IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

           HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE (PROF) ELIZABETH A. OJI

 

DATE: TUESDAY 7TH JULY 2026 SUIT NO: NICN/LA/215/2022

 

BETWEEN

MRS. MERCY AIYUDUBIE AWALA                                          CLAIMANT

AND

PZ CUSSONS NIGERIA PLC                                                    DEFENDANT

Representation:

Olusola Jegede with Omolade Animasaun for the Claimant

Obafolahan Ojibara with Mercy Agbo for Defendant

 

Introduction:

1.   The Claimant commenced this action by a General Form of Complaint filed on the 30th day of May 2022, seeking the following reliefs:

  1. A DECLARATION of this Honourable Court that the Claimant was wrongfully terminated from the Defendant’s employment.
  2. AN ORDER of the Honourable Court setting aside the Claimant’s termination letter dated the 29th of April 2022 for being wrongful and unlawful.
  3. AN ORDER of this Honourable Court directing the Defendant to effect payment of the sum of N39,075,874 (Thirty-Nine Million, Seventy-Five Thousand, Eight Hundred and Seventy-Four Naira) being the total emoluments of the Claimant for the period of two years at the Defendant’s company based on the Claimant’s offer letter dated the 2nd of February 2022 as compensation for her wrongful termination.

 

  1. In the alternative to prayer (c) above, AN ORDER of this Honourable Court awarding to the Claimant the sum of N1,628,161 (One Million, Six Hundred and Twenty-Eight Thousand, One Hundred and Sixty-One Naira), being her prorated monthly salary with the Defendant, beginning from the date of termination                      of the Claimant’s employment to the delivery of Judgement as calculated below:

Claimant’s total Annual Salary/emoluments: N19,537,937

Prorated Monthly Salary/ emoluments: N19,537,937    12 months

                                                             = N1,628,161

 

  1. AN ORDER of this Honourable Court directing the Defendant to tender an unreserved apology to the Claimant for the wrongful termination of her employment.

 

  1. The sum of N150,000,000 (One Hundred and Fifty Million Naira) being an exemplary damage against the Defendant or any such amount as the Honourable court may deem fit.

 

  1. The sum of N150,000,000 (One Hundred and Fifty Million Naira) being general damages against the Defendant for the humiliation and inhumane treatment melted against the Claimant.

 

  1. The interest on all sums due to the Claimant at the rate of 21% per annum from the date it is awarded by the Court until its final liquidation.

 

  1. The cost of this suit as may be assessed by the Honourable Court.

2.  In response to the Claims, the Defendant filed a Statement of Defence dated the 6th day of September 2022, together with a list of the Defendant's witnesses, the Defendant's witness statement on oath deposed to by Mrs. Aramide Wey, a list of documents, and copies of documents to be relied upon at trial.  The Claimant filed a Reply dated the 30th day of November 2022 to the Defendant's Statement of Defence.  Trial commenced in this suit on the 5th day of October 2023. The Claimant gave evidence for herself by adopting her witness statement on oath deposed to on the 30th day of May 2022. The Claimant was cross-examined on the 6th day of December 2023.   During examination-in-chief, the Claimant tendered the following documents in evidence:

1. Copy of the Claimant's offer of appointment dated 2nd February 2022 - Exhibit C1

2.  All the Claimant's employment letters at UAC Foods Limited - Exhibit C2

3. Copy of the provisional letter of appointment of the Claimant - Exhibit C3

4.  Copies of emails: (i) Email sent by Aramide Wey to the Claimant on 4th February 2022 giving instructions on acceptance of the offer letter; (ii) Email sent by the Claimant to Aramide Wey on 4th February 2022; (iii) Email sent by Aramide Wey to the Claimant on 4th February 2022 giving instructions on acceptance of the offer letter - Exhibit C4.

5.  Copies of emails: (i) Email sent by Aramide Wey on 3rd March 2022; (ii) Email sent by Aramide acknowledging receipt of documents - Exhibit C5

6.  Copies of emails sent by the Claimant to Aramide Wey on 4th March 2022 - Exhibit C6

7.  All completed HR documentation of the Claimant - Exhibit C7

8.  Copy of email sent by Aramide acknowledging receipt of documents - Exhibit C8

9.   The Claimant's letter of resignation at UAC Foods Limited - Exhibit C9

10.  Notice of query sent via email to the Claimant - Exhibit C10

11.  The Claimant's response to the query - Exhibit C11

12.  Copy of the termination letter dated 29th April 2022 - Exhibit C12

13.  Copy of the Defendant's Handbook - Exhibit C13

14.  Copy of the Claimant's letter of demand dated 9th May 2022 - Exhibit C14

15.  Copy of the letter from Defendant's counsel dated 16th May 2022 - Exhibit C15

16. Email of 4th February 2022 from the Claimant inquiring about the offer of appointment letter - (tendered through the Claimant during cross-examination) - Exhibit C16

17.  Email of 28th January 2022 from the Defendant containing the provisional offer of appointment - (tendered through the Claimant during cross-examination) - Exhibit C17

18. Acknowledgement of receipt of Manager Handbook dated 14th March 2022 (tendered through the Claimant during cross-examination) - Exhibit C18

3.  The Defendant opened its case on the 15th day of February 2024 through its witness, Aramide Wey (DW), who adopted her statement on oath deposed to on the 6th day of September 2022. DW was cross-examined on the 16th day of May 2024. During examination-in-chief, the witness tendered the following documents:

1.  Claimant's offer letter from the Defendant dated 2nd February 2022 - Exhibit D1|

2.  Email exchanges of 4th February and 9th February between the Claimant and the Defendant - Exhibit D2

3.  Acknowledgement page of the offer letter signed by the Claimant - Exhibit D3

4.  Background check form - Exhibit D4

5.  The Staff Details Form - Exhibit D5

6.  Email exchanges between the Claimant and Defendant of 24th February and 3rd March 2022 - Exhibit D6

7.  Employee Declaration of Business Interest Form - Exhibit D7

8.  The Defendant's Manager Handbook - Exhibit D8

9.  Email of 14th March 2022 by Adetutu Balogun sending the PZ Manager Handbook to all new employees - Exhibit D9

10.  Email of 5th April 2022 from Oladimeji Omotunde to Kola Adeaga - Exhibit D10

11.  Email of 14th April 2022 by Oluwafemi Oguntebi to the Claimant - Exhibit D11

12.  Claimant's email of 14th April 2022 in response to the query by Oluwafemi Oguntebi - Exhibit D12

13.  Background Check Form filed by Claimant on 28th February 2022 - Exhibit D13

14.  Internet printout from the website of the Defendant - Exhibit D14

15.  Internet printout from the website of Grand Cereals Limited - Exhibit D15

16.  Internet printout from the website of UAC Foods Limited - Exhibit D16

17.  The Defendant's letter terminating Claimant's contract dated 29th April 2022 - Exhibit D17

18.  Claimant's Solicitor's letter to the Defendant dated 9th May 2022 - Exhibit D18|

19.  Defendant's Solicitor's letter to the Claimant's Solicitor dated 16th May 2022 - Exhibit D19

At the conclusion of trial, the Court ordered the parties to file their respective final written addresses. The final written addresses were adopted on 30th June 2026, and the Court thereafter adjourned the matter for judgment.

