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: WEDNESDAY 14TH OCTOBER 2026             SUIT NO NICN/LA/472/2018

BETWEEN                                                                    

OLUSOLA JOSEPH SASONA                                                          CLAIMANT

AND

VIXEN ENTERPRISES LIMITED                                          DEFENDANTS

GLOBACOM LIMITED                                     

Representation:

Akintoye Akintokun with Kayode Ogunbamila for the Claimant

Kelechi Odoemela for the Defendants

 

JUDGMENT

Introduction and Claims:

1.   The Claimant herein instituted this suit by way of General Form of Complaint dated 11th September 2018 along with its accompanying processes seeking the following reliefs:

a.     A DECLARATION that the employment of the Claimant with the Defendants subsists.

 

b.     A DECLARATION that the 1st Defendant’s letter dated January 11, 2017 purporting to terminate the engagement of the Claimant with the Defendants contrary to the terms of employment of the Claimant, illegal, null and void.

 

c.      A DECLARATION that the Claimant is entitled to all outstanding allowances and salaries due to him from the Defendants until date.

 

d.     N17,550,000.00 [Seventeen Million, Five Hundred and Fifty Thousand Naira only] being costs of alternative transportation and failure to provide Company Car fueling and maintenance expenses from June 1, 2011 to May 26th, 2012 in Lagos, Nigeria.

 

e.     N61,875,000 [Sixty-One Million, Eight Hundred and Seventy-Five Thousand Naira only] being costs of alternative transportation and failure to provide Company Car, fueling and maintenance expenses from December 1, 2014 to September 5, 2018 in Lagos, Nigeria.

 

f.       USD15,000 (Fifteen Thousand United Stated Dollars) being accrued accommodation expenses incurred by the Claimant as an expatriate staff of the Defendants in Accra, Ghana from April 24, 2012 to November 30, 2014.

 

g.     The sum of USD33,635 (Thirty-Three Thousand, Six Hundred and Thirty-Five United States Dollars) being accrued transport and other cost of living expenses incurred by the Claimant as an expatriate staff of the Defendants in Accra, Ghana from April 24, 2012 to November 30, 2014.

 

h.    N7,109,588.98 [Seven Million, Four Hundred and Seventy-Nine Thousand, Five Hundred and Eighty-Eight Naira and Ninety-Eight Kobo] being monetized value of accrued leave days between June 1, 2011 till August, 2018.

 

i.       The sum of N25,208,333.33 (Twenty-Five Million, Two Hundred and Eight Thousand, Three Hundred and Thirty-Three Naira, Thirty-Three Kobo) being outstanding salaries from January 1, 2017 till September 5th, 2018.

 

j.       The sum amounting to 5% and 20% of annual salary respectively from July 1, 2015 till date pursuant to 2nd Defendant’s memo dated June 19th, 2015.

 

k.     An Order for account of such other or further amounts as shall be due to the Claimant arising from his engagement by the Defendants/

 

l.       Exemplary damages of N15,000,000.00[Fifteen Million Naira only].

 

m.  Interest on the Judgment sum at the rate of 21% per annum from the date each head of claim became due until settlement.

 

n.    Costs including Solicitors expenses of N15,000,000.00 [Fifteen Million Naira only].

 

2.  The Defendants filed their Statement of Defence on 24th December, 2018 albeit outside of the time prescribed by the Rules of this Honourable Court. The Statement of Defence was however regularized on 9th January, 2019.  On 28th January 2019, the Claimant filed his Reply to the Statement of Defence.   In the course of the trial, the Claimant, testifying personally, adopted his Statement on Oath dated 11th September 2018 and his Further Witness Statement on Oath dated 4th January 2019. The Claimant also tendered documents which were admitted and marked Exhibits C1 – C24.  The Claimant’s second witness, Mr. Olabanji Fakeyede, testified as a subpoenaed witness and tendered Exhibit C25. The Defendants opened their case on 14th July, 2023. Their sole witness, Oluwaseun Omolola adopted his written deposition dated 13th July 2023 and tendered documents which were admitted and marked Exhibits D1 – D5.

 

FACTS OF THE CASE

3.  The Claimant is Olusola Joseph Sasona, a Nigerian citizen resident at 5/7 Oremeji Close, Greenland Estate, Ogombo, Ajah, Lagos State, and a legal practitioner by training. The 1st Defendant is Vixen Enterprises Limited, a limited liability company registered in Nigeria. The 2nd Defendant is Globacom Limited (also styled Globacom Nigeria Limited), a limited liability company registered in Nigeria and licensed by the Nigerian Communications Commission to operate a telecommunications business. The Claimant contends that both Defendants are one and the same entity under common ownership and management, while the Defendants contend that each is a separate legal entity. 

4.  By letter dated 27 May 2011 (Ref. No. VEL/HR/AS/08/42/0511), the 1st Defendant offered the Claimant employment on Level 3 Grade with initial posting to Gloworld, a department associated with the 2nd Defendant. The Claimant accepted and commenced work with effect from 1 June 2011. By letter dated 24 April 2012, the Claimant was deployed to Accra, Ghana as Acting Head, Gloworld, and he reported there on 26 April 2012. By internal memo dated 14 November 2014, his services were returned to Nigeria and he resumed in Lagos on 1 December 2014. By letter dated 10 January 2017, the 1st Defendant terminated the Claimant's employment. The Claimant maintained that the termination was unlawful and that he remained a staff of the Defendants, while the Defendants maintained that the employment was lawfully terminated and that one month's salary in lieu of notice was offered but rejected.

SUBMISSIONS ON BEHALF OF THE DEFENDANTS

5.  The Defendants raised two issues for determination:

1.       Whether the Claimant's Reply to the Defendants' Statement of Defence ought not to be deemed abandoned and consequently struck-out or dismissed on account of the Claimant's failure to present evidence in support thereof.

2.     Whether the Claimant has demonstrated that he is entitled to the reliefs he seeks from this Honourable Court.

6.   On issue one, Learned Counsel to the Defendants submitted that upon being served with the Statement of Defence, the Claimant filed his Reply but that the Reply was not accompanied by a witness statement on oath or any other process. He submitted that the Court's records show the Claimant, in examination-in-chief, adopted only his Statement on Oath dated 11 September 2018 and his Further Witness Statement on Oath dated 4 January 2019 (filed about three weeks before the Reply), and adopted no deposition in support of the Reply because he had filed none, so that no evidence was adduced in support of the averments in the Reply.  Counsel submitted that pleadings unsupported by evidence are deemed abandoned, as mere averment does not constitute proof because pleadings cannot speak, relying on Joseph Ifeta v. Shell Petroleum Development Company of Nigeria Limited (2006) 4 SCNJ 111 and Chief S.L. Durosaro v. T.A.A. Ayorinde (2005) 3 SCM 14.

