termination and cost of action are all independent causes of action based on breach of contract. The reliefs do not require a prior or accompanying declaration that the termination was wrongful. The defendant's argument, as can be gleaned from the final written address is clearly based on misconception of law. This is because the Supreme Court of Nigeria has consistently held that an employee is entitled to claim unpaid salaries or wages owed under a contract of employment, regardless of whether the termination itself was lawful or unlawful. The pivotal question is whether the employer owes a debt for services rendered or salary accrued. See Udegbunam v. F.C.D.A. (2003) 10 NWLR (Pt. 829) 487; Dr. Ben O. Chukwumah v Shell Petroleum Development Company of Nigeria Limited (1993) LPELR-864(SC).

100.                     Therefore, an action claiming arrears of salaries, three months’ salaries in lieu of notice damages and cost of action arising from the breach contract of employment and the employer's failure to pay wages earned, are enforceable through an action filed in that respect. There is no legal requirement that an employee must claim a declaration that the termination was wrongful before claiming arrears or unpaid salaries, damages and cost of litigation. In Chief F S. B. Bakare v. African Continental Bank Limited (1986) LPELR-708(SC), the Supreme Court affirmed that "It is the inherent right of every person in this country to seek any remedy or relief available in our courts for the relief of any injury done to or infraction of his civil rights and obligations." Therefore, the claimant in this case is free to frame her claim based on the reliefs sought.

101.                     In law claims for unpaid salaries and claims for wrongful termination are distinct causes of action. A claimant may pursue unpaid wages without challenging the legality of the termination. In Dr. Ben O. Chukwumah v. Shell Petroleum Company of Nigeria Limited (1993) LPELR-864(SC), the Supreme Court considered claims for both wrongful termination and unpaid entitlements, but treated them as separate issues. The Court held that even where termination was wrongful, the employee was entitled to salary in lieu of notice and terminal benefits as independent contractual rights.

102.                     It is pertinent to point out that relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the court to grant. It should also not be contrary to the accepted principles upon which the court exercises its jurisdiction.

103.                     What the defendant has done in arguing that the claimant ought to have asked for a declaration was to advice the claimant to frame his reliefs in the way the defendant want the reliefs to be framed. The defendant has no such power, the duty of the defendant is to answer to the claim of the claimant in defence and not to dictate to the claimant the type of reliefs to seek from the court. He can also counter claim if any.

104.                     It is to be noted that a declaration that a termination was wrongful will becomes relevant in situations where; the claimant seeks reinstatement or a declaration that the employment still subsists or the claimant seeks damages for loss of future earnings or other consequential losses arising from wrongful dismissal or where the claimant challenges the legality or validity of the termination itself.

105.                     In the case at hand it is a different ball game, where the reliefs sought are simply for unpaid salaries, 3 months’ notice in lieu, damages and cost of action, in these situations such a declaration is not a prerequisite. The claimant is entitled to pursue the reliefs sought on their merits, and the defendant’s duty is to file defence in answer to the facts pleaded addressing the substance of the claim rather than challenging the claimant's choice of remedies.

106.                     In view of the foregoing, I found the objection of the defendant to the reliefs sought by the claimant as being ancillary requiring making claim for a declaration necessary for the court to have jurisdiction as untenable and is hereby dismissed.

107.                     Another very crucial issue that need to be resolved, is the objection of the defendant to the effect that he is not the proper person to be sued in this case. but, Access Group of Schools, a subsidiary of Access School. Counsel for the defendant has argued that exhibits C2, DW1A, DW1B, DW1C and DW1D clearly shows that Access Group of Schools is the employer of the claimant, as there is nowhere in the exhibits referred to where the name of the defendant was mentioned/stated. The defendant’s argument was hinged on the assertion that Access Group of Schools is a subsidiary of Access Schools, which is an incorporated entity having power to sue and be sued. This assertion was vehemently denied by the claimant arguing that Access Group of Schools is not a subsidiary of Access Schools. The claimant insisted that she was employed by the defendant through Access Group of Schools a non-juristic person.