THE CASE OF THE CLAIMANT

4.  The Claimant's case, as gleaned from her pleadings and evidence, is as follows:  The Claimant was employed by the Defendant by a letter of appointment dated 2nd February 2022 as Internal Audit Manager, Finance Grade 4, with a resumption date of 14th March 2022 and annual emoluments of N19,537,937.00 (Nineteen Million, Five Hundred and Thirty-Seven Thousand, Nine Hundred and Thirty-Seven Naira).   Prior to joining the Defendant, the Claimant had worked with UAC Foods Limited (a subsidiary of UAC Nigeria Plc) for 18 years. The Defendant's representative was fully aware that the Claimant was still working at UAC Foods Limited. A provisional letter of appointment was sent via email on 28th January 2022. The Claimant accepted and informed the Defendant that she required two months' notice to her current employer. After deliberations, both parties agreed on 14th March 2022 as the resumption date. The Claimant stated that she would be on terminal leave with UAC Foods as part of her two months' notice period.  On 4th February 2022, the Claimant sent an email requesting the final offer letter. On the same date, Aramide Wey sent the final letter of appointment with acceptance instructions. On 24th February 2022, Aramide Wey sent HR documentation forms including: Human Resource Staff Detail Form, Background Check Form, Staff Details Form, Personal Data Consent Form, Consent to Background Screening Form, Employee Declaration of Business Interest Form, and Federal Mortgage Bank of Nigeria Registration Form. The Claimant completed and submitted the forms on 3rd and 4th March 2022.  On the HR forms, the Claimant stated her final exit date at UAC Foods Limited as 8th April 2022, which was recorded on the Staff Details Form (Career History) and the Background Check Form. The Defendant never informed the Claimant of any irregularities or conflict of interest regarding these disclosures.  The Claimant tendered her resignation from UAC Foods Limited. She was required to give two months' notice, but one month was covered by her leave period, and she resumed work at the Defendant on 14th March 2022.  On 14th April 2022, the Claimant received a query from Oluwafemi Oguntebi (Head of Audit, Africa) demanding a response within 24 hours. The query stated that her last exit date (8th April 2022) conflicted with her resumption date (14th March 2022), allegedly amounting to a conflict of interest. The Claimant responded, explaining that she had resigned, was logged out since 7th March 2022, her work tools had been submitted, and her email and SAP access had been blocked by UAC Foods.  On 29th April 2022, the Claimant received a termination letter from the Defendant. The termination letter stated breach of Paragraph 4 and Paragraph 6.2 of the Senior Staff Handbook (Manager Handbook), amounting to "conflict of interest" and gross misconduct. Paragraph 4 prohibits engaging in private business or trade in conflict with the company, and none was disclosed. Paragraph 6.2(12) states that conflict of interest amounting to dismissal are those previously undocumented to HR/Internal Control. The Claimant contends that she had disclosed her exit date to HR via the Staff Details Form and Background Check Form before resumption, and that there is no evidence she engaged in any personal business or trade.  The Claimant contends that the termination was carried out with malice and without regard for her future and wellbeing; that the Defendant intentionally lured her out of her previous employer of 18 years only to terminate her appointment; that the Defendant did not have any genuine intention to permanently hire the Claimant; and that the termination was wrongful, unlawful, and cannot be justified. The Claimant avers that she will now find it difficult or impossible to secure another job in the same sector.  The Claimant wrote a letter of demand through her Counsel to the Defendant dated 9th May 2022. The Defendant's counsel responded on 16th May 2022 denying liability.

THE CASE OF THE DEFENDANT

5.  The Defendant's case, as gleaned from its pleadings and evidence, is as follows: After negotiations, the Claimant was given a Provisional Offer, which she accepted. The Defendant preferred the Claimant to resume on 14th March 2022. In her email of 28th January 2022, the Claimant stated: "Notice period is 2 months in my current employment. Where this is not given, I will need to pay in lieu of the months or days as it may be."  On 4th February 2022, the Claimant sent an email requesting her final offer letter, stating: "…so I can plan the exit to enable March 14 feasibility."  The formal offer letter dated 2nd February 2022 was sent and duly accepted by the Claimant on 9th February 2022. The Claimant completed HR forms, indicating her exit date from UAC Foods as 8th April 2022. However, the Defendant placed no reliance on that date because:

   - She had indicated the option of paying salary in lieu of notice was open to her;

   - She had agreed unequivocally to resume on 14th March 2022; and

   - She was yet to resume, so the date was of no consequence.

The Claimant signed a Conflict of Interest and Business Interest Form, stating she was not involved in any business relating to PZ Cussons.  The Defendant was not aware that the Claimant had not properly disengaged from UAC Foods at the time of resumption on 14th March 2022. The Defendant never had any agreement with the Claimant on double employment or conflicting resumption dates. All purported disclosures made in forms before resumption (3rd March 2022) are immaterial. The Defendant was entitled to believe that the Claimant had opted to pay salary in lieu of notice for the outstanding days (14th March to 8th April 2022). Upon resumption, the Claimant did not disclose she was yet to fully disengage from UAC Foods.  The Defendant engaged Background Check International to conduct a background check on the Claimant. On 5th April 2022, Background Check International reached out to UAC Foods. On 12th April 2022, the Claimant informed her line manager that her exit date from UAC would read 8th April 2022, which conflicted with her 14th March 2022 resumption date. Upon further probing, she confirmed she took terminal leave from UAC and resumed with the Defendant, thereby holding two jobs simultaneously. The Claimant admitted in her email of 14th April 2022 that she did not communicate to her new employer that she resumed earlier than her exit date.  A query was issued to the Claimant on 14th April 2022, and the Claimant responded admitting the double employment. The Defendant terminated the Claimant's employment on 29th April 2022. The termination was due to the Claimant's misconduct, in that she remained in paid employment of two competitor companies at the same time without disclosure.  UAC Foods Limited and PZ Cussons are competitors in the FastMoving Consumer Goods (FMCG) category. Both manufacture cooking oils: PZ Cussons produces Mamador Oil and Kings Oil; Grand Cereals Ltd (a subsidiary of UAC Plc) produces Grand Pure Soya Oil. The Claimant's actions exposed the Defendant to a possible claim for inducement of breach of contract by UAC Foods.  The Claimant was on six months' probation, and during probation, either party may terminate by giving one month's notice or basic salary in lieu. The Claimant's conduct fell under gross misconduct (conflict of interest). Despite this, the Defendant did not summarily dismiss her but terminated her employment with salary in lieu of notice, pro-rated leave days, and terminal benefits. The Defendant denies maliciously terminating the Claimant's employment and maintains that it has always complied with all its rules and regulations.

THE CLAIMANT’S REPLY TO THE STATEMENT OF DEFENCE.

