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 18, 2024                                           

SUIT NO.: NICN/LA/170/2021

 

BETWEEN

MR OLUSOLA IDOWU BELLO                                           CLAIMANT

 

AND

PACIFIC DIAGNOSTICS LIMITED                                                DEFENDANT

 

REPRESENTATION

Joh Ume-Nsofor, Esq for the Claimant

Onoopemipo Oguntayo, Esq for the Defendant

 

JUDGMENT

1.   INTRODUCTION

2.   The Claimant instituted this action against the Defendant vide a General Form of Complaint accompanied by a Statement of Facts filed on 21.06.2021. The Claimant was employed as Imaging Director by the Defendant via a letter of employment dated 01.11.2019 for a two (2) years Contract with effect from 01.12.2019 to 30.11.2021. The Claimant’s appointment was terminated by the Defendant by a letter dated 15.09.2020. It is the Claimant’s claim that the purported termination of his employment is wrongful as the reason alleged for same; unsatisfactory performance and insubordination are not only untrue but mischievous. That the Defendant terminated the said employment when he the Claimant refused to accept and acknowledge the unilateral decision of the Defendant to cut his May and June, 2020 salary by 40%. After series of emails between the Claimant and Defendant, the Claimant has now approached this Court seeking the following:

 

a)     A DECLARATION that the termination of the Claimant’s contract of employment by the Defendant citing unsatisfactory performance and insubordination as the reasons is wrongful.

b)    A DECLARATION that the unilateral pay cut of the Claimant’s salary by the Defendant is not only a breach of contract, but also an unfair labour practice.

c)     A DECLARATION that the non-remittances of the Claimant’s pensions to his Retirement Savings Account (RSA) is an unfair labour practice and unlawful, being serious violations of the provisions of the Pension Reform Act (2014).

d)    A DECLARATION that the Claimant is entitled to his Personal Income Tax Proof of Remittances to the Lagos State Internal Revenue Service (LIRS) upon demand on the Defendant.

e)     A DECLARATION that the Claimant is entitled to be paid his remaining salaries for May and June 2020.

f)      AN ORDER OF COURT directing the Defendant to immediately pay the Claimant the total sum of N813,169.14 (Eight Hundred and Thirteen Thousand, One Hundred and Sixty-Nine Naira, Fourteen Kobo) being his remaining salary for May and June 2020.

g)     N27,648,000 (Twenty Seven Million, Six Hundred and Forty Eight Thousand Naira) against the Defendant representing two years gross salaries being damages for wrongful termination of employment.  

h)    AN ORDER OF COURT directing the Defendant to pay the Claimant N1,000,000 (One Million Naira only) as damages for failing to remit as at when due the deducted pension for January to September, 2020.

i)      AN ORDER OF COURT directing the Defendant to immediately furnish the Claimant with proof of remittance of his Personal Income Tax to the Lagos State Internal Revenue Service.

j)      N13,824,000 (Thirteen Million, Eight Hundred and Twenty Four  against the Defendant (representing the Claimant 1 year gross salary) being damages for unfair labour practice.

k)    AN ORDER OF COURT compelling the Defendant to pay the Claimant the sums of N300,000.00 and N45,000.00 being the wear and tear including the cost of maintenance of his SUV, and cost of recharge cards used by the Claimant to perform his duties for the Defendant.

l)      N500,000.00 being cost of this suit.

 

3.   The Defendant upon entering appearance filed with leave of Court, its Statement of Defence dated 5th October, 2021 and filed 7th October, 2021. The Defendant contends that the Claimant flaunted the Defendant Company’s policies on several occasions which amounted to gross misconduct and insubordination. That the Claimant was required to achieve maximum satisfactory performance as a pre-requisite for the sustenance of his employment as contained in his letter of employment. That the Claimant’s poor performance was unequivocally communicated to him by the Defendant via email dated 21st July, 2020. The Defendant urged the Court to dismiss the Claimant’s suit. The Claimant thereafter filed a Reply to the Defendant’s Statement of Defence wherein he reaffirms as in his Statement of Fact that his employment was abruptly terminated on 15th September, 2020 as against 30th September, 2020 claimed by the Defendant.

 

4.   TRIAL

5.   Hearing commenced on 30.06.2022 with the Claimant testifying as CW1, he adopted his written depositions as his evidence in chief, through him 15 documents were tendered in evidence, admitted and marked as exhibits C1 – C15 respectively. CW1 was cross-examined by the Counsel to the Defendant, there was no re-examination. Thereafter the Claimant closed his case.

 

6.   The Defendant opened its case on 30.03.2023 with Adetunji Alli, the Finance Manager of the Defendant as DW1. He adopted his written depositions as his evidence in chief. The documents listed by the Defendant as Defendant’s list of documents to be relied upon listed as 1-9 (with the exceptions of the documents referred to as nos. 1 and 3) were serially admitted in evidence and marked Exhibits D1-D7 respectively. Another Exhibit, Sworn Certificate was admitted in evidence and marked Exhibit D8. DW1 was duly cross-examined by the Counsel to the Claimant, there was no re-examination. Thereafter, the matter was adjourned for adoption.

 

7.   DEFENDANT’S FINAL WRITTEN ADDRESS

8.   The Defendant with the leave of Court filed its Final Written Address wherein it formulated 3 (three) issues for determination, to wit:

 

a)     Whether the Defendant can be held liable for wrongful termination of employment.

b)    Whether the act of the Defendant is tantamount to unfair labour practice.

c)     Whether the Defendant can be held liable to be indebted to the Claimant in any way.

 

9.   Learned Defence Counsel contended that the relationship between the Claimant and the Defendant herein was that of a master and servant employment. That the law is settled that there cannot be specific performance of a contract of service, as the master has the power to terminate the contract with his servant at any time and for any reason or for none, but such termination must be in accordance with the contract of employment between both parties. That the onus of proving wrongful termination of employment lies on the party alleging same - Bolou v Federal College of Education, Obudu & Anor (2019) LPELR-47465 (CA). That in the instant case, the Defendant only acted in accordance with the terms of the employment letter dated 1st November, 2019 admitted as Exhibit C1 herein. The Claimant’s employment with the Defendant took effect from 16th December, 2019 and was terminated by letter dated 15th September, 2020 within a 9 months unsatisfactory probation period.