108.                     The defendant’s argument that it is Access Group of Schools that is to be sued in this case clearly raises the fundamental legal principle of legal personality and the proper identification of a defendant in an employment contract. It is pertinent to note that the defendant was sued as Chief Gabriel Umodem, (doing business under the name and style Access Group of Schools). The claimant has insisted that she was employed by the defendant through Access Group of Schools. Going by the position of the defendant that Access Group of Schools is a subsidiary of Access Schools, possessing a separate legal identity from the defendant, thereby making Access Group of schools as the appropriate defendant in this case. In law for an entity to sue or be sued, it must be a legal person. This means it must be either a natural person (an individual) or an artificial person (a corporate body or an incorporated trustee) recognized by law. An incorporated company, for instance, is a distinct legal entity separate from its members, directors, or shareholders. See Salomon v. Salomon & Co. Ltd. (1896) UKHL 1, (1897) AC 22. Therefore, for legal personality of Access Group of Schools to be established, the defendant is required to produce the certificate of incorporation of Access Group of Schools which is the recognized evidence to prove legal personality of a registered company. See UBA PLC v. PEB 04 (NIG) LTD ((2020) LPELR-51048(CA)), the capacity to sue or be sued is fundamental, and for an incorporated company, this capacity is derived from its registration. The defendant has not tendered the certificate of incorporation of Access Group of Schools, this means the defendant has woefully failed to prove his assertion on issue of access group of schools being subsidiary of Access Schools. The defendant having been sued as doing business under the name and style of Access Group of Schools is therefore, a proper defendant in this suit. It is also pertinent to note that even if Access Group of Schools is a business name, even, if registered it is not a legal personality, it is not a legal entity capable of suing or being sued in its own right; rather, its proprietor, chief Gabriel Umodem that would be the proper party.

109.                     In this case the defendant having been sue as doing business under the name and style of Access Group of Schools implies that the defendant is the proprietor of that of Access Group of Schools, and the business name is merely a trading style, not a separate legal entity. When an individual 'does business under a name and style,' it generally in such a scenario, the individual proprietor bears all liabilities and obligations of the business. The fact that Access Group of Schools is alleged to be a 'subsidiary of Access Schools is irrelevant, since Access Group of Schools itself is not proven to be an incorporated entity.

110.                     Having found in this judgment that Access Group of Company is not a legal personality as the defendant who alleged that Access Group of Schools is a subsidiary of Access Schools has not proved his assertion. Therefore, I am left with no option than to hold that Access Group of Schools is not a legal entity capable of suing or being sued. It is interesting to note that the claimant has sued claimant as defendant in this suit as doing business under the name and style of Access group of schools and the defendant has not denied that he was not doing business under the name and style of access group of Schools. This finding means that the defendant is a proper party in this suit.

111.                     Another piece of evidence to make defendant being proper party in this suit is the evidence of the claimant to the effect that when the payment of her salaries was irregular, she approached the defendant’s wife so as to prevail on the defendant to pay to the claimant her unpaid salaries. But, the defendant instead of paying the claimant her unpaid salaries, there and then terminated the claimant’s employment orally and asked her to leave the premises of Access Group of Schools with immediate effect. This piece of evidence has not been contradicted by the defendant as the defendant did not testify or adopted his witness statement on oath. And the evidence of DW1 is not capable of establishing what transpired between the claimant and defendant on 11th September, 2023, at Atimbo Branch Office of Access Group of Schools, where the claimants works the day the defendant terminated the claimant’s employment when she reported for duty. I am in agreement with the counsel for the claimant that the evidence of DW1 on the issue of termination of employment or what transpired between the defendant and the claimant is hearsay which vide sections 37 and 38 of the Evidence Act, as amended is inadmissible in law.

112.                     The submission of counsel for the defendant in reply to the address of the claimant to the effect that the testimony of DW1 is a testimony in her official capacity as the Vice Principal Admin, and cannot be designated as hearsay evidence is misconceived. The  reason being that for any evidence given in official capacity it must be evidence of the relevant officer. In this case the evidence of the claimant regarding termination of her employment by the defendant is evidence that transpired between the defendant and the claimant, therefore for any rebuttal to have any weight it must be evidence of the defendant himself, who is deeply involved. Furthermore, section 126 of the Evidence Act, as amended, provides that oral evidence shall, in all cases, be direct, it must be testimony of a person who saw or heard or perceived the event under scrutiny. In this case there is doubt that the event of 11/9/2023 took place in the absence of DW1, who was then far away at 1 Kadana School Road, State Housing Estate, Calabar.