6.  The Claimant filed a Reply addressing the Defendant's Statement of Defence as follows:    In response to Paragraph 6(b): The Claimant states that the notice period was given as required. She explains that the use of her annual leave as part of the notice period was accepted by her former employer, UAC Foods Limited. She further states that the necessary clearance was completed and the Managing Director signed the clearance form, which authorised her exit from the company.   In response to Paragraph 6(c): The Claimant states that her email requesting the final offer letter was a response to how impatient Aramide Wey was to fill the role. She explains that the recruiting process was conducted with a sense of urgency, and she had to respond in like manner. During phone discussions, despite the fact that the Claimant gave 21st March 2022 as her preferred resumption date, Aramide Wey insisted that date was too far. It was to enable the Claimant to meet up with the 14th March 2022 resumption date that they both agreed, hence the reason the Claimant sent the email. The Claimant further states that during the recruiting process, even before she had written the online assessment test, Aramide Wey had already scheduled an interview for the role. The interview invite was sent on Thursday, 6th January 2022.  In response to Paragraph 6(f), the Claimant states that she had clearly stated on the HR forms duly filled by her that her exit date from her former employment was 8th April 2022. She comments that it is unfortunate for the Defendant to state that HR documentation forms, which are used for collection of all relevant information of an employee, are of no consequence simply because they were sent in before resumption.  In response to Paragraph 6(g), the Claimant states that her resignation letter and acceptance letter show that she had already resigned from UAC Foods Limited as at the time of signing the Conflict of Interest and Business Interest Form, and therefore she was not in any double employment.  In response to Paragraph 7: The Claimant categorically states that her former employer, UAC Foods Limited, did not object to her resignation or disengagement as being improper.  She states that upon her resignation, she applied for her Employment Certificate on 4th March 2022. She never held two jobs and was already on her exit leave and had been signed out of the company by the Managing Director. She recounts that when she mentioned this to her line manager, his first statement was: "You did us a favour, since it was your leave." However, after communicating with Human Resources, he later changed his tone on the issue.  In response to Paragraph 8(i), the Claimant reiterates that she was not in double employment. She explains that the Defendant wanted her to resume at a very early date, and since she had the time, she did. However, before she resumed, she had already exited from her previous employment, and nothing belonging to her previous employer was in her possession. When she was told that she was supposed to inform PZ Cussons Nigeria Plc that her resignation date would reflect a date earlier than her exit date, she did not hesitate to let her line manager know about it.  In response to Paragraph 8(j), the Claimant states that she gave consent to carry out all the checks as stated in the form. She affirms that all the information provided on the form was true, and there was no manipulated or fictitious information. The Claimant's former employer did not deny that she worked with them.  The Claimant further states that Grand Cereals Limited and UAC Foods Limited are two separate companies with separate management and separate employees. She details that UAC Foods Limited produces Gala Sausage Roll, Gala Cocktail, Fun Time Coconut Chips, Groundnut Chips, Supreme Ice Cream, and Swan Bottle Water, while Grand Cereals Limited produces Grand Soya Oil. The Claimant confirms that she has never worked in Grand Cereals Limited nor rendered any services of any kind, whether ad hoc or temporary.  

SUBMISSIONS ON BEHALF OF THE DEFENDANT

7.  The Defendant raised a sole issue for determination:

 

  • Whether, on the strength of the facts and evidence placed before this Honourable Court, the Claimant has been able to prove her case and her entitlement to any of the reliefs claimed in this suit?

 

The Defendant argued that the burden of proof lies on the Claimant under Sections 131(1) and 133(1) of the Evidence Act, 2011. The Defendant relies on Obasi Brothers & Co. v. M.B.A.S. Limited (2005) 9 NWLR (Pt. 929) 117 and Dawaki General Enterprises Limited v. Amafco Ent. Limited (1999) 3 NWLR (Pt. 594) 224. For declaratory reliefs, the Claimant must succeed on the strength of her own case, not the weakness of the defence. The Defendant cites Chief James Adebayo Oyewusi & 8 Ors v. Oba Sunday Olagbami & 2 Ors (2018) 14 NWLR (Pt. 1639) 297, Chief Cyril Amobi v. Ogidi Union Nigeria & 5 Ors (2023) 1 NWLR (Pt. 1864) 153, and West African Off Shore Ltd. v. Mr. Christopher Ariri & Ors (2015) 18 NWLR (Pt. 1490) 177, which held that an employee alleging wrongful termination must prove the existence of a contract and the terms breached.  The Defendant argues that the Claimant has failed to establish any breach of her employment terms to warrant a declaration that her termination was wrongful, and that the entire transaction is evidenced by unchallenged documentary evidence, which should be the primary evidence for the Court's decision. The Defendant relies on Skye Bank & Anor v. Akinpelu (2010) LPELR-3073(SC).  The Defendant highlighted the following unchallenged documents:

  • Exhibit C17 – showing the Claimant could pay two months' salary in lieu of notice at UAC Foods;
  • Exhibit D1 – Letter of offer of employment dated 2nd February 2022 based on her confirmation to resume on 14th March 2022;
  • Exhibits D8, D9 and C18 – Staff Handbook containing terms, including Paragraph 4 (prohibiting business in conflict with the Company) and Paragraph 6.2 (conflict of interest not disclosed to HR as gross misconduct);
  • Exhibits D10, D11 and D12 – The Claimant's admission on 12th April 2022 that she had not actually left UAC Foods and her response to the query admitting she never notified the Defendant; and
  • Exhibit D17 – Termination letter with one month's salary in lieu of notice.

 

8.  The Defendant argues that the Claimant has not challenged the procedure of her termination nor proved any specific breach of her contract. In her email of 14th April 2022 (Exhibit D12), she admitted her misconduct and appealed for leniency. The Defendant relies on Mr. Eniwomake Richard Ovivie & 4 Ors v. Delta Steel Company Ltd. (2023) 14 NWLR (Pt. 1904) 203, which held that an employee must place before the court the terms of the contract and prove how they were breached. See also Katto v. CBN (1999) 6 NWLR (Pt. 607) 390.  The Claimant signed the acknowledgment form on 18th March 2022 (Exhibit C18) confirming the Handbook sets out the Company's rules and conditions. Paragraph (h) of Exhibit D1 provides that during probation (six months), either party may terminate by one month's notice or basic salary in lieu.  The Defendant contends that upon a cursory review of Exhibit C9 (resignation letter), the Claimant's employment with UAC Foods was still subsisting at the time she resumed with the Defendant on 14th March 2022, as her resignation was effective 8th April 2022.  The Defendant argues that the Claimant's argument that she disclosed her exit date in HR forms submitted on 3rd March 2022 (before resumption) is of no moment because:

  • The forms were submitted before she became a staff member;
  • The Staff Handbook mandating disclosure was not served until 14th March 2022;
  • Any purported disclosure before resumption cannot apply as there was no conflict of interest before she became a staff member; and
  • The Claimant indicated in Exhibit C17 that she would "plan the exit to enable March 14 feasibility."

 

The Defendant further argues that reference to being on terminal leave or having work tools submitted is irrelevant because legally she was still in the employment of UAC Foods and had a duty to disclose this upon resumption.  

9.  On the issue of establishing the reason for termination, the Defendant relies on SPDC Ltd v. Olarewaju (2008) LPELR-3046(SC), which held that where an employer gives a reason, the burden is on the employer to establish it. The Defendant argues it has established the reason, as both the Defendant and UAC Foods are competitors in the FMCG industry (Exhibits D14, D15, D16). Even if the reason were not established, the Defendant relies on Afribank (Nig.) Plc v. Osisanya (2000) 1 NWLR (Pt. 642) 598 and Katto v. CBN (supra), that as long as the terms of the contract are complied with, termination cannot be wrongful regardless of the reason given. See also U.T.C. (Nig.) Plc v. Peters (2022) 18 NWLR (Pt. 1862) 297.  The Defendant argues that admitted facts need no further proof and are the best evidence against the party making them, citing Anayo-Iloputaife & Ors v. Nasco Estate Co. Ltd. & Anor (2022) LPELR-56872(CA). The Claimant's admissions include:

  • She told the Defendant she was obligated to give UAC Foods two months' notice or salary in lieu;
  • She became a staff of the Defendant on 14th March 2022;
  • The Staff Handbook became binding on her on 14th March 2022;
  • She never paid salary in lieu of notice but gave the full two months' notice;
  • At the time she became a staff of the Defendant, she was still a staff of UAC Foods or on its payroll;
  • Upon becoming a staff, she never notified the Defendant of this fact;
  • It was only after Background Check International contacted UAC Foods that she opened up;
  • She was issued a query which she responded to; and
  • Her employment was terminated and she was paid one month's salary in lieu with other prorated entitlements.

 

The Defendant argues that any part of DW1's evidence not controverted during cross-examination is deemed admitted. Counsel for the Claimant failed to challenge or contradict any of the documents tendered by DW1 or those tendered through CW1. The Defendant relies on Modibbo Adama University of Technology, Yola v. Ijandir Isaac Samuel Yarai (2020) 1 SNWLR (Pt. 1748) 395 and Akeem Sanusi v. The State (2023) 10 NWLR (Pt. 1892) 253.