7.  On issue two; “whether the Claimant has demonstrated that he is entitled to the reliefs he seeks, Learned Counsel to the Defendants submitted that the Claimant seeks 14 reliefs cutting across declarations, special damages, exemplary damages, pre-judgment interest and costs, and grouped them for examination.  On the declaratory reliefs (reliefs 1, 2 and 3), Counsel submitted that declaratory reliefs are discretionary, not granted lightly, and to be exercised sparingly, relying on Alhaji Ode & Ors v. Pa Balogun & Ors (2002) FWLR (Pt. 115) 693 at 705. He submitted that the burden of proving entitlement must be discharged by pleading and evidence, relying on Alhaji Kadir v. Alhaji Yusuf (2003) FWLR (Pt. 151) 1930 at 1941-2. He recapped that Exhibit C1 dated 27 May 2011 shows the 1st Defendant employed the Claimant on Level 3 Grade, that the Claimant was seconded to the 2nd Defendant pursuant to paragraph 5 of Exhibit C1, stationed in Lagos and Accra until 10 January 2017 when the 1st Defendant terminated his employment via Exhibit C15. He submitted that the termination took immediate effect (paragraph 2, Exhibit C15), that the 1st Defendant offered one month's salary in lieu of 30 days' notice upon final clearance (paragraph 3, Exhibit C15), that the Claimant completed clearance (Exhibit C17) but refused the cheque assuming a higher entitlement, and that Exhibit C18 shows the Claimant erroneously believed he was entitled to monetized value of 137 leave days valued at N7,109,588.98. He submitted that the Claimant's claim is founded on paragraphs 30-33 of the Statement of Facts, that the Defendants denied same at paragraphs 26 and 27 of the Statement of Defence (in pari materia with paragraphs 22 and 23 of the DW's deposition), and that these averments are undenied and uncontroverted as the Claimant has no Reply and are deemed admitted.  Counsel submitted that relief 2 is the principal declaratory relief while reliefs 1 and 3 are ancillary, so that reliefs 1 and 3 can only be granted if relief 2 is granted. On relief 2, he submitted that the question is whether the termination via Exhibit C15 is contrary to the terms of employment, illegal, null and void, and answered in the negative. He submitted that paragraph 13 of Exhibit C1 stipulates 30 days' notice ordinarily and 60 days where employment is confirmed, but that the Claimant never pleaded that his employment was confirmed, never pleaded entitlement to more than one month's notice or salary in lieu, so that the required notice was 30 days and not 60 as counsel implied when asking DW to read the last sentence of paragraph 13 under cross-examination. He submitted the Claimant never challenged the contents of Exhibit C15, and that at paragraph (c) of Exhibit C18 the Claimant specifically requested payment of one month's salary in lieu of notice, constituting an unassailable admission that he is entitled to no more than 30 days' notice, and that he should not be allowed to approbate and reprobate, relying on Folksynthesis Ltd v. Gapuma (UK) Ltd (2017) 8 NWLR (Pt. 1566) 150 at 165 C-D, Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638, and Eweje v. O.M. Oil Ind. Ltd (2021) 4 NWLR (Pt. 1765) 117 at 138 F-G. He submitted that where notice cannot be given the terminating party must make payment in lieu, which the 1st Defendant did, that the termination did not breach the terms, and that it is not illegal, null or void because the concept of unlawful termination applies only to employments with statutory flavour, relying on Ezekwere v. Golden Guinea Brew. Ltd [2000] 8 NWLR (Pt. 670) 648 at 658-659. He submitted the Claimant's employment was governed by a simple contract, not statute, and that reliefs 1 and 3, being ancillary, must fail with relief 2, relying on Atunka & Anor v. Aboki & Anor (2016) LPELR-41199 (CA) and University of Ilorin Teaching Hospital v. Abegunde (2015) 3 NWLR (Pt. 1447) 421 at 456 D-G on the maxim accessorium sequitur principale.

8.   On the special damages’ reliefs (reliefs 4-11), Counsel submitted that special damages must be specifically pleaded with particulars and strictly proved by credible evidence showing how the sum was calculated, relying on Onyiorah v. Onyiorah (2019) 15 NWLR 227 at 240 C-D and 247 D-E, Savannah Bank of Nigeria v. Motor Parts Installation Enterprises (2004) 6 NWLR (Pt.868) 146 at 161.  On reliefs 4 and 5 (transportation costs of N17,550,000 and N61,875,000), Counsel submitted the claim is founded on paragraphs 14-17 of the Statement of Facts and denied at paragraphs 10-12 of the Statement of Defence. He submitted that the total N79,425,000 claimed over two periods (11 months 26 days and 45 months 5 days, totalling about 57 months) works out to N1,393,421.05 per month, exceeding the Claimant's entire monthly salary of N1,250,000 (derived from the N15,000,000 per annum in paragraph 2 of Exhibit C1, confirmed by the Claimant under cross-examination). He submitted the Claimant testified under cross-examination that his residence and office were both within Eti-Osa Local Government Area, making such expense improbable.  On relief 6 (accommodation expenses in Ghana), Counsel submitted the claim fails because the Claimant neither pleaded nor proved what accommodation a purported expatriate is entitled to, and pointed to discrepancies: paragraph 24.3 (USD15,000 from June 2012), paragraph 37(c) (USD15,000 from April 24 2012), and paragraph 39.6 (USD15,500 in figures but "Sixteen Thousand United States Dollars" in words). He submitted the pleadings are contradictory, uncertain and ambiguous.  On relief 7 (transport and cost-of-living expenses of USD33,635), Counsel submitted that both parties concur a vehicle was provided in Ghana, so the transportation cost sought has nothing to do with the daily commute in Ghana, and is also distinct from the 31 monthly trips (N4,650,000) in paragraph 24.2 evidenced by Exhibit C23. He submitted the transport cost is vague and unascertainable, and that "cost of living" is nebulous, not particularised as to items or costs, and urged refusal of relief 7.  On relief 8 (monetized value of accrued leave), Counsel submitted the claim of N7,109,588.98 for 173 alleged leave days accruing between June 2011 and August 2018 suffers a mismatch of N370,000 between figures and words, and an impossible accrual period extending almost two years after termination. He submitted paragraph 9 of Exhibit C1 provides 22 working days' yearly vacation but no provision for payment in lieu of leave, and that Exhibit C14 shows the Claimant applied for annual leave only once (18/3/2013 - 28/3/13), the rest of the entries being casual leave sometimes granted or refused, so Exhibit C14 does not prove any annual leave application was refused. On the subpoenaed witness (Olabanji Fakeyede), Counsel submitted the witness admitted under cross-examination that he tendered no document showing his own annual leave was refused, that none of the Claimant's exhibits show refusal of the Claimant's annual leave, that his termination letter was not before the Court, and that the credit alert supposedly showing payment of his monetized leave was not before the Court. He submitted the failure to produce these documents invokes adverse inference under Section 167(d) of the Evidence Act 2023, relying on Jallco Ltd v. Owoniboys Technical Services Ltd (1995) 4 NWLR (Pt.391) 534, Muhamud v. Yu 2016 BCSC 1138, and Andrews v. Mainster 2014 BCSC 541.  On relief 9 (outstanding salaries of N25,208,333.33 from 1 January 2017 to 5 September 2018), Counsel submitted it is ancillary to reliefs 1, 2 and 3 and must fail with them. 