113.                     Another reason why the testimony of DW1 will not have any evidential value is the fact that Access Group of Schools is not a legal entity as the defendant has woefully failed to adduce evidence establishing that it was incorporated in accordance with the Companies and Allied Matters Act, which would have clothed it with legal personality to sue and be sued, which would have also made DW1 an agent of Access Group of Schools to have capacity to testify in official capacity. In this case DW1 is employee of defendant like the claimant and the event on which there is dispute did not take place before DW1, rather it happened before the defendant himself and he failed and refused to appear before the court to debunked the claim of the claimant, thereby suggesting that he does not have contrary facts to tell the court. The case of Ekpeazu v ACB Ltd (1965) NMLR 375, support the view that for the testimony of employee of a company to have weight it has to be testimony of the officer whose job description relates to the issue. In this case the defendant is not a company to enjoy the exception created to the doctrine of hearsay evidence when it relates to companies. In the Ekpeazu’s case, the Supreme Court rejected the evidence of Bank’s clerk that the Appellant was a partner. The apex court held that the singular testimony is inadequate.

114.                     Also, in Ogugua v Armels Transport Ltd (1974) 4 ECSLZR 43, 1974) 4 ECSLR 385 SC, in this case testimony of company’s business manager was not given any weight, as he was neither a mechanical nor automobile engineer.

115.                     In Tugbogbo v Adelegun (1974) 1 ALL NLR (Pt.1) 49, the Supreme Court considered testimony of secretary as specious and clearly unreliable.

116.                     In Jelico Ltd v Owoniboys Technical Services Ltd (1995) 4 NWLR (Pt.391) 534, the Supreme Court upheld the contention that where the conduct and affairs of a particular officer in respect of a specific transaction  is in dispute, it is that officer who should be called to explain the transaction and not an officer who never had anything to do  with the transaction.

117.                     It is apparent from the above decisions of the Apex court that a company which opts to get a staff who was not directly involved in a transaction to testify risks the testimony not having any evidential value.

118.                     In the case at hand the conduct in question is that of the defendant and not DW1, in the circumstance the appropriate witness to testify is the defendant himself and not DW1 who was not present when the event of termination of claimant’s employment took place.

119.                     The defendant having not given any evidence is deemed to have conceded the case of the claimant as having been the true position.

120.                     Having dealt with preliminary issues, I shall now turn to determination of whether the claimant has vide the evidence adduced before the court proved entitlement to any of the reliefs sought.

121.                     Relief a is for payment of the sum of N115,000.00 being arrears of claimant’s unpaid salary. The parties are at ad idem that claimant was employed as per exhibit C2, which is same with exhibit DW1E, with effect from 12th April, 2023 on salary of N33,000.00 (Thirty-three thousand Naira) per month. Vide exhibit DW1C, the claimant accepted the offer and assumed duty accordingly. According to the claimant she carried out her duties diligently from the date of her employment i.e. 12th April, 2023, till 11th September, 2023, when the proprietor of Access Group of Schools, the defendant in this suit came to school in rage and told the claimant that she has been sacked and that she should leave the school premises immediately. The claimant further averred in her pleading that from 12th April, 2023 to 14th September, 2023, she was only paid the total sum of N83,0000 (Eighty-Three Thousand Naira) in three instalments of N17,000.00 (Seventeen Thousand Naira) and N33,000.00 (Thirty-Three thousand Naira) for 6 months she served the defendant which is not up to the sum of N198,000.00 (One Hundred and Ninety Eight Thousand naira), leaving the sum of N115,000.00 unpaid.

122.                     In his defence the defendant denied being employer of the claimant and stated that the employer of claimant was Access Group of Schools, a subsidiary of Access Schools, this assertion is clearly wrong as the defendant is the employer of the claimant as Access Group of Schools is not a legal entity, but an appellation under which the defendant carried out his business.

