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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP:                           HON JUSTICE M. N. ESOWE

 

DATE: JULY 16, 2024                                            SUIT NO.: NICN/LA/182/2019

 

BETWEEN

MR OLAWALE NATHANIEL ADEWUNMI                               CLAIMANT

AND

ATLAS COPCO NIGERIA LIMITED                                              DEFENDANT

 

REPRESENTATION

C. I. Nwaigwe, Esq for the Claimant

Patrick Etim, Esq for the Defendant

 

JUDGMENT

1.  INTRODUCTION

2.  The Defendant engaged the services of the Claimant as an Order processor sometimes on 12.01.2017. While in the employment of the Defendant, the Claimant temporarily served as acting Logistics Manager, when the substantive Logistics Manager was deployed temporarily to EPIROC Sweden. The Claimant alleges that sometimes on 06.02.2019 following his resumption to duty from a 17days leave, the Defendant’s Country Manager in the presence of some other officials of the Defendant coerced him to resign his appointment with the Defendant, or risk outright termination of his employment. The Defendant vehemently denies this allegation insisting rather that its officials invited the Claimant and notified him of the intention to terminate his appointment but the Defendant opted for resignation instead urging the Court to dismiss the Claimant’s claims.

 

3.  The Claimant seeks against the Defendant the following as per his General Form of Complaint and Statement of Facts:

 

a)     AN ORDER to the Defendant to pay compensation to the Claimant in the sum of One Hundred and Two Million, Four Hundred and Thirty-seven Thousand, Two Hundred and Eighty Naira (N102,437,280.00) being the sum of the Claimant’s annual gross salary as at 1st January, 2018 and the Claimant’s annual variable compensation for 2018 (which is 16% of the Claimant’s annual gross salary as at 1st January 2018) multiplied over a period of 22years, pursuant to the Defendant’s letter to the Claimant dated 06.06.2018 and the Defendant’s standard operating procedure for resources management

PARTICULARS

a.     Claimant annual gross salary as at 01.01.2018:

N334,500 × 12 = N4,014,000.00

b.     Claimant’s annual variable compensation for 2018:

0.16 × N4,014,000.00 = N642,240.00

c.      The sum of the Claimant’s annual gross salary and the Claimant’s annual variable compensation multiplied over a period of 22years:

N4,014,000.00 + N642,240 × 22 = N102,437,280.00

 

b)    The sum of N100,000,000.00 (One Hundred Million Naira) being exemplary damages for unlawful termination of Claimant’s employment by the Defendant.

 

c)     Cost of this action in the sum of N1,000,000.00 (One Million Naira).

 

4.  TRIAL

5.  At trial, the Claimant testified as CW1, he adopted his written deposition as his evidence in chief, through him thirteen (13) documents were tendered in evidence, admitted and marked as exhibits C1 to C13 respectively. CW1 was then cross-examined after which the Claimant closed his case. On behalf of the Defendant, one Mr Emmanuel Elehinle, a supply chain manager at the Defendant, testified as DW1, he adopted his written deposition as his evidence before the Court, through him three (3) documents were tendered in evidence admitted and marked as exhibits D1 to D3 respectively. DW1 was cross-examined, the Defendant closed its defence thereafter. The matter was then adjourned to enable parties file and exchange their respective final written addresses to be adopted at the adjourned date.

 

6.  CLAIMANT’S FINAL WRITTEN ADDRESS

7.  The Claimant in his final written address formulated these issues for determination, to wit:

 

a)     Whether the Claimant’s contract of employment incorporated the Defendant’s standard operating procedure for resources management.

b)    Whether the Claimant’s employment was wrong fully terminated by the Defendant when the Defendant coerced the Claimant to write a letter of resignation from the employment of the Defendant dated 06.02.2019.

c)     Whether the Claimant is entitled to compensation for wrongful termination of his employment by the Defendant in terms of the heads of claims in the General Form of Complaint.

 

8.  Arguing issue one, Learned Claimant’s Counsel stated that CW1’s contract of employment fully incorporated the Defendant’s Standard Operating Procedure for Resources Management (exhibit C12), which is a form of collective agreement that regulates the relationship between the Defendant and its employees. That a number of the provisions of the Claimant’s offer of employment letter and exhibit C12 are in tandem meaning the latter is incorporated into the contract of service. That a collective agreement standing alone is not binding on an individual employee and employer unless such a collective agreement is incorporated into the contract of service – UBN Plc v Soares (2012) 11 NWLR (Pt. 1312) 550.