10.   The Defendant submits that the Claimant has failed to establish her case by any credible evidence and is not entitled to any of the reliefs claimed.  On Reliefs (a) and (b) – Declarations regarding wrongful termination; the Defendant submits that the Claimant did not prove how her termination was wrongful or how any term of her employment was breached.  On reliefs (c) to (i); the Defendant submits that these are premised on the success of reliefs (a) and (b). The Defendant relies on HRM Oba Isaac Owolabi Olayemi & 3 Ors v. The Federal Housing Authority (2023) 3 NWLR (Pt. 1872) 445, which held that where a principal relief fails, all ancillary reliefs must fail.  Relief (c) – Two years' emoluments; the Defendant argued that this is not tied to the contract and is in the nature of special damages which must be specifically pleaded and proved.  Reliefs (f) and (g) – General and exemplary damages: The Defendant cites I.A.D. Nigeria Limited & Anor v. Alhaji Adamu Salisu & Ors (2022) LPELR-57056(CA), that general damages flow from an established wrong. The Claimant has not established any wrong. That even if termination were wrongful (which the Defendant denies), the damages recoverable are limited to the notice period. The Defendant relies on C.G.G. (Nig) Ltd v. Augustine & Ors (2010) LPELR-8592(CA), Onalaja v. African Petroleum Limited (1991) 7 NWLR (Pt. 206) 691, Chukwumah v. Shell Petroleum Development Co. Nig. Ltd (1993) 4 NWLR (Pt. 289) 512, Charles Okwudili Umera v. Nigerian Railway Corporation (2022) 10 NWLR (Pt. 1838) 349, and Charles Olusola Toyinbo v. Union Bank Plc (2023) 1 NWLR (Pt. 1865) 403. The Defendant submits that since the Claimant was on probation, the notice period was one month, which the Defendant has already paid and that exemplary and general damages are unknown to contracts of employment.  On the claim for cost of action (Relief i), the Defendant argues this is special damages which must be specifically pleaded and strictly proved. That the Claimant failed to plead particulars or tender any evidence of legal fees. The Defendant cites Arisons Trading & Engineering Co. Ltd. v. Military Gov. of Ogun State (2009) 15 NWLR (pt.1163) 26.  The Defendant argues that the Claimant's conduct of being concurrently employed by both UAC Foods and the Defendant could have exposed the Defendant to an action by UAC Foods for inducing a breach of contract relying on the case of  Nissan (Nig) Ltd v. Mr. S. Yoganathan & Anor (2010) 4 NWLR 1183 135) or unlawful interference relying on Sparkling Breweries Ltd & Ors v. Union Bank (2001) LPELR-3109(SC)) and that the termination was therefore a protective measure taken in good faith.  The Defendant urges the Court to resolve all issues in favour of the Defendant and against the Claimant.

SUBMISIONS ON BEHALF OF THE CLAIMANT

11.  The Claimant submits two issues for determination as follows:

  1. Whether the Claimant was wrongfully terminated from the Defendant's employment?
  2. Whether the Claimant is entitled to all the reliefs sought in her Statement of Facts and accompanying processes dated 30th May 2022?

12.  Issue one - whether the Claimant was wrongfully terminated from the Defendant's employment.  The Claimant relies on Sections 131(1), (2) and 136 of the Evidence Act, 2011 which provide that the burden of proving a fact in issue lies with the party who will fail if no evidence is adduced. The standard of proof in civil proceedings is on the balance of probabilities, as held in Akinbade v. Babtunde (2018) 7 NWLR (Pt.1618) 366.  The Claimant submits she has discharged this burden. The issue is evaluated under two subheadings: (a) proof of being on two payrolls, and (b) conflict of interest under the Defendant's Handbook.  The Claimant claimed that the Defendant based the termination primarily on the allegation that the Claimant was on the payroll of UAC Foods Limited as at 14th March 2022 when she joined the Defendant. The Claimant argues that the Defendant failed to lead any documentary evidence to justify this claim. The burden to prove this fact rested on the Defendant in line with the case of Archibong v. Ita (2004) 2 NWLR (Pt. 858) 590.  The relationship between the parties is regulated by the offer of employment letter (Exhibit C1). The termination letter (Exhibit C12) stated that remaining on the payroll of UAC Foods as at 14th March 2022 was a breach of paragraphs 4 and 6.2 of the Senior Staff Handbook. While an employer is not obliged to provide a reason for termination, where a reason is given, the law imposes a duty to establish that reason to the satisfaction of the Court. The Claimant relied on the case of Olatunbosun v. NISER (1988) 3 NWLR (Pt. 80) 25, SPDC Ltd v. Olarewaju (2008) 18 NWLR (Pt. 1118) 1, and UBA Plc v. Oranuba (2014) 2 NWLR (PT 1390) 1.  The Claimant gave unchallenged evidence that she sent completed HR documentation to the Defendant on 3rd and 4th March 2022, which was acknowledged. These documents (Exhibit C7) clearly stated that her exit date from UAC Foods Limited was 8th April 2022. The Defendant, having been notified of this exit date 10 days before her resumption without any protest or objection, has waived its right to complain about the resumption date. By the time the Claimant's employment was terminated, she was no longer on the payroll of UAC Foods Limited.   The Claimant only responded to the Defendant's urgency to resume on 14th March 2022. DW1 admitted under cross-examination that the Defendant informed the Claimant that the position needed to be filled urgently and the implication is that the Defendant requested the Claimant to resume urgently before her exit date with her previous employer. The Defendant cannot complain about the resumption date after requesting it. The Claimant relied on case of Anike v. SPDC (Nig) Ltd (2010) LPELR-11878(CA) that a party must be consistent in litigation and cannot approbate and reprobate, see also Ngige v. Obi (2006) 14 NWLR (Pt.999) 1. Also cited are Abbas & Anor v. Zago & Ors (2023) LPELR-60066 (CA) and Access Bank Plc v. Commercial Access Ltd (2021) LPELR-54558(CA).  the Claimant submits that the Defendant is estopped by conduct from terminating the Claimant based on information disclosed to it before resumption. The Claimant relied on the case of Chief Godwin Ememu & Anor v. Mr. Oghoneovo Ememu & Anor (2022) LPELR-58446 (CA) on the definition of estoppel, and Oyerogba & Anor v. Olaopa (1998) LPELR-2878(SC) and Bank of the North Ltd v. Yau (2001) LPELR-746(SC).

13.  The Claimant argues that the Defendant admitted in paragraph 6(f) of its Statement of Defence and DW1 confirmed under cross-examination that HR documentation was filled and sent prior to resumption; and submits that facts admitted require no proof under Section 123 of the Evidence Act, as held in Bendel Pilgrim Welfare Board v. Irawo (1995) 1 NWLR (PT. 369).  That the Claimant's resignation letter (Exhibit C9) showed her effective date as 8th April 2022 with a 2 months' notice period partially serviced with outstanding annual leave days. The Defendant's counsel omitted the full text of Exhibit C11, which stated: "on all the documentation forms I filled I wrote April 8th as my exit date and March 14th as resumption date where applicable." The Claimant never admitted misconduct; apologizing for inconvenience does not connote admission of guilt.  The Claimant submits that the issue of conflict of interest under the Defendant's Handbook (Exhibit C13) does not include where an employee has been properly disengaged from employment. Paragraph 4 prohibits engaging in private business or trade in conflict with the Company. Paragraph 6.2(12) lists conflict of interest (previously undocumented to HR/internal control) as grounds for dismissal.  That the Black's Law Dictionary, Tenth Edition defines conflict of interest as a real or seeming incompatibility between one's private interests and one's public or fiduciary duties. There was no evidence of any incompatibility between the Claimant's private interests and her duties to the Defendant. The Claimant never engaged in any private business or trade in conflict with the Defendant. The Defendant failed to prove any such engagement under Section 131(1) of the Evidence Act, 2011, as held in Dasuki v. FRN & Ors (2018) LPELR-43897(SC) and Newbreed Organisation Limited v. Erhomosele (2006) 5 NWLR (PT. 974) 499.  Even if the Claimant were still in the employment of UAC Foods (which she was not), such act cannot amount to a conflict of interest because UAC Foods does not belong to the Claimant; she had no personal interest in the company.  The Claimant's previous employer was UAC Foods Limited, not Grand Cereals Limited. These are two separate entities with separate management and employees under the same parent company. UAC Foods produces Gala Sausage Rolls, Gala Cocktail, Fun Time Coconut Chips, Supreme Ice Cream, and Swan Bottle Water. Grand Cereals produces Grand Soya Oil.  The Claimant submits that she has proved all the elements of unlawful termination as stated in the case of Oloruntoba-Oju & Ors v. Abdul-Raheem & Ors (2009) LPELR-2596 (SC).  