 

10.   That after the initial probation period of 6 months, it was further extended for another 3 months by email of 29th July, 2020 (Exhibit D1) due to the Claimant’s unsatisfactory performance which had been duly communicated to the Claimant via email of 21st July, 2020. The Defendant in a bid to improve on the poor performance of the Claimant during the probationary period informed the Defendant via email of 23rd July, 2020 (Exhibit D4) to prepare the objectives and deliverables for the next 3 months of his probation which would be discussed at a meeting on 27th July, 2020 by 6:00pm - 6:30pm. The Defendant did not perform the required task and neither did he attend the said meeting. That the Claimant was given an avenue to defend the queries levied against him via a Virtual Disciplinary Committee meeting, and not satisfied with the reasons given by the Claimant for his poor performance the Defendant terminated the employment. Counsel further contended that the Claimant has not pleaded facts before this Court stating in what manner the terms of the contract of the employment was breached by the Defendant. That the principle of law is that the employee which is the Claimant in this case is to prove the wrongful termination. He urged the Court to hold that the Claimant has not put before this Court evidence or facts that his terms of employment was breached amounting to a wrongful termination of his employment.

 

11.   On issues two and three whether the act of the Defendant is tantamount to unfair labour practice and whether the Defendant can be held liable to be indebted to the Claimant in any way, Counsel submitted that Nigerian laws do not expressly provide for what unfair labour practices entail, the onus is usually on the Court to decide whether or not any act alleged to have been committed by a Defendant amounts to unfair labour practice -Mix & Blake v NUFBTE (2004) 1 NLLR (Pt.2) 247 where the NICN held that to be unfair, it must be established that the practice does not conform with best practice in labour circles, as may be enjoined by local and international experience. Counsel submits that in this case, the Claimant has not put before this Court any evidence to show the acts of the Defendant that amounts to unfair labour practice. That the Claimant in his pleadings has alleged before this Court that the Defendant unilaterally cut his salary, non-remittance of the Claimant’s pension to his retirement savings account, non-remittance of the Claimant’s personal income tax to the Lagos State Internal Revenue Service (LIRS). That the 40% salary pay cut in May and June, 2020 was as a result of the drastic effect of the Covid-19 pandemic on all businesses and not out of malice for the Claimant, and the Claimant was duly notified by letter dated 28th May, 2020 (Exhibit C3), and the Claimant did not object until his employment was terminated.

 

12.   On non-remittance of the Claimant’s pension to his retirement savings account, non-remittance of the Claimant’s personal income tax to the Lagos State Internal Revenue Service (LIRS), Learned Counsel contended that the Defendant has brought before this Court the LIRS receipts and Pension remittal receipts (Exhibits D6 and D7) showing and proving that all deductions from the Claimant’s salary were duly remitted to the appropriate authorities. Counsel concluded that the Claimant has not adduced credible evidence to entitle him to the reliefs sought in the Statement of Facts, and urged the Court to dismiss all the reliefs with substantial cost.

 

13.   CLAIMANT’S FINAL WRITTEN ADDRESS

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

 

a)     Whether the termination of the Claimant’s employment by the Defendant was wrongful.

 

b)    Whether the unilateral pay cut of the Claimant’s by a third party without the Claimant’s consent is not a breach of contract, and an unfair labour practice.

 

c)     Whether the Claimant has proved his case to be entitled to the reliefs sought.

 

d)    Specific response to the Defendant’s Final Written Address.

 

15.   Learned Claimant’s Counsel on issue one gave particulars of wrongful termination of the Claimant’s employment as follows. He submitted that the Claimant’s contract of employment which took effect on 16th December, 2019 provides for a 6 months’ probation which may be extended by another 3 months. That the 6 months’ probation period ended 16th June, 2020 hence the Claimant’s employment was deemed confirmed on that date. That more than a month after the end of 6 months’ probation, another company called Pyramid Healthcare which is not the employer of the Claimant wrote a letter dated 29th July, 2020 (Exhibit D1) to the Claimant purporting to extend the Claimant’s probation by another 3 months. On 15th September, 2020 the Defendant wrote a letter terminating the Claimant’s employment citing unsatisfactory performance and insubordination as a reason, and offering one month salary payment in lieu of notice. That the Claimant’s contract of employment provides that notice period for termination of employment upon confirmation is 3 months, not one month.

 

16.   That the purported extension of the Claimant’s probationary period is invalid; the Claimant’s employment was deemed confirmed on 16th June, 2020, the purported letter of extension issued to the Claimant was from a third party to the contract of employment, every registered company is a separate legal entity of its own, and that the reasons given in the letter of termination is not substantiated by the Defendant as the Defendant has failed to lead credible evidences to demonstrate how the Claimant’s behavior amounts to insubordination. That the Defendant only made mere averments, and averments of a fact in pleadings no matter how nicely crafted does not equate to evidence – Nsionu v Nsionu (2011) 16 NWLR (Pt. 1274) 536 at 547, E-G. He who asserts must prove, Section 131(1) of the Evidence Act, 2011, therefore the Defendant who claims and terminated the employment of the Claimant on the grounds of insubordination and unsatisfactory performance has a duty to establish those facts. That it is in evidence that the Claimant challenged the reasons given by the Defendant in the letter of termination as seen in letter dated 12th October, 2020 (Exhibit C6). That the law is trite where an employer gives reasons for termination, he has the onus to prove same where the termination is challenged – Institute of Health Abu Hospital Management Board v Anyip (2011) LPELR-1517 (SC).

 

17.   On issue 2, Learned Counsel gave particulars of breach of contract and unfair labour practice as follows. Counsel argues that another company by name Pyramid Health Care Ltd, which is not the employer of the Claimant by letter dated 28th May 2020 (Exhibit C4) effected a 40% pay cut on the Claimant’s May 2020 and June 2020 salaries. The Claimant did not agree with the purported pay cut and he refused to sign or acknowledge the said letter. That the purported pay cut was a unilateral decision of the said third party Pyramid Health Care Ltd without any prior salary variation agreement with the Claimant. That the Defendant also admitted in its pleadings that 40% pay cut was a unilateral decision of an executive team which the Claimant was not part of. That this is not only a breach of contract but also a grave unfair labour practice – Adebusola Omole v Mainstreet Microfinance Bank Ltd. [Unreported Suit No NICN/LA/342/2012 (available at NICN website)]. That both the Nigerian and English Courts have held that the unilateral variation of terms of contract of employment, such as unilateral pay cut also amounted to constructive dismissal. He referred the Court to the case of Western Excavating (ECC) Ltd. v Sharp (1978) 1 All ER 713.