 

9.  On issue two, Counsel submitted that the Claimant contract of employment was wrongfully terminated as he was coerced to write his resignation letter. That in an action for wrongful dismissal, the burden is on the Claimant to prove the terms and conditions of his employment and in what manner they were breached by the employer – UBA Plc v Oranubi (2014) 2 NWLR (Pt. 1390) 1. The Defendant did not adduce evidence to support its pleadings on allegation of incompetence of CW1 which gave rise to its intention to terminate CW1’s employment. That the facts before the Court point to a constructive dismissal of the Claimant. That the Defendant did not follow its policy for discontinuation of employment set out at pages 25 and 26 of exhibit C12. Counsel further stated that forceful resignation amounts to unlawful wrongful dismissal.

 

10.  The Claimant’s Counsel arguing issue three contended that the Claimant is entitled to compensation for wrongful dismissal under the head claimed. That the Claimant’s claim for the sum of N102,437,280.00 is in the class of special damages which by law is required to be specifically pleaded and strictly proven – Agbu v CSC of Nasarawa State (2011) 2 NLLR (Pt. 71) 239. That this Court can enforce international labour best practices beyond the precincts of common law. That the management of the Defendant’s conduct relative to the termination of CW1’s employment smacks discrimination, cruelty, harassment and reckless disregard to the terms and condition of employment. That this Court by virtue of Section 254C(1)(f) and (h) of the 1999 Nigerian Constitution (as amended) and Section 19 of the National Industrial Court Act can award exemplary damages against the Defendant. That the Claimant is entitled to award of costs to mitigate the expenses incurred in the conduct of litigation in this suit – Maya v Oshutokun (2001) 11 NWLR (Pt. 723) 62.

 

11.  DEFENDANT’S FINAL WRITTEN ADDRESS

12.  The Defence in its final written address formulated a sole issue for determination, viz: whether the Claimant is entitled to any of the reliefs claimed. Arguing the said issue, Learned Defence Counsel submitted that prove of the Claimant’s claims rests squarely on the Claimant – Section 133(1) and (2) of the Evidence Act. That the Claimant has not led any evidence on how he arrived at the sum constituting his relief one, particularly the 22years he used in calculating the said sum. That CW1 did not lead evidence to show his annual gross salary as an order processor or provide any evidence of his entitlement to variable compensation as an order processor. That variable compensation applies only to management staff of the Defendant, which CW1 was not one, that CW1 was only paid variable compensation in his capacity as acting logistics manager. The Claimant has not led evidence with respect to his claims to warrant the shifting of the burden of proof on the Defendant.

 

13.  That the issue of unlawful termination of employment does not arise, as it is in evidence that the Claimant voluntarily resigned his employment. That resignation becomes effective when the notice is received – Yusuf v Governor of Edo State (2001) 12 NWLR (Pt. 731). That the Claimant did not adduce evidence to support his allegation of resignation under duress, or workplace discrimination and harassment. Counsel submitted further that a collective agreement is only binding on parties where it is expressly or by necessary implication incorporated or embedded in the contract of service – Olusanya v UBA Plc (2017) LPELR-42348(CA), Gbedu v Itie (2020) 3 NWLR (Pt. 1710) 104 at 129. That the fact that certain provisions of the standard operating procedure which is a form of collective agreement are similar to the conditions in the employment contract does not mean the former was incorporated. That there is no basis for the award of cost. Counsel urged the Court to resolve the issue formulated in favour of the Defendant and dismissed the claim of the Claimant.

 

14.  CLAIMANT’S REPLY ON POINTS OF LAW

15.  Reacting to the submissions made by the Learned Defence Counsel, the Claimant’s Counsel contended that the calculation of 22years envisages the years CW1 was willing to put in, in the Defendant’s service. That a Court has inherent powers to look at documents in its file whilst writing its judgment or ruling despite the fact that the document was not tendered and admitted as exhibit at trial – Akintola v The Vice Chancellor of Unilorin (2004) 11 NWLR (Pt. 885) 616. That contrary to Defence Counsel’ stance, the Claimant was paid variable compensation when his employment was terminated on 06.02.2019, meaning that its payment is not for members of management only. The case authorities cited and relied upon by the Defence Counsel are not on all fours with the facts of the Claimant’s suit. That parties are bound by their pleadings, Defence Counsel made reference to facts that do not form part of the records of the Court or pleadings of parties, they should be discountenanced. That the Defendant’s standard operating procedure (exhibit C12) was incorporated into the Claimant’s employment contract as evinced by exhibit D3 that shows CW1 was paid transport allowance in line with the provision of exhibit C12.