14.  Issue two - whether the Claimant is entitled to all the reliefs sought.  The Claimant argued that she seeks N39,075,874 being total emoluments for two years as compensation for wrongful termination. She relied on Sahara Energy Resources Limited v. Oyebola (2020) LPELR-51806 (CA) where the Court of Appeal held that an employee wrongfully terminated is entitled to compensation of two years' total emoluments, endorsing international best practices.  The Claimant cites Section 254C(1)(f) of the 1999 Constitution (as amended) and Section 7(6) of the National Industrial Court Act, 2006, which enjoin the National Industrial Court to apply international best practices in labour and employment matters.  The Claimant distinguishes the Defendant's reliance on C.G.G. (Nig) Ltd v. Augustine & Ors (2010) LPELR-8592(CA) as a wrong position of law. The facts and circumstances of each individual case determine the quantum of damages. In British Airways v. Makanjuola (1993) 8 NWLR (PT 311) 276, the award of two years' salary as damages was affirmed. The Court held that where wrongful termination carries a stigma on the character of the employee, substantial damages far beyond payment in lieu of notice are entitled. In this case, the termination was based on alleged malpractice (being on two payrolls), a dishonesty offence that will taint the Claimant's reputation forever. The Claimant's total emolument per annum is N19,537,937, thus two years' emoluments is N39,075,874.

15.  On the relief for unreserved apology, the Claimant submits that having proved wrongful termination, she is entitled to an apology from the Defendant for the stigma occasioned.  On the relief for exemplary damages of N150,000,000, the Claimant cites Cop, Ondo State & Anor v. Obolo (1989) LPELR-20451(CA) that exemplary damages may be awarded if the act of the defendant was oppressive, arbitrary, or unconstitutional. The unlawful termination being arbitrary entitles the Claimant to exemplary damages.  On the relief for general damages of N150,000,000, the Claimant describes general damages as at large and not tied to any specific head of claim, relying on Yalaju-Amaye v. Associated Registered Engineering Contractors Ltd. & Ors (1990) LPELR-3511(SC) that general damages are presumed by law to flow from the wrong complained of. Also cited are Incar v. Benson (1975) 3 S.C.117 (need not be specifically pleaded), Odulaja v. Haddad (1973) 11 S.C.357 (incapable of exact calculation), and UBN Plc v. Alhaji Adams Ajabule & Anor (2011) LPELR-8239(SC).  Section 19(D) of the National Industrial Court Act, 2006 permits the Court to make an award of compensation or damages. The Claimant submits she is entitled to general damages for the humiliation and inhumane treatment meted against her.  On the relief for interest and costs, the Claimant seeks interest at 21% per annum from the date of judgment until final liquidation, and costs of the suit. The Claimant relies on Uko & Ors v. Govt of the Federation of Nigeria & Ors (2021) LPELR-56069 (CA) on the award of interest, and Order 47, Rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017.  The Claimant argues the Defendant's reliance on Nissan Nig Ltd v. Mr. S. Yoganathan & Anor (2010) 4 NWLR 1183 135 is not applicable as the Defendant never induced any breach of contract. There was never any suit against the Defendant for inducement, nor any pre-action notice from UAC Foods. The Claimant voluntarily resigned and was on terminal leave when she joined the Defendant.  The Claimant prays the Honourable Court to resolve the issues in her favour and grant all reliefs sought in the Statement of Facts dated 30th May 2022, having established upon the preponderance of evidence that she was wrongfully terminated from the Defendant's employment