 

18.   According to the learned Counsel, an unfair labour practice has been defined to mean practices that do not conform to best practices in labour circles as may be enjoined by local and international experience. See Mix & Bake v NUFBTE (2004) 1 NLLR (Pt.49) p. 69. That the Defendant’s argument that the Claimant’s contract of employment allows the Defendant to vary the terms of contract of the Claimant without his consent is misconceived and erroneous. Counsel recommended to the Court Section 5(1) of the Labour Act which prohibits deductions from an employee’s salary without his consent and the case of Adebsola Adedayo Omole v Mainstreet Micro Finance Bank Ltd. (supra) where this Court held that unilateral deduction of employee’s salary without the employee’s consent is a violation of Section 5(1) of the Labour Act, and the ILO Convention No.95 (Protection of Wages Convention 1947).

 

19.   On issue 3, learned Claimant Counsel stated that the Claimant has proved his case to be entitled to the reliefs sought. That the Defendant has failed to provide evidence that substantiate the Claimant’s unsatisfactory performance or alleged insubordination before the Court. That the termination of the Claimant’s employment by the Defendant giving one month salary instead of three months salaries renders the termination wrongful. Counsel contends that in line with the above principle, the Claimant has placed before this Court the contract of employment between the parties and has also stated how same was breached by the Defendant. Counsel submits that the non-remittance of the Claimant’s pensions to his Retirement Savings Account (RSA) as and when due is unlawful and also an unlawful labour practice. That the Defendant only remitted after the Claimant’s Counsel wrote to the Defendant demanding for same in Exhibit C7. Counsel then urged the Court to grant the Claimant’s reliefs.

 

20.   Learned Defence Counsel filed a Reply to the Claimant’s Final Written Address reiterating the stand of the Defendant that the extension of the Claimant’s probationary period was valid, same having been issued by the Defendant’s parent company. That confirmation of employment must be express and specific, and in the absence of such, the mere fact that the notice of extension of probation was issued a month after the probation expired does not make it inoperative. That the termination of the Claimant’s employment giving one month notice period is valid as the Claimant’s employment was never confirmed. Counsel referred the Court to the case of Ihezukwu v University of Jos & Ors (1990) LPELR-1461 (SC) where it was held that an unconfirmed employee does not enjoy the permanence of employment which a confirmed employee enjoys. In response to the issue of insubordination as raised by the Claimant, the Defence Counsel argued that the Claimant under cross-examination admitted not attending several meetings despite being called to attend same and neither did he put cogent evidence before the Court to state that he duly informed his employer the reason for his absence.

 

21.   That the disobedience of an employer’s lawful order by an employee is an act of misconduct which may justifiably attract the penalty of summary dismissal, termination or compulsory retirement of the employee concerned – Tellat Sule v Nigerian Cotton Board (1985) 6 SC 62; (1985) 2 NWLR (Pt.5) 17 at 38. He contended that the Section 5(1) of the Labour Act does not expressly prohibit an employer from slashing employee’s salaries, but rather that the deductions being referred to is in relation to the deductions to be remitted to the trade union which cannot be done without the consent of the worker and not deductions relating to pay cut. Counsel reiterated that deducted pension has been paid to the appropriate bodies evidenced by Exhibits D6 and D7, and so the Defendant cannot be said to be liable to the Claimant for failure to remit deducted pension. He prayed the Court to dismiss the Claimant’s claim for lacking merit, being vexatious, frivolous, and inapt and an abuse of Court process.

 

22.   RESOLUTION

23.   Having regards to the facts and circumstances of this suit, the processes filed by both parties, the evidence adduced and the submissions of Counsel, the Court distils the issue below for determination, namely:

 

24.   Has the Claimant discharged the burden of proof by evidence that preponderates in his favour to entitle him to the reliefs sought?

 

25.   Before delving into the issue at hand, it is important to point out that at the trial stage, both the Defence Counsel and the Claimant Counsel objected to the tendering and the admissibility of some documents on either side. Learned Counsel reserved their objections to their final written address, however, Counsel seem to have abandoned their objections as this issue was neither raised nor addressed in their final written address. The Court cannot put something on nothing, or speculate on what legal issues the proposed objection was intended to address. It is also not the duty of the Court to embark on the voyage of discovery to ascertain the intentions of parties or their Counsel outside their pleadings and evidence. Consequently, the Court shall proceed with consideration of the issues before it in order to resolve them one way or the other.

 

26.   The onus of proof in civil cases is discharged on the preponderance of evidence. So where a party initiates a proceeding, he must satisfy himself that he has a good and reasonable chance of offering sufficient and cogent evidence to convince the Court of the merit and worthiness of his case, where he fails to discharge this burden, his case will be dismissed. See Omman v Ekpe (2000) 1 NWLR (Pt. 641) 365. In other words, although civil cases are won on a preponderance of evidence, yet it has to be preponderance of admissible, relevant and credible evidence that is conclusive and which commands such probability that is in keeping with the surrounding circumstances of the case at hand. See Kaydee Ventures Ltd v Min, FCT (2010) 7 NWLR (Pt. 1192) 171, Ojo v ABT Associates Incorporated (2017) 9 NWLR (Pt. 1570) 167, Obe v MTN Nig Comms Ltd (2021) 18 NWLR (Pt. 1809) 415.

 

27.   The Claimant for his relief one (1) seeks a declaration that the termination of the Claimant’s contract of employment by the Defendant citing unsatisfactory performance and insubordination as the reasons is wrongful. The parties herein do not dispute that CW1 was an employee of the Defendant by virtue of exhibit C1 (letter of employment), they however seem to hold different views on how and why the Claimant’s appointment was brought to an end. The Claimant states that he was not given the appropriate notice terminating his employment with the Defendant and was also not paid the appropriate sum in lieu of such notice contrary to the employment contract (exhibit C1). The Defendant refutes this assertion and insists that the Claimant’s employment was terminated in line with the employment contract. As rightly contended by Counsel, parties are bound by the terms of an agreement voluntarily entered into by them, and the duty of the Court is to give meaning or effect to the terms of such an agreement and not to create another agreement for the parties - Obanye v UBN Plc (2018) 17 NWLR (Pt. 1648) 375.