9.  On relief 10 (5% and 20% salary adjustments pursuant to Exhibit C12), Counsel submitted the relief is founded on Exhibit C12 (the 2nd Defendant's memo dated 19 June 2015 to "all staff") announcing a 5% review for staff employed on or before 31 March 2014 and performance-based adjustments of 5% to 20%. He submitted that to be entitled to the 5% the Claimant had to prove he was the 2nd Defendant's staff and was employed by the 2nd Defendant on or before 31 March 2014, both of which fail because Exhibit C1 shows he was employed by the 1st Defendant. On the 20%, he submitted the Claimant would have had to perform well at the appraisal exercise, that although he pleaded he would rely on his 2014 performance review he never tendered it though available, warranting adverse inference under Section 167(d). On relief 11 (order for account of further amounts), Counsel submitted the relief is too wide, vague and unspecific, the particulars of the further amounts not being pleaded or proved, and that a court will not make an order in vacuo or an unenforceable order, relying on Unijos v. Ikegwuoha (2013) 9 NWLR (Pt. 1360) 478 at 498 C-H.   On relief 12 (exemplary damages of N15,000,000), Counsel submitted that exemplary damages are not recoverable in an action for breach of contract, relying on Allied Bank of Nigeria Ltd v. Akubueze (1997) 6 NWLR (Pt.509) 374 at 406 and 411 (per Iguh J.S.C. and Ogwuegbu J.S.C.), Addis v. Gramophone Co. (1909) A.C 488, Rookes v. Barnard (1964) A.C 1129, and Perera v. Vandiyar (1953) 1 W.L.R. 672.  On relief 13 (pre-judgment interest at 21% per annum), Counsel submitted the accrual period and commencement date are vague and uncertain, that pre-judgment interest is only granted where a contractual obligation, business usage or statutory provision is proven and must be strictly pleaded and proved, relying on Nigerian Sugar Company Limited v. Mojec International Ltd (2005) All FWLR (Pt. 262) 475 at 495-6, International Trust Bank Plc v. Kautal Hairu Co. Ltd (2006) All FWLR (Pt. 292) 116, and NITEL Trustees Ltd & Anor v. Syndicated Investment Holdings Ltd (2014) LPELR-22950 (CA). He submitted the Claimant neither pleaded facts nor how he fixed the rate at 21%, and that relief 13, being ancillary to reliefs 4-11, must fail with them.  On relief 14 (costs including solicitors' expenses of N15,000,000), Counsel submitted that costs are discretionary and to be exercised judicially and judiciously upon material facts, that costs are in the nature of special damages requiring particular pleading and strict proof, relying on Hadejia Jama'are River Basin Development Authority v. Chimande (Nig) Ltd (2016) LPELR-40202 (CA) at 22 D-F (citing Akinbobola v. Plisson Fisco Nigeria Ltd (1991) 1 NWLR (Pt.167) 270 and Layinka v. Makinde (2002) 5-6 SCNJ 77). 

SUBMISSIONS ON BEHALF OF THE CLAIMANT

10.  The Claimant raised the following four issues for determination:

1.       Whether the employment of the Claimant has been lawfully terminated in accordance with the contract of employment?

2.     If the answer to Issue 1 is in the affirmative, whether the Claimant is or is not entitled to the reliefs being sought against the Defendants herein?

3.      Whether the Witness Statement on Oath of the DW is admissible when the DW lied under oath and presented himself as staff of the 1st Defendant when he was not and his evidence consisted of hearsay evidence?

4.     Whether in the absence or presence of evidence in support of the facts contained in the Reply to statement of Defence, the facts in the Statement of Defence filed by the Defendants who withheld evidence are deemed admitted?

 

11.  On Issue 1: Whether the employment of the Claimant has been lawfully terminated in accordance with the contract of employment, Learned Counsel to the Claimant submitted that it is the contract of employment which governs the rights of an employee, and that the onus is on the Claimant, where he challenges the termination, to show that the termination is contrary to the terms of employment, relying on UBA Plc v. Oranuba (2013) 37 WRN CA 90, Katto v. CBN (1999) LPELR 1677 (SC), Amodu v. Amode (1990) 5 NWLR Part 150 356, Iwuchukwu v. Nwizu (1994) 7 NWLR Part 357 379 at 412, Bilante International Ltd v. NDIC (2011) LPELR-781SC, and Obajimi v. Adediji (2007) All FWLR Part 394 at 335.  Counsel submitted that the test for determining whether an employment is determined in accordance with its terms is to compare the terms in the letter of employment (Exhibit C1) with the termination letter (Exhibit C15). He relied on Clause 13 of Exhibit C1, which provides that during probation either party may terminate on 30 days' notice, but after confirmation of employment, either party may terminate on sixty (60) days' written notice. Counsel submitted that these provisions are clear and admit no ambiguity, and thus the Court should adopt a literal interpretation.  Counsel submitted that although the Defendants contended the Claimant's employment was never confirmed, the Defendants cannot seriously so contend. He submitted that Clause 12 of Exhibit C1 put the probation period at twelve months, that there is no clause mandating that confirmation be done expressly, and that the Claimant's employment was confirmed by conduct. He relied on Section 169 of the Evidence Act on estoppel, and on Chukwuma v. Ifeloye (2008) 18 NWLR (Pt. 118) 204 at 237 on estoppel by conduct or estoppel in pais.

12.  Counsel submitted that the Claimant, employed by letter dated 27th May 2011, worked for the Defendants for several years after the 12-month probation period, that the employment was terminated on 10th January 2017 (as admitted by the Defendants in paragraph 26 of the Statement of Defence), and that the Claimant thereby spent more than four years extra after the expiration of the probation period. He submitted that the Defendants admitted in paragraph 22 of the Statement of Defence that the Claimant was a "satisfactory staff," and that the Defendants did not plead that the probation period was extended. He submitted that the law in such circumstances is that the employment was confirmed by conduct, relying on O.A.U v. Onabanjo (1991) 5 NWLR (Pt.193) 549 at 590, where a respondent kept only four months after a three-year probationary period was held to have had his employment confirmed by conduct, and on Raji v. OAU (2014) 2 CLRN 129, where an appellant kept eleven months after a three-year probation was likewise held confirmed. Counsel submitted that since the Claimant was kept for more than four years after the 12-month probation, confirmation is implied by operation of law, and urged the Court to so hold.  Counsel submitted that having established confirmation, the Claimant was entitled to 60 days' notice, but that the Defendants' letter (Exhibit C15) terminated the employment "with immediate effect" per paragraph 2 thereof. He submitted that the alleged offer of one month's salary in lieu of notice is not contained in any part of Exhibit C1. Counsel submitted that whether the employment was on probation or confirmed, the purported termination with immediate effect, without provision for payment in lieu of notice in Exhibit C1, is unlawful, illegal, void and of no effect, relying on U.T.C Plc v. Peters (2022) 18 NWLR (Pt. 1862) 297 at 312-313 H-A. He submitted further that the Claimant, having received no money pursuant to Exhibit C15, cannot be said to have accepted the termination, that DW admitted the Defendants make payments only via transfers, and that the failure to make payment in lieu of notice contemporaneously establishes that the termination was wrongful and occasioned damages, relying on Chukwumah v. Shell Petroleum Development Company of Nigeria Limited [1993] 4 NWLR [Pt 289] 512 at 536-537, NNPC v. Idoniboye-Obu [1996] 1 NWLR [Pt 429] 655 at 676, and Nigeria Security Printing and Minting Plc v. Olaleye [2020] LPELR-50409(CA) 15-20.