DEFENDANTS REPLY ON POINT OF LAW

16.  The Defendant replied that the Claimant has neither responded to, impeached, nor challenged the undisputed facts and documents itemized in the Defendant's Final Written Address and that submits that failure to counter the arguments amounts to a concession.  The Defendant points out that in paragraphs 22, 38, 41, 54 and 78 of the Claimant's Final Address, Claimant's Counsel made assertions not contained in any pleading or witness statement and unsupported by any evidence. Relying on Andrew & Anor v. INEC & Ors (2017) LPELR-48518 (SC) and Maduabuchi Onwuta v. The State of Lagos (2022) 18 NWLR (Pt. 1863) 701, the Defendant argues that Counsel cannot lead evidence in a final address, and such assertions should be discountenanced.  The Defendant replied that whether the Claimant was on two payrolls is to be determined on the evidence. Juxtaposing 14th March 2022 (resumption date with Defendant) and 8th April 2022 (exit date from UAC Foods as per Exhibit C9), the Defendant contends it is obvious the Claimant was an employee of both organisations simultaneously. That this fact was confirmed by the Claimant in Exhibits C7, C10, C11, D11 and D12, which the Claimant herself tendered. These documents completely negate the Claimant's position that the Defendant did not prove double employment. Relying on Honourable Farouk Lawan v. Federal Republic of Nigeria (2022) 7 NWLR (Pt. 1829) 279 and Asset Management Nominees Ltd & Another v. Forte Oil Plc and others (2023) 9 NWLR (Pt. 1889) 237, the Defendant submits that admissions and documentary evidence are the best forms of evidence.  The Defendant replied that contrary to paragraphs 43 and 45 of the Claimant's Final Address, DW1 never denied that the Defendant communicated its preference for the Claimant to resume on 14th March 2022, which the Claimant unequivocally agreed to. The Claimant could have refused but accepted, and cannot now allege the Defendant agreed to double employment.  The Defendant replied that regarding paragraphs 59 and 60 of the Claimant's Final Address, the Defendant argued that including previously omitted portions of Exhibit C11 does not change the fact that the Claimant admitted she did not know she was supposed to communicate her exit date to the Defendant.  On issue of the exit date, the Defendant replied that the Claimant never mentioned the exit leave arrangement to the Defendant during engagement, nor in her pleadings. It was only after the query that she began providing details. Exhibit C9 (resignation letter) was never furnished to the Defendant during negotiations and is therefore of no moment.  Relying on the case of Amokeodo v. Inspector General of Police (1999) 6 NWLR 467 SC, the Defendant replied that a staff remains an employee until the expiration of the notice period, regardless of leave status. In that case, the Supreme Court held that an officer who gave three months' notice remained in service until expiration of the notice and remained subject to all benefits and disciplinary measures. Thus, the Claimant's argument that she ceased to be a staff of UAC Foods upon commencement of exit leave on 3rd March 2022 is untenable and misleading.  On the issue of conflict of interest, The Defendant adopts its arguments from its Final Written Address. It notes that the Claimant has presented contradictory submissions: arguing both that she disclosed the conflict of interest and that there is no conflict of interest. Relying on Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688, the Defendant submits that when contradictory submissions are made, the court is bound to reject both. On the existence of conflict of interest, the Defendant cites the Claimant's admission in Exhibit D12 where UAC Foods' GMHR advised her to disclose her effective resignation date to her new employer to avoid future misunderstanding, referencing a 2017 incident where a new employee from a competitor failed to disclose his status. This is a clear admission of conflict of interest. Relying on the case of Oyeyemi v. Commissioner for Local Govt., Kwara State & Ors (1992) LPELR-2882(SC), the Defendant argues that words must be read in context. Paragraph 4 of the Handbook prohibits any business in conflict with the Company's business.  Furthermore, the Claimant in paragraph 44 of her Statement of Facts stated that the Defendant's plan was to take her out from her previous employer "to weaken them," acknowledging competition between both organisations. Relying on Julius Berger (Nig) Plc v. Almighty Projects Innovative Ltd & Anor (2021) LPELR-56611 (SC), the Defendant argued that the Claimant is estopped from denying same by the doctrine of approbation and reprobation.  On the case of Sahara Energy Resources Limited v. Oyebola and British Airways v. Makanjuola, the Defendant notes that the Claimant cited these cases without extracting the actual pronouncements, and argues they are inapplicable. Citing Ekwunife v. Ngene (Supra) and Umaru v. State (2022) LPELR-58864(CA), the Defendant argues a case is only authority for what it actually decides.  On of wrongful termination, the Defendant replied that even if the termination were wrongful, the applicable principle is from Charles Okwudili Umera v. Nigerian Railway Corporation (2022) 10 NWLR (Pt. 1838) 349, a later Supreme Court decision binding on lower courts, which establishes that the Claimant is only entitled to payment for the notice period.  On the issue that the Claimant cannot find another job, the Defendant relying on Keystone Bank v. Afolabi (2017) LPELR-42390(CA), argued that a claimant must take steps to mitigate damages. The Claimant confirmed she is currently jobless but gave no evidence of steps taken to find another job. Relying on Momodu v. University of Benin (1997) 7 NWLR (Pt. 512) 325, the Defendant replied that a claimant who fails to mitigate cannot recover greater sum than if she had acted reasonably.  On General Damages, the Defendant argued that even if termination were wrongful, the Claimant cannot be compensated twice for the same wrong. Citing British Airways v. Makanjuola (Supra) at pages 288-289, that the Court held that having awarded two years' salary as loss, it would be double compensation to also award general damages. The Claimant having claimed alternative compensation in reliefs 51(c) and (d) cannot also claim damages under reliefs 51(f) and (g). The Defendant argues the Claimant is on a fishing expedition.  Regarding Yalaju-Amaye v. Associated Registered Engineering Contractors Ltd. & Ors (1990) LPELR-3511(SC) cited by the Claimant, the Defendant notes that case involved wrongful removal as Managing Director and shareholder, not employment termination. The Supreme Court in that case set aside general damages because the trial court took into consideration matters that should be considered in special damages. The Defendant argued that the same applies here.  On Special Nature of Reliefs 51(c) and (d) the Defendant replied that these reliefs are in the nature of special damages and must be particularly pleaded and strictly proved. Relying on County & City Bricks Development Co. Ltd. & Anor v. Mkc (Nig.) Ltd. & Ors (2019) LPELR-46889(CA) and British Airways v. Makanjuola (Supra) at page 289, the Defendant submits that the Claimant did not specifically plead her salary and emoluments or how the sums were arrived at and that the appropriate order is to discountenance both reliefs.

COURT’S DECISION

17.  17.   Having carefully considered the pleadings, evidence, exhibits, and the final written addresses of both parties, I now proceed to determine this suit.  The Defendant formulated a sole issue for determination, while the Claimant formulated two issues. In my considered view, the issues that arise for determination in this suit can be conveniently distilled into two:

  1. Whether the termination of the Claimant's employment by the Defendant was wrongful and unlawful.
  2. Whether the Claimant is entitled to any or all of the reliefs claimed.

18.  Issue One - whether the termination of the Claimant's employment was wrongful and unlawful.  It is settled law that the relationship between an employer and an employee is governed primarily by the terms of the contract of employment between them. The terms of the contract constitute the foundation upon which the rights and obligations of the parties’ rest. See Olatunbosun v. NISER [1988] 3 NWLR (Pt. 80) 25; Katto v. CBN [1999] 6 NWLR (Pt. 607) 390; West African Offshore Ltd. v. Ariri [2015] 18 NWLR (Pt. 1490) 177.  It is equally well established that where an employer gives a reason for the termination of an employee's appointment, the employer assumes the burden of justifying that reason. If the reason given is not established, the termination may be held to be wrongful. See SPDC Ltd v. Olarewaju [2008] 18 NWLR (Pt. 1118) 1; Olatunbosun v. NISER (supra); UBA Plc v. Oranuba [2014] 2 NWLR (Pt. 1390) 1. However, the converse principle also holds: where the terms of the contract have been complied with in effecting the termination, the termination cannot be wrongful regardless of the motive or reason. See Afribank (Nig.) Plc v. Osisanya [2000] 1 NWLR (Pt. 642) 598; Katto v. CBN (supra).  The burden of proof in civil cases rests on the party who asserts, and the standard is on the balance of probabilities. See Sections 131(1), 132, and 133(1) of the Evidence Act, 2011.  In claims for declaratory reliefs, the Claimant must succeed on the strength of her own case and not on the weakness of the Defendant's case. See Oyewusi v. Olagbami [2018] 14 NWLR (Pt. 1639) 297; Amobi v. Ogidi Union Nigeria [2023] 1 NWLR (Pt. 1864) 153.

19.  The Claimant's employment with the Defendant was governed by the offer letter dated 2nd February 2022 (Exhibits C1/D1) and the Defendant's Manager Handbook (Exhibits C13/D8). By the offer letter, the Claimant was employed as Internal Audit Manager, Finance Grade 4, with a resumption date of 14th March 2022 and annual emoluments of N19,537,937.00. The Claimant was placed on a six-month probationary period, during which either party could terminate the employment by giving one month's notice or payment of one month's basic salary in lieu of notice.   The Claimant acknowledged receipt of the Manager Handbook on 18th March 2022 (Exhibit C18), thereby accepting the terms contained therein as binding upon her. Paragraph 4 of the Handbook provides that employees shall not engage in any private business or trade in conflict with the Company. Paragraph 6.2(12) lists "conflict of interest (previously undocumented to HR/Internal Control)" as an act of gross misconduct warranting dismissal.  The termination letter dated 29th April 2022 (Exhibits C12/D17) stated that the Claimant's employment was terminated on the ground that she was in breach of Paragraphs 4 and 6.2 of the Manager Handbook, in that she remained on the payroll of UAC Foods Limited (a competitor of the Defendant) while simultaneously being employed by the Defendant, which constituted a conflict of interest and gross misconduct. The Defendant having given a specific reason for the termination, the burden shifts to the Defendant to establish that reason. See SPDC Ltd v. Olarewaju (supra).

20.  The question to answer is “was the Claimant simultaneously employed by both organisations?   The undisputed facts, as borne out by evidence, are as follows:

  1. The Claimant's resignation letter from UAC Foods Limited (Exhibit C9) indicated an effective exit date of 8th April 2022, with a two-month notice period commencing from 7th February 2022.
  2. The Claimant resumed employment with the Defendant on 14th March 2022.
  3. On the HR documentation forms completed by the Claimant on 3rd and 4th March 2022 (Exhibit C7), the Claimant stated her exit date from UAC Foods Limited as 8th April 2022.
  4. The Claimant's employment with UAC Foods Limited formally subsisted until 8th April 2022, while her employment with the Defendant commenced on 14th March 2022.