 

28.   In law, an employer reserves the right and discretion to determine if an employee is found unsuitable for the employment while such an employee is still on probation or on conclusion of the probationary period - LCRI v Mohammed (2005) 11 NWLR (Pt. 935) 1. In cases governed only by agreement of parties and not by statute as in this instant case, removal of an employee by termination or dismissal would be in the form and manner agreed to by the parties. Any other form of dismissal or termination connotes wrongful termination or dismissal. See Obanye v UBN Plc (supra) at 390. The Claimant pleaded that he was employed by the Defendant by letter dated 16th November, 2019 (Exhibit C1). Exhibit C1 the agreement which governs the employment relationship between the Claimant and the Defendant provides under Code of Conduct/Ethical Standard that the Claimant is expected to observe and comply with the Company’s code of conduct, rules, regulations and ethical standards as defined in the Company’s Employee Handbook. Unfortunately, the company’s employee handbook referred to was never placed before the Court.

 

29.   The grounds for the Claimant alleging the termination of his employment was wrongful are: that by reason of certain circumstances before the termination of his employment, he was deemed to be a confirmed employee of the Defendant and the termination of confirmed employees required a three (3) months’ notice or salary in lieu. That instead the Defendant paid him a month in lieu. Also, that the reasons stated in the letter of termination of unsatisfactory performance and insubordination are false and unproven. The Defendant on its part maintains that the termination was not wrongful as CW1 was still under probation when his employment was terminated. That CW1’s probation was extended by exhibit D1, a letter dated 29th July, 2020 communicating the extension of CW1’s probationary period. That the refusal of CW1 to attend meetings smacked insubordination which in itself is a misconduct entitling the Defendant, as an employer to terminate CW1’s employment.

 

30.   Exhibit C1 is the letter of appointment of CW1 as an Imaging Director in the Defendant’s company, it is dated 01.11.2019, it states at the introductory paragraph that CW1’s employment is to take effect from 01.12.2019 to 30.11.2019. Exhibit C1 on the issue of probation and notice for termination reads “… Probation period: The first three (6) months shall be probation period during which your performance shall be appraised and either get confirmed, probation may be extended by another three (3) months or your services terminated depending on your performance. Either party wishing to terminate the contract during the probation period, shall give one month (1 month) notice in writing or pay in lieu of the period the notice falls short. Notice: Either party that wishes to terminate the contract after successful completion of the probation period shall give three (3) months’ notice in writing or pay in lieu of the period the notice falls short...” It is clear from this reproduced portions of exhibit C1 that exhibit C1 obviously gives the Defendant power to extend the Claimant’s probationary period by three (3) months and that during probation, the duration for notice of termination is a month. However, upon successful completion of the probation period, notice shall be three months in writing. The law is that a document speaks for itself.

 

31.   Learned Claimant’s Counsel has argued that exhibit D1 was issued by a third party, the parent company of the Defendant, that is not a party to the contract of employment with the Claimant. This raises the issue of privity of contract, but the same Counsel inadvertently did not advert his mind to the fact that exhibit C4 – the notice of cut of CW1’s May and June 2020 salaries by 40% was also communicated on the letter head of the Defendant’s parent company. Exhibit C3 – the letter of termination of contract dated 15.09.2020 was equally co-signed or executed by representatives of both the Defendant and its parent company. More importantly, exhibit C11 is a Consultancy contract between the Claimant and Pyramid Healthcare Group signifying that the Claimant was in the know of his disguised employment relationship with Pyramid Healthcare Group, the Defendant’s parent company. On this note, the submissions on exhibit D1 emanating from a party not privy to the Claimant’s contract are hereby discountenanced. I so hold.

 

32.   Now as to the issue of whether or not the fact that exhibit D1 dated 29.07.2020 was issued over a month after the completion of the six (6) months probationary period of the Claimant translated to a deemed confirmation of CW1’s appointment. The Claimant testified that his employment was deemed confirmed in law since 16th June, 2020, after which the said purported extension letter (exhibit D1) came more than a month after the deeming date of 16th June, 2020. Thus, CW1 alludes his employment was terminated after his employment had been confirmed. The Court of Appeal in Baba v Nigerian Civil Aviation Training Centre (1986) 5 LPELR-21095, while adopting the Black's Law Dictionary defined the word "probation" as: "The initial period of employment during which a new, transferred, or promoted employee must prove or show that he is capable of performing the required duties of the job or position before he will be considered as permanently employed in such position."

 

33.   The sole purpose of putting an employee on probation is to give the employer an assurance that that employee is a fit and proper person to be placed on permanent appointment. Probationary period is a period of observation by the employer. It therefore follows that once the condition laid down for the termination of appointment during the probationary period is satisfied or complied with an employee cannot justifiably complain. See Ihezukwu v University of Jos [1990] 7 S.C. (Pt. 1) 18; Olayinka Kusamotu v Wemabod Estate Ltd (1976) 11 S.C. 279. Exhibit C9 shows that during the half year performance review of the Claimant, the issue of extension of his probation was brought to his notice and CW1 protested on the grounds that he had two contracts, one a Consultancy contract with Pyramid Healthcare Group, the parent company of the Defendant (exhibit C11) and another with the Defendant (exhibit C1). According to the Claimant in his email of 03.08.2020 on the subject of “Probation Letter” his contract with Pyramid Healthcare Group, exhibit C11 does not have any provision on probation.

 

34.   The first challenge with this piece of evidence emanating from the Claimant’s Reply to the Defendant’s Statement of Defence, is that it appears, Learned Claimant’s Counsel relegated it to the background in his final address by dwelling on the issue of deemed confirmation. The issue of deemed confirmation would not arise, if the provisions of exhibit C11 that do not include terms on probation are upheld as binding on the parties. What this portends is that either the Claimant through his Counsel is approbating and reprobating or that given that the Claimant specifically worked for the Defendant, the contract that takes priority or that is binding on the parties is exhibit C1 and not exhibit C11. I hold the latter view in the light of the fact that a large chunk of the Claimant’s claims emanate from provisions of exhibit C1 as opposed to exhibit C11. More so, there is no evidence that when CW1 communicated his protest on the extension of his probation making reference to the absence of any probationary term in exhibit C11, the Defendant rescinded its decision on the basis that the said Consultancy contract superseded exhibit C1.