 

 

16.  RESOLUTION

17.  Having regards to the facts and circumstances of this suit as reflected in the processes filed by the parties herein, the evidence adduced and the submissions of the Learned Counsel on either sides, the Court distils the issue below for determination, namely:

 

18.  Has the Claimant discharged the burden of proof as required by law to entitle him to the reliefs sought.

 

19.  As rightly noted by Learned Counsel, the burden of proof lies on the parties seeking judgment to prove the existence of the facts which he alleges to give rise to such judgment – Sections 131, 134 of the Evidence Act (as amended). In civil cases, this burden is discharged on the balance of probabilities. See Nyanganjii v Asha (2016) LPELR-43011(CA), Obanla v A. A. Group (Nig.) Ltd (2022) LPELR-57899(CA). Learned Claimant’s Counsel has argued copiously that exhibit C12 – the Defendant’s human resource management document, titled “standard operating procedure for resource management Atlas Copco Nigeria Ltd” is binding on the Defendant and essentially forms part of the documents the Court is to construe in determining the rights and obligations of parties in relation to the Claimant’s contract of employment with the Defendant. Learned Defence Counsel on his part contends that exhibit C12 is a draft policy, it is not binding on the parties and was not expressly or indirectly incorporated into the contract of employment being in the form of a collective agreement.

 

20.  In Toyinbo v UBN Plc (2022) LPELR-58596(SC), it was held inter alia “Instructively, the term ‘Collective Agreement’ denotes a contract between multiple parties, most especially where one side consists of many people or entities with a common interest, e.g. where an association or organization acts on behalf of the members thereof. See Black’s Law Dictionary, 11th edition 2019 at 330. In my considered view, a ‘Collective Agreement’ is an anti-climax of a ‘collective bargaining’. Invariably, ‘a collective bargaining’ denotes series of negotiations between an employer and the representatives of organized employees, to determine the conditions of employment, e.g. wages, hours, fringe benefits, discipline et al…” See also Globerstar Engr. Co. Ltd v Omatseye & Ors (2008) LPELR-4203(CA), Section 47(1) of the Trade Disputes Act, Section 54(1) of the National Industrial Court Act 2006. The introductory page of exhibit C12 clearly states that the document is a resources management document; impliedly setting out procedure for resources management. The last outlined purpose of the document is stated as “have one document compiling all related human resource topics.”

 

21.  Exhibit C12 when read in totality and interpreted along that line gives the impression that it is an employees’ handbook or a policy document setting out certain conditions of service for employees of the Defendant. Though there is no specific reference to exhibit C12 in the Claimant’s letter of appointment (contract of service), one can gather from the contents of exhibit C12 that the policies and procedures contained therein were meant to guide the Claimant’s conduct at work like the work hours, fringe benefits and disciplinary or grievance procedures. As rightly pointed out by the Learned Claimant’s Counsel the fact that the disclaimer clause unequivocally stated that the procedure has been approved by the General Manager (earlier noted within the same document as the “Approver”) to me clearly overrides the portion stating the status of the documents as a draft. As an employees’ handbook, it cannot be a substitute for the letter of appointment – Luck Guard Ltd v Adariku & Ors (2022) LPELR-59331(CA).

 

22.  In the instant case, there is no evidence that exhibit C12 was birthed from negotiations between the employer and employee’s union, a cardinal characteristic of collective agreement. An employees’ handbook usually take the form of a “quasi-contract” that goes into specific details as to workplace policies and expectations, employees’ rights and benefits, company values, guidelines for use of company properties, discipline and or grievance management procedures, and is deemed binding on the parties. An employees’ handbook sets forth the terms and conditions of employment between one employer and many employees, employees use it to understand their rights and responsibilities, as well as learn of the resources available to them; employers on the other hand use the handbook to enforce policies and company values, expectations. The employee’s handbook bears similarities with a collective agreement but in its truest sense is not a collective bargaining agreement, where not a product of collective bargaining. Where the contents of an employee’s handbook serves as an informational guide, it is generally not legally binding. But where there is no disclaimer to that effect, certain policies in the handbook could be considered binding if they are implied as contractual promises.