The critical question is whether the Claimant was, as a matter of law and fact, simultaneously employed by both UAC Foods Limited and the Defendant during the period of 14th March 2022 to 8th April 2022.   The Claimant's position is that she had effectively disengaged from UAC Foods Limited before resuming with the Defendant. She stated that she was on terminal leave from UAC Foods, had been logged out of the company's systems since 7th March 2022, had submitted all work tools, and had her email and SAP access blocked. She further stated that the Managing Director had signed her clearance form.   The Defendant's position is that regardless of whether the Claimant was on terminal leave, she remained legally in the employment of UAC Foods Limited until 8th April 2022, as her resignation letter specified that date as her effective exit date. The Defendant relied on the Supreme Court decision in Amokeodo v. Inspector General of Police [1999] 6 NWLR (Pt. 607) 467, where the Court held that an officer who gave notice of retirement remained in service until the expiration of the notice period and was subject to all the incidents of service, including disciplinary measures.

 

21.  I find the authority of Amokeodo v. IGP(supra) @ 482-483, paras. D-H per Ejiwunmi, J.S.C. instructive and directly applicable. His Lordship held as follows:

It is manifest from the above letter of retirement that it was the intention of the appellant to retire voluntarily from the Nigeria Police Force from the 3rd of November, 1989, i.e. the date of his letter. It is however clear that the appellant wanted to give three months notice under section 21(1) of the Pensions Act. In that regard he asked in that letter that his months accumulated leave for the years 1987, 88 - 89 be utilized for the three months notice stipulated in s. 21(1) of the Pensions Act. It seems to me clear that a notice of this kind cannot come within the meaning of the requisite three months prior to retirement envisaged in section 21(1) of the Pensions Act. What I think the section requires of a retirement officer is to give a notice of three months that immediately precedes the date of his retirement. To do otherwise, as was done in the instant case, cannot be regarded as compliance with the provisions of section 21(1) of the Pensions Act. Having not retired from the service immediately, which the appellant could have done by paying three months salary in lieu of notice. Similarly, the argument that the unpaid salaries owed to the appellant at the date of his letter of retirement should have been as payment of three month salary in lieu of notice is simply not tenable. In the first place his letter of retirement is clearly to the effect that he had given his employers three months notice of his intention to retire. He cannot now seek to alter that by hiding under some alleged money owed to him by the respondents.

As I have emphasised above, the provisions of section 21 (1) of the Pensions Act allow a retiring officer a choice. A three months notice or payment of three months salary in lieu of that notice. It is either one or the other. The appellant made a choice by giving a notice of three months to retire. He will have to abide with the legal consequences that flow from that choice. This being that he remained in the service until the expiration of his three months notice. Within that period, he also remained subject to all the benefits and advantages that an officer of his rank is entitled to. He is also subject to any disciplinary measures that his employers deem necessary to maintain generally on a serving officer. 

 

The legal position is clear: an employee who has tendered a resignation with a specified effective date remains in the employment of the employer until that date, regardless of whether the employee is on leave or has physically departed the workplace. This is consistent with the jurisprudence of this Court that a leave, whether for a definite period, indefinite period, paid or unpaid is what it is; a leave and never a termination.   See the cases of See Mr Salau Saheed Lekan v. Dangote Cement Plc unreported Suit No. NICN/LA/551/2019, the judgment of which was delivered on 27 July 2021, Akinrinade Adebowale v Orchid Hotels Ltd unreported Suit No. NICN/63/2020; and indeed, has struck against them as amounting to unfair labour practice.  See also Mrs. Dayo Buluro v. Nigerian Institute of Public Relations unreported Suit No. NIC/LA/23/2009, the judgment of which was delivered on 14th April 2011, Mrs Emmah Momodu (substituting Alfred Aletor Momodu, Deceased) v. Pinnacle Oil & Gas Limited Suit No: NICN/LA/338/2018 delivered on 20th July 2020, Mobil Producing Nig. Unlt & Anor. v. Udo, (2008) LPELR-8440(CA) and Mr. Samuel Olusegun v. Colvi Limited SUIT NO: NICN/LA/414/2021 judgment of 7th May 2026.  

22. The resignation letter (Exhibit C9) unambiguously stated an exit date of 8th April 2022. Until that date, the Claimant remained, in law, an employee of UAC Foods Limited. The fact that she was on terminal leave, had submitted work tools, or had been logged out of systems does not alter this legal reality. Terminal leave is still a period of employment during which the employee remains on the payroll and is entitled to salary and other benefits.   Accordingly, I find as a fact that during the period of 14th March 2022 to 8th April 2022, the Claimant was simultaneously in the employment of both UAC Foods Limited and the Defendant. This fact is further supported by the Claimant's own documents: her HR forms (Exhibit C7) which disclosed the exit date of 8th April 2022, and her response to the query (Exhibit C11/D12) where she acknowledged that her exit date from UAC Foods was 8th April 2022 while her resumption date with the Defendant was 14th March 2022.  

23.  The Claimant contends that she disclosed her exit date of 8th April 2022 on the HR documentation forms submitted on 3rd and 4th March 2022 (Exhibit C7), and that the Defendant, having received this information without protest, waived its right to complain. The Claimant invokes the doctrine of estoppel.  The Defendant counters that: (i) the forms were submitted before the Claimant became a staff member; (ii) the Handbook mandating disclosure was not served until 14th March 2022; (iii) the Defendant reasonably expected the Claimant to have paid salary in lieu of notice for the outstanding period, given her earlier indication in Exhibit C17 that this option was available to her; and (iv) upon resumption, the Claimant did not disclose to the Defendant that she was still formally in the employment of UAC Foods Limited.  I have carefully considered both positions. The evidence before me shows the following:

  1. The Claimant did indeed state on the HR forms that her exit date from UAC Foods was 8th April 2022. This is not in dispute.
  2. However, the Claimant had also, in her email of 28th January 2022 (Exhibit C17), indicated to the Defendant that her notice period at UAC Foods was two months and that she could pay salary in lieu of notice to shorten the period. She further stated in her email of 4th February 2022 (Exhibit C16) that she would "plan the exit to enable March 14 feasibility."
  3. The Defendant's witness, DW, testified that the Defendant understood from these communications that the Claimant would arrange her exit from UAC Foods to enable a clean resumption on 14th March 2022, whether by paying salary in lieu of notice or by some other arrangement.
  4. The Claimant did not, at any point upon resumption on 14th March 2022 or thereafter, expressly inform the Defendant that she had not fully disengaged from UAC Foods Limited and that her formal exit date remained 8th April 2022.

24.  On the question of estoppel, the Claimant's argument is that having disclosed her exit date on the HR forms, the Defendant is estopped from relying on the overlap. I am unable to accept this argument for the following reasons:

  1. The doctrine of estoppel requires that the party seeking to invoke it must show that the other party made a clear and unequivocal representation upon which the first party relied to its detriment. See Oyerogba v. Olaopa [1998] LPELR-2878(SC); Bank of the North Ltd v. Yau [2001] LPELR-746(SC).  
  2. The Defendant did not make any clear and unequivocal representation that it accepted or approved of the Claimant being simultaneously employed by both organisations. The mere receipt of HR forms containing the exit date, without more, does not constitute an acceptance of double employment. HR forms are administrative documents used for record-keeping purposes, and the Defendant could reasonably have expected the Claimant to resolve the overlap before resumption, particularly given her earlier indication that she could pay salary in lieu of notice.
  3. Furthermore, the obligation to disclose a conflict of interest under Paragraph 6.2(12) of the Handbook arose upon the Claimant becoming an employee on 14th March 2022. The forms were submitted before that date. Upon resumption, the Claimant had a fresh and continuing obligation to disclose any conflict of interest to HR/Internal Control, which she failed to do.