123.                     It is interesting to note that the defendant has in his pleading stated that the claimant was paid salary as and when due when she was reporting for duties regularly. That in the months of July, August and September, 2023, she failed deliberately to diligently carry out her assignment teaching duties as she displayed high level of non-satisfactory performance of her assigned duties. It was also alleged that the claimant absconded from her duties and has not served the defendant with her resignation letter based on the terms of engagement. The claimant was on 14th August, 2023 issued with a query due to non-performance, which she responded on 15th August, 2023. See exhibit DW1D.

124.                     Vide paragraph 10 of the statement of defence it was averred that the claimant never worked for Access Group of Schools for 6 months. But, the claimant was paid two and half months wages for the period 15th April, 2023 to 30th June, 2023. According to defendant it was lackadaisical offensive attitude of the claimant in discharging her assigned teaching duties, which kick started mid-July, 2023 and lingered till the 11th September, 2023 when she absconded from her duty post, that made claimant not entitled to any arrears of salary as she has not worked for the months of 12th July, 2023 to 12th August, 2023 and 12Th August, 20234 to 12th September, 2023 as required by the terms and conditions of her letter of temporary appointment offer. According to defendant the attitude of claimant coming to work whenever she pleases as an in tolerable gross misconduct.

125.                     I have carefully scrutinized, the positions of the parties regarding relief ‘a’ on the claim for the sum of N115,000.00 as arrears of balance of unpaid salaries for six months which the claimant allegedly served the defendant. The defendant on his part admitted that it paid the claimant two month and half salary for the period the claimant served. The defendant has categorically stated that the sum of N98,000 paid to the claimant as salary is for the period from 14th April, 2023 to 30th day of June, 2023. The defendant tried to justify paying the claimant for two and half months because according to the defendant the claimant misconducted herself for not coming to work at appropriate time and closing as she wishes and absenting herself from work in some days. The defendant in attempt to prove claimant’s misconduct tendered in evidence exhibit DW1A, which is photocopies of some pages of attendance register. This document was not tendered as a whole, it was only pages which the defendant want to rely on omitting those pages the defendant does not want. Exhibit DW1A being a document it has to be tendered in toto unless there is justification for not tendering the whole of the document because it is bulky or it will be difficult for the whole document to be tendered or brought before the court. The defendant has not told this court why the entire document  in exhibit DW1A could not be tendered and why the original is also not tendered or produced for examination by the court. In view of my observation, exhibit DW1 being photocopies of pages of register and not entire register or extract from the register is not capable of proving anything before the court as it is weightless like feather of a fly. In view of the foregoing, I came to the conclusion that exhibit DW1 does not have any evidential value, it is hereby discountenanced for the purpose of this judgment.

126.                     Another reason why credence cannot be accorded to the alleged claimant absenting herself from duty or reporting late and closing early is that these acts amounting to gross misconduct for which the defendant has unfettered power to punish, but choses to close its eyes to the misconduct. The defendant’s failure to sanction or discipline the claimant shows that the defendant has waived its power to punish claimant for gross misconduct and cannot now use the said misconduct against the claimant since it has been waved.

127.                     From the facts as reveled by the pleadings, the claimant was employed with effect from 12th April, 2023 as per exhibit C2 and her employment was terminated by the defendant on 11th September, 2023, verbally with immediate effect. From 12th April, 2023 to 11th September, 2023, the claimant has served the defendant for a period of five months and not six months as averred by the claimant. This means the claimant ought to have been paid five months’ salary for the period she served the defendant. The defendant having admitted paying only two months and half salary is liable to pay the claimant the remaining outstanding salary for two and half months as balance of arrears of unpaid salary for the period the claimant served the defendant. The claimant’s salary for five months at N33,000 will be the sum of N165,000 if the sum of N83,000 paid to the claimant by the defendant salary is deducted from the five months’ salary the balance of claimant’s arrears of unpaid salary will be the sum of N82,000.00 in view of this finding the claimant is only entitled to the sum of N82,000.00 and not the sum of N115,000.00 as claimed. Relief a succeed only in the sum of N82,000.00

128.                     I shall now, deal with reliefs b and c together, because they are related.

129.                     In relief b, the claimant is claiming for the sum of N99,000.00 (Ninety-Nine Thousand Naira), being 3 months’ salary in lieu of notice. While in relief c the claimant is praying for an order directing the defendant to pay the sum of N20,000,000.00 (Twenty Million naira), as general damages in favour of the claimant for unlawful termination of the claimant’s employment by the defendant.