 

23.  Furthermore, the contents of an employee’s handbook are subject to update, change or modification, usually unilaterally effected by the employer when the need arises due to shift in company policies or corporate culture or in compliance with new laws and regulations. A comprehensive review of exhibit C12 shows that as an employee handbook, it merely provided information intended to be a resource for all employees to understand the general working environment and expectation within the Defendant, stating broadly certain of the employees’ rights and obligations. References by the Learned Claimant’s Counsel to its applicability in relation to the Claimant by the management of the Defendant, to my mind, was simply as a guide or yardstick to assess how fairly and consistent the management of the Defendant enforced its provisions. For instance, exhibit C12 under its provisions on discontinuance of employment empowers the General Manager to waive-off the length of notice period for an employee who resigns without giving adequate notice. CW1’s resignation was with immediate effect, so it is presumed that the General Manager of the Defendant enforced this provision thus guarantying CW1 was paid.

 

24.  It is for these reasons, this Court is inclined to hold the Defendant’s standard operating procedure document as an employee handbook containing certain contractual promises that may be binding on either parties. I so hold. Having resolved this issue, the next issue to my mind that calls for resolution is, was the Claimant’s appointment terminated unduly or by duress or did the Claimant resigned voluntarily from his appointment? The Claimant alleges that on 06.02.2019 upon his resumption from a 17days’ leave, he was called to the office of the Defendant’s country manager, in the presence of his line manager (DW1) and some other persons, and was given two options to resign his employment or face termination of his employment for incompetence. That given the pressure exacted on him, he had to resign his appointment with the Defendant. The Defendant on its part maintains that CW1 was invited to the meeting and informed of the options of facing termination of his appointment or voluntarily resigning his appointment, and the Claimant chose the latter. Suggesting that CW1 was not compelled against his will or judgment to put in his resignation letter (exhibit D1). According to Black’s Law Dictionary, Deluxe 9th edition at p. 579, duress is “broadly, a threat of harm made to compel a person to do something against his or her will or judgment; especially, a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition…”

 

25.  The onus of proof lies on the Claimant who alleges forceful resignation, resignation instigated by duress, threats of termination of his employment on grounds of incompetence to adduce credible and cogent evidence in prove of his assertion. As the law remains he who asserts must prove. Both parties appear not to be in dispute that the Claimant was employed by the Defendant that the Claimant worked for the Defendant as an order processor, then later served as an acting logistic manager for the Defendant, when his line manager was seconded to Sweden for a year. Both parties, also appear not to disagree that on 06.02.2019, there was a meeting that had in attendance, CW1, DW1, the Defendant’s human resource manager and country manager, and it was following the interactions or discussions in that meeting that CW1 proceeded to write exhibit D1 (his letter of resignation). It is settled law that facts admitted need no further proof – Section 123 of the Evidence Act (as amended).

 

26.  The Defendant’s stance however is that at the said meeting of 06.02.2019, it presented CW1 with its intention of terminating his employment but the Claimant elected to voluntarily resign, fearing that termination is given a stigmatized interpretation by members of the society. This in itself is an outlandish statement subtly admitting that the Defendant exacted its power through its officials present at the meeting of 06.02.2019 to influence the Claimant’s free will or objective judgment. Having that large number of management staff in the meeting of 06.02.2019 hints a show of dominance or power capable of depriving any reasonable person of free will, since CW1 was under the domination of these people by virtue of the various management positions they occupy in the Defendant’s company. While one may argue that the presentation of the options to resign or face termination gave the Claimant a choice and decision of what option to take ultimately lied with the Claimant, it is important to note that presentation of options is not necessarily proof of the absence of coercion to exercise one’s free will to produce a particular result.

 

27.  In other words, the facts of the instant case, shows that the goal or objective of the Defendant was to discontinue the Claimant’s employment. It presented this decision or intention to the Claimant availing him the option of electing to exercise his right to bring the employment to an end by resigning or allowing the Defendant, as employer, to exercise its right to terminate his employment. To hold, as the Learned Defence Counsel appears to be impliedly arguing that, the Claimant had a right to wait to see if the Defendant would carry out its threat of terminating his employment on grounds of incompetence before alleging forceful resignation seems to me to be downplaying the fact that requiring the Claimant to reach a decision on the discontinuation of his employment on 06.02.2019, the Defendant invariably compelled or coerced the Claimant into agreeing to terminate his employment on 06.02.2019.