25.  I note the Claimant's argument that DW admitted under cross-examination that the Defendant communicated its preference for the Claimant to resume on 14th March 2022 and that the position needed to be filled urgently. While this is true, the urgency of the Defendant in wanting the Claimant to resume does not translate into an agreement or acquiescence to the Claimant maintaining dual employment. The Defendant's urgency was predicated on the understanding that the Claimant would arrange her exit from UAC Foods to enable a clean resumption. The Claimant cannot rely on the Defendant's urgency to justify her failure to properly disengage from her previous employer before resuming with the Defendant.

26.  Did the Claimant's conduct amount to conflict of interest?  The Defendant terminated the Claimant's employment on the ground of conflict of interest under Paragraphs 4 and 6.2(12) of the Manager Handbook. The Claimant argues that there was no conflict of interest because: (i) she did not engage in any private business or trade in conflict with the Defendant; (ii) UAC Foods Limited does not belong to her and she had no personal interest in it; and (iii) UAC Foods Limited and Grand Cereals Limited are separate entities, and the Defendant's products do not compete with UAC Foods' products.  The concept of conflict of interest, refers to a situation in which a person who owes a duty to act in the interest of another has a competing interest or duty to a third party which may impair the impartial and objective discharge of that duty. In the employment context, it encompasses situations where an employee's personal interests or obligations to third parties’ conflict or may conflict with the faithful discharge of duties owed to the employer.  This issue is resolved by the Claimant’s evidence at paragraph 44 of her witness statement on oath; where she stated that:

The Defendant does not have any genuine intention to permanently hire me ab initio, but their plan or plot was to take me out from my previous employer where I was performing very well to weaken them.

The above evidence of the Claimant acknowledges that there is in existence, some form of competition between the Defendant and her former employers; else, why would they want to weaken them.  Further evidence (Exhibits D14, D15, D16) shows that both PZ Cussons Nigeria Plc and UAC Nigeria Plc (the parent company of UAC Foods Limited) operate in the FMCG industry. Being simultaneously in the employment of a company within the same corporate group as a competitor, even if on terminal leave, creates a reasonable apprehension of conflict of interest. The Defendant, as an employer, was entitled to be concerned about the potential exposure of its confidential information and trade secrets to a competitor or an entity within a competitor's corporate group. 

26. That said, I must also observe that the evidence before me does not establish that the Claimant actually engaged in any act of disloyalty, espionage, or transfer of confidential information. The conflict of interest in this case is one of apprehension and potential, rather than actual harm. The Claimant's conduct was, at worst, an administrative oversight or lack of transparency, rather than a deliberate act of sabotage or disloyalty.  Nevertheless, the question before me is not whether the Claimant actually caused harm to the Defendant, but whether the Defendant's stated reason for termination — conflict of interest arising from simultaneous employment — is established on the evidence. On the balance of probabilities, I find that the Defendant has established that the Claimant was simultaneously in the employment of both UAC Foods Limited and the Defendant during the period of 14th March to 8th April 2022, and that this dual employment, given the competitive relationship between the two corporate groups in the FMCG sector, constituted a conflict of interest within the meaning of the Defendant's Handbook.  I so hold.

27.  Was the termination procedurally proper?  Having found that the reason for termination has been established, I must now consider whether the termination was carried out in accordance with the terms of the contract.   The Claimant was on probation at the time of termination. Paragraph (h) of the offer letter (Exhibit D1) provides that during the probationary period, either party may terminate the employment by giving one month's notice or payment of one month's basic salary in lieu of notice. The termination letter (Exhibit D17) indicates that the Claimant was paid one month's salary in lieu of notice, together with prorated leave days and terminal benefits.  The Defendant also issued a query to the Claimant on 14th April 2022 (Exhibit C10/D11) and gave her 24 hours to respond. The Claimant responded on the same date (Exhibit C11/D12). The substance of her response was considered before the termination decision was made on 29th April 2022.   The Claimant was therefore given an opportunity to be heard before the termination.  In the circumstances, I find that the termination was carried out in substantial compliance with the terms of the contract. The Claimant was queried, given an opportunity to respond, and was paid her entitlements including one month's salary in lieu of notice, prorated leave, and terminal benefits.   The Claimant alleges that the Defendant intentionally lured her from UAC Foods Limited where she had worked for 18 years, only to terminate her employment; that the Defendant did not have any genuine intention to permanently hire her; and that the termination was carried out with malice.  These are serious allegations. However, the Claimant has not adduced any credible evidence to support them. The allegation that the Defendant lured the Claimant from her previous employment is entirely speculative and unsupported by evidence. I find no evidence of malice, bad faith, or premeditated intent to harm the Claimant.  In the light of the foregoing, I hold that the termination of the Claimant's employment by the Defendant was neither wrongful nor unlawful. The Defendant acted within its contractual rights and in accordance with the terms of the employment contract and the Manager Handbook.  Issue One is accordingly resolved in favour of the Defendant.

28.  Issue Two - whether the Claimant is entitled to any or all of the reliefs claimed.  To resolve this issue, I shall consider the reliefs sought by the Claimant.  In relief (a) the Claimant seeks a declaration that she was wrongfully terminated from the Defendant's employment. Having found that the termination was neither wrongful nor unlawful, this relief fails and is hereby refused.  In relief  (b), the Claimant seeks an order setting aside the termination letter dated 29th April 2022. This relief is consequential upon the success of Relief (a). Having refused Relief (a), this relief also fails. It is further settled that the National Industrial Court will not ordinarily compel an unwilling employer to retain an employee in its service, except in cases involving statutory flavour. See Olatunbosun v. NISER (supra); Chukwumah v. Shell Petroleum Development Co. Nig. Ltd [1993] 4 NWLR (Pt. 289) 512. The Claimant's employment in this case is not one with statutory flavour. This relief is accordingly refused.  Relief (c) is for an order directing the Defendant to pay the sum of N39,075,874.00 being two years' total emoluments as compensation for wrongful termination. This relief is premised on the success of Reliefs (a) and (b). Having found that the termination was not wrongful, this relief necessarily fails.   In the alternative to Relief (c), the Claimant seeks payment of her prorated monthly salary of N1,628,161.00 from the date of termination to the date of judgment. This relief is also premised on a finding of wrongful termination. Having found that the termination was not wrongful, this relief fails and is refused.  At relief (e) the Claimant seeks an order directing the Defendant to tender an unreserved apology. This relief is consequential upon a finding of wrongful termination. Having found that the termination was not wrongful, there is no basis for ordering the Defendant to apologise. All the other reliefs for exemplary damages, general damages, interest and cost of this action also fail due to the failure of reliefs a – e.  

29.   Before concluding, I consider it appropriate to make the following observations:   While the Claimant's termination has been found to be lawful, I note that the circumstances of this case are not without some sympathy for the Claimant. The Claimant left a position she had held for 18 years to join the Defendant, and was terminated after barely six weeks. The evidence suggests that the overlap in employment was not borne of any deliberate intent to deceive or to engage in espionage, but rather from Claimant’s failure to appreciate the legal and contractual implications of commencing new employment before the formal expiration of her notice period at her previous employer.  However, the law is clear; an employee has a duty to ensure that she has properly and fully disengaged from her previous employment before commencing new employment, particularly where both employers operate in the same or related industry. Where an overlap exists, the employee has an obligation to make full and transparent disclosure to the new employer. The Claimant's failure to do so, regardless of her subjective good faith, exposed her to the consequences that followed.

Accordingly, the Claimant's claims are hereby dismissed in their entirety. I make no order as to costs.  

Judgment is entered accordingly.  

 

…………………………………….

Hon. Justice (Prof) Elizabeth A. Oji