130.                     The counsel for the defendant in the final written address of the defendant has strenuously argued that the claimant whose contract of service was not having statutory flavour, but, that of master and servant relationship governed by relationship of the parties, the termination cannot be declared to be unlawful, illegal or null and void, but wrongful and it is not for the defendant to prove. Counsel continued his submission  that the claimant has the onus to place before the court terms of the contract and to prove in what manner the terms were breached by the employer, for a declaration to be granted. Counsel relied on several decisions of the Court of appeal and the Supreme Court in support of his submission.

131.                     The counsel for the defendant has also argued that, the claimant was only able to prove two ingredients of wrongful termination, but failed to prove the two other ingredients i.e. has not proved agreed mode of termination and manner by which the defendant wrongfully determined her contract of employment contrary to the requisite mutually agreed mode of determination. Counsel further argued that exhibit C2 did not provide for 3 months’ notice or payment of 3 months’ salary in lieu of notice. Rather, the claimant is the one required to give the defendant 1 month notice or 2 months’ salary in lieu of proper notice in the event where the claimant decides to terminate the contract of employment. According to counsel the mode and manner claimant employment can be terminated is left at the discretion of the defendant. Counsel also argued that claimant vide exhibit DW1C accepted exhibit C2, therefore, she cannot complain of unfavourable terms of exhibit C2. Counsel submitted that parties are bound by the terms of their contract and no court of law is conferred with the jurisdictional competence to rewrite the agreement of parties and a party cannot and would not be allowed to resile from a contract or agreement just because he later found out that the conditions of the contract or agreement not favourable to him. To support his position counsel relied on the case of Enyong & Ors v Idibi & Anor (2015) LPELR-25742(CA).

132.                     It is also submitted that the claimant cannot import into exhibit C2 what is not actually agreed upon between her and the defendant to say that she ought to be given 3 months’ notice or 3 months’ salary in lieu of notice or that what is good for the geese is good for the gander or that she ought to be given 1 month notice or 2 months’ salary in lieu of notice. Counsel submitted that the claimant, defendant and this court are bound by exhibit C2, in determination of this suit and this court cannot go on a voyage of discovery to import into parties’ contract what was never agreed by the parties or rewrite the contract of the parties for the parties., as exhibit C2 is explicit and un-ambiguous.

133.                     For counsel for the claimant, the termination of claimant’s employment on 11th September, 2023, is wrongful. Counsel submitted that notice provided for in exhibit C2 is one month notice in writing or two months’ salary in lieu of notice. Notice in the agreement is vice versa. Counsel also argued that the claimant is entitled to claim for damages for wrongful termination.

134.                     It is clear to me that the two reliefs under consideration raises issue of payment in lieu of notice for termination and payment of damages for unlawfulness of the termination.

135.                     In law, contract of employment may be determined principally by termination or by dismissal on peculiar facts. Basically, in such both termination and dismissal may be governed by common law rules, statutes, agreement of the parties or a combination of some or all of these and then revolve upon the contractual relationship between the parties. Generally, employment contract is premised on an agreement between a person or body, "employer" who seeks to retain the services of another, "employee" effectively putting the employee under their payroll. Like every contractual relationship, any of the parties can decide to bring this relationship to an end at any time, or it can be brought to an end based on several factors such as an express agreement by parties, effluxion of time or death. The express agreement entered into by both parties in an employment contract usually provides the procedure of determining a contract either by termination or dismissal. However, the law is that an employer has the right to dismiss an employee whether or not it is provided in the contract of service. See Simon Ansambe v Bank of the North Ltd (2005] 8 NWLR (PT.928) 650.