 

28.  Ordinarily, the Claimant might not have resigned his appointment without the communication he had with members of the management of the Defendant, conversely, the Defendant could have exercised its right to terminate CW1’s appointment on 06.02.2019 without giving him prior knowledge of such intention. The conduct of an employer, in this case, the Defendant, insisting of getting a decision to the options placed before the Claimant on the modality of terminating his employment, clearly indicates a situation of constructive discharge. The Claimant’s decision had to be made that day or the Defendant would wield its powers to carry out its intention of bringing the employment to an end on 06.02.2019.

 

29.  It follows that the onus is on the Claimant to prove that the communication of the intention to terminate his employment, coerced him or compelled him to resign, having been unfairly persuaded that it was the best option for him at the moment. As it stands there is no direct evidence before the Court that CW1 was at the said meeting of 06.02.2019 required to write and type his resignation letter there and then at the meeting. This means CW1 had some time though limited to reflect on the interactions or discussions that emanated from the meeting before putting pen to paper by typing and submitting his letter of resignation. While the full picture of the interactions that took place on 06.02.2019 has been withheld from the Court, exhibits C8 and C9 (emails from the Claimant to the Defendant’s Senior Vice President and General Counsel) which the Court has taken judicial notice of its contents, gives snippets of the conversation as regards the alleged CW1 incompetence, in that mentioned was made of an issue with customs that occurred while CW1 was acting logistic manager which according to CW1 was later resolved. The Claimant’s Counsel has argued that it was the duty of the Defendant to adduce evidence of this alleged incompetence, since the Claimant had adduced evidence that he was never issued a query or warning prior to submission of his letter of resignation.

 

30.  The law however, is that the Claimant must succeed on the strength of his case and not the weakness of the defence. While it is the law that in civil cases the burden of proof oscillates, for the burden to shift to the Defendant, the Claimant must first discharge his burden of proof. The Claimant has to the satisfaction of the Court shown that in the course of his employment he was made acting logistic manager for a year, a managerial role, his salary was increased and he was never issued a query or warning, all evidence that lends credence to good behavior or rewards of a competent employee. This ordinarily shifts the burden of proof on the Defendant to prove its allegation of incompetence against the Defendant. The Claimant has alleged that he was constructively dismissed and his employment wrongfully terminated by the Defendant. That he was forced to resign and the guidelines or policy for discontinuation of employment set out in exhibit C12 was not complied with by the Defendant.

 

31.  Constructive dismissal refers to a situation where an employee quits or ceases to work because continued employment is rendered impossible, unreasonable or unlikely when there is a demotion in rank or a diminution of pay and other benefits. It exists if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment. That is, constructive dismissal is more of an involuntary resignation due to harsh, hostile and unfavourable conditions set by the employer. See Western Excavating v Sharp (1978) 1 All ER 713. Forced resignation, which can be subsumed as constructive discharge, on its part is when an employee quits his or her position as a result of pressure from managers, supervisors or members of a board. Unlike traditional resignation, where an employee volunteers to give up his or her employment, forced resignation is involuntary. In the instant case, though the evidence before the Court, particularly, the contents of exhibits C5 and D1 respectively – the letter of resignation written by CW1, do not state the circumstances giving rise to the resignation, inference from surrounding circumstances building up to the Claimant’s resignation strongly suggests or point to the fact that it was involuntary.

 

32.  Section 167 of the Evidence Act (as amended) permits the Court to presume the existence of any fact which it deems likely to have happened having regards to the common course of natural events, human conduct and public and private business. Having a number of one’s superiors, supervisors, and managers in a private office informing an employee of the intention to terminate the employee’s appointment with an option presented to the employee on how he or she wants it carried out, in the natural course of human conduct leaves such employee with slim alternatives. In the instant case, the Claimant was clearly left to consider the consequences of resigning versus termination in relation to the impact on his career goals and current lifestyle, opting for the former, his decision as required by his managers had to be made on 06.02.2019 and not subsequently.