 

35.   The acts of the Claimant in basing a large chunk of his claims on the provisions of exhibit C1 and that of the Defendant in not rescinding the decision to extend the probation of the Claimant to allow exhibit C11 prevail to my mind are indicative of an intention to fulfil obligations under exhibit C1 as opposed to exhibit C11. The law is that equity imputes an intention to fulfil an obligation, if exhibit C1 and exhibit C11 are equal equities, exhibit C1 appears first in time as it was executed by CW1 on 07.11.2019, while exhibit C11 tendered in evidence by the Claimant is unsigned in the Claimant’s portion further signifying its place amongst the competing equities. Since exhibit C1 appears to be the prevailing equity, its provisions on probation and termination or notice on termination need to be scrutinized to determine whether or not the Defendant is in breach of its terms. The Claimant alluded to the fact that although exhibits C1 and C11 captures the effective date of his employment as 01.12.2019, by a consensus with representatives of the Defendant, it was moved to 16.12.2019, thus bringing the due date for a six (6) months’ probation to 16.06.2020.

 

36.   It is the Claimant’s stance that since exhibit D1 was issued over a month from the due date of 16.06.2019, his employment is deemed to have been confirmed. The Defendant on its part maintains that the issuance of exhibit D1 after the supposed due date does not make it inoperative. Normally, in the eyes of the law, the Defendant having kept silent on its decision with respect to the Claimant’s fate for over a month after the period of six months’ probation had lapsed, the Defendant had by its conduct confirmed the Claimant's appointment. See the case of Obafemi Awolowo University v Onabanjo (1991) 5 NWLR (Pt. 193) 549 at 570, paras D - E, where Akpabio, JCA as he then was, stated thus: "The appellant had delayed unnecessarily in making up their minds whether to terminate or confirm respondent's Probationary appointment. By keeping him in his employment and continuing to pay him for four months after the probationary period of three years had expired, they would be deemed by operation of law to have confirmed his appointment, and the doctrine of "estoppels by conduct" would operate to prevent the appellant from alleging and treating him as if he was still on probation. Delay defeats Equity".

 

37.   In other words, the silence for over a month presumably would have created an impression in heart and head of any reasonably thinking person that the Defendant had no problem with the performance of the employee or with the employee, in this case, CW1, continuing with his role as a confirmed staff. See The Council of Federal Polytechnic, Ede & Ors v Olowookere (2012) LPELR-7935(CA). Thus, creating a situation of deemed confirmation of employment. The burden of proof rests on the employer, in this case, the Defendant to adduce credible evidence justifying the delay in issuing the letter of extension of probation. However, the contents of some of the emails constituting exhibit C9 shed more light into what might have happened in addition to making the Claimant’s plight a delicate one. For instance, exhibit C9 reveal that as far back as 21.07.2020 prior to the issuance of exhibit D1 on 29.07.2020, emails were sent to the Claimant on the subject of “Half Year Performance Review”. Subsequently, there were emails on “Setting Probation Objectives” sent between 23.07.2020 and 27.07.2020.

 

38.   So the Court may presume as Section 167 of the Evidence Act (as amended) permits it to so do deducing or inferring from events in the course of human conduct or business that prior to exhibit D1, the Defendant reviewed and appraised the Claimant’s performance during his six (6) months of working for the Defendant. I reached this conclusion in the face of the contents of an email sent by the Claimant on 22.07.2020 by 11.14pm on the subject “Re: Olusola: Half Year Performance Review” where CW1 noted that he recalled the review session was not concluded after two hours, due to the reviewer having another meeting. CW1 in the said email also expressed his discontent with the assessment he received following the appraisal or review of his performance. Responding to the said email, one Ann Muregi on 23.07.2020 by an email sent 9.23am stated inter alia “Good morning Sola, Now you can see the benefit of having more than 1 party during the review conversation… For the extension of probation, the 6 months ended June and July would be the first month, but given the review has taken place later in the month we can consider the additional weeks. We will discuss the expectations for the 3 months next week…”

 

39.   In fact, CW1 had in an email reminding him to sign the letter extending his probation stated somewhat “…With due respect, I cannot contest the decision of the company. However, it is imperative we hold the proposed meeting to discuss issues and the assistance that will be required before I commit to signing this letter as it will definitely help in achieving agreed objectives…” Prior to this remark, the Claimant had expressed the fact that exhibit C11 did not indicate anything about probation. Also, that his appraisal meeting was not concluded. But yet proceeded to express his intention not to contest the decision of the company as well as his intention to sign the letter extending his probation provided the many issues in the laid-out performance metrics were critically discussed. The Claimant had made this response via an email sent on 03.08.2020 by 10.41am which is five (5) days after receipt of exhibit D1 despite the fact that the concluding part of exhibit D1 required him to have signed the acknowledgement of exhibit D1 within 3 days else his delay in doing so would be interpreted as sabotage, disobedience or other misconduct.

 

40.   Exhibit D1 reveals that a review or appraisal of the Claimant’s performance took place on 20.07.2020, an email was sent as captured in exhibit C9 to the Claimant on 21.07.2020 informing the Claimant of the decision to extend his probation till September 2020. CW1 respectfully cannot approbate and reprobate at the same breath, his conduct or omission to insist on the applicability of exhibit C11 or his discontent with his perceived incomplete appraisal gave the Defendant the impression that he was okay with the extension of his probation. The Claimant is now by his conduct estopped from complaining that the extension of his probation was invalid. See Section 169 of the Evidence Act (as amended). I so hold.

 

41.   On the issue of the reasons stated on exhibit C3 for the termination of CW1’s contract, poor performance and insubordination, the law places on the employer, the Defendant in this case the duty of proving the plausibility of such reasons. See Taiwo v Kingsway Stores Ltd (1950) 19 NLR 122, Angel Spinning Dyeing Ltd v Ajah (2000) 13 NWLR (Pt. 685) 532, Prof Dupe Olatubosun v Nigerian Institute of Social & Economic Research Council (1988) 3 NWLR (Pt. 80) 25, Osisanya v Afribank Nig Plc (2011) 24 NLLR (Pt. 67) 30. The pristine position of the law on termination of employment with reason without regards to international best labour practice is that a master has the right to terminate his servant’s employment for good or bad reasons or for no reason at all. Without any reason, the employer can terminate the employment of his employee and render himself liable to pay damages and such other entitlements of the employee that accrued at the time of the termination only – Obanye v UBN Plc (supra). International best labour practice nevertheless requires employers to give reasons for the termination of an employee’s employment. See Article 4 of the International Labour Organization, Termination of Employment Convention No. 158. But what may be regarded as international best labour practice is a question of facts - Section 7(6) of the National Industrial Court Act.