136.                     In the present case we are concerned with termination of claimant’s employment. The claimant has vividly explained how his employment was terminated by the defendant verbally on 11th September, 2023. See paragraphs 4 to 13 of the statement of facts. The evidence of the claimant on how her employment was terminated orally by the defendant has not been contradicted or controverted as there is no credible evidence adduced by the defendant to challenge the evidence of the claimant regarding her termination. This is because the testimony of DW1, the witness brought by the defendant to give evidence on his behalf gave hearsay evidence which is not acceptable in law for not being firsthand information. The Defendant must call evidence to support his averments. Where this is not done, the Defendant is deemed to have abandoned his defence. See Okechukwu v. Okafor (1961) 2 SCNLR p.369; CBN & ORS V. OKOJIE (2015) LPELR-24740(SC) ( P. 34, paras. D-E ); FENU & ORS V. BELLO & ORS (2019) LPELR-47693(CA) ( Pp. 45-56, paras. A-F ).

137.                    The failure of the defendant to adduce evidence to contradict or controvert the claimant’s evidence means that the evidence of the claimant is unchallenged and uncontradicted. It is  trite law that unchallenged or un-contradicted evidence by the adverse party is good to be acted upon by the Court unless it is either irrelevant or palpably false or worthless by itself. See Cameroon Airlines V. Mike Otutuizu (2005) 9 NWLR (Pt. 929) 202. See also Ishola Lawson V. Afani Continental Co Nig Ltd (2002) 2 NWLR (Pt. 752) 585; Omoregbe V. Lawan (1981) 3 SC 108; Oduola V. Coker (1981) 5 SC 197; MTN V. MUNDRA VENTURES (NIG) LTD (2016) LPELR-40343(CA).

138.                     In the absence of cogent, credible evidence from the defendant to cast doubt on the evidence of the claimant, I accept the evidence of CW1 as the true facts of this case. this means I accepted the narration of the claimant that the defendant terminated her employment orally on 11th September, 2023, without any notice or payment in lieu of notice for termination.

139.                     Ordinarily termination by notice is by agreement of the parties, or at the least that which the law is prepared to regard as their agreement by implication. This means that where there is written agreement of the parties on termination the provisions of the agreement must be given effect by the parties. However, in the case at hand vide exhibit C2 which is the letter of employment of the claimant has made provisions for giving of one month notice or payment of two months’ salary in lieu of notice by the claimant where the claimant decided to end the relationship.

140.                     It is interesting to note that exhibit C2, is silent and did not make provision for termination by the defendant. This means that as pointed out earlier in this judgment,  where agreement of the parties is silent then the absence of a specific provision in an employment contract detailing the employer's obligation to give notice or pay in lieu of notice when terminating an employee's employment that does not automatically mean that the employer can terminate without such notice or payment in lieu of notice. It is trite that employment relationships are governed not only by the express terms of the contract between the parties but also by statutory provisions and judicial precedents, which often imply or mandate certain conditions where the contract is silent.

140.Primarily, the Labour Act is the foundational statute governing employment relations in Nigeria. Section 11(1) of the Labour Act, explicitly states that "Either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so." This provision applies equally to both the employer and the employee. Subsection (2) of Section 11 further specifies the minimum notice periods required, depending on the duration of the contract: Viz:

·        One day, where the contract has continued for a period of three months or less.

·        One week, where the contract has continued for more than three months but less than two years.

·        Two weeks, where the contract has continued for a period of two years but less than five years.

·        One month, where the contract has continued for a period of five years or more.

141.                     These statutory provisions serve as a baseline. While parties are free to agree on longer notice periods, they cannot contract out of these minimum statutory requirements to the detriment of the employee. Therefore, where the written agreement is silent on the employer's notice period, the employer is still bound by the minimum notice periods stipulated in Section 11 of the Labour Act.

141.The principle of payment in lieu of notice is also well-established, as it is implied in contract that is silent on notice or payment in lieu of notice, as in this case. The Supreme Court in SKYE BANK PLC v. ADEGUN (2024) LPELR-62219(SC), for instance, has addressed the mode of payment of salary in lieu of notice, affirming its validity as an alternative to actual notice.

141.Nigerian courts have consistently held that where a contract of employment provides for a mode of termination, that mode must be strictly followed. However, where the contract is silent or ambiguous regarding one party's obligations, statutory provisions will fill the gap. In SHENA SECURITY CO. LTD v. AFROPAK (NIG) LTD & ORS (2008) LPELR-3052(SC), the Supreme Court emphasized the effect of a contract of service which provides for the mode of termination. While this case primarily deals with situations where a mode is provided, the underlying principle is that employment contracts are not entirely at the whim and caprices of one party, especially the employer, due to the protective nature of labour laws.

141.The Court of Appeal, in SHUAIBU & ORS v. NBC PLC (COCA-COLA) ((2020) LPELR-52110(CA), reiterated the position of the law where parties to an employment contract mutually agree that the condition to determine same is the giving of notice or payment of salary in lieu of notice. Even in situations where the contract explicitly states conditions for one party but is silent for the other, as in this case, the court will imply a term of reasonable notice, or more definitively, apply the statutory minimums provided by the Labour Act.

141.Furthermore, Section 7(1) of the Labour Act, mandates employers to provide workers with a written statement specifying the terms of employment, including the appropriate period of notice to be given by the party wishing to terminate the contract. The absence of this detail in exhibit C2, on the notice the defendant is required to give to terminate claimant’s employment amount to breach of section 7, of the Labour Act.

142.                     Therefore, the fact that the written agreement exhibit C2, only specifies the employee's notice period (one month or two months' salary in lieu) and is silent on the employer's corresponding obligation does not grant the employer the right to terminate without notice or payment in lieu. The employer is still legally bound to provide at least the statutory notice periods as stipulated in Section 11 of the Labour Act, or pay salary in lieu of such notice. Any termination without adhering to these statutory minimums, will be wrongful.

143.                     The party seeking to determine the contract simply needs to give adequate notice as prescribed under the contract or so deemed and implied by law. The right of parties to a contract of employment to terminate it by notice where no contrary intention exists is fundamental. This right is underscored by the rule that where a contract is silent regarding the notice which is to be given to terminate it, a term will be implied that reasonable notice is to be given: Abukogho v African Tirnber And Plywood Ltd (1966)AII NLR 377; Daniel v Shell B. P. Petroleum Development Co.  of Nigeria Ltd. (1962) 1 SCNLR 19; Calabar Cement Co. Ltd. V Daniel (1991) 4 NWLR (PT.188) 750 at 760. Thus, the court will read into any such contract a provision that the contract is determinable with reasonable notice.

144.                     Going by the above explosion of the law, the claimant in this case having been terminated without notice or payment of salary in lieu of notice, she will be in line with section 11(2) of the Labour act, be entitled to payment of one week salary in lieu of notice. The claimant will be entitled to one week, where the contract has continued for more than three months but less than two years.

145.                     From all I have been saying above the claimant in this suit is entitled to payment of one week salary in lieu.

146.                     The parties here have a master-servant relationship, this means that the court cannot make a finding that termination of claimant’s employment by the defendant is illegal or unlawful or null and void as that does not arise. The law is settled in master and servant relationship governed by common law, the court cannot order specific performance, or ordered reinstatement as the court does not impose employer on employer. However, the court can make a finding like in this case that termination without giving notice or payment in lieu of notice, is unreasonable or wrongful but not illegal, null and void. It is also the law that the Court cannot set aside a wrongful act by the employer, where the employment does not enjoy statutory flavour. In the circumstance of this case the implication of oral termination of claimant’s employment by the defendant amount to wrongful termination.

147.                     In Nigeria, the law has vested in employer with right to terminate the employment of his/her employee even where such right was not contained in the agreement of the partis. However, in terminating employment, the employer is under an obligation as per section 11(2) of the Labour Act to give notice to the employee of such termination or pay salary in lieu of notice for the period of notice. Therefore, the failure of the defendant to give notice to claimant in this case has rendered the termination wrongful as it constitutes a breach of contract.

147.The position of law on wrongful termination of employment in a master/servant relationship, which is purely contractual and devoid of statutory flavour, was clearly articulated in TOYINBO v. UBN PLC ((2022) LPELR-58596(SC) Pp. 32-33, Paras. D-D). The Supreme Court reiterated that such a relationship is governed strictly by the terms of the contract of employment. The employer's right to hire and fire is largely unfettered, subject only to the contractual provisions regarding termination.