 

33.  The contents of exhibits C5 and D1 reveal that the Claimant’s resignation was to be effective from 28.02.2019, his evidence in chief points to the fact that he was asked to handover the company’s properties in his custody on 06.02.2019, and required to leave the premises of the company on the said date. This piece of evidence was corroborated at paragraphs 7 and 9(vi) of the Defendant’s witness statement on oath, where DW1 alluded that the Defendant accepted CW1’s resignation and asked him to surrender company properties, it also exercised its right to pay him rather than require him to work till the effective date of the resignation. On the basis of this, I find and hold that the resignation of the Claimant was involuntary, as a result of pressure from managers, supervisors amounting to a case of constructive discharge. See CBN v Aribo (2018) 4 NWLR (Pt. 1608) 130 at 172, C – E.

 

34.  Now, the Claimant seeks the sum of One Hundred and Two Million, Four Hundred and Thirty-seven Thousand, Two Hundred and Eighty Naira (N102,437,280.00) being the sum of the Claimant’s annual gross salary as at 1st January, 2018 and the Claimant’s annual variable compensation for 2018 (which is 16% of the Claimant’s annual gross salary as at 1st January 2018) multiplied over a period of 22years, pursuant to the Defendant’s letter to the Claimant dated 06.06.2018 and the Defendant’s standard operating procedure for resources management as compensation. Learned Claimant’s Counsel contended in his written address that the Claimant is entitled to compensation for wrongful termination of his contract of employment by the Defendant in terms of the heads of claims contained in his Statement of Facts. The Learned Defence Counsel on his part submits that the Claimant has not placed before the Court the yardstick or basis for basing his claim of compensation for 22years. The Claimant argues that 22years as stated in the particulars of claim represents the numbers of years he would have put into the service of the Defendant but for the unlawful termination of his employment.

 

35.  This in itself is clearly speculative, and Courts do not deal with or dwell on claims based on speculations. See Ikenta Best (Nig.) Ltd v A.G., Rivers State (2008) LPELR-1476(SC) where it was held that “speculation has no place in our Courts…” While one prays for long life and success of business operations, life happens, in other words, there is no guarantee that the Claimant might live for 22years post his forced resignation or that the business of the Defendant would continue successfully in 22years time. Claimant’s Counsel after having argued that the quantum of damages an employee is entitled to in cases of wrongful termination of employment is what the employee would have earned had the employment continued turned around to argue that applying the principles of international best labour practice permits the Court to award damages in excess of such sum. No doubt, the law, is that the assessment and award of damages is at the discretion of the Court – Sahara Energy Resources Ltd v Oyebola (2020) LCN/15462(CA), but the applicability of international best labour practice is not such that is undertaken arbitrarily or in such a way to stifle business operations of employers.

 

36.  CW1 had unequivocally stated under cross-examination that the payment of variable compensation is based on performance both of the company and the employee and the meeting of soft targets. One then wonders since the Claimant has ceased to be an employee of the Defendant, thus unable to meet or realize any soft targets. The evidence before the Court points to the fact that the Claimant’s appointment with the Defendant came to an end on 06.02.2019, prior to this CW1 went on 17days leave, he did not lay before the Court evidence of realization of any soft targets set by the Defendant prior to the determination of his employment, it would therefore be inequitable to seek to employ the machinery of the Court to reap where he has not sown. The calculation of 22years variable compensation is clearly speculative, and has not found in law, as noted earlier. See Addo v State (2020) LPELR-65521(SC) where it was held inter alia “it is trite that the Court does not rely on conjecture or speculation to reach its decision.” See also Awolola v Governor of Ekiti State & Ors (2018) LPELR-46346(SC).

 

37.  The provision on “variable compensation” at page 15 of exhibit C12 lends credence to the Learned Defence Counsel stands that variable compensation is paid to only members of the management of the Defendant. The Claimant’s argument that it was computed in the final emoluments paid him by the Defendant is not supported by evidence, and goes to no issue. This Court in its considered view has found from the evidence adduced before it that the determination of the Claimant’s employment with the Defendant was wrongful given the fact that it was initiated by forced resignation, the Claimant was indirectly or unfairly coerced or persuaded to put in his resignation. In Reliance Telecom Ltd v Adegboyega (2017) 8 NWLR (Pt. 1567) 319 at pp. 332-333, F-A, it was held “In an action for termination of appointment, where the Court finds that the termination is wrongful, the proper measure of damages is what the employee would have earned within the period of notice required to properly bring the employment to an end and together with other benefits by way of overtime, rent, subsidy, etc, in accordance with the terms of the contract of employment…” See also Dangote Cement Plc v Ager (2024) 10 NWLR (Pt. 1945) 1, UTC (Nig.) Plc v Peters (2022) 18 NWLR (Pt. 1862) 297 at 319, E-F, Umera v NRC (2022) 10 NWLR (Pt. 1838) 349.