 

42.   The Defendant tendered in evidence exhibits D2 to D5 in its bid at proving that reviews or appraisals were undertaken and the performance of the Claimant was found to be unsatisfactory thus justifying the reasons given for the termination of the Claimant’s employment. Exhibit D5 reveals that the assessment by his line manager, the Vice president – sales was to the effect that it was not in all areas that the performance of CW1 was found wanting. CW1’s line manager noted that CW1 in certain areas did not meet set targets, in others he did not provide documents to support his allegations of steps taken to realize these targets. To complain as CW1 is now doing that he was unfairly assessed seems to me that CW1 sought to be a judge in his own case. One of the emails sent after the assessment by CW1’s assessor, captured in exhibits C9 and D4 respectively, indicate that CW1 had an option based on the company’s policy to have more than one reviewer or assessor but elected otherwise. Since the Defendant’s line manager in her assessment of CW1 noted that he did well in certain areas, I do not think the Defendant has adduced evidence of conclusive proof to justify its statement in exhibit C3, the letter of termination that the Claimant’s performance was poor.

 

43.   I hold this view in the light of the fact that the Defendant was willing to give the Claimant the opportunity to up his game where his performance fell short of meeting set targets by extending his probation. So the credibility of the remark of poor performance reflected on the termination of contract letter sent by the Defendant has not been justified by reason of the evidence placed before the Court by the Defendant. On the issue of insubordination; insubordination is the quality or state of being insubordinate; it means disobedience to lawful authority, like an employee’s refusal or failure to comply with a request or an assignment given by his/her supervisor. Exhibits C9 and D5 hint that CW1 was queried when he was issued with a letter to show cause or an explanation letter, which an email in exhibit C9 reveals CW1 responded to reflected as an attached document in portable document format (pdf) saved as “Sola Show C letter response.pdf”. The Defence alleges that the Claimant’s line manager requested CW1’s presence in a meeting and CW1 was absent and gave no reason(s) for his absence which smacks insubordination or a misconduct deserving of punishment.

 

44.   A dispassionate assessment and interpretation of the Claimant’s conduct following the review or appraisal of 20.07.2020 suggest that he began to put up an attitude that was somewhat not in conformity with corporate ethical standards in his bid to press home his point of dissatisfaction with the results of his performance review or appraisal. In a corporate setting, the normal thing when a superior alleges the non-provision of documents or evidence to support an allegation of steps been taken to realize set targets, is for the employee to provide such documents or evidence, not complain and as it were throw tantrums by declining to attend meetings. It is important to highlight for whatever it is worth that for one of the meetings CW1 was alleged to be absent from, CW1 wrote an email to his line manager informing her that he went to the hospital and was just returning requesting whether the meeting would still hold by 6pm. See exhibit C9. However, in another email sent by his line manager after 6pm that day, informing CW1 they were awaiting his presence, there is no evidence that CW1 joined the meeting or gave reasons why he could not join notwithstanding the fact that he had earlier requested to know if the meeting would still hold by 6pm.

 

45.   Exhibit C1 states that the Claimant while in the employment of the Defendant would be required to comply with its ethical standards, code of conduct, rules and regulations as defined in its employee’s handbook. I have noted that this handbook was not produced before the Court. Nonetheless, it is trite that an employer has a right in law to punish an erring employee by suspension, dismissal or terminating his appointment. This however must be done according to the term and conditions of employment - UBN Ltd v Ogboh (1995) 2 NWLR (Pt. 380) 647. Where CW1 was required to avail himself for a meeting by his line manager, supervisor and he declined, neglected and or failed to so do without any reason or justifiable reasons, he cannot turnaround to seek a declaration that the designation of him being insubordinate was wrongful. He who seeks equity must do or act equitably. Given the fact that the Court found that the circumstances surrounding the extension of the probation period of the Claimant made the extension valid, and that the evidence before the Court supports as plausible one of the reasons given for the termination of the Claimant’s employment, the Claimant’s relief one is hereby refused and accordingly dismissed. I so hold.

 

46.   The Court shall consider the Claimant’s relieves two, five and six together. The Claimant’s relief two which is for a declaration that the unilateral pay cut of the Claimant’s salary by the Defendant is not only a breach of contract, but also an unfair labour practice. Relief five is for a declaration that the Claimant is entitled to be paid his remaining salaries for May and June 2020. Relief six is for an order of Court directing the Defendant to immediately pay the Claimant the total sum of N813,169.14 (Eight Hundred and Thirteen Thousand, One Hundred and Sixty-Nine Naira, Fourteen Kobo) being his remaining salary for May and June 2020. The Claimant alleges that he was communicated vide exhibit C4 of a 40% deduction of his salaries for the months of May and June 2020. I have earlier addressed the issue of exhibit C4 being on the letter head of the Defendant’s parent company as further evidence of a disguised employment evinced by exhibit C11 – the Consultancy Contract between the Claimant and Pyramid Healthcare Group, the parent company of the Defendant, which bears no need for repetition save that the holding of the Court that submission in that regards are accordingly discountenanced. I so hold.

 

47.   The Claimant’s grouse is that the 40% pay cut was a unilateral decision of an executive team which the Claimant was not part of. That this is not only a breach of contract but also a grave unfair labour practice – Adebusola Omole v Mainstreet Microfinance Bank Ltd. Unreported Suit No NICN/LA/342/2012 (available at NICN website). In law, a worker is entitled to wages that are earned and this right is automatically implied into a contract of employment. It is therefore the duty of an employer to pay wages or salary in accordance with the terms of the contract whether expressly stated or implied to the employee. Udegbunam v Federal Capital Development Authority & 2 Ors. (2003) 10 NWLR (pt. 829) 487 at 500-501. Once the duty to pay wages or salary exists, the employer is, at common law, to continue to pay such remuneration to a worker who is ready and willing to work, whether or not work is provided for the employee. See the case of Devonald v Rosser & Sons (1906) 2 K.B. 728. Equally, the law as regards the issue of payment of salaries is sacred. It is so sacrosanct that the employee is entitled to wages even during temporary incapacitation period once he is willing to work. See the case of Underwater Engineering Co. Ltd. v Dubefon, (1996) 6 NWLR (Pt.400) 156.