147.Similarly, the principles applicable to the termination of a master/servant relationship have been consistently upheld in cases such as OBANYE v. UNION BANK ((2018) LPELR-44702(SC) Pp. 30-31, Paras. D-D), EZE v. UNIZIK ((2021) LPELR-56186(CA), and WETIFE v. IGP & ORS ((2024) LPELR-62453(CA). These cases affirm that the primary consideration is the contract of employment. Where the contract specifies a period of notice or payment in lieu of notice, and the employer complies with this, the termination, is valid and cannot be deemed unlawful.

147.However, when the termination of the employment of an employee by the employer in a master/servant relationship will be wrongful, and the remedy available for such wrongful termination, was extensively discussed in U.T.C. (NIG) PLC v. PETERS ((2022) LPELR-57289(SC) Pp. 23-24, Paras. B-D). The Supreme Court clarified that a termination is wrongful if it is done in breach of the terms of the contract of employment. The most common breach is the failure to give the agreed-upon notice or to pay salary in lieu of such notice. In such a scenario, the employee's claim for 'unlawful' termination is essentially a claim for breach of contract.

147.The remedy available to an employee whose employment, without statutory flavour, has been wrongfully terminated is generally limited to damages. These damages are typically the amount of salary the employee would have earned during the contractual notice period. The courts do not usually order reinstatement or specific performance of the contract of employment in such cases, as it is a fundamental principle that courts will not compel an unwilling master to keep an unwilling servant, nor vice versa. The rationale is that a contract of personal service is not one that can be specifically enforced. Therefore, while an employee can claim that the termination was 'unlawful' due to a breach of contract, i.e. the employer failed to comply with the terms of the employment contract, particularly regarding notice or payment in lieu of notice. the actual reality is that the termination can only be wrongful and not unlawful. In any event, 'unlawfulness' is interpreted as a breach of contract, and the primary remedy is damages equivalent to the salary for the unserved notice period and not voiding the termination or reinstatement.

148.                     From the above exposition of the law it will be correct to say that the claimant has not proved the claim for damages in the sum of N20,000,000,000.00 as far relief c.

149.                     The last relief sought is relief d, cost of this action which the claimant assessed at N500,000.00 (Five Hundred Thousand Naira). The principle relevant to the issue of cost under consideration has been laid down in a number of cases thereby becoming a settled law that cost follow event i.e. where the issue of cost was not raised in the writ as a claim before the Court, it is granted at the discretion of the court, and does not need to be proved strictly as in proof of special damages. It is at the discretion of the Court upon the delivery of judgment to award costs to the successful party. In the case at hand the issue of cost was raised as a separate relief, this means that being specifically pleaded it is a special damage claim that must be proved strictly. The claimant has not adduced any evidence in proof of his assessed cost in the sum of N500,000.00

150.                     However, the claimant having succeeded in part is entitled to cost to be assessed by the court. In the circumstances of this case, the claimant is hereby awarded cost in the sum of N400,000.00

151.                     From all io have been saying above, the claimant has proved his claim in part and is entitled to judgment as follows:-

a.      The claimant is entitled to arrears of unpaid salary in the sum of N82,000.00 (Eighty Two Thousand Naira) for the five months service rendered to the defendant. The defendant is hereby ordered to pay the claimant his unpaid arrears of salary as found by the court amounting to the sum of N82,000.00

b.     The claimant is entitled to be paid one week salary in lieu of notice of termination. The defendant is hereby ordered to pay the claimant the sum of N8,250.00, being one week salary in lieu of notice.

c.      The claimant is also entitled to cost assessed in the sum of N400,000.00

d.     All monetary aspect of this judgment shall be complied with within two weeks from the date of this judgment, failing which 10% simple interest per annum shall apply.

152.                     Judgment is hereby entered accordingly.

 

 

 

Sanusi Kado,

     Judge.

REPRESENTATION:

Austin Okeja, Esq; for the claimant

Francis Ahakiri, Esq; for the defendant.