 

38.  A claim for compensation by the Claimant is an acknowledgement of the determination of his employment with the Defendant – Ezekwere v Golden Guinea Brew. Ltd (2000) 8 NWLR (Pt. 670) 648 at pp. 656-657, G-A. The Claimant who claims compensation, in his final written address contends that the compensation is somewhat in the class of special damages. This Court has earlier shown that some of the rationale, yardstick that forms the basis of the calculation for this leg of the Claimant’s claim is speculative, arising from conjectures and thus have no foundation in law. In a case for wrongful termination of employment without statutory flavour, the remedy open to the Claimant is a claim for damages not reinstatement nor compensation to cover remuneration for years had the Claimant remained in the employment of the Defendant. For its wrongful act, an employer who terminates the contract with its employee in a manner not envisaged by the contract will be liable to damages for the breach of contract – Obanye v UBN Plc (2018) 17 NWLR (Pt. 1648) 375.

 

39.  It has been stated above that the Claimant has adduced satisfactory evidence of good behavior and competence in relation to the discharge of his duties while in the Defendant’s employment, having produced evidence to show that he was made acting logistic manager, given a pay raise, paid variable compensation for realization of soft target, all these would normally not be possible without certain degree of competence demonstrated by CW1. It therefore behooved on the Defendant to have produced evidence to the contrary, which its Counsel attempted to do during cross-examination on issues not pleaded. With the evidence before me, this Court is inclined to find and hold that the Claimant should be compensated for the wrongful termination of his employment by forced resignation. Exhibit C1, the letter of appointment states that the length of notice for termination of appointment is one month.

 

40.  Exhibit C4 – letter of Notice of 2018 salary increase dated 06.06.2018 indicates that as at the time the Claimant’s employment was determined on 06.02.2019, he was paid the sum of N334,500.00 (Three Hundred and Thirty-four Thousand, Five Hundred Naira) as monthly salary. It is the law that the Court like parties before it is bound by the claims of the parties before it. It is the considered view of this Court that while the Claimant’s claim simply for compensation by the Claimant might have a basis in law, the claim for compensation in the manner couched or sought by the Claimant is hinged on conjectures, a supposition or assumption that the Claimant would have spent 22years in the Defendant’s employment had his employment not been determined. Making the foundation of the claim faulty, shaky such that it cannot be built upon. In the light of this, the said claim is refused and hereby dismissed. I so hold.

 

41.  The Claimant’s relief two is for the sum of N100million as exemplary damages for unlawful termination of employment. In Nursing & Midwifery Council of Nigeria v Ogu & Anor (2019) LPELR-53899(SC), the Apex Court stated thus “This Court has laid down the guiding principles guiding the award of exemplary damages in the case of Central Bank of Nigeria v Okojie (2015) 14 NWLR (Pt. 1479) 231, (2015) LPELR-24730(SC) thus: ‘Exemplary damages are awarded with the object of punishing the Defendant for his conduct in inflicting injury on the Plaintiff. They can be made in addition to normal compensatory damages and should be made only: (a) in a case of oppressive, arbitrary or unconstitutional acts by government servants; (b) where the Defendant’s conduct had been calculated by him to make a profit for himself, which might well exceed the compensation payable to the Plaintiff; and (c) where expressly authorized by statute’… For exemplary damages to be awarded, it need not be specifically claimed, but facts to justify it must be pleaded and proved. Thus once facts in the pleadings support the award of exemplary damages the Court should award it since the adverse party is in no way taken by surprise. Furthermore, since the Rules of Court nowhere say that exemplary damages must be specifically claimed, it can be granted if facts are pleaded and evidence led to justify it.”

 

42.  See also the decision of the Supreme Court in Aondoakaa v Obot & Anor (2021) LPELR-56605(SC). The Claimant has led evidence to show that his resignation was involuntary, forced by the Defendant, after its officials disclosed an intention to terminate his employment on grounds of incompetence, the Claimant opted for resignation. At the risk of repetition, the Defendant does not deny presenting to the Claimant this intention and reaching a resolution with the Claimant to tender his letter of resignation. The Defendant equally does not deny insisting that the Claimant hand over the company’s properties in his possession on 06.02.2019 and vacate the company’s premises on the said date notwithstanding the fact that the letter of resignation (exhibits C5 and D1 respectively) signified that the resignation should be effective on 28.02.2019. While the Defendant was well within its right to have agreed to pay the Claimant off rather than wait till CW1 expended the length of the notice of resignation, it is clear from the evidence before the Court that the said decision was in keeping with the intention of the Defendant to determine the Claimant’s employment on 06.02.2019.

 

43.  I have earlier found that the Claimant’s resignation was involuntary and amounted to forced resignation, thus wrongful in that it was not in tandem with the contract of employment. The Counsel for the Claimant has used the words “unlawful termination” but it is important to highlight that in the instant case, the mutual agreement, exhibit C1, under consideration is not imposed by statutory law, so a breach of its terms would not necessarily translate to an unlawful act. The violation of the terms and conditions set out exhibits C1 and C12 respectively by the Defendant (employer) may result in a wrongful act or unfair conduct for which the employer will be held liable in damages. But a wrongful act does not automatically translate to an illegal or unlawful or unconstitutional act – Ezekwere v Golden Guinea Brew. Ltd (supra), Aliu Bello & Ors v A. G., Oyo (1986) 5 NWLR (Pt. 45) 828 at 853. Though CW1 alluded that the conduct of DW1 and other officials of the Defendant were malicious, the said allusion is not supported by credible evidence.

 

44.  The conduct of officials of the Defendant in obtaining a forced resignation from the Claimant can be interpreted as oppressive, unreasonably severe. The evidence of CW1 that after he was instructed to handover the company’s properties and leave the Defendant’s premises, he was detained without justification on the instruction of DW1, until DW1 instructed the security to permit CW1 to leave was never controverted by the Defendant. It is therefore such evidence that the Court can act upon in further finding that actions of the Defendant as unreasonably severe or oppressive. Though the law is that the quantum of damages the Claimant as employee is entitled to for the wrongful determination of his employment is the amount he ought to be paid for the notice period, which in this case, is a month’s salary, the law permits the Court to award exemplary damages in addition to normal compensatory damages. It is in the light of this that the Court assess and awards the sum of One Million Naira (N1,000,000.00) as exemplary damages for the wrongful termination of the Claimant’s employment by the Defendant. I so find and I so hold.

 

45.  The last claim is for cost of action put at a Million Naira. It is settled law that while it is true that a successful party should not be denied costs unless for good reasons, a defeated party ought not be damnified in costs for no cause or no flimsy, capricious and unfounded grounds. Costs, are not awarded as punitive measures – UBN Ltd & Anor v Nwaokolo (1995) LPELR-3385(SC), Egypt Air Ltd v Ibrahim & Anor (2021) LPELR-55882(CA). The essence of costs is to compensate the successful party of the loss incurred in the litigation. Costs cannot cure all the financial loss sustained in the litigation. The costs awarded are meant to have some cushioning or palliative effect on the financial burdens of the party in victory – Egypt Air Ltd v Ibrahim & Anor (supra). See also Anazodo v Pazmeck Intertrade (Nig.) Ltd & Anor (2023) LPELR-59879(SC). On these authorities, I set cost in the sum of Three Hundred Thousand Naira (N300,000.00) to be paid by the Defendant. I so hold.

 

46.  In conclusion, the issue for determination is resolved partly in favour of the Claimant, such that except the claims under-listed all other claims of the Claimant fail and are hereby dismissed. The orders of the Court are as follows:

 

a)     The sum of One Million Naira (N1,000,000.00) is awarded as exemplary damages for the wrongful termination of the Claimant’s employment by the Defendant.

 

b)    Cost of litigation in the sum of Three Hundred Thousand Naira (N300,000.00) to be paid by the Defendant to the Claimant.

 

47.  Judgment is accordingly entered.

 

 

Hon. Justice M. N. Esowe, FCIArb

Presiding Judge