WD

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

Date: 3rd October 2024                                                                   

SUIT NO. NICN/LA/364/2020

BETWEEN

MR. PAUL UDEH                                          …                                CLAIMANT

AND

CADBURY NIGERIA PLC                            …                                DEFENDANT

JUDGMENT

1.            The Claimant commenced this action on 29th September 2020, and sought the following reliefs:

a.            A declaration that the termination of the Claimant’s employment by the Defendant without stating any valid or justifiable reason, or any reason at all, amounts to a contravention of the laid down regulations of the International Labour Organisation, particularly Articles 4 and 5 of Convention No. 158 of 1982 and consequently invalid, null, void and of no effect whatsoever.

b.            An order re-instating the Claimant.

c.            An order directing the Defendant to pay the Claimant all entitlements and emoluments due to him from March 2018 till date comprising the following:

i.         Monthly salaries

ii.        HMO medical cover for Claimant’s spouse and children 

iii.       Payment of ACCA subscriptions

iv.       Pension contribution

v.        Monthly staff purchases

vi.       Purchase of two plastic drums per year for staff

vii.     Quarterly incentives packs to CS & L staff 

viii.    Sensory products gift packs lost in Q1 2018 [full package] from the quality team [as the Claimant is a certified sensory panellist]

ix.       Housing and leave allowances from 2019 to date

x.        Daily meal allowance 

xi.       Half year gift pack

xii.     Vehicle insurance covers

xiii.    Adjusted Christmas bonuses as agreed in Appendix B, from 2018 till date

d.            An order directing the Defendant to re-rate the Claimant’s mid-year and year-end appraisal for the year 2017 from off-track and below expectation respectively to on-track and exceeded expectation respectively.

e.            The sum of N14,500,419.80 [fourteen million, five hundred thousand, four hundred and nineteen naira eighty kobo] being the shortfall on the Claimant’s gratuity entitlement which was wrongly and unfairly calculated on a fixed interest rate of 7% by the Defendant as against the signed agreements for the interest to be calculated twice a year based on C.B.N deposit rate.

f.             An order directing the Defendant to grant the Claimant his 20 years Long Service Award which was unjustly denied in 2018 by the unjust termination of his employment, together with all the benefit of the award, to wit: a giant deep freezer, two and half month of annual basic salary and the number of cartoons of gifts for 20 years in service.

g.            Acting allowances shortage as CS & L Finance Controller from January 2017 to February 2018 with accumulated interest counting to date.

h.            Annual merit increases due to an exceeded performance from 2018 to date.

i.             NJIC increment of 6% effective from 15th December 2018.

j.             Refund of underpayment of 10% NJIC agreement on December 15 2017, by 3.5%. This affected the Claimants 2017 leave allowance, 2017 13th month pension contribution to date, gratuity computation and net monthly pay until he got the letter of service no longer required.

k.            The sum of N20,000,000.00 [twenty million naira] as damages for victimisation and work place harassment deliberately orchestrated against the Claimant by the officers of the Defendant.

Alternatively

l.             The sum of N200 million being damages for untold hardship on the Claimant and his dependant[s] due to [the] unfair disengagement from work which is [not] due to incompetence on his job or due to service not required as claimed by the Defendant, as his role is still relevant to the Defendant’s business as a whole.

m.          The cost incurred by the Claimant in prosecuting this suit.

n.            Post-judgment interest at the rate of 21% per annum from the date of judgment until the judgment is fully and finally liquidated.

2.            Upon receipt of the Claimant’s processes, Defendant entered an appearance and filed a statement of defence on 15th February 2021 and subsequently filed a motion

on notice to regularise the defence processes which was deemed properly filed and served on 16th February 2021. The Claimant replied to the statement of defence on 30th March 2021. The trial commenced and was concluded on 19th January 2022. The Claimant testified in proof of his claims, and was cross-examined. The Defendant’s witness and Employee Relations Manager, Mrs. Laanumi Ogunmide, testified in defence of the suit, and was cross-examined. Parties exchanged final written addresses which their counsel adopted on 26th July 2024 and the matter was set down for judgment.

Facts of the case

3.            The facts of the case as gleaned from the statement of facts is that the Claimant was employed by Defendant on 15th July 1998 as a sales accounts clerk. His employment was confirmed on 23rd October 1998. According to him, during his employment, he worked diligently and contributed to Defendant’s profits and development. The Claimant was a high performer which earned him promotions, and he was promoted to Grade 9 on 10th October 2014. By a letter dated 27th February 2018, Defendant terminated his employment for services no longer required, but did not immediately pay his terminal benefits. Several meetings ensued between the Claimant’s union and Defendant, and on 9th September 2019, Defendant paid him N25,932,884.51 which, he explained, did not reflect his full terminal benefits as his gratuity was short-paid by N14,500,419.80. The Claimant briefed his Solicitors, G. O. Okpe & Co, who, by a letter dated 7th February 2020 demanded the Claimant’s reinstatement and payment of his due entitlements. Defendant replied by its Solicitors’ letter dated 28th February 2020 disclaiming liability, hence this action. Defendant joined issues with the Claimant and prayed the Court to dismiss the suit.

Summary of final written addresses

4.            Learned counsel for Defendant nominated three issues for determination in the final written address dated and filed on 9th February 2022:

a.    Whether, going by the totality of facts and materials placed before this Honourable Court, the termination of the Claimant's employment due to poor performance was justified?

b.    Whether having regards to Suit No. NICN/LA/373/2019, wherein the Claimant actively participated in the resolution proceedings involving the parties in this suit, the Claimant is estopped from making any claim against the Defendant in this suit, and whether the present suit constitutes an abuse of Court process?

c.    Considering the resolution of issues 1 and 2, and going by the provisions of the extant laws on labour and employment in Nigeria, whether the Claimant is entitled to the reliefs sought in this suit?

5.            Arguing the first issue, learned counsel submits that the relationship between the parties is one of master and servant governed by contract, and in determining whether the Claimant’s employment was properly terminated, the Court will only consider if Defendant complied with the agreed terms, relying on Layade v. Panalpina World Trans. Nig. Ltd [1996] 6 NWLR [Pt 456] 544 at 555. Learned counsel referred to the employment letter, Exhibit 1, and the employee handbook, Exhibit 7, and argued that both documents constitute the contract between the parties and provide for one month’s written notice of termination or payment of one month's basic salary in lieu of notice. Counsel also argued that Defendant complied with this provision, and referred to Exhibits 6 and D34, and notes that Defendant sought to pay the Claimant’s terminal benefits which he initially rejected but subsequently accepted after several meetings between Defendant and the Claimant’s union representatives. Relying on the unreported case of Mr. Ogbeche Anthony Nnamdi v. Keystone Bank Limited, Suit No. NICN/KO/35/2019, which judgment was delivered on 12th January 2022, counsel submits that the law is settled that an employer can terminate the employee’s employment based on poor performance. Adverting to Exhibits D1, D3 and D4, counsel argued that the Claimant's performance in all his roles with the Defendant before the termination of his appointment was progressively abysmal. Consequently, the Claimant was placed on a Performance Improvement Plan, Exhibit D2, and he still scored "below expectation", and notes that when the Claimant contested the rating, his appraisal was interrogated leading to Exhibit D8 which further established that he did not achieve his major goals for the year, and lacked pragmatism which led to a loss of revenue to the company, and his appraisal result was magnanimously upgraded to “Partially Met Expectation”. Counsel referred to page 25 of the employee handbook and contended that Defendant can terminate the Claimant's employment for poor performance, with or without warning. Learned counsel also referred to Exhibit D14, the Claimant’s evidence under cross-examination, and the case of Mr. Ogbeche Anthony Nnamdi v. Keystone Bank Limited [supra], and argued it is not in doubt that the Claimant's performance was poor, and his employment was rightfully terminated and termination based on poor performance cannot be considered unfair in law. Counsel submits that despite the Claimant’s contention that Defendant terminated his employment without stating a valid or justifiable reason, based on the above authority, the termination is valid since Defendant complied with the terms of the employment contract in terminating the Claimant’s employment. Counsel argued that since the employment contract lacked statutory flavour, and the Claimant could not establish breach of any binding law or treaty, this Court cannot declare the termination of the Claimant’s employment wrongful, resting on the unreported case of Sunday John Attah v. First Bank of Nigeria Ltd, Suit No. NICN/ABJ/233/2019, which judgment was delivered on 19th January 2022, and urged the Court to hold so. Counsel submits that the termination letter is valid regardless of the reason stated or lack of it, resting on Obanye v. U.B.N. Plc [2018] 17 NWLR [Pt 1648] 375 at 390, 392 and Nitel Plc v. Ocholi

[ 2001] 10 NWLR [Pt 720] 188 at 214. Counsel contended that having complied with the terms of the employment contract, the Court cannot compel the Defendant to retain the Claimant’s services and the termination letter is valid, and since the Claimant's entitlements have been fully paid, the Defendant is not liable in damages, and urged the Court to hold so.  

6.            Continuing, learned counsel referred to the Claimant’s evidence during crossexamination, the defence witness evidence, and argued that the allegation of workplace harassment because of the Claimant’s union activities was not proved, and urged the Court to hold so. Relying on Nammagi v. Akote [2021] 3 NWLR [Pt 1762] 170 at 188, counsel submits that he who asserts must prove and notes that the allegation of heavy work-load or change in job responsibilities is not uniquely attributable to the Claimant, and cannot be classified as workplace harassment especially since the Claimant carried out the work he was paid for. Learned counsel argued that none of the particulars given shows any act targeted against him, and submits that where a party fails to prove his claims, the Court is bound to dismiss same, calling in aid the case of Akaose & Ors v. Okoye & Ors [2016] LPELR-40172[CA] 30. Counsel contends that the Claimant's claims are not only outrageous, but inglorious and exploitative and should be dismissed with cost.