13.  On Issue 2: Whether the Claimant is entitled to the reliefs being sought; Learned Counsel to the Claimant submitted that both the oral and documentary evidence before the Court proved, on the balance of probability, the Claimant's entitlement to the declaratory reliefs (reliefs 1-3). On reliefs 1-3, he relied on Ecobank (Nig.) Plc v. Monye (2022) 4 NWLR (Pt. 1820) 347 at 365 C-D that declaratory reliefs properly follow from cogent documentary evidence. Counsel submitted that once the Court finds that the termination (Exhibit C15) was not done in accordance with the terms of engagement (Exhibit C1), it will declare the 1st Defendant's letter contrary to the terms of employment, illegal, null and void.  He submitted that the consequence is that the Court will declare the employment subsists and that the Claimant is entitled to all outstanding allowances and salaries until date.  Counsel submitted that once the main relief (2) succeeds, the consequential reliefs (1 and 3) tied to it also succeed, relying on Atunka v. Aboki (2016) LPELR-41199 CA and University of Ilorin Teaching Hospital v. Abegunde (2015) 3 NWLR (Pt. 1447) 421 at 456 D-G.  On reliefs 4 and 5 (cost of alternative transportation for failure to provide an official car), Counsel submitted that paragraphs 14 and 15 of the Statement of Facts clearly pleaded that the official car agreed in Exhibit C1, in addition to salary, was never given, and that the Defendants admitted in paragraph 10 of the Statement of Defence that the car was not provided in Nigeria. He submitted that the Defendants' claim that transportation allowance was given in place of the car was denied in the Reply and not proved, tendered no evidence, and that DW confirmed under cross-examination that he was not a staff of the 1st Defendant. Counsel submitted that Clause 2 of Exhibit C1 fixed salary at N15,000,000 per annum, that DW1 admitted under cross-examination that the salary in the payslips (Exhibits C22A-C22F and D4) which included transportation allowance was the exact amount stated in Clause 2, and that Clause 3 of Exhibit C1 separately entitled the Claimant to a company car for local transport, fuelled and maintained by the Company. On relief 6 (accommodation expenses in Ghana), Counsel submitted that paragraphs 18-26 of the Statement of Facts pleaded that the Claimant was transferred as an expatriate to Ghana between April 2012 and November 2014, evidenced by Exhibit C2 (internal memo dated 24 April 2012) and Exhibit C9 (memo dated 14 November 2014 withdrawing his services), and that the Claimant spent USD500 per month on accommodation, evidenced by receipts, tenancy agreement and other documents (Exhibits C4, C5, C6 and C7). He submitted that the Defendants did not specifically deny the period in Ghana, provided no alternative period or figure, did not state that they provided accommodation, and did not cross-examine the Claimant on the period or the USD500 figure. He submitted that the alleged discrepancy in the commencement date between June 2012 and April 2012 is immaterial.  On relief 7 (transport and other cost-of-living expenses in Ghana), Counsel submitted this is claimed as the Claimant's additional benefit as an expatriate. He submitted that although the Defendants attempted to deny the Claimant's expatriate status, the fact that the 2nd Defendant obtained a work permit and complied with immigration requirements (Exhibit C21) shows the Claimant worked as an expatriate, a status coming within DW's understanding under cross-examination. He submitted that Exhibit C23 confirms the Claimant spent money monthly to visit his family in Nigeria, that it would be "the height of wickedness" for the Defendants to move the Claimant abroad without thought for his family and deny the transport costs.

14.  On relief 8 (monetized value of accrued leave days), Counsel submitted that paragraph 37(e and f) of the Statement of Facts pleaded the value of the monetized unused leave, that the Defendants did not challenge the figure or the number of days, and did not cross-examine the Claimant on same. He submitted that Exhibits C13 and C14A-C establish entitlement to the cash equivalent of unused leave days.  On relief 9 (outstanding salaries), Counsel submitted that once the Court finds the Claimant's employment subsists, it is obliged to grant the outstanding salary sought in paragraph 39.9, the monthly salary not being disputed.  On relief 10 (5% and 20% salary review pursuant to Exhibit C12), Counsel submitted that paragraphs 28 and 29 of the Statement of Facts pleaded the facts, and that Exhibit C12 is the 2nd Defendant's memo dated 19 June 2015. He submitted that the conditions the Defendants stated at paragraph 4.64 of their address (that the Claimant must be a staff of the 2nd Defendant employed on or before 31 March 2014) are not the conditions in the memo, which provided "a general flat Review of 5% of each staff's salary for all staff who joined the company before or by 31st March, 2014." He submitted that Exhibit C12 was signed by Mr. Adewale Sangowawa, Executive Director of both Defendants, who also signed Exhibit C1.  On reliefs 11, 12 and 13, Counsel submitted that the 2nd Defendant is in the best position to know all further amounts due (relief 11), so the relief is not vague. On exemplary damages (relief 12), he submitted that the Rules of the Court permit such awards and that Sections 14 and 19 of the Act of the Court give the Court the right to make such an award, contesting the Defendants' contention that the relief was framed in contract and inadmissible as no longer the correct position of the law. He set out grounds warranting exemplary damages: that the 1st Defendant was deliberately used as an instrument to employ the Claimant and third parties to deny rights (as admitted by DW under cross-examination); that the Defendants callously failed to provide a motor vehicle in Nigeria and lied about their undertaking; that they rejected the Claimant's leave applications, allowed accumulation of 137 leave days (Exhibits C14A-C14C), granted only casual and emergency medical leave deducted from entitlement (Exhibit C8), and refused payment; that they refused the 5% and 20% increments in Exhibit C12; that they transferred him to Ghana without prior discussion, underpaid him as an expatriate, provided no accommodation and no family-visit arrangement; that they disengaged him without reason and lied about providing a cheque; and that the contract restrained trade for one year. He relied on NICN/LA/90/2014 Mr. Abdul-Hakeem A. Olasewere v. Airtel Networks Limited (per Peters J.), Sahara Energy Resources Limited v. Mrs. Olawumi Oyebola (2020) LPELR-51806(CA), Power Holding Company of Nigeria (PHCN) Plc & Anor v. Atlas Projects Limited (2017) LPELR-43622(CA), First Inland Bank v. Craft 2000 Limited & Anor (2011) LPELR-4167(CA), and Odogu v. Att. Gen. of the Federation (1996) 6 NWLR (Pt. 456) 508. On interest (relief 13), he submitted that Order 47 Rule 7 of the Rules of the Court empowers the Court to award interest in appropriate circumstances and urged the Court to take cognizance of the devaluation of the naira and the strain caused to the Claimant.  On relief 14 (costs), Counsel submitted that Order 55 of the Rules of the Court makes elaborate provision for costs, that the Claimant tendered Exhibit C24 (the solicitor payment advice), and that costs follow the event so that a successful party is entitled to costs, relying on Yakubu v. Min., Housing & Environment, Bauchi State (2021) 12 NWLR (Pt. 1791) 465 at 485 B-E.

15.  On Issue 3: Whether the Witness Statement on Oath of the DW is admissible where the DW lied under oath and presented hearsay evidence.  Learned Counsel to the Claimant submitted that evidence of a former staff on a transaction he did not partake in is inadmissible hearsay, relying on B.S (Nig) Ltd v. Ometraco Intl Ltd (2011) 10 NWLR (Pt. 1255) 290 at 307 C-D. He submitted that DW, never a staff of the 1st Defendant, could not partake in the relevant transactions and his evidence is totally hearsay and inadmissible.  He submitted the Court is not expected to perform surgical operations separating hearsay from non-hearsay, and should discountenance the entire evidence of DW as contaminated, relying on Gundiri v. Nyako (2014) 2 NWLR (Pt. 1391) 211 at 243-244 D-B, 246-247 G-B. He submitted that having falsely presented himself as a staff of the 1st Defendant, DW's evidence should be expunged as false, and that the Defendants' pleadings would then be unsupported by admissible evidence and deemed abandoned and struck out, relying on Joseph Ifeta v. Shell Petroleum Company of Nigeria Limited (2006) 4 SCNJ 111.

16.  On Issue 4: Whether the facts in the Statement of Defence filed by the Defendants who withheld evidence are deemed admitted, in the absence or presence of evidence in support of the Reply.  Learned Counsel to the Claimant repeated his argument on Issue 1 and submitted that facts are not always deemed admitted whenever there is no contrary fact from the other side; whether a fact is deemed admitted depends on the nature of the facts and the entire pleadings. He submitted that a party bearing the primary burden of proving a pleaded fact who fails to prove it cannot rely on the absence of a contrary fact to escape that burden, and pointed to the Defendants' own authority Duggoronmo v. Gotom (2002) 4 NWLR (Pt. 757) 453 at 476 B-E, cited at paragraph 4.5 of their address, that a declaratory relief is not granted even on admission.  Counsel submitted that facts in pleadings are not proved only by depositions directly filed with such pleadings, and that unlike Order 30 Rule 2(1), Order 30 Rule 2(3) does not require a Written Statement on Oath to accompany a Reply, providing only that a Claimant shall file a reply within fourteen days. He submitted that Order 30 Rule 6(1) (relied on by the Defendants) is inapplicable against the Claimant because the filing of the Reply renders it useless, and that Rule 6(1) does not provide that a Reply without a specific deposition amounts to admission. He submitted that a party who calls no witness may rely solely on evidence elicited under cross-examination to prove pleaded facts, relying on Rajco Int'l Ltd v. Cavalier Motels Restaurants Ltd (2016) LPELR-40082 (CA) (cited by the Defendants at paragraph 3.4) and Akomolafe v. Guardian Press Ltd (2010) 3 NWLR (Pt.1181) 338 at 351 F-H, provided such cross-examination evidence is on facts pleaded by the party concerned. He submitted that the Claimant supported his pleadings with the adoption of his original and further Written Statements on Oath, the evidence of the subpoenaed witness, evidence elicited during cross-examination, and the documentary exhibits, so that there is abundant evidence in support of the Reply. He submitted finally that even assuming no evidence supported the Reply, the Defendants who bore the onus to prove their pleaded facts but withheld evidence cannot claim their facts are deemed admitted.

DEFENDANTS’REPLY ON POINTS OF LAW

17.  In their Reply Address on Points of Law, the Defendants formulated the following further issues arising from the Claimant's Final Written Address:

1.       Whether the arguments and submissions contained at paragraphs 4.8 – 4.25 of the Claimant's Final Written Address do not go to no issue in view of the fact that the Claimant never pleaded anywhere that his employment was confirmed whether expressly or by conduct.

2.     Whether the Claimant's claim for special damages can be granted based on the Defendants' purported non-denial thereof.

3.      Whether the DW misrepresented himself as a staff of the 1st Defendant and/or presented hearsay evidence.

4.     Whether the Defendant can be said to have withheld evidence of the cheque for the Claimant's Salary in lieu of notice whose existence was never denied by the Claimant in his pleading.

18.  On the first reply issue (whether the arguments at paragraphs 4.8-4.25 of the Claimant's address on confirmation by conduct go to no issue), Counsel submitted that the Claimant never pleaded anywhere that his employment was confirmed, whether expressly or by conduct, and never offered testimony in his depositions alleging confirmation. He submitted that to demonstrate entitlement to 60 days' notice reserved for confirmed staff, the Claimant ought to have pleaded confirmation (or "constructive confirmation") and offered testimony, to give the Defendants opportunity to join issues, relying on Akinterinwa & Anor v. Oladunjoye (2000) LPELR-358(SC) and Aremu v. Adetoro (2007) LPELR-546(SC) that parties are bound by their pleadings and matters raised in address outside pleadings go to no issue. On the second reply issue (whether the special damages claim can be granted based on non-denial), Counsel submitted that declaratory reliefs and special damages must succeed on their own merit and are not granted merely because untraversed or admitted. He submitted the Claimant, rather than directing the Court to particulars in his pleading, wrongly asserted the Defendants did not deny his claims. He submitted that even assuming no denials, a claim for special damages must succeed on its own strength and not on admission.  On the third reply issue (whether the DW misrepresented himself as a staff of the 1st Defendant or presented hearsay), Counsel submitted the Claimant's allegation is a monumental misrepresentation of the DW's testimony. He set out paragraphs 1, 2 and 4 of the DW's deposition, in which the DW described himself as "an Acting Human Resources Manager within the Human Resources department overseeing the 1st Defendant's staff who are seconded to the 2nd Defendant" with "the corporate authority of the Defendants," and the DW's cross-examination statement, "My employer is Global Manpower Limited. I was employed on 16/2/2009 on secondment to Globacom Limited." He submitted that a community reading shows the DW was employed by Global Manpower Limited and seconded to the 2nd Defendant, that staff of the 1st Defendant are also seconded to the 2nd Defendant (including the Claimant), that the DW oversees such seconded personnel and is conversant with the Claimant's records, and that the DW never described any Defendant as his employer. He submitted the DW is a competent witness notwithstanding that he is not an employee of either Defendant, relying on Cross River State Newspapers Corporation v. Oni [1995] 1 NWLR 270 at 293 C-E that a party need not testify personally to prove his case. On the fourth reply issue (whether the Defendants withheld evidence of the cheque for salary in lieu of notice), Counsel submitted that nowhere in his pleading did the Claimant deny that the cheque was issued or that he refused to collect it, so the Claimant is deemed to have admitted the Defendants' account, relieving them of the burden of tendering the cheque, admitted facts needing no further proof.

COURT’S DECISION

19.   Having considered the issues formulated by both parties, I find the following five issues apt for determination in this suit:

1.       Whether the Claimant's Reply to the Statement of Defence is competent (and if not, its consequences), and whether the Witness Statement on Oath and testimony of the Defendants' witness are admissible and to be acted upon?

2.     Whether, in the context of this case, the 1st and 2nd Defendants are employers or co-employers of the Claimant?

3.      Whether the Claimant was still under probation at the time of his termination?

4.     Whether the employment of the Claimant has been lawfully terminated in accordance with the contract of employment?

5.     Whether the Claimant has demonstrated that he is entitled to the reliefs he seeks from this Honourable Court?

20.   The first issue for determination is whether the Claimant's Reply to the Statement of Defence is competent and, if not, what consequences follow, and whether the Witness Statement on Oath and testimony of the Defendants' witness are admissible and to be acted upon. The Defendants urge that the Reply filed on 28th January 2019 was not accompanied by any witness statement on oath, that the Claimant led no evidence in support of its averments, and that it is therefore abandoned, so that the averments in the Statement of Defence stand uncontroverted and are deemed admitted. They rely on the principle that pleadings unsupported by evidence go to no issue, invoking Rajco Int'l Ltd v. Le Cavalier Motels & Restaurants Ltd & Ors (2016) LPELR-40082(CA) and Aregbesola v. Oyinlola (2011) 9 NWLR (Pt. 1253) 548, and on Order 30 Rule 6(1) of the Rules of this Court. The principle they invoke is unassailable in the abstract. Averments in pleadings do not prove themselves, for pleadings cannot speak. But the argument mistakes the office of a Reply and the manner in which pleaded facts may be established.

21.  A Reply is not an originating process. Its function is to answer new matter raised in the Statement of Defence, and where it does no more than join issue with the Defence and reiterate the Claimant's denial, it introduces no fresh fact requiring separate proof. The averments the Claimant seeks to establish were already before the Court in the Statement of Facts and the two witness statements on oath the Claimant adopted at trial, namely his Statement on Oath dated 11th September 2018 and his Further Witness Statement on Oath dated 4th January 2019.   A litigant may establish his pleaded facts not only through depositions but also through documentary exhibits and evidence elicited under cross-examination, as the very authority the Defendants cite, Rajco Int'l Ltd (supra), recognises. The Claimant here did not rest on a bare Reply. He testified, adopted two depositions, called a subpoenaed witness, tendered Exhibits C1 to C25, and cross-examined the Defendants' witness. The material facts joined in the Reply — that the termination was not in accordance with the contract, that the Defendants' method of payment was by transfer, that the Claimant was in truth treated as the 2nd Defendant's staff — are all borne out by evidence properly before the Court. The Reply is therefore not an empty shell, and the averments of the Statement of Defence are not, on that account, deemed admitted.

22.  The Defendants seek to convert the alleged silence of the Claimant into an admission that entitles them to the defeat of the Claimant's declaratory reliefs. But declaratory reliefs are never granted on admission or default of pleading. The Defendants themselves cited Duggoronno v. Gotom (2002) 4 NWLR (Pt. 757) 453 for this very proposition. A Claimant seeking a declaration must succeed on the strength of his own case; and correspondingly, a Defendant resisting one cannot win merely by pointing to an untraversed averment. The deemed-admission argument, even if it were sound on the facts, could not carry the Defendants home on the central declaratory questions. I hold that the Reply is competent, that it is supported by evidence, and that the averments of the Statement of Defence are not deemed admitted.

23.  On the competence of the Defendants' witness; the Claimant contends that the sole witness (DW) presented himself in his deposition as a staff of the 1st Defendant, that this was false, and that his entire testimony, being tainted by falsehood and hearsay, must be expunged. The DW deposed at paragraphs 1, 2 and 4 that he was "an Acting Human Resources Manager within the Human Resources department overseeing the 1st Defendant's staff who are seconded to the 2nd Defendant" and that he had "the corporate authority of the Defendants to depose to the facts in this statement." Under cross-examination he stated; "My employer is Global Manpower Limited. I was employed on 16/2/2009 on secondment to Globacom Limited."  The Claimant presses this as a lie sufficient to destroy the whole testimony. I do not accept that characterisation in its full width. A community reading of the deposition and the cross-examination shows that the DW never actually claimed the 1st Defendant as his employer. He described himself as overseeing the 1st Defendant's seconded staff, which is consistent with his being employed by a manpower company and deployed within the Globacom structure. A witness need not be a personal party to a transaction, nor an employee of the litigant, to give competent evidence, as Cross River State Newspapers Corporation v. Oni [1995] 1 NWLR (Pt. 371) 270 confirms. To that extent I reject the submission that the whole of the DW's evidence must be struck out as false or that the Defendants' Defence collapses for want of any admissible support.  However, it must be noted that competence is different from weight. 

24.  The second issue for determination is whether, in the context of this case, the 1st and 2nd Defendants are employers or co-employers of the Claimant?  The contention of the Claimant is that, though his employment letter was issued by the 1st Defendant, he was actually employed by and for all the Defendants.  He invites the Court to disregard the letter of appointment issued by the 1st Defendant as he worked for the 2nd Defendant at all material times of his employment.  On the other hand, the Defendants rely on the letter of appointment (exhibit C1) issued by the 1st Defendant to insist that they were not privy to the Claimant’s employment, and hence not his employers.  The Defendants argue that the Defendants are separate legal entities from the other. The 1st Defendant is the Claimant’s employer and to that extent the 2nd Defendant is not privy to the contract of employment entered into between the Claimant and the 1st Defendant.  The 2nd Defendant states that the 1st Defendant only seconds some of its employees to the 2nd Defendant pursuant to the agreement that exists between both Defendants in that regard. 

 

18.  Though it is trite that there must be privity of contract before a Court can enforce the terms of a contract against or in favour of any party.  A contract of employment as defined by section 91 of the Labour Act 2004, means any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker.  This definition of ‘contract of employment’ by the Labour Act clearly shows that a contract of employment is not only created by the presentation of a letter of employment, but can be oral, or implied.  The implication of this definition is that it is the facts that determines when a person is in a contract of employment or not, and not only the presentation of a contract document. There is no evidence that shows a recruiter agreement between the 1st and 2nd Defendants.  Claimant gave evidence:

 

a.                  That the Defendants are one and the same entity controlled by Otunba Mike Adenuga;

 

b.                 That he was interviewed personally by Otunba Mike Adenuga and he never attended any interview with any person purporting to be a staff of the 2nd Defendant;

 

c.                  That his letter of employment was signed by Mr. Jide Sangowawa who is an Executive Director with the 2nd Defendant as Executive Director of the 1st Defendant even though he is not a Director of the 1st Defendant.

 

d.                 That the 1st Defendant is merely a front/alter ego of the 2nd Defendant and the Owners and it is not authorised by its articles and memorandum to engage in any business such as recruitment and secondment of staff;

 

e.                  That majority of the staff of the 2nd Defendant including the Claimant carry employment letters of the 1st Defendant without having any interaction of any sort with the 1st Defendant;

 

f.                   That the letter of employment of the Claimant show what in reality the purpose of the 1st Defendant is: a front to enable the 1st Defendant deny its responsibility to staffs of the Defendants as is being sought to be done in this matter;

 

g.                  That the 2nd Defendant is a privy to the Contract of employment of the Claimant in that the Claimant was interviewed by Otunba Mike Adenuga Chairman of the Defendants and the letter of employment was executed by the Executive Director of the 2nd Defendant Mr. Jide Sangowawa.

 

19.  The above evidence is not controverted.  In fact, DW during cross examination admitted that Mr. Sangowawa who signed exhibit C1 is a Director in the 2nd Defendant.  Exhibit C22 shows that the Claimant was paid by the 2nd Defendant and by exhibit C22B, the Claimant had the staff number of the 2nd Defendant.  The Claimant was subject to transfer by the 2nd Defendant without reference to the 1st Defendant.  I see the creation of an ambiguous contract of employment relationship.  The 2nd Defendant issued internal memos concerning Claimant’s deployment and return from Ghana, and the 2nd Defendant's memo dated 19 June 2015 (Exhibit C12) announced salary reviews for "all staff."  These could not have been made to the Claimant if he was not a staff of the 2nd Defendant.  From the facts, I agree with the Claimant’s submission that he has a legitimate and vested right for his claims against the two Defendants.  In ambiguous contract of employment relationships such as convoluted in this case, and as laid down by international labour jurisprudence, this Court applies the primacy of facts in determining privity of contract.  This is as laid down in the ILO Report titled: The Scope of the Employment Relationship; ILO Office: Geneva, 2003 at page 24 and 25).  This principle has been applied by this Court in many cases.  See for instance the case of PENGASSAN v. Mobil Producing Unlimited Suit No. NIC/LA/47/2010 delivered on 21st March, 2012 by B.B Kanyip and O.A. Obaseki-Osaghae J.J, and Stephen Ayogu & 16 Ors v Mobil Producing Nigeria Unlimited & Anor Suit No.NIC/LA/38/2010 Ruling delivered on 13th December 2012.  The principle of primacy of facts in my view, is also consistent with the definition of contract of employment in section 91 of the Labour Act which recognised “agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker”.  The implication of this definition (and principle) is that it is the facts that determines when a person is in a contract of employment or not, and not only the presentation of a contract document. 

20.  Having had the benefit of considering the facts of this case, and applying the primacy of facts in this case, I do not find that there was any form of outsourcing relationship created by the 1st Defendant, to the benefit of the 2nd Defendant.  In outsourced employments, the outsourcing company continues to be in charge of the salary and other benefits of the employee.  The employee always wears the badge of the recruiting company.  Not so in this case as the exhibits show.    The 2nd Defendant sought to introduce the existence of an arrangement with 1st Defendant and projected the 1st Defendant as its recruiter, yet the Defendants failed to tender in evidence, any recruiting agreement or anywhere that the 2nd Defendant refunded the funds the 1st Defendant expended on its behalf.  All these lend further credence to the claimant's submission that the defendants are effectively the same.  I find that the, in the least, the Defendants are co-employers of the Claimant.

 

21.  Issue three - Whether the Claimant was still under probation at the time of his termination.  This issue is central to the validity of the termination. The Claimant argues that his employment was confirmed by conduct because he worked for more than four years after the 12-month probation period expired. The Defendants contend that the Claimant never pleaded confirmation and that he remained on probation.  Exhibit C1, the letter of appointment, provides in Clause 12 that the probation period is 12 months, and in Clause 13 that during probation either party may terminate on 30 days' notice, but after confirmation either party may terminate on 60 days' written notice.  The Defendants are correct that the Claimant did not expressly plead confirmation in his Statement of Facts. However, the facts pleaded show that he was employed on 1 June 2011, that his appointment was confirmed on 3 February 2009 (as shown in Exhibit C2, the confirmation letter), and that he continued in employment until 10 January 2017. The confirmation letter itself is evidence of express confirmation.  Even without the confirmation letter, the law is settled that where an employee continues to work beyond the probationary period without any extension being communicated, the employment is deemed confirmed by conduct. See O.A.U. v. Onabanjo (1991) 5 NWLR (Pt. 193) 549 and Raji v. O.A.U. (2014) 2 CLRN 129.  The Claimant worked from June 2011 to January 2017, a period of over five and a half years. The 12-month probation period expired in May 2012. There is no evidence that the probation was extended. By operation of law; the Claimant's employment was confirmed.  Claimant’s employment is deemed to have been confirmed when the Defendant did not do away with Claimant’s employment for unsatisfactory performance.  See the cases of Obafemi Awolowo University v. Onabanjo [1991] 5 NWLR (Pt. 193) 549 CA, Tunde Ajani v. Zone 4 Energy Limited & 2 ors unreported Suit No. NICN/LA/216/2016, the judgment of which was delivered on 24th May 2017, Pharmacist Jehoiakim Idih v. Swiss Garnier Limited & anor unreported Suit No. NICN/LA/524/2012, the judgment of which was delivered on 10th July 2017 and Mr Jerry Okoh v. Waterwell Services Ltd unreported Suit No. NICN/LA/490/2014, the judgment of which was delivered on 30th October 2018.  Engineer Ignatius Ugwoke v. Aeromaritime (Nigeria) Limited unreported Suit No. NICN/LA/482/2013, the judgment of which was delivered on 30th November 2016 and  Mr Ifechukwude Adigwe v. FBN Mortgages Limited unreported Suit No. NICN/LA/526/2016, the judgment of which was delivered on 9th July 2019.  In Adedeji Oladele Julius v. Lagos State Universal Basic Education Board & 3 Ors Suit No: NICN/LA/397/2017 judgment delivered on 18th May 2021 I held on this issue of confirmation that:

 

In the case of Iwuji v. Federal Commissioner for Establishment 1985 1 NSCC 580 it was held that “where an employee on probation has spent the required probationary period without termination or confirmation, the issue of confirmation of the employee is implied”.  The principle of ‘deemed confirmation’, enunciated in the case of RAJI v. OAU (2014) LPELR-22088(CA) will apply to this case.  See also the cases of Obafemi Awolowo University v. Dr. Kola Onabanjo (1991) 5 NWLR (Pt.193) 549.  In Raji v. OAU (supra), the Court held that:

 

However, the principle of "deemed confirmation of appointment" which was applied by the Court of Appeal in the OAU v. Onabanjo's case (Supra) is as good now as it was then.

 

22.  Issue four - Whether the employment of the Claimant has been lawfully terminated in accordance with the contract of employment. This is the pivot of the whole case, and it turns on the construction and application of Exhibit C1, the letter of employment, and Exhibit C15, the letter of termination.  The rights of an employee in a contract of employment without statutory flavour are governed by the terms of that contract, and where an employee challenges his termination, the onus lies on him to establish the terms and to show that the termination was effected in breach of them. The test is a comparison of the letter of employment with the letter of termination. Clause 13 of Exhibit C1 provides that "During the period of probation, either party may terminate the contract of employment upon 30 days notice to the other... After the confirmation of employment, either party may exercise the right to terminate this agreement sixty (60) days written notice to the other." Clause 12 fixed the probation period at twelve months. Exhibit C15, by its paragraph 2, terminated the employment "with immediate effect."  Everything therefore depends on whether the Claimant's employment had been confirmed, for if it had, the applicable notice was sixty days, and a termination with immediate effect unaccompanied by a valid payment in lieu would be in breach of the contract.

23.  I have already found that the Claimant’s employment had been confirmed by conduct.  The Defendants had argued that the Claimant never pleaded confirmation, whether express or by conduct, and cannot raise it for the first time in his final address, so that the argument goes to no issue on the authority of Akinterinwa v. Oladunjoye (2000) LPELR-358(SC). I do not agree with this contention.  The rule that parties are bound by their pleadings prohibits a litigant from springing a new fact not pleaded. It does not prohibit a court from drawing a legal inference from facts already pleaded and admitted. The Claimant pleaded, and the Defendants admitted, the date of employment in 2011, the twelve-month probation fixed by Clause 12, and continuous service until the termination on 10th January 2017. He pleaded at paragraph 31 of the Statement of Facts that "the purported termination of his employment was unlawful not having been made in accordance with the terms and conditions of his engagement." Confirmation by conduct is not a fresh fact requiring separate averment; it is a legal characterisation of the admitted primary facts — of continuous service far beyond the probationary period. To say that an employee retained for more than four years after a twelve-month probation stands confirmed by operation of law is to reason from pleaded facts, not to introduce unpleaded ones. The Defendants argument that the Claimant himself, in Exhibit C18, requested only one month's salary in lieu of notice, and did not challenge the one-month figure in Exhibit C15, so that he is estopped and cannot approbate and reprobate, relying on Folksynthesis Ltd v. Gapuma (UK) Ltd (2017) 8 NWLR (Pt. 1566) 150. I have considered this. It cannot succeed. The notice period is fixed by the written contract, and in considering whether the contract had been breached or not, it is the content of the documents that guides the Court.  Where Clause 13 fixes sixty days for a confirmed employee, that stipulation governs, and neither Exhibit C15 nor Exhibit C18 may be deployed as extrinsic material to cut down the written provision. The Claimant's error in Exhibit C18 does not amend his contract.

24.  The Defendants stated that they terminated in lieu of notice, by issuing a cheque for one month's salary in lieu which was rejected.   Exhibit C15 promised that "your salary up to date will be credited to your account once you are issued a final clearance." The Claimant obtained his final clearance, Exhibit C17, but no transfer was shown to have been made.  The plea of an effective payment in lieu is therefore not made out. In any event, a payment of one month's salary could not discharge an obligation to give sixty days' notice to a confirmed employee.  It follows that the termination effected by Exhibit C15 "with immediate effect," unaccompanied by the sixty days' notice due or by any proven effective payment in lieu of that notice, was not in accordance with the contract of employment. I so hold.

25.  However, the Claimant overreaches when he asks that the termination be declared "illegal, null and void" and that his employment be declared subsisting. The Claimant's was a contract of employment governed by ordinary contract, not clothed with statutory flavour. In such a contract, the only question is whether he complied with the agreed procedure. Where he did not, the termination is not void but wrongful; the employment does not subsist.  As the Supreme Court made clear in Chukwumah v. Shell Petroleum Development Company of Nigeria Limited [1993] 4 NWLR (Pt. 289) 512, the remedy of a wrongfully dismissed servant in a master-and-servant relationship is damages and not reinstatement, and the court will not force an unwilling employer to retain an unwanted servant. I therefore find that the termination was wrongful for want of the sixty days' notice or its monetary equivalent, but that it was effective to bring the employment to an end. The employment did not subsist beyond 10th January 2017.

26.  The fifth issue for determination is whether the Claimant has demonstrated his entitlement to the reliefs he seeks. I shall take the reliefs sought seriatim.  Reliefs 1, 2 and 3 are the declaratory reliefs. Relief 2 sought a declaration that Exhibit C15 was contrary to the terms of employment, illegal, null and void. On my finding, the termination was wrongful but not void, and the employment did not subsist. The declaration as framed — that the termination is null and void — cannot be granted, for that would import the consequence of a subsisting employment which the law of master and servant does not permit. To the limited extent that relief 2 asserts that the termination was not effected in accordance with the terms of the contract, that assertion is upheld as a finding of wrongful termination. Relief 1, which seeks a declaration that the employment subsists, is refused, being contrary to my finding that the wrongful termination nonetheless brought the employment to an end. Relief 3, seeking a declaration of entitlement to outstanding allowances and salaries "until date," is likewise refused in the sweeping terms in which it is cast, since no salary accrues after a terminated contract; the Claimant's monetary entitlement is confined to what the specific proven claims support and to damages for the wrongful termination.

27.  Reliefs 4 and 5 concern the failure to provide a company car in Nigeria and the alternative transportation costs of N17,550,000 and N61,875,000. On entitlement, the Claimant is right. Clause 3 of Exhibit C1 plainly promised that "You will be entitled to company car for local transport, to be fuelled and maintained by the Company." The Defendants admitted at paragraph 10 of the Statement of Defence that no car was provided in Nigeria, pleading instead an oral agreement that a transport allowance be paid in lieu. That alleged oral variation is not established. The only witness who spoke to it was the DW, whose evidence on matters within the 1st Defendant's exclusive knowledge I have already found to carry little weight, and the documentary record contradicts it: the payslips, Exhibits C22A to C22F, show the transport allowance embedded in the monthly salary from the first month, and a vehicle was concurrently provided in Ghana while that allowance continued to run. An allowance that formed part of the contractual salary and continued even when a car was provided cannot have been a substitute for the car. The contractual obligation to provide a car in Nigeria was therefore unfulfilled. 

28.  But entitlement is not quantum, and these are claims for special damages. Special damages must be specifically pleaded and strictly proved, and the court cannot be the claimant's calculator. The Claimant pleaded a bare figure of N45,000 per day without particulars of the mode of transport or the constitution of that daily sum. His own admission under cross-examination that "both my residence and my office are within Eti-Osa Local Government Area" renders a daily transport expense of N45,000; which as the Defendants correctly compute, exceeds his entire monthly salary; inherently improbable. Worse, part of relief 5 runs from January 2017 to September 2018, after the termination, a period during which, on his own words, "there is no document to show that I worked. Even if I had gone to work, they would not have let me." A man who did not attend work incurred no commuting expense. The quantified claims in reliefs 4 and 5 are not strictly proved and are contradicted in material part by the Claimant's own admissions. The unchallenged-figure principle cannot rescue a special damage claim that fails strict proof, for special damages are never established by admission or default. Reliefs 4 and 5 are refused as quantified. The breach of the contractual obligation to provide a car is, however, a matter I take into account in the award of general damages for wrongful termination below.

29.  Relief 6 seeks accommodation expenses in Ghana. That the Claimant served in Ghana between April 2012 and November 2014, and that a work permit was procured for him, is not disputed.  But the specific sum is neither certain nor proved. The pleadings themselves contradict one another, stating the figure variously as USD15,000, then USD15,000 from a different start date, and then USD15,500 in figures against "Sixteen Thousand United States Dollars" in words. His documents deepen the confusion: Exhibit C5 records rent paid in Ghana Cedis (GH?26,400), not dollars, with no pleaded or proven exchange rate for conversion; Exhibits C6 and C7 are unsigned in material part and of little evidential value; and Exhibits C5 and C7 appear to cover overlapping periods without explanation. A specialdamages claim so riddled with inconsistency and want of proof cannot stand. Relief 6 is refused.

30.  Relief 7 seeks transport and cost-of-living expenses in Ghana of USD33,635. This fares no better. A vehicle was provided in Ghana, undercutting any separate daily transport element; "cost of living" was left wholly undefined and unparticularised; and the sum is vague and unascertainable. Relief 7 is refused.

31.  Relief 8 seeks the monetized value of accrued leave days, N7,109,588.98. The Claimant relies on Exhibit C12, whose paragraph 5 states that "commutation of accrued leave days before 2015 is being worked on," and on the subpoenaed witness. That evidence cannot bear the weight placed on it. The subpoenaed witness's supporting testimony collapsed under cross-examination, for he admitted he had tendered no document showing his own leave was refused, that none of the Claimant's exhibits show the Claimant's leave was refused, and that neither his termination letter nor the credit alert said to prove payment of his own monetized leave was before the Court. The pleaded accrual period runs to August 2018, well beyond the January 2017 termination. The figure and the words in the relief differ by N370,000. This claim as quantified is not strictly proved and is refused.

32.  Relief 9 seeks outstanding salaries of N25,208,333.33 from 1st January 2017 to 5th September 2018. This relief depends entirely on the employment subsisting after termination. On my finding it did not. A servant cannot claim salary for services not rendered after his contract has been brought to an end, and the Claimant admitted he did not work in that period. Relief 9 is refused.

33.  Relief 10 seeks the 5% and 20% salary review pursuant to Exhibit C12. The Defendants resist on the ground that Exhibit C12 applied only to the 2nd Defendant's staff and that the Claimant, being the 1st Defendant's secondee, did not qualify, and further that the review was never ratified or implemented.  I have held that the Claimant was an employee of the 2nd Defendant too.  Exhibit C12 by its terms extended "a general flat Review of 5% of each staff's salary for all staff who joined the company before or by 31st March, 2014."  The Defendants' own Exhibits D2, D4 and D5 repeatedly describe the Claimant as their "staff" and "employee," his salary being paid from the 2nd Defendant's salary control account, Exhibit D5A instructing a bank to "credit the current accounts of the following staff." The Defendants cannot treat the Claimant as their staff for the purpose of paying his salary and deny him that status for the purpose of Exhibit C12. He joined before 31st March 2014 and remained in service well past that date. He qualified for the 5% general review.   However, the Defendants pleaded that the review was never ratified nor applied.  It was for the Claimant who contends that it was effected to prove that positive assertion either by a board resolution or evidence of implementation.  The 5% flat review is accordingly not established.

34.  The 20% performance element stands differently. It depended on the Claimant's performance appraisal. He pleaded he would rely on his 2014 performance review but never tendered it, though it was within his reach. The 20% element is therefore not established and is refused.

35.  Relief 11 seeks an order for account of further amounts due. The relief is vague, unspecific, and unparticularised; a court does not make orders in vacuo or grant open-ended enquiries where the claimant has not identified what is owed. Relief 11 is refused.

36.  Relief 12 seeks exemplary damages of N15,000,000.  The reliefs sought in this suit having substantially failed, there is no basis for exemplary damages.  Relief 13 seeks pre-judgment interest at 21% per annum. Pre-judgment interest as of right must rest on a contractual stipulation, business usage, or statutory provision, and must be specifically pleaded and proved. The Claimant pleaded no basis for the rate of 21% and proved none. Relief 13 is refused.  Relief 14 seeks costs including solicitors' expenses of N15,000,000. Solicitors' fees claimed as a head of special damages must be strictly pleaded and proved, and to permit a losing party to be saddled with the winner's solicitor's fees as of course is not the law. The particular sum of N15,000,000 is not proved to that standard and is refused.

37.  There remains the consequence of my finding that the termination was wrongful. Though the Claimant framed his principal remedy as a declaration that the employment subsists — which cannot be granted — the wrong of terminating a confirmed employee without the sixty days' notice due, or its monetary equivalent, entitles him to damages. In a contract of master and servant, those damages are measured by the salary and quantifiable benefits the employee would have earned during the period of notice wrongfully denied him, which here is sixty days. On the salary fixed by Clause 2 of Exhibit C1 at N15,000,000 per annum, the salary for sixty days is N2,500,000, and to this I add another N2,500,000 for the wrongfulness of the termination; totalling N5,000,000.00.  In IDSL v. Evbuomwan & Ors 2026 LPELR-83713 (SC) @15-16 paras C-G the Supreme Court Per Emmanuel Akomaye Agim, JSC, reasoned that where an employer terminates employment outside the terms of the contract, the employer cannot thereafter hide under the same contract to restrict damages merely to salary in lieu of notice. Once the breach transcends the contractual procedure, damages cease to be mechanically limited to notice pay alone. The Defendants shall pay to the Claimant the sum of N5,000,000 as general damages for wrongful termination, representing the sixty days' notice wrongfully denied together with the associated damages for the wrongful conduct.  The Claimant having substantially succeeded on liability though failing on the bulk of the monetary claims, costs of this action are assessed at N1,000,000 in favour of the Claimant against the Defendants.  The adjudged sums are to be paid not later than 30 days from this date of judgment; failure interest shall accrue at the rate of 20% per annum.

Judgment is entered accordingly.

 

…………………………………….

Hon. Justice (Prof.) Elizabeth A. Oji