 

48.   Section 5(1) of the Labour Act prohibits deductions from an employee’s salary without his consent. Learned Defence Counsel has argued that the said provision is in relation to union dues and not one of universal applicability. For purpose of clarity, Section 5(1) of the Labour Act provides “Except where it is expressly permitted by this Act or any other law, no employer shall make any deduction or make any agreement or contract with a worker for any deduction from the wages to be paid by the employer to the worker, or for any payment to the employer by the worker, for or in respect of any fines:..” This provision is clear and unambiguous and should be given its plain and ordinary meaning. See Esset Petroleum Ent. (Nig.) Ltd v Petroleum Equalization Fund (Mgt.) Board & Anor (2019) LPELR-47355(CA). Even where an agreement is reached that permits an employer to deduct from the wages of its employee, subsection 7 of Section 5 of the Labour Act stipulates that it should not exceed 1/3 of the worker’s wages.  In the same vein, it is trite that unilateral pay cut without the consent of the employee or a variation of terms of the contract is an unfair labour practice. I so hold. See also ILO Convention No.95 (Protection of Wages Convention 1947).

 

49.   The Defendant also admitted in its pleadings that the 40% pay cut was a unilateral decision of an executive team which the Claimant was not part of. It was held in Omisore v Aregbesola (2015) LPELR 24801 (SC), that admission is a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are relevant to the case of his adversary. The Defendant contended that the 40% pay cut was as a result of the drastic effect of the Covid-19 pandemic on its business. However, the Claimant insisted that the unilateral pay cut was without his consent, and as a result, he refused to sign the letter. Now, the position of the law as regards the payment of salaries and wages has remained unchanged. That is, the right to receive salary or wages is determined by the letter of appointment as held in the case of Jeremiah v Ziregbe & Anor. (1996) 7 NWLR 347 at 356. Thus, the unilateral pay cut of the Claimant’s salary by the Defendant is not only a breach of contract, but also an unfair labour practice. Being unfair labour practice and unlawful by virtue of the deduction of CW1’s salaries for May and June 2020 contravening Section 5(1) of the Labour Act, the Court finds and holds that the Claimant is entitled to the remaining balance of his salaries for the months of May and June 2020. I so find and I so hold.

 

50.   Equally, the Claimant has given evidence of what his monthly salary was while in the employment of the Defendant, the amount deducted by the Defendant from his salaries for May and June 2020 without his consent and what the balance is. On this note, the Claimant’s relief six succeeds and the Defendant is hereby ordered to immediately pay the Claimant the total sum of N813,169.14 (Eight Hundred and Thirteen Thousand, One Hundred and Sixty-Nine Naira, Fourteen Kobo) being his remaining salary for May and June 2020.

 

51.   With respect to the Claimant’s relief three, it is the Claimant’s averment that the Defendant was in the habit of making pension deductions from employees’ salaries but without remitting same to the relevant PFA for the benefit of the employees, a practice not only a grave violation of the Pension Reform Act (2014) but also a criminal offence. He went further to state that his pensions were all paid at the wrong time, after his lawyer wrote to the Defendant, that he has reasons to believe that the Defendant has never remitted his personal income tax deductions to the Lagos Internal Revenue Service since his joining the Defendant company in December, 2019 as he was never issued any documentary evidence of such remittance despite his repeated requests for same. The Claimant in his pleadings and evidence admitted that following a letter written by his Lawyer, the Defendant remitted such monies it was required statutorily to remit to relevant authorities, evidence further corroborated by exhibits D6 and D7 receipts of such remittances.

 

52.   Section 3(a) and (b) of the Pension Reform Act 2014 provide to the effect that the employer shall deduct at source the monthly contribution of the employee, and not later than 7 days from the day the employee is paid his salary remit the employee’s contribution. Section 11 (6) of the same Act provides that an employer who fails to deduct or remit the contribution within the stipulated time shall be liable to a penalty. Section 11(7) then provides that “The penalty referred to in subsection (6) of the section shall not be less than 2 percent of the total contributions that remains unpaid for each month or part of each month the default continues and the amount of the penalty shall be recoverable as a debt owed to the employee’s retirement savings account, as the case may be”. The Claimant’s claim is not for the 2% penalty for late remission, which the employer is liable for. The Claimant acknowledges that his pensions for January to September, 2020 were remitted to his PFA after his lawyer wrote to the Defendant; January to April, 2020 were remitted in November, 2020, while May to September, 2020 were remitted in January, 2021, so they have been paid. In fact, this suit was instituted on 21st June, 2021, so in essence, the Claimant’s contributory pension was remitted even before the institution of the suit as evidenced by Exhibit D7 which is before this Honourable Court. Therefore, indicating that this leg of the Claimant’s claim is spent, otiose and is accordingly refused by the Court and dismissed.

 

53.   The Claimant’s claim for entitlement to proof of remittance of his Personal Income Tax Proof of Remittances to the Lagos State Internal Revenue Service (LIRS) upon demand on the Defendant in my considered view has been unsupported by satisfactory evidence. The duty to make the remittances is on the employer, that is, the Defendant in this case. Sections 81(1) and 82 of the Personal Income Tax Act 2011 are provides: "(1). Income chargeable on an employee by an assessment whether or not the assessment has been made, shall, if the relevant tax authority so directs, be recoverable from any emolument by the employer to the employee… 82. An Employer required under a provision of this Act to make deductions from the emoluments or amount on account of emoluments paid by him to an employee shall account to the relevant tax authority in such manner as the relevant tax authority may prescribe for the deductions so made. And in the event of the failure by the employer to make the deduction; or properly to account therefore; the amount there of together with a penalty or 10 percent per annum of the amount plus interest at the prevailing commercial rate shall be recoverable as a debt due by the employer to the relevant tax authority."

 

54.   Section 82 of the PITA is categorical that the duty of the employer to properly account to the relevant tax authority, not the employee. CW1 has not adduced evidence that he is a relevant tax authority deserving of the right to receive proper account or proofs of remittances made by the Defendant to relevant tax authorities. If for whatever it is worth, an employee has a right to request for proofs of remittances of his PAYE tax from his employers, I am of the view that such right is an equitable right, and would require such employee to place sufficient materials to justify such request. Like requiring such proofs for purposes of visa application or some other official documentation process. If the employee, in this case, the Claimant is doubtful of the integrity of his employer in making such remittances or correct remittances, he can approach the relevant tax authorities being a public body to demand or request for evidence of such remittances. For this reason, I find no merits in this leg of the Claimant’s claims, it fails and is accordingly dismissed. I so hold.

 

55.   The Claimant’s relief seven is ancillary or incidental to his relief one, which failed. Similarly, the Claimant’s relief nine is ancillary to his relief four which was equally dismissed. The law is settled that where the Court finds that it has no jurisdiction to entertain the main relief, ancillary reliefs tied to such main relief would have to fail – Zafi v Manzo (2021) LPELR-55148(CA). So where the principal reliefs have been dismissed or struck out and there are no circumstances in law requiring the sieving of the ancillary reliefs from the principal reliefs, such ancillary would have to fail – Sokari & Ors v Morrison & Ors (2022) LPELR-57310(CA). On this note, the Claimant’s reliefs seven and nine are hereby refused been anchored on the principal reliefs of reliefs one and four respectively which the Court in its considered view refused. I so find and I so hold.

 

56.   With respect to the Claimant’s relief eight, it is the law that damages flow from the nature of the act complained of, and is meant to compensate or assuage a party for losses or damage suffered. The Court is of the view that the Claimant in the instant case has not placed before the Court the nature of damage or losses he suffered as a result of the failure and or neglect by the Defendant to remit his deducted pension to his retirement savings account with his pension fund administrator to be deserving of compensation. It is the law that one cannot put something on nothing and expect it to stand. While it is true that equity would not suffer a wrong to go without a remedy, it is equally true from the evidence adduced before the Court that the Defence has restituted to correct the wrong complained of. So the onus is now on the Claimant to show the damage he suffered that is still deserving of compensation notwithstanding the restitution of the wrong in not remitting his deducted pension as at when due. In the light of this, the Court finds no merit in this leg of the Claimant’s claims it fails and is hereby dismissed. I so find and I so hold.

 

57.   For his relief ten, the Claimant seeks the sum of N13,824,000 (Thirteen Million, Eight Hundred and Twenty Four against the Defendant (representing the Claimant 1 year gross salary) being damages for unfair labour practice. This Court in its considered view had found for the Claimant that the unilateral decision by the Defendant to deduct from the Claimant’s salaries for the months of May and June 2020 and the deduction made by the Defendant in that regards contravene the provisions of Section 5(1) of the Labour Act and amounted to unfair labour practice. The Court proceeded to direct the Defendant to pay the Claimant the balance of his salaries for the months of May and June 2020. The Claimant is now still seeking damages for the said unfair practice, which invariably would amount to double compensation if granted. The law clearly frowns at or guards against double compensation, where it can be avoided. See Ejowhomu v Edok-Eter Mandilas Ltd (1986) LPELR-107(SC), British Airways v Atoyebi (2014) LPELR-23120(SC). On this note, this relief is refused and dismissed. I so hold.

 

58.   Relief eleven is in the realm or nature of a claim for special damages, which requires the Claimant to plead particulars to support his claims and strictly prove same. Exhibit C1, the letter of employment of the Claimant with the Defendant has a provision that states “…Transport: you will be provided a company owned vehicle; the terms of use will be governed by the Company’s Car Policy…” Contrary to the submissions by Learned Defence Counsel while it is true that this provision contained in exhibit C1 did not expressly state when the company owned vehicle would be availed the Claimant, it is reasonable to presume that it ought to be availed him either on resumption of his duties or so soon thereafter within a reasonable time. The Claimant did not produce before the Court the company’s car policy to examine, as there is no where in exhibit C1 that requires the Claimant to use his personal vehicle to discharge company or official work pending the availability of the company’s owned vehicle with a promise to reimburse the Claimant for such usage.

 

59.   There is equally no evidence before the Court that the Claimant wrote to the Defendant informing it of his decision to use his personal vehicle to discharge official duties pending the release or provision of the company’s owned vehicle and the Defendant acceded to this. Or that after the provision of the company’s owned vehicle in March 2020, as the Claimant puts it, he wrote to the Defendant to demand for reimbursement  of the expenses incurred in putting his own vehicle on the road to discharge his duties and the Defendant failed or neglected to honour such demand. It appears it is after the termination of his contract that the Claimant thought of ways to get even with the Defendant so he brought up this claim. The Claimant has not put forward for the Court to consider the nature of his responsibilities at the Defendant that compulsorily required him to use his own vehicle for official work. Or better still, the Claimant did not produce evidence of the nature of official assignments or engagement with dates they were discharged he put his own vehicle to use.

 

60.   Similarly, the Claimant’s claims for phone recharge for official work seems misplaced or misconceived as exhibit C1 indicates that he was to receive a monthly allowance of N50,000.00 (Fifty Thousand Naira) to cover fuel, parking/tool, feeding, internet and mobile data. Exhibit C2, the Claimant’s salary slip shows payment of the sum of N61,930.00 under a particularized head of “fuel” which to my mind signified compliance with the term set out in exhibit C1 to provide money to cover fuel, parking/tool, feeding, internet and mobile data. The Claimant has not shown by evidence that the sum claimed by him for mobile recharge was over and above that covered by the monthly allowance made available by the Defendant in that regards. I do not think the Claimant has satisfactorily adduce evidence to justify this leg of his claims, it fails and is dismissed. I so find and I so hold.

 

61.   On the issue of N500,000.00 for cost of action. It is the law that cost follows event and is usually awarded to a successful party in litigation but its award or refusal lies at the discretion of the Court which discretion should be exercised judicially and judiciously - Yakubu v Min. Housing & Environment, Bauchi State (2021) 12 NWLR (Pt. 1791) 465, Order 55 Rules 2 and 3 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. In law 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 (2021) LPELR-55882(CA). See also Anazodo v Pazmeck Intertrade (Nig.) Ltd & Anor (2023) LPELR-59879(SC). Besides, costs, are not awarded as punitive measures – UBN Ltd & Anor v Nwaokolo (1995) LPELR-3385(SC). Given the circumstances of this suit, I exercise my discretion in favour of the Claimant and set the cost of action at N200,000.00 (Two Hundred Thousand Naira). I so hold.

 

62.   On the whole, the issue for determination is resolved partly in the affirmative in favour of the Claimant. Such that save as outlined below all other claims of the Claimant fail and are hereby dismissed. For clarity, the orders of the Court are as follows:

 

a)     IT IS DECLARED that the unilateral pay cut of the Claimant’s salary by the Defendant is not only a breach of contract, but also an unfair labour practice.

 

b)    IT IS DECLARED the Claimant is entitled to be paid his remaining salaries for May and June 2020.

 

c)     The Defendant is directed to immediately pay the Claimant the total sum of N813,169.14 (Eight Hundred and Thirteen Thousand, One Hundred and Sixty-Nine Naira, Fourteen Kobo) being his remaining salary for May and June 2020.

 

d)    The sum of Two Hundred Thousand Naira (N200,000.00) is awarded as cost of action to be paid by the Defendant.

 

 

63.   Judgment is accordingly entered.

 

 

Hon. Justice M. N. Esowe, FCIArb

Presiding Judge