7.            Arguing issue two, learned counsel submits that having actively participated in the process leading to the payment of his terminal benefits and accepted the benefits, the Claimant is estopped from making any claims against the Defendant rendering the suit liable to be dismissed. Section 169 of the Evidence Act, 2011, FBN Plc v. Songonuga [2005] LPELR-7495[CA] and SDV Nigeria Limited v. Ojo & Anor [2016] LPELR-40323[CA] 23, amongst others, were cited in support. Counsel explained that the Claimant claims are based on his alleged exit package that were not fully paid, and the alleged wrongful termination of his employment, and argued that these two grounds of complaint are issues already presented to the Defendant, and mutually settled by the parties and the Claimant fully paid his entitlements. Counsel referred to Exhibits D10, D12, D13, D19, D20, D21, D22, and D34, and argued that it is unconscionable for the Claimant, after receiving his full entitlements, to institute this action rendering it an abuse of Court process. Learned counsel submits that the Claimant having agreed to the payment of N25,932,844.51 as full and final settlement of his exit entitlements can no longer complain of any unpaid entitlement. Similarly, having undertaken to abide by any decision reached between his union and Defendant, and agreed not to institute any legal action against Defendant, he cannot be heard on this suit which was instituted in bad faith. The Court was urged to hold that the Claimant is estopped from making the present claims, resting on Imperial Medical Centre & Anor v. Ahamefule [2017] LPELR-42886[CA]. Counsel submits further that a party cannot approbate and reprobate at the same time, relying on Mohammed v. Farmers Supply Co. [KDS] Ltd [2019] 17 NWLR [Pt 1701] 187 at 211. Learned counsel argued that by denying the purpose and resolution of the issues in Suit No. NICN/LA/373/2019 in paragraph 46 of his witness deposition and subsequently admitting it under cross-examination, the Claimant approbated and reprobated which should not be allowed by this Court. Counsel contends that having received

his just entitlements under the employment contract, the Claimant has put to rest any entitlements, real or imagined, that he has or thought that he had with the Defendant, and urged the Court to hold so. Adverting to the Claimant’s evidence during cross-examination admitting the negotiations leading to the payment of N25,932,844.51 to him and discontinuance of Suit No. NICN/LA/373/2019, and the case of African Re Corp. v. JDP Construction [Mg.] Ltd [2003] 13 NWLR [Pt 838] 609, counsel submits that this suit is incompetent being an abuse of Court process, and the Court lacks the jurisdiction to hear it, and urged the Court to hold so and dismiss the suit.  

8.            Canvassing issue three, counsel referred to the Claimant’s first claim and argued that the Claimant has not proved his entitlement to the claim since the employment was governed by contract. Therefore, the Court cannot grant same, relying on I.H.A.B.U.H.M.B. v. Anyip [2013] 12 NWLR [Pt 1260] 1 at 18 and the unreported case of Mr. Olujide Oluyoade v. Chapal Technical Company Limited & Anor, Suit No. NICN/YEN/58/2015, which judgment was delivered on

28th January 2022. Learned counsel submits that the Claimant’s reliance on the ILO Convention No. 158 of 1982 cannot avail him since Nigeria has not ratified the Convention and the Claimant has not complied with Order 14A Rule 1 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 requiring pleading and proof of ratification of the Convention. Counsel submits that the rules of Court must be obeyed relying on Owners of the MV Arabella v. N.A.I.C. [2008] 11 NWLR [Pt 1097] 182 and F.B.N. Plc v. T.S.A. Ind. Ltd [2010] 15 NWLR [Pt 1216] 247. It was argued that while the Constitution empowers this Court to consider international best practices, what is international best practice is neither absolute nor up in the air, but it is a question of fact and guided by statute, calling in aid Section 7[6] of the National Industrial Court Act, 2006, Order 14A Rule 1[2] of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017, and the case of Emana lbor Edet v. Fidelity Bank Plc, which judgment was delivered on 17th December 2019 per Hon. Justice B.B. Kanyip. Counsel contended that since international best practice is an issue of fact, it must be pleaded and proved by the Claimant before it can be considered by the Court, and noted that the Convention was neither pleaded nor proved. It was argued that in an action where the primary relief is declaratory, the Claimant must prove his entitlement to the relief and will only succeed on the strength of his case and not on the perceived weakness of the Defendant, resting on Nduul v. Wayo [2018] 16 NWLR [Pt 1646] 548. Counsel submits that the Claimant has not placed sufficient materials before the Court to entitle him to the declaration, and urged that the claim be refused. Learned counsel also submits that the other reliefs which are dependent on the first claim must equally fail relying on Nwaogu v. Atuma [2013] 11 NWLR [Pt 1364] 117 at 156. On the claim for reinstatement, counsel argued that the Court cannot grant specific performance of a contract of service, and urged the Court to refuse it. Counsel also argued that the other reliefs are applicable to employees whose employment contracts are subsisting, and the Claimant’s employment having ceased on 28th February 2018, he is not entitled to any of the reliefs. It was further argued that the Claimant is not entitled to post-judgment interest since he is not entitled to any judgment sum whatsoever, relying on Africa

Prudential Registrars Plc v. Macaulay [2020] 18 NWLR [Pt 1755] 1 at 31.

In concluding, learned counsel urged the Court to hold that the Claimant has not proved his case and not entitled to the reliefs sought and dismiss the suit with punitive cost.

9.            Learned counsel for the Claimant nominated five issues for determination in the final written address dated and filed on 25th April 2022:

a.            Whether, in all the circumstances of this case, the termination of the Claimant’s employment by the Defendant without stating any reason and subsequently citing poor performance as the reason was not unfair, wrongful and invalid?

b.            Whether, having regard to Suit No. NICN/LA/373/2019, the Claimant is estopped from making any claim against the Defendant in this suit, and whether the present suit constitutes an abuse of court process?

c.            Whether the sum of N25,932,844.51 paid the Claimant by the Defendant upon the termination of Claimant’s employment represented the full terminal benefits due and payable to the Claimant?

d.            Whether the Claimant suffered victimization and work place harassment by the Defendant’s officers during the course of his employment?

e.            Whether, considering all the circumstances of this case, the Claimant has not suffered unfair termination as well as work place harassment and victimization by the Defendant so as to entitle him to his claim for damages?

10.         Canvassing issue one, learned counsel concedes that the Claimant’s employment was governed by the employment letter, Exhibit 1, and the employee handbook, Exhibit 7, and Defendant could terminate the Claimant’s employment by serving the prescribed notice, but argued that the Claimant’s employment could not be terminated peremptorily without any justifiable reason. Counsel submits that, given the events preceding the Claimant’s sack, such as rating him below expectation, denying him the necessary work tools, failure to address his complaints by due process, the termination of the Claimant’s employment was an act of victimization. Counsel also submits that that he who asserts must prove. Therefore, the burden is on the Defendant to prove poor performance alleged in its pleadings as the reason for terminating the Claimant’s employment, which burden Defendant did not discharge. Counsel argued that Defendant’s reliance on the 2007, 2008, 2009 and 2017 appraisal scores, Exhibits D1, D3 and D4, to prove the Claimant’s poor performance is unavailing as the Claimant was rated ‘Achieved Expectations’ in 2007, 2008 and 2009, while the 2017 appraisal score was disputed and subsequently changed to “Partially Met Expectation” which robs the document of any probative value. Learned counsel argued that it is inconceivable that the Claimant, who was consistently described as a good team player, could subsequently be described as one who did not work well with his colleagues, and noted that despite the allegation of poor performance, the Claimant was not served any query or warning letter. Counsel urged the Court to note that even though the Claimant gave Defendant notice to produce his previous years’ appraisal documents and his Personnel Staff File at the trial, in paragraph 10[b] of the amended statement of facts, Defendant failed to produce the documents because it knows that the documents would support the Claimant’s case that he always performed his duties well until his supervisors came up with ‘a hidden agenda’. Counsel submits that contrary to Defendant’s argument, this Court can enforce the ILO Convention No. 158 and Recommendation No. 166 based on Section 254C[1] of the 1999 Constitution, relying on the unreported case of Bello Ibrahim v. Ecobank, Suit No. NICN/ABJ/144/2018, per Kado, J. Learned counsel also submits that, contrary to Defendant’s arguments, the Claimant “has made it sufficiently clear in his pleadings” particularly paragraph 30 of the amended statement of material facts that he would rely on the international convention, noting that the purpose of pleadings is to put the opposite party on notice of the case it will meet so as not to be taken by surprise, resting on Odunukwe v. Adebanjo [1999] 4 NWLR [Pt 598] 317 at 320 and Bello v. Governor, Gombe State [2016] 8 NWLR [Pt 1514] 219. The Court was urged to resolve the issue in favour of the Claimant and grant the consequential orders sought. 

11.         On issue two, learned counsel argued that the plea of estoppel cannot avail the

Defendant in the circumstances of this case. Counsel referred to Exhibits D12, D13, D14 and D14A, and argued that Defendant, having rejected the Claimant’s union’s offer to convert the termination of the Claimant’s employment to redundancy, cannot accept some aspects of the offer while rejecting the others. Therefore, counsel contended that there was no binding agreement between the parties and estoppel cannot apply. It was also argued that Defendant understated the Claimant’s terminal benefits which was unknown to the Claimant until it was paid on 9th September 2019. Counsel referred to Exhibit 27, and explained that the Claimant was not privy to any amicable settlement with Defendant in respect of Suit No. NICN/LA/373/2019, and argued that Defendant wilfully and maliciously breached the terms of Exhibits 23, 24 and 22 resulting in the underpayment of the Claimant’s gratuity by N14,500,419.80. While conceding to the conditions necessary for the application of estoppel by conduct as enunciated in Chukwuma v. Ifeloye [2008] 18 NWLR [Pt 1118] 204 cited by Defendant, counsel submits that the conditions are non-existent in this case. Counsel argued that the Claimant’s agreement to be bound by the outcome of negotiations between his union and Defendant and not to take any legal action against Defendant was to the extent that the negotiation was to convert the termination of his employment to redundancy, and since that was rejected, the Claimant’s undertaking in Exhibit D12 was no longer binding on him. Counsel urged the Court to hold so, and resolve the issue in favour of the Claimant.

12.         Learned counsel answered issue three in the negative, and argued that the Claimant’s gratuity was short-paid by N14,500,419.80, 3.34% [N330,172.13] shortage occurred on the NJIC agreed 10% increase of annual basic salary, Exhibit 28 [sic, Exhibit 24], while his claim for outstanding acting allowances remained unsettled. Counsel argued that it is not correct that the Claimant rejected his entitlement, noting that when the payment was made on 9th September 2019 into the Claimant’s account a document dated 5th May 2019 was brought to the Claimant but on 21st September 2019, another version of the same document was produced with a disclaimer and delivered to the Claimant who refused to sign it but wrote on the document demanding the basis of the computation, Exhibit 23. Relying on the unreported cases of Bello Ibrahim v. Ecobank [supra] and Mrs. Evelyn Ugochi Okaranwolu v. Clear Essence California SPA & Wellness Resort, Suit No. NICN/LA/613/2014, counsel submits that the delayed partial payment of the Claimant’s severance benefits by 559 days after the termination notice plus other monies overdue and yet to be paid rendered the termination invalid and, therefore, wrongful. Counsel urged the Court to hold so and resolve the issue in the Claimant’s favour.

13.         Arguing issue four, counsel submits that the Claimant suffered victimization and workplace harassment which manifested in lack of due process in the Claimant’s 2017 year-end appraisal issue, piling of too much workload on the Claimant, maltreating him for his trade union activities, and failure to investigate the Claimant’s workplace harassment complaint. Counsel quoted the grievance procedure on pages 27 to 29 of the employee handbook and argued that the procedure was not complied with in dealing with the Claimant’s 2017 year-end appraisal complaint. It was also argued that the Claimant suffered from heavy workload and was reporting to “three functional directors” and referred to Exhibits 28, 10 and 11. Counsel explained that the export grant exercise which commenced in March 2017 and ended in January 2018 adversely affected the Claimant’s health, and argued that it was not correct that the Claimant’s health complaints were bogus. Reference was made to Exhibits 15 and 16. It was contended that the Claimant was victimized for his active participation in trade union activities, and referred to Exhibit D15 [sic, Exhibit D17] and the case of Stanmark Cocoa Processing Company Ltd v. NUFBTE, Suit No. NICN/ABJ/171/2014, which judgment was delivered on 6th October 2015 to show Defendant’s intolerance of trade union activities. Counsel referred to several decisions of this Court including Food, Beverage and Tobacco Senior Staff Association [FOBTOB] v. Grand

Cereals Nigeria Ltd & Anor, Suit No. NICN/ABJ/325/2016, and NUFBTE v. Cocoa Industries Ltd, Ikeja [2005] 3 NLLR [Pt 8] 2016, and submits that once termination for trade union activities is established, the Claimant is entitled to reinstatement despite payment of accrued benefits. It was further argued that due process was not followed in investigating the Claimant’s complaint of workplace harassment, and the sequence of events shows that the process was deliberately delayed and ultimately discontinued after the first hearing by the Defendant’s Human Resources Director. Adverting to Exhibits 26 and D9, counsel contends that the victimization of the Claimant is evident in the negative work reference issued to the Claimant. Based on the foregoing, the learned counsel urged the Court to find that the Claimant suffered workplace victimization and harassment by Defendant’s officers and resolve the issue in the Claimant’s favour.

14.         On issue five, learned counsel submits that the Claimant has established his case and he is entitled to damages. Relying on Direct on PC Ltd v. Binkam Nig. Ltd [2016] 3 NWLR [Pt 1498] 50 at 68 - 69, counsel submits that general damages are presumed by law to flow from the wrong complained of and need not be pleaded or proved because once there is a breach of a legal right, damages flow naturally. Counsel contends that the Claimant having shown that his employment was unfairly terminated, and Defendant failed to prove its assertion that the Claimant’s employment was terminated for poor performance, the Claimant would ordinarily be entitled to reinstatement, but where reinstatement is not possible, the Claimant should be compensated in general damages. Counsel urged the Court to hold that the Claimant is entitled to damages in the circumstances of this case and to resolve the issue in the Claimant’s favour.

15.         In the reply on points of law dated and filed on 23rd May 2022, learned counsel for Defendant reiterated his earlier submission that Defendant could terminate the Claimant's employment without providing a reason, resting on Obanye v. UBN Plc [supra]. Counsel submits that while the law is settled that an employer should proffer enough evidence to justify its reason for termination where one is stated, this is not applicable in this case as no reason was stated in the termination letter, Exhibit 6. Therefore, there is no burden to justify a reason that was not stated in the termination letter. Counsel argued that this Court is not bound by the decision of Bello Ibrahim v. Ecobank [supra] since the facts of both cases are dissimilar. Counsel also argued that in Duru v. Skye Bank Plc [2015] 59 NLLR [Pt 207] and Aloysius v. Diamond Bank Plc [2015] 58 NLLR 92, the issue of the legal requirements in Order 14A of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 did not arise for consideration, and for that reason, the cases are not applicable. It was argued that the Claimant’s failure to respond to the Defendant’s arguments in paragraphs 5.7 – 5.18 of the final written address on non-ratification of the ILO Convention implies admission of the issue, calling in aid Stephen Okongwu v. NNPC [1989] LPELR-2475[SC].

16.         In response to the Claimant’s issue two, learned counsel referred to Exhibits D12, D13, D14 and D10, and submits that the factual circumstances of the case support application of estoppel by conduct, and urged the Court to find and hold so. Relying on Ladoja v. Ajimobi [2016] 10 NWLR [Pt 1519] 87 at 148 and Okoto v. INEC [2022] 3 NWLR [Pt 1818] 577 at 596, counsel submits that it is trite that if a party intends to rely on a document, he should properly link the document to specific points in his claim, which the Claimant failed to do in this case. Counsel argued that Exhibits 22, 23 and 24 were dumped on the Court, and urged the Court to discountenance them. It was also argued that the Claimant did not show the basis of computation of the N14,500,419.80 unpaid gratuity and the bank deposit rate applicable to him. Counsel submits that the Claimant’s postulations at the address stage are not backed by evidence, and notes that Defendant proved that the agreed interest rate on gratuity is 7% per annum in line with the collective bargaining agreement between Defendant and the branch union. Counsel also submits that the law is clear on submissions not backed by evidence, relying on Andrew v. INEC [2018] 9 NWLR [Pt 1625] 507 at 565. Counsel submits further that the delay in payment of the Claimant’s severance benefits was due to the extensive negotiation that ensued between the parties, and the case of Chukwumah v. Shell Petroleum Dev. Co. Ltd [1993] 4 NWLR [Pt 289] 512 does not invalidate the termination where payment is made at a reasonable time after the termination date. Further reference was made to lkemba v. Pyrammidt Company Nig. Ltd [2021] LPELR-56145[CA] 26-27. 

17.         Responding to issue three, counsel submits that the employee handbook prescribes informal resolution of employee grievance before activating the formal grievance resolution mechanism, and that, in any event, Defendant complied with the employee handbook in resolving the Claimant’s grievance. Counsel argued that an alleged heavy workload is not sufficient proof of victimization. Counsel submits that Exhibits 15 and 16 do not show anything about the Claimant’s health status, and being documents which cannot ordinarily speak for themselves, expert explanation was necessary, relying on Barewa Pharm. Ltd v. FRN [2019] 9 NWLR [Pt 1677] 331 at 351. It was also argued that Exhibit D15 [sic, D17] is not proof of harassment, and the Court cannot read into a document what is not manifest on its face. The case of Gwede v. D.S.H.A. [2019] 8 NWLR [Pt 1673] 30 at 47 was cited in support. Responding to paragraph 5.33 of the Claimant’s final address, counsel argued that the Claimant failed to prove actual victimization due to trade union activities. On the work reference, counsel submits that the employer is only required to give a reference that is fair and accurate from the point of view of the employer, and referred to the unreported judgment in Olubukonla Adegbulugbe v. Guaranty Trust Bank Plc, Suit No. NICN/LA/77/2021, delivered on 10th January 2022. Counsel argued that the work reference cannot be evidence of any victimization. The Court was urged to enter judgment for Defendant and dismiss the Claimant’s action in its entirety.

Issue for determination

18.         I have carefully read the processes in this suit, and considered the submissions by the parties, and to my mind, the eight issues canvassed by the parties can be subsumed into one broad issue for determination, that is: 

Whether the Claimant is entitled to judgment on his claims or any of them.

19.         The law is trite that he who asserts must prove. See Sections 131[1], 132, 133[1] and 136[1] of the Evidence Act, 2011, and the cases of Larry Curry Limited v. Osho & Ors [2024] 8 NWLR [Pt 1940] 285 at 305 and Umera v. Nigerian Railway Corporation [2022] 10 NWLR [Pt 1838] 349 at 387. Equally, the Claimant that seeks declaratory reliefs must prove his entitlement to the declarations by credible evidence; and will succeed on the strength of his case, not on the weakness of the defence or admission by the Defendant. See Osho v. Adeleye & Ors [2024] 8 NWLR [Pt 1941] 431 at 452. In resolving employment disputes, the Court will usually refer to the employment contract and any other stipulation incorporated or deemed to have been incorporated into the contract. The contract of employment is the bedrock on which parties to an employment contract found their case, and the success or otherwise of the case depends entirely on the terms agreed or deemed to have been agreed by the parties. See Umera v. Nigerian Railway Corporation [supra] page 386. Equally trite is that in an action for wrongful termination of employment, the Court will limit itself to the employment contract and the termination letter. Whether the employer stated a reason for termination of the Claimant’s employment or not can only be ascertained from the termination letter and not otherwise. 

Summary of evidence

20.         The Claimant sought one principal relief, 12 ancillary claims and one alternative claim. He testified and tendered 28 documents in support of his claims marked Exhibits 1 - 28. These are the Claimant’s employment letter, confirmation letter, promotion letter dated 10/12/2014, letter of appointment as Acting Integrated Supply Chain Controller dated 5/10/2015, transfer letter dated 1/12/2016, termination letter dated 27/2/2018, employee handbook, Control Awareness Cascade [Discrimination, Harassment-free Workplaces], 2017 mid-year performance review outcome dated 12/10/2017, submission of application for export expansion grant for 2016 non-oil exports dated 23/6/2017 and attachments, Exporters Registration Certificate, minutes of meeting between the Defendant and

FOBTOB on 25/7/2017, Agreement on restructuring of gratuity between the

Association of Food, Beverage & Tobacco Employers and FOBTOB made on 21/2/2008 and attached documents which include Defendant’s letter to the Claimant on gratuity dated 1/12/2010, Agreement between Defendant and FOBTOB, Cadbury Branch dated 26/7/2011, Agreement between Defendant and FOBTOB, Cadbury Branch dated 16/12/2010, Agreement between Defendant and FOBTOB Cadbury Branch dated 27/9/2013, Agreement between Defendant and FOBTOB Cadbury Branch dated 20/6/2016, Agreement between Defendant and FOBTOB Cadbury Branch dated 12/3/2019,  Defendant’s letter to the Claimant dated 25/1/2011 on Kraft salary grading system, Lagos State Blood Transfusion Service cards, R-Jolad laboratory form dated 25/7/2017, WA Customer Service and Logistics Team Organogram, MIU Influencer Award, Congratulatory email dated 14/8/2017 to the Claimant and others on the Globe Awards, G.O. Okpe & Co.’s letter dated 7/2/2020 to Defendant on termination of the Claimant’s employment, Defendant’s response through Jackson, Etti & Edu dated 28/2/2020, salary review letters and statements of accrued gratuity, Defendant’s letters on the Claimant’s final entitlement dated 5/9/2019, Collective Agreement on Salaries etc. between the Association of Food, Beverage & Tobacco Employers and FOBTOB made on 15/12/2017, Claimant’s exit documentation, Tripple Gee & Company Plc reference check form, Jackson, Etti & Edu’s letter dated 25/11/2019 to the Claimant’s Solicitors on discontinuance of Suit No. NICN/LA/373/2019 between Defendant, the Claimant & Another, a bundle of electronic documents consisting of emails, the Claimant’s 2017 appraisals, other documents and a certificate of authentication.

21.         The Claimant’s evidence is that he was employed by Defendant as a Sales Accounts Clerk by a letter dated 13th July 1998 effective 15th July 1998, and his employment was confirmed by a letter dated 23rd October 1998. According to him, Defendant operated a year-end appraisal system for senior staff using a five-grading system ‘Outstanding’, “Exceeded Expectation’, ‘Achieved Expectation’, ‘Partially Met Expectation’ and “Below Expectation’, and because of his high performance and impeccable record, his year-end appraisal ratings ranged between ‘Achieved Expectation’ and ‘Exceeded Expectation’ which earned him promotions. He was promoted to Grade 9, last grade of middle management, by a letter dated 10th December 2014. He testified that he was appointed Acting Integrated Supply Chain

[ISC] Customer Service & Logistics [CS & L] Finance Controller west Africa, and he performed exceptionally until a global change in the company structure which led to his transfer to the Customer Service and Logistics [CS & L] Department on 1st December 2016. While retaining his old title, he continued to perform his finance functions but reported directly to a Non-Financial Department of CS & L with the added responsibility of overseeing some aspects of Treasury which required him to have online real time access to all Defendant’s bank account details to capture payment by customers. His employment was terminated for ‘Services no longer required’ effective 27th March 2018 [sic, 28th February 2018] which he considered stemmed from the complaints he made as part of his trade union activities on underpayment of terminal benefits of staff rendered redundant in December 2016, workplace harassment, and the ‘Below Expectation’ rating. He testified that he was a victim of victimization, workplace harassment, threats and abuses by Defendant’s officers and he complained of workplace harassment by e-mail dated 6th December 2017 and titled ‘People Issues’, which was ignored. He gave instances of the victimization and workplace harassment to include placing him on an unwarranted Performance Improvement Plan in 2017; giving him an ‘off track’ rating during the 2017 mid-year appraisal despite his performance; giving him a new assignment without appropriate working tools; delay in releasing his 2017 year-end appraisal score and the threat by his supervisor to give him a ‘Below Expectation’ rating without going through the goals/achievements for the year with him and despite 100% completion on four of the five goals, and the subsequent pressure from his deputy supervisor and the Human Resources/Industrial Relations Manager to close the appraisal processing; the appeal panel’s delay in resolving his grievances on the 2017 year-end appraisal, he submitted his grounds on 22nd January 2018, but the panel sat on 19th February 2018 for less than 2 hours, after which he received an electronic meeting invitation by 9pm for 20th February 2018 at 12pm for the panel’s verdict and the panel reversed the score to ‘Partially-Met-Expectation’ without a formal correspondence to that effect, or notification of his right of appeal. On 27th February 2018 by 3pm, his supervisor informed him of a meeting scheduled for 5pm that day, and when he arrived at the venue of the meeting, the supervisor informed him that his service was no longer required and told him to acknowledge a copy of the termination letter, but he promised to do so subsequently. The deputy supervisor later informed him that the Human Resources Management was willing to accept his letter of resignation instead of the termination letter. He insists that his 2017 year-end performance should have earned him an ‘Exceeded Expectation’ score since he fully completed his tasks for the year except the first goal which was 20% achieved due to the added treasury role and additional task that saved N3.1billion for the Defendant. He explained that due process was not followed in resolving his 2017 appraisal complaint because the panel exceeded the 5 days mandatory period; did not allow him to call a witness and to appeal; Wole Odubayo, who was his supervisor’s henchman sat on the panel; the Head of Audit, Femi Gbadewole, did not consider his previous workplace harassment complaints in line with the harassment policy when he sat on the 2017 year-end appraisal panel; the panel considered the whole year’s appraisal under 2 hours; and no document was given to him concerning the workplace harassment and the year-end appraisal. The provision of the employee handbook that all grievance issues should be resolved before the employee’s exit was breached. He stated that Defendant’s practice is that where a staff is awarded a ‘Partially Met Expectation’ score at the end of an appraisal year, he has one more year to shore up his performance and the staff would be placed on a Performance Improvement Plan after the year-end appraisal. However, he was placed on a Performance Improvement Plan after the 2017 mid-year appraisal but the opening paragraph of the letter read ‘year-end’ while the heading was ‘mid-year’. Also, by the Mondelez grievance/discrimination policy, a staff can report his grievance to his supervisor’s supervisor which was what he did but his complaint was ignored, and Defendant tried to dissuade him from pursuing this case since it could earn him a negative reference. He testified that Defendant operates a calibration system of appraisal which allows the senior officers that the employee dealt with to score him, and at the end the average rating would be awarded to the employee, which was not applied in the CS & L department, and especially to him. It is his evidence that he was victimized for his active participation in trade union activities, and was the Internal Auditor of FOBTOB, Defendant’s Branch, from 2010 until his disengagement. He championed the cause of workers when Defendant deliberately underpaid the employees rendered redundant in 2016, failed to provide exit counselling/training to them; failed to provide the 2017 half-year gift pack to some employees; failed to pay the annual professional membership subscriptions for most staff; failed to consider redundancy as a last option for the majority of staff; underpaying the interest on gratuity; introduced salary capping to the detriment of staff monthly income, gratuity, pension contributions and NJIC agreements on salary increases; and failed to pay staff Local Management Incentive Plan for 10 years. He suffered from heavy workloads which were deliberately designed to make him fail as his tasks required him to be available to give the final release of trucks carrying millions of naira worth of goods 24 hours a day being Defendant’s final control for all accounts receivables. This affected his health, he had ganglion growth, early signs of arthritis and was scheduled for surgery which he could not attend because of work schedules. He also suffered emotional and psychological trauma and was referred to an external medical consultant. He had swellings on his right ankle which made him to use ‘a medical ankle brace’, and suffered low blood count from the second quarter of 2017 but used to be a regular blood donor with the Lagos State Ministry of Health since 2013. His supervisor noted the medical challenges in the 2017 year-end appraisal, but he was not granted sick leave when he complained of severe headaches until R-Jolad Hospital gave him some days leave. He said that, based on the letter which transferred him from the Finance Department to CS & L Department, his job became complicated because of the reporting structure which required him to report to the Finance Department on finance related matters, and the CS & L Department where he was made a subordinate to the ‘Order to Cash’ team colleagues. He had the additional task of Export Grant and reported to the Corporate Affairs Manager. He perceived a design to set him up as inefficient when he received an email captioned “RE: INSTRUCTION TRACKER” which accused him of inefficiency in handling the matter. He stated that Defendant did not follow the grievance procedure in the employee handbook in resolving his complaint of victimization against his supervisor and the process took 68 days instead of the prescribed 5 working days. Also, while his colleague, Mike Adeloye, was rated ‘Achieved Expectation’ on 9th January 2018, he was marked down, and even though the extra workload on Treasury Operations required extra manpower, he did it alone, but immediately he was relieved of his duty, an extra manpower was engaged to do the job. He explained that his unjust termination was an act of wickedness and malice and intended to prevent him from receiving the 20 years Long Service Award which was due on 15th July 2018. He was unjustly denied promotion to Senior Manager twice, in November 2016 and August 2017 while cronies were hired to fill the positions. Despite his heavy work schedule, he won two awards, the Mondelez International University Influencer Award, and The Globe Award. He testified that he was made the Acting CS & L Finance Controller West Africa from January 2017 to April 2017 and performed the functions 100%, but from May 2017 to February 2018, he handled 25% of the role, and he performed this role in addition to his accounts receivables, treasury and export grants processing duties in 2017. The acting allowance for the Acting CS & L Finance Controller West Africa was only paid till December 2016. He was denied his Acting allowance from January 2017 to April 2017 at 100% of monthly acting allowance of N70,351.15 and from May 2017 to February 2018 at 25% plus accumulated interest to date. He was also made to train every member of the CS & L team on how to prepare finance reports even though they had no finance/accounting knowledge which was not acknowledged by his supervisor. He testified that Defendant owes him gratuity since it applied 7% interest on the gratuity balances instead of the agreed CBN deposit rate and the rate was only applied at year-end instead of half-yearly as agreed, resulting to an under-payment by N14,500,419.80 as of December 2019. He stated that Defendant maliciously capped staff salaries which reduced his NJIC salary increment by 3.34% based on the annual basic salary of N10,530,200.04 which Defendant quoted on the Tripple Gee & Company Reference Form. He stated that when Defendant refused to rescind the termination of his employment, he briefed his Solicitors, who wrote to Defendant a letter dated 7th February 2020 demanding re-instatement and compensation. Defendant replied through its Solicitors by a letter dated 28th February 2020 rejecting the demands, hence this suit. He claims per his statement of facts.

22.         In his further statement on oath dated 30th March 2021, the Claimant maintained that his performance with Defendant was optimal at all material times, and his movement to another role was due to Defendant’s global re-organisation. He said the role of Acting Integrated Supply Chain [ISC] Customer Service & Logistics [CS & L] Finance Controller West Africa was scrapped and merged with Integrated Supply Chain [ISC] Customer Service & Logistics [CS & L] Finance Controller South Africa, while the Integrated Supply Chain [ISC] Customer Service & Logistics [CS & L] Finance Controller Morocco role was scrapped and merged with that of Egypt and he continued to perform the role 100% with his accounts receivables’ roles until April 2017 when the Integrated Supply Chain [ISC] Customer Service &

Logistics [CS & L] Finance Controller South Africa absorbed the West African role. Nonetheless, he carried out 25% of the role of the Integrated Supply Chain [ISC] Customer Service & Logistics [CS & L] Finance Controller South Africa from May 2017 to February 2018. He reiterated that he performed the roles well with his old role of managing accounts receivables which was expanded to include treasury functions. He maintained that the first discussion point on the PIP was a deliberate action by his supervisor who did not provide the requisite work tools but he still achieved his PIP expectations. He insisted that his employment was not terminated for poor performance but for his activities in the Food Beverage and Tobacco [FOBTOB] Senior Staff Union, lack of due process concerning his year-end appraisal process and workplace harassment complaints. He maintained that the series of actions narrated by Defendant were all witch-hunt and deliberate orchestrations to get him out of the company, and he was not served any formal warnings as stated in the employee handbook. He did not sign the termination letter because the reason for the termination was not stated, and the claim of poor performance is an afterthought. He testified that the ‘off-track’ rating during the mid-year appraisal was done out of malice and the document dated 12th October 2017 presented by Defendant is faulty and ill-intentioned since the title ‘2017 mid-year performance review outcome’ is at variance with the opening paragraph ‘2017 year-end performance review’ which shows that the Performance Improvement Plan was not meant to be issued after mid-year appraisals. He explained that the task assigned by his supervisor was never indicated as a priority of all the tasks to be accomplished by him, and the task of calling customers is the task of the CS & L Customer Phasing Unit which constantly communicates with all the customers Pan Nigeria, and that all Defendant’s customers Pan Nigeria are shared amongst 3 of the Customer Phasing Unit members plus a 4th vacancy in the Organisational Chart of the CS & L department, but his supervisor maliciously added this task to him. He testified that the task was later expanded beyond what was stated in the midyear 2017 and year-end 2017 appraisal documents to include all Defendant’s banks for which he was ill-equipped. He stated that his supervisor told him that she would score him “Below Expectation” and deliberately delayed issuing the rating. He was the first to be appraised but the last to be scored which breached the First-In-FirstOut [FIFO] rule which the CS & L department should adhere to. He insisted that his sleeping at the office was in no way related to negligence, but due to his dedication and determination to achieve the steep deadlines which was appreciated by Defendant’s former Managing Director. According to him, he deserved more than the ‘Partially Met Expectation’ rating awarded to him by the Panel. He emphasized that he was not aware of any agreement for Defendant to withdraw any case as no other process apart from a hearing notice was served on him. When he learnt of the Suit No. NICN/LA/373/2019, he caused appearance to be entered for him and applied for the Court processes to prepare for the matter but when the matter came up in Court, Defendant had filed a notice of discontinuance and the case was struck out on 20th January 2020 in Defendant’s absence. He said Defendant, by its lawyers’ letter of 25th November 2019, informed him that the suit was inadvertently filed, and noted that when he received the N25,943,844.50 he indicated that it was not his full and final benefits, and his request for the basis of the computation was ignored instead Defendant maliciously sent another copy of the letter asking him to sign that he received his full benefits but he refused to sign. He insisted that his entitlements were not correctly computed because he earned a net monthly salary of N1,200,000.00 and his gratuity ought to be N38,600,497.30 instead of N25,943,844.50. 

23.         Under cross-examination, the Claimant admitted that he was scored ‘off track’ in his mid-year review and placed on performance improvement plan, and in the yearend appraisal he was scored ‘below expectation’ which he contested and a panel was set up to consider the objection, and gave him an upward review. He admitted

that poor performance by a manager is a ground for termination of employment per clause 4.4[c] and [d] of the employee handbook. He also admitted that the 5 days stipulated in the employee handbook could be extended, and the Defendant has a policy against harassment, Exhibit 8. He testified that he was supposed to act as ISC Controller for nine months and acted for more than 9 months but was paid for 9 months. He admitted that he was an active union member, but the Defendant did not warn him against his union activities. He also admitted that when he was transferred to another department, he was not the only one doing the work there, and another team was carrying out similar duties at the Ondo Office with great results. He confirmed that converting the termination of his employment to redundancy was part of the union’s offer which had intervened on his behalf, and the offer was rejected on ethical grounds. He admitted that the Defendant instituted an action against him and his union to restrain them from embarking on any industrial action against the Defendant. He admitted that negotiations for an amicable settlement of the dispute took place between the union and the

Defendant. He denied that any resolution was reached but said his gratuity of about N25m was paid to him on 5/9/2019. When told that the Court action was discontinued in August 2019, he admitted that the suit was discontinued but said he did not know when and why it was discontinued, but confirmed that it was after ‘all of these’ that he filed this suit. He denied that the heads of his claim represent the heads of claims already paid to him. When asked to tell the Court the basis of the payment to him, he said he did not understand the basis of the payment which is why he is in Court. He denied receiving any warning letter during his employment by the Defendant. Re-examined, he said the upward review of the 2017 year-end appraisal was communicated verbally.

24.         Defendant’s witness and Employee Relations Manager, Mrs. Laanumi Ogunrinde, admits that the Claimant was employed as a Sales Accounts Clerk, but said the Claimant’s performance was not impeccable. According to her, the Claimant’s performance was satisfactory during the early years of his employment but fell below expectation thereafter. She testified that during Defendant’s internal reorganisation, the Claimant’s role was moved to another unit. She admits that the Claimant was appointed Acting Integrated Supply Chain [ISC] Customer Service and Logistics [CS & L] Finance Controller, West Africa for some time but denied that his performance in the respective roles was exceptional. In fact, she said his performance was abysmal leading to the eventual termination of his employment effective 28th February 2018. She stated that the issuance of a termination letter to the Claimant was the last of a series of actions taken to address his poor performance. In 2017, Defendant placed the Claimant on a Performance Improvement Plan but he failed to meet up, and his performance continued on a downward trajectory and did not show any sign of improvement and, in support of her testimony, referred to the 2007, 2008, 2009 and 2017 appraisal reports. She insisted that the Claimant’s employment was terminated for poor performance and not because of his union activities, the workplace harassment complaint or his protest of the ‘Below Expectation’ rating. She stated that the Claimant’s poor performance and inability to meet his agreed target coupled with the various appraisal reports on the Claimant’s poor performances and series of complaints about the Claimant performances and attitude were sufficient reasons for the termination of the Claimant’s employment. She said other employees had their employment terminated at various times for similar reasons, and the Claimant was not victimized, harassed, threatened, or abused by Defendant’s officers whether during or after the termination of his employment. She denied that the Claimant’s ‘People Issues’ was related to workplace harassment or victimization as the Defendant has a well-documented discrimination and harassment policy. It is her testimony that the Performance Improvement Plan was specifically recommended and conducted for the Claimant because of his poor performance but he failed to meet the objectives of the PIP. She maintained that the “Off Track” rating reflected the Claimant’s 2017 mid-year performance. She stated that the task which the Claimant’s supervisor assigned to him was of utmost importance to the Defendant and well within the Claimant’s duties, and he was adequately provided with the facilities required to perform the task. She denied the Claimant’s assertion that his supervisor told him that she would award him a ‘Below Expectation’ rating, and said that the rating was awarded based on an objective appraisal of the Claimant’s performance for the relevant period. She insists that the Claimant’s deputy supervisor did not pressure him to close the appraisal which was conducted in line with Defendant’s laid down procedure and within the designated timeline. The Claimant’s rating was changed to ‘Partially Met Expectations’ after the Panel became satisfied that the Claimant actually met some of his objectives, but the Claimant could not prove to the Panel that he met all his objectives, hence the rating. She said the rating was awarded to the Claimant after a thorough deliberation and review by a Panel of cross-functional colleagues who reviewed the evidence provided by the Claimant to prove that he met expectation and compared it with his set objectives and expectations. She maintained that Defendant never offered the Claimant the option to resign, and reiterated that the Claimant’s performance was poor and below expectation in 2017 and the Claimant only achieved one out of all his objectives which was completion of assigned selfdevelopment trainings but he could not achieve his two critical objectives. She also stated that the Claimant was not pragmatic in doing his job which resulted to loss of revenue, and Defendant received several mails from internal customers complaining about the Claimant’s attitude and job performance. She stated that the Claimant was not responsible for the export grants refund to the Defendant. Defendant had a cross functional team which managed the process, and also hired a consultant to support the process, and the team included colleagues from Treasury Unit, Corporate and Government Relations Unit, Customer Service & Logistics Unit, and the Finance Unit. The Claimant’s role in the whole process was limited to ensuring that the documents submitted by the freight forwarding agents for the Ikeja site was complete before forwarding same for processing, and another employee from the Ondo Site performed the same task. She stated that this was a negligible task to even qualify as an expectation or target as the volume of exports from the Ikeja plant was much smaller than the exports from the Ondo site. She stated that the Claimant’s admission of sleeping at the office shows that he was negligent in performing his duties as was reported by several stakeholders. She maintained that Defendant followed due process in addressing the Claimant’s appraisal grievance and the employee handbook allows Defendant to exceed five days in responding to an employee’s complaint where it is not possible to respond earlier as was the case with the Claimant’s complaint, and that the Claimant’s grievance was properly addressed before termination of his employment.  

25.         Continuing, she stated that Defendant can terminate an employee’s employment based on a poor appraisal rating provided that the termination complies with the employee’s terms of employment, and further stated that none of Defendant’s officers threatened the Claimant with a negative reference, and when Defendant was contacted by the Claimant’s current employer for a reference, it obliged. According to her, the Claimant never made an official complaint about the alleged heavy workload and he was never given any heavy workload but was assigned tasks which fell within his job description and he did not have any responsibility for the depot operations. He worked late because of his inefficiency and poor planning, and Defendant, in appropriate cases, runs a shift arrangement which the Claimant, by his role, was not part of. She stated that the Claimant did not apply for a sick leave before visiting the hospital, so the Defendant was not in a position to grant or refuse it. She denied that the Claimant was transferred to the CS & L department and the organizational structure changed with the sole intent of setting him up as inefficient. She explained that the change in structure was necessary to improve efficiency, increase productivity and ensure a smooth running of Defendant’s operations and the Claimant was not the only employee affected by the new structure. She stated that the CS & L organizational structure still exists, and was designed to drive efficiency, and was not focused on the Claimant. She admitted that a meeting was convened on 14th February 2018 to address the Claimant’s complaint, and reiterated that the employee handbook allows for the grievance remedial meeting to be called even after the stipulated five days where it is impossible to do so earlier. She explained that Defendant’s appraisal and promotion system is merit-based and non-discriminatory, and Defendant was not responsible for any act of victimization or harassment against the Claimant, and Defendant’s officers did not victimize the Claimant in any way. She stated that the Claimant did not receive any individual awards in 2017, and the awards were not in recognition of his overall job performance. She explained that the Mondelez International University [MIU] Influencer Award was not an award but only a recognition of the Claimant’s commitment to learning on Mondelez International University, an online learning platform set up for Defendant’s staff development. She stated that the Learning & Development team selected some colleagues in recognition of their usage of the MIU to influence others in using it and spreading the inherent advantages of the company’s internal e-learning platform, and it is a recognition to motivate the use of the learning tool and not a performance-related goal to be appraised on. Hence, the Claimant could not have been appraised on it. She stated that the Globe Award was a peer recognition from another employee to all employees who contributed to the collective achievement, and it was a team award to the whole personnel of the Customer Service & Logistics [CS & L] team in Defendant’s head office. She said the recognitions go to show Defendant’s objectivity and non-partiality towards the Claimant and his team in deserving situations. She insists that Defendant’s policy on acting allowance does not allow

acting in perpetuity, and notes that acting is for a specified period and the acting allowance is also for a specified period. She stated that the Acting CS & L Finance Controller West Africa was a developmental exposure to the Claimant and was for a defined period during which the acting allowance was paid to him, and the payment ended when the period expired. Therefore, the Claimant’s claim of acting 25% of the role is not correct since acting is done in full capacity of a role and not in percentage. In addition, a substantive Finance Controller was appointed into the role and the Claimant was no longer required to act in that role. She stated that one of Defendant’s strategies on learning and development is “Learn-Do-Teach” where all employees are expected to share learning and understanding amongst themselves to foster self-improvement and team bonding, which practice is a given and all employees do this as part of their daily tasks. Therefore, it was not anything exceptional for the Claimant nor was it a task for him. She maintained that the agreed interest rate on gratuity balance is 7% per annum per the collective bargaining agreement between Defendant and the Branch Union which Defendant complied with, and yearly statements were given to employees including the Claimant who did not contest the computation and his yearly statements. She stated that the first computation and statement of final entitlement was not different from the second one because the laptop bag worth N10,000.00 was not returned by the Claimant. Defendant initially deducted the N10,000.00, but magnanimously waived it hence the second statement. She said the computation and amount paid to the Claimant is correct and represents the Claimant’s full and final entitlement. She admits that the Claimant’s Annual Basic Salary when he exited in 2018 was N10,530,200.04 and said that in January 2018, the Claimant’s increment was taken into consideration per Defendant’s reward policy hence, the amount was quoted on the Tripple Gee & Company Plc reference form, but as of December 2017, the Claimant’s salary was N9,873,065.61. His terminal benefit was calculated on N10,530,200.04, and there was no shortage to the Claimant’s salary at any time. She testified that immediately after the termination of the Claimant’s employment, the Claimant caused FOBTOB to make untenable demands on the Defendant ranging from conversion of the Claimant’s termination to redundancy and long service award amongst others. Also, the Claimant misreported the incident to the Federal Ministry of Labour and Employment which convened a meeting between the parties by a letter dated 9th April 2018. The Defendant and FOBTOB also held several meetings on the matter at which Defendant told the Claimant and FOBTOB that the Claimant’s employment was terminated for poor performance, and refused to yield to the request to change the reason for the termination or convert the termination to redundancy or anything else as doing so would be dishonest, and amount to setting a bad and unjust precedent, as well as constitute conduct against Defendant’s corporate policy. She stated that FOBTOB, on behalf of the Claimant, continued to pressurise Defendant to accede to their demands, but Defendant refused. In furtherance of the amicable resolution of the dispute, the parties were required to meet again at the National Joint Industrial Council, but FOBTOB instead of convening a meeting at the Council took the matter directly to the Ministry of Labour and Employment. Defendant, by a letter dated 2nd May 2018, complained about FOBTOB’s action to the Ministry of Labour and Employment, and despite the intervention of the NJIC and the Ministry of Labour and Employment, parties could not amicably resolve the matter as the Claimant, acting in concert with FOBTOB, insisted on his demands. According to her, the Claimant used FOBTOB to further his personal interests and to disrupt Defendant’s lawful business, and FOBTOB did not exhaust the internal and statutory processes for resolving disputes when it threatened industrial action against Defendant aimed at pressuring Defendant to accede to the Claimant’s demands. She also stated that Defendant had on many occasions made several attempts to resolve the matter and make the Claimant and FOBTOB understand that their demands were impracticable but to no avail. AFBTE requested FOBTOB to explore the process stated in the Procedural Agreement governing FOBTOB but the Claimant and FOBTOB refused and went about issuing threats of industrial action. In apprehension of an industrial action, Defendant filed the Suit No. NICN/LA/373/2019, Cadbury Nigeria Plc v. Paul Udeh & FOBTOB seeking injunctive and other reliefs. While the suit was pending, Defendant and the Claimant agreed to an amicable settlement based on which Defendant agreed to withdraw the suit, and magnanimously agreed to pay the Claimant all his outstanding benefits as mutually agreed between the Claimant and Defendant. Based on the amicable agreement, Defendant paid N25,932,844.51 in full and final satisfaction of the Claimant’s entitlements. The payment was acknowledged by FOBTOB in their letter dated 18th November 2019, wherein they expressed appreciation to Defendant. Defendant, acting under the impression and representation made by the Claimant that the dispute in Suit No. NICN/LA/373/2019, Cadbury Nigeria Plc v. Paul Udeh

& FOBTOB, had been resolved, withdrew the suit, which was struck out on 20th January 2020. Therefore, the Claimant is estopped from claiming the reliefs in the instant suit or any other sum whatsoever against Defendant as his purported outstanding entitlement and terminal benefits have been paid. The defence witness stated that Defendant filed the Suit No. NICN/LA/373/2019, Cadbury Nigeria Plc v. Paul Udeh & FOBTOB, after exhausting all other avenues of amicable resolution, and discontinued the suit upon payment of the settlement sum, but was surprised that the Claimant began to make spurious demands for further payment of alleged outstanding benefits by his Solicitors’ letter dated 7th February 2020, which Defendant replied the letter by its Solicitors’ letter dated 25th February 2020 declining the Claimant’s demands. She stated that the Claimant has continued to harass the Defendant, disrupt Defendant’s activities, abuse and embarrass Defendant and its staff, and ultimately constituted this suit to further harass and extort Defendant which demands are unlawful, unreasonable, unjust and oppressive and calculated to intimidate and harass Defendant and to further unleash great pains and hardships on Defendant’s business. She stated that the Claimant does not have any reasonable cause of action against Defendant, and Defendant does not owe the Claimant any entitlements whatsoever. Therefore, the Claimant is not entitled to his claims, and he is gainfully employed with Tripple Gee & Company Plc. 

26.         She tendered 42 documents, subject to the Claimant’s right to object to admissibility in his final address, which were marked Exhibits D1 to D42. These are Claimant’s 1998, 2007, 2008, and 2009 performance appraisals, letter to the Claimant dated 12/10/2017 on 2017 mid-year performance review outcome, the Claimant’s 2017 mid-year performance review, the Claimant’s 2017 year-end performance review, Email exchanges of 18th and 19th May 2017, Defendant’s letters dated 23/6/2017 to Nigeria Export Promotion Council, Defendant’s letter dated 29/6/2017 to Nigeria Export Promotion Council authorising the Claimant to collect the Export Certificate, Performance Review Panel’s report dated 19/2/2018, a bundle of documents on the Claimant’s work reference, FOBTOB’s letter dated 18/11/2019, Federal Ministry of Labour & Employment letter dated 9/4/2018, the Claimant’s letter dated 25/3/2019 on conversion of termination of appointment to redundancy, Minutes of Defendant’s meetings with FOBTOB on 25/2/2019 and 26/4/2019, Defendant’s letter dated 2/5/2018 to Association of Food, Beverage and Tobacco Employers [AFBTE] on breach of the memorandum of agreement by FOBTOB, FOBTOB’s letter dated 8/5/2018 to AFBTE, Communique of disagreement signed by Defendant and FOBTOB on 22/5/2018, Defendant’s letter dated 23/5/2018 to AFBTE, FOBTOB’s letter dated 7/5/2019 to Defendant, FOBTOB’s letter dated 13/5/2019 to Defendant, FOBTOB’s letter dated 18/6/2019 to Defendant, FOBTOB’s letter dated 8/7/2019 to Defendant, FOBTOB’s letter dated 9/7/2019 to Defendant, Defendant’s letter dated 9/5/2019 in response to FOBTOB’s letter dated 7/5/2019, Defendant’s letter dated 21/6/2019 in response to FOBTOB’s letter of 18/6/2019, Defendant’s letter dated 24/6/2019 in response to FOBTOB’s letter of 24/6/2019, Defendant’s letter dated 24/6/2019 in response to FOBTOB’s letter of 18/6/2019, Defendant’s letters dated 2/7/2019 to AFBTE and FOBTOB, Defendant’s letter dated 9/7/2019 to FOBTOB, Defendant’s letter dated 9/7/2019 to AFBTE, Defendant’s letter dated 10/7/2019 to FOBTOB, Memorandum of Agreement between AFBTE and FOBTOB, copy of General Form of Complaint in Suit No. NICN/LA/373/2019, Defendant’s letter dated 9/7/2019 to FOBTOB, Defendant’s letter to the Claimant dated 5/9/2019 on his final entitlements and attachments, Notice of Discontinuance of Suit No. NICN/LA/373/2019, the Claimant’s Solicitors’ letter to Defendant dated 7/2/2020, Defendant’s Solicitors’ reply dated 25/2/2020, the Claimant’s supervisor’s 1-1 sessions summary dated 4/10/2017 and 14/11/2017, Memo to the Claimant dated 30/8/2006 on breach of Defendant’s email policy, Email dated 10/10/2017 to the Claimant and others, Email dated 16/10/2017 to the Claimant on Bank Instruction Tracker, and certificate of authentication.

27.         Under cross-examination, the defence witness was shown Exhibit 28 and asked if the Claimant sent the letter, to which she answered “I am not sure”. She admitted that the meeting was held but did not know the date. She said she did not have any official report of the Claimant’s workplace harassment complaint, but admitted that Defendant has a policy on zero tolerance for harassment. She was shown paragraph 24 of the amended statement of defence and confirmed that the panel which comprised Wole Odubayo, Femi Gbadewole and Peter Ajakaiye followed due process. While admitting that Wole Odubayo was cited in the Claimant’s workplace harassment complaint, she explained that the complaint before the panel was performance review and not workplace harassment. She admitted that she is Defendant’s Employee Relations Manager, and signed the agreement between

Defendant and the union. She was a former General Secretary of FOBTOB, Defendant’s branch. When asked on what basis she derived the poor score she awarded the Claimant, she replied that she did not appraise the Claimant, but the line manager did. She admitted that the Claimant has never been involved in fraud. When asked ‘how come your rating of the Claimant is now different’, she explained that being involved in fraud is different from performance. The rating is based on performance which is based on the records ‘they have’. She said it is not correct that the Claimant’s transfer to CS & L was due to his poor performance. She admitted that there was nothing in Exhibit 27 to show the suit was withdrawn on account of a settlement. She also admitted that Defendant did not give any reason for terminating the Claimant’s employment. When asked if she was aware the Claimant rejected the computation of his entitlement twice, she said she is aware that he rejected it once, but when the payment was made, he accepted it. Under re-examination, she confirmed that the panel Wole Odubayo sat on was a performance review panel. 

Evaluation of evidence

28.         I have carefully read and considered the oral and documentary evidence adduced by the parties. It is not in dispute that the Claimant was Defendant’s employee and his employment was terminated by a letter dated 27th February 2018 for ‘services no longer required’ effective 28th February 2018. See Exhibits 1 and 6. It is also not in dispute that the Claimant’s terminal benefits were paid on 9th September 2019, see Exhibits 23 and D34, about 18 months after his disengagement. It is not disputed that Defendant and the Claimant’s union held several meetings and exchanged many correspondences. See Exhibits D10, D12 – D31. It is also not in dispute that the Claimant was awarded ‘off-track’ rating in the 2017 mid-year performance review, and ‘below expectations’ in the 2017 year-end review. He objected to the score, a panel was set up and the score was adjusted to ‘partially met expectation’. See Exhibits D2 – D4, D8. Equally not disputed is that Defendant filed Suit No. NICN/LA/373/2019 against the Claimant and his Union, FOBTOB, which was eventually struck out on 20th January 2020 based on Defendant’s Notice of Discontinuance dated 6th August 2019. While Defendant insists that the Claimant actively participated in the suit which was discontinued by agreement of the parties, the Claimant asserts that he was not served with the originating process, and only entered an appearance after receipt of the hearing notice, and was not privy to any settlement. The Claimant’s principal claim is for a declaration invalidating the termination of his employment because Defendant failed to state a reason or justifiable reason for terminating his employment in breach of Articles 4 and 5 of the ILO Convention No. 158 of 1982. Defendant averred that the Claimant’s employment was terminated for poor performance, and further averred that having received his terminal benefits based on which the Suit No. NICN/LA/373/2019 between Defendant and the Claimant and his union was discontinued, the Claimant is estopped from bringing this action. 

29.         Let me say that the burden of establishing his claim to the satisfaction of the Court rests on the Claimant, and he discharges that burden on a balance of probabilities.

See Section 134 of the Evidence Act, 2011. It is also noteworthy that a party who makes allegations of fact in his pleadings bears the burden to prove what he asserts. See Sections 131[1] and 136[1] of the Evidence Act, 2011. Let me reiterate that in an action for wrongful termination of employment, the documents that the Court will consider are the employment contract and the termination letter. Where it is alleged that a reason for the termination was not disclosed, that fact can only be discerned from the termination letter and not otherwise. So, what happened after the employee’s disengagement are not material to discovering the reason for termination of the employment, but will only support or disprove the allegation of bad faith in terminating the employment. 

30.         Exhibit 6 is the letter terminating the Claimant’s employment. It is headed “SERVICES NO LONGER REQUIRED”. Paragraph one reads “This is to inform you that with effect from February 28th, 2018 your services to the company will no longer be required.” No other reason was given for terminating the Claimant’s employment rendering Defendant’s subsequent explanations that the Claimant’s employment was terminated for poor performance an afterthought. Ordinarily, Defendant was under no obligation to justify the termination of the Claimant’s employment since no reason was given. However, Defendant averred in paragraph 6 of the consequential amended statement of defence that “the issuance of a termination letter to the Claimant was the last of a series of actions taken to address the poor performances of the Claimant.” In paragraph 8, Defendant averred that “the Claimant’s termination was strictly based on poor performance”. This pleading is replicated in various paragraphs of the statement of defence, and the main plank of Defendant’s defence is that the Claimant’s employment was terminated for poor performance, and Defendant can terminate an employee’s employment for poor performance without warning per clause 4.4[a] of the employee handbook, Exhibit 7.  Learned counsel for Defendant argued, in paragraphs 3.5 to 3.11 of Defendant’s final written address, that an employer can terminate the employee’s employment for poor performance, and relying on Exhibits D1, D3 and D4, contended that the Claimant's performance in all his roles before the termination of his appointment was progressively abysmal, and termination for poor performance cannot be considered unfair in law, calling in aid the unreported case of Mr. Ogbeche Anthony Nnamdi v. Keystone Bank Limited [supra]. In paragraph 2.5 of the reply on points of law, Defendant made a volte face and argued that it did not proffer a reason for terminating the Claimant’s employment, and does not owe any obligation to justify what was not stated in the termination letter. Thus, admitting the Claimant’s evidence in paragraph 6 of his witness deposition that Defendant terminated his employment by a letter dated 27th February 2018 for “services no longer required” without stating any reasons for the termination. A party must be consistent in presenting his case and will not be allowed to be shifty in proving his case. See Ararume v. Ubah & Ors [2021] 8 NWLR [Pt 1779] 511 at 533. Nonetheless, by the combined force of Sections 131[1] and 136[1] of the Evidence Act, 2011, Defendant has the evidential burden to prove that the Claimant's performance in all his roles before the termination of his appointment was progressively abysmal and that his employment was terminated for poor performance because anyone

that wants the Court to believe in the existence of a fact must prove that fact. See Section 136[1] of the Evidence Act, 2011.

31.         To discharge this burden, Defendant tendered Exhibits D1, D2, D3, D4 and D8. I have calmly considered the exhibits, and they do not support Defendant’s assertion that the Claimant's performance in all his roles before the termination of his appointment was progressively abysmal. Exhibit D1 consists of the Claimant’s appraisals for 1998, 2007, 2008, and 2009, and his performance in those years was good. In 1998, the appraiser remarked that “Mr. Udeh has been a good worker. He needs to continue to learn and do his best. I propose a course for him next year that will enhance his work.” In 2007, 2008 and 2009, the Claimant’s appraisal score was “Achieved Expectations”. The manager’s comment in 2007 was “Satisfactory. Paul has the potential to excel in his role and should work towards exceeding expectation.” In 2008, the manager remarked that “Paul has demonstrated the capacity to learn which helped him [in] the year under review.” The overall summary and rating of the Claimant’s performance in 2009 was “Paul has performed well in the course of the year. He was able to achieve and meet up with expectations on the job. He needs to continue developing strategies on how best to liaise/work with all stakeholders for the success and good performance of his set objectives.” The manager’s comment was “The areas of improvement has been discussed with him and I believe he is fully ready to take up the challenge to surpass all expectations in year 2010.” Exhibits D2, D3, D4 and D8 relate to the 2017 appraisal. In the 2017 mid-year assessment, the Claimant was rated “off track”, and was placed on a performance improvement plan. The letter placing him on the performance improvement plan, Exhibit D2, is captioned “2017 Mid-Year Performance Review Outcome”, but the first paragraph reads “The 2017 Year-End

Performance review exercise has been concluded and you were rated Off Track.” Exhibit D3 is the 2017 mid-year performance review, while Exhibit D4 is the 2017 year-end performance review. The Claimant was rated ‘Below Expectations” which he protested against and requested an independent review. The panel that was set up scored him ‘Partially Met Expectation’. Interestingly, in Exhibit D4, the Claimant completed four of his five objectives, and despite rating him ‘below expectations’, the Claimant’s supervisor wrote at page 4 of the review “Paul has made some changes late in 2017, but needs to scale up in taking ownership and inspiring trust. He further needs to work on discuss, decide and deliver as well as being open and inclusive. I believe that Paul has the experience as a finance person and the number of years he has put in the business to deliver more than what he is currently doing. He has done quite a number of Mondelez University courses which he confirms has helped his understanding of his role and in his achieving deliverables. He however needs to be willing to apply a positive attitude to his work to achieve this. In the year 2018, Paul is further charged with showing more team commitment [lending his weight to move the team forward- taking part in projects and team deliverables, bringing the unit together to look for progressive approaches], owning his deliverables, holistically planning ahead versus being reactive and ensuring that issues are resolved in the way that meets the customers’ needs [having the customer at heart] and showing leadership skills as a senior member of the business. I am willing to work with Paul on a performance improvement program to ensure he performs at the expected level in 2018.”  

32.         The Claimant averred in paragraph 10[j] of the amended statement of facts that “The norm in the Defendant is that where a staff of the Defendant is awarded ‘Partially Met Expectation’ [PME] at the end of an appraisal year, he has yet another year to make up for this, if not such a staff would be shown the way out [i.e. two years to make up for the PME rating of the year end appraisal of the prior year, should the staff score PME that the staff is issued a Performance Improvement Plan-PIP]. However, in the Claimant’s case, the PIP was issued to the Claimant at the end of the mid-year appraisal of 2017, dated October 12, 2017, where the opening paragraph read Year-end, but the heading was Mid-year, further exposing the malicious intent of the Signee – Wole Odubayo.” Defendant’s response, in paragraph 25 of the amended statement of defence, is “The Defendant denies paragraph 10[j] of the statement of facts and states that the Defendant is not precluded by its Handbook or any other policy document from terminating an employee’s employment following a poor appraisal rating provided that the termination is in accordance with the employee’s terms of employment.”   This is an evasive traverse. The substance of the Claimant’s averment was not contradicted. It is the law that where averments in pleadings are not expressly traversed, they are deemed admitted. See Muomah v. Enterprise Bank Limited [2015] LPELR-24832[CA] 11 – 13. Defendant is deemed to admit the Claimant’s averment that Defendant’s practice is to place an employee on a performance improvement plan after the year-end appraisal if the employee has a poor rating. This fact casts doubt on Exhibit D2. It is the Claimant’s evidence that the performance review panel breached the employee handbook by unduly delaying the proceedings and failing to notify him in writing of its decision and his right of appeal. See paragraph 10[f] of the amended statement of facts reproduced as paragraph 9[f] of the Claimant’s witness deposition. Again, Defendant did not challenge the Claimant’s evidence that the panel breached the employee handbook. See paragraph 17 of the amended statement of defence reproduced as paragraph 18 of the defence witness deposition. Under cross-examination, the Claimant admitted that the 5 days stipulated in the employee handbook can be extended. However, while clause 4.7 of the employee handbook contemplates extension of the stipulated 5 working days within which to communicate to the employee, there is a qualification ‘and reason for the delay’. The reason for the delay must be explained to the employee. In this case, no reason whatsoever was given for the delay. Defendant proceeded in utter disregard of its rules. Moreover, Defendant argued, in paragraph 3.7 of the final address, that the panel’s report, Exhibit D8, established that the Claimant did not achieve his major goals for the year, lacked pragmatism which led to loss of revenue. I have reviewed Exhibit D8, the report of the investigation panel, even though it was not signed and was not served on the Claimant, the Claimant admitted that the panel re-scored him “Partially Met Expectation”. However, I observe that Exhibit D8 lacks the character of an independent review. The panel adopted wholesale the Claimant’s supervisor’s statement that “Paul did not achieve his two most important goals. Hence, leading to loss of revenue to the company”, without evidence of the revenue loss. Despite the obvious misdirection of the panel as manifest on page 2 paragraph one under ‘findings’, where the panel found that “It was established that Paul did not achieve all his 2018 goal. The two critical objectives were not achieved”, there is nothing

in Exhibit D4 or Exhibit D8 that supports the Claimant’s supervisor’s conclusion that the Claimant did not achieve his two most important goals leading to loss of revenue to Defendant. In addition, Exhibit D4 supports the Claimant’s evidence that an employee who is rated ‘partially met expectations’ would be placed on performance improvement plan for one year to shore up his performance. The Claimant’s evidence that performance improvement plan is usually after the yearend appraisal and the employee has one year to improve or be sacked, remains unchallenged. This questions the haste with which the Claimant’s employment was terminated, and supports the Claimant’s evidence that his employment was terminated because he challenged the 2017 year-end appraisal score. In this premise, I find as a fact that Defendant has not discharged the evidential burden that the Claimant's performance in all his roles before the termination of his appointment was progressively abysmal and that his employment was terminated for poor performance. 

33.         That is not all. The Claimant challenged the termination of his employment because Defendant did not state any reason for the termination, and relied on the ILO Convention No. 158 of 1982, the Termination of Employment Convention. Article 4 of Convention No. 158 provides that “The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.” Article 5 provides, in part, that union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours shall not constitute valid reasons for termination of employment. Defendant challenged the Claimant’s reliance on Convention 158 because Nigeria has not ratified the Convention, and the Claimant did not plead and prove the convention and its ratification as required under Order 14A of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 [“the Rules”]. The Claimant’s response is that he pleaded the Convention in paragraph 30 of the amended statement of facts. Paragraph 30 of the amended statement of facts reads “Whereof the Claimant claims against the Defendant as follows: r. A declaration that the termination of the Claimant’s employment by the Defendant without stating any valid or justifiable reason, or any reason at all, amounts to a contravention of the laid down regulations of the International Labour Organisation, particularly Articles 4 and 5 of Convention No. 158 of 1982 and consequently invalid, null, void and of no effect whatsoever.” Clearly, this is not a pleading but a relief. Pleadings are statement of facts that support a claim, and a relief naturally flows from the pleading, but it is distinguishable from the pleading and never the same with the pleading. A pleading gives force and legitimacy to the claim. Where a claim is not supported by the pleadings it is bound to fail. I have combed the paragraphs of the amended statement of facts and reply to statement of defence, there is no paragraph on the Termination of Employment Convention. The nearest is paragraph 7. The Claimant averred that “to his utter shock and surprise, he was issued a letter of “Services no longer required” effective 27th February, 2018 [sic, 28th February 2018], by which the Defendant terminated his employment without stating any reasons for the same. The Claimant hereby pleads the termination letter dated 28th February, 2018 [sic, 27th February 2018].”  

34.         Section 7[6] of the National Industrial Court Act, 2006, provides “The Court shall, in exercising its jurisdiction or any of the powers conferred upon it by this Act or any other enactment or law, have due regard to good or international best practice in labour or industrial relations and what amounts to good or international best practice in labour or industrial relations shall be a question of fact.” Order 14A of the Rules deals with international protocol, convention, treaty. Rule 1[1] provides “Where an action involves a breach of or non-compliance with an international protocol, a convention or treaty on labour, employment and industrial relations, the Claimant shall in the complaint and witness statement on oath, include, [a] the name, date and nomenclature of the protocol, convention or treaty; and [b] proof of ratification of such protocol, convention or treaty by Nigeria.” Sub-rule 2 provides that “In any claim relating to or connected with any matter, the party relying on the International Best Practice, shall plead and prove the existence of the same in line with the provisions relating to proof of custom in the extant Evidence Act.” The relevant provisions of the Evidence Act are Sections 16 to 19 of the Evidence Act, 2011. I reproduce Sections 16, 17 and 18[1] for clarity. 

Section 16

[1]         A custom may be adopted as part of the law governing a particular set of circumstances if it can be judicially noticed or can be proved to exist by evidence.

[2]         The burden of proving a custom shall lie upon the person alleging its existence.

Section 17 

A custom may be judicially noticed when it has been adjudicated upon once by a superior court of record.

                        Section 18

[1] Where a custom cannot be established as one judicially noticed, it shall be proved as a fact.

35.         From the statutory provision, a custom may be adopted as part of the law governing a particular set of circumstances where it has been judicially noticed, otherwise, it must be proved. Even though the Termination of Employment Convention No. 158 of 1982 has not been ratified, this Court has consistently adopted and applied the Convention [No. 158] and the Recommendation No. 166 as international labour standards. See Aloysius v. Diamond Bank Plc [2015] 58 NLLR 92, Duru v. Skye Bank Plc [2015] 59 NLLR [Pt 207] 680 and Bello Ibrahim v. Ecobank [supra]. Therefore, evidence of ratification is no longer required before this Court can apply it. In addition, the jurisdiction of this Court

has been expanded to include causes and matters relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relations matters; and to the application or interpretation of international labour standards. See Section 254C[1][f] and [h] of the 1999 Constitution. Therefore, in so far as Order 14A of the Rules has the force of law, it cannot override the provisions of the 1999 Constitution. There is no requirement of pleading or proof of ratification in Section 254C[1][f] and [h] of the 1999 Constitution. Under the common law, an employer can dispense with the services of the employee with or without any reason whatsoever. See Patrick Ziideeh v. Rivers State Civil Service Commission [2016] 9 ACELR 22 at 38. This is no longer the law. Modern labour jurisprudence postulates that an employer cannot terminate the employment of an employee without a valid reason connected with the employee’s capacity or conduct or based on the employer’s operational requirements. This is so notwithstanding the stipulations in the employment contract, and regardless of the character of the employment, whether statutory or contractual. In Engr Luke Mmamel v. Institute of Management and Technology Enugu & Anor, Suit No. NICN/EN/39/2018, which judgment was delivered on 20th August 2024, pages 26 – 28, my learned brother, Arowosegbe, J., restated this position. Hear him:

In virtue of this, the NIC is obliged to apply international best practices in the resolution of cases brought before it and international labour standards, which are contained in ILO treaties or conventions and other instruments and by these, the NIC can apply the labour standards contained in these treaties, whether ratified or not, as veritable examples of international best practices, to expatiate issues brought before it and this practice is not limited to Nigeria. It is a general practice applicable to labour courts around the world. For example, the ILO reported that the Industrial Court of the Republic of Botswana in Mapho C. Ganelang v. Tyre World Ltd, despite the fact that Botswana had not ratified ILO C158 – Termination of Employment Convention, applied it thus:

I am also of the firm view that the Respondent’s actions, in casu, fell foul of international labour standards in labour law. The Termination of Employment Convention No. 158 of 1982 ‘(C158)’ is in point. Under its equitable jurisdiction this Court can bring the principles of Convention C158 to bear in this case. This the Court can do because the Court of Appeal has held that this Court may, under its equitable jurisdiction apply international labour standards to assist it reach a proper determination of issues it is called upon to determine.

The NIC has expectedly taken the same position as its sister, Industrial Court of Botswana, as it too, like all labour courts around the world, has equitable jurisdiction granted by SS. 254C-(1)(f) of the Constitution and 12-15 of the NICA. Let me cite just one example of how the NIC applied the same ILO C158, which Nigeria has also not ratified. In Shell Petroleum Development Company of Nigeria Ltd v. The Minister of Petroleum Resources & Ors, His Lordship, Kanyip, HPNICN, quoted the authority of Arturo S. Bronstein, a highly qualified publicist, to utilize the ILO C158, a Convention, Nigeria, like Botswana, has also not ratified:

Nigeria may not have ratified the International Labour Organisation (ILO) Termination of Employment Convention, 1982 (No. 158), the Convention that promotes security of employment globally. And I must acknowledge that ILO standards, that is, Conventions, Recommendations and Codes of Practice, whether ratified or not, ‘not only reflect a certain universal wisdom, they also enjoy a social legitimacy that would seem hard to challenge.

The labour standards in these unratified conventions could also be utilised as general principles of international labour law or customary international labour law by virtue of Art 38(1)(c) of the ICJ Statute, once the benchmark of 15 years of general universal application is met; and the ILO C158, which came into being in 1982, has far surpassed the benchmark, having been consistently and universally applied across the world for the past 42 years. Arts 4 & 7 of ILO C158 are impactful here. They jointly insist that an employment can only be terminated for a valid reason and that; this is after the employee must have been heard before the discharge. Though, the claimant’s appointment was not terminated but what the defendants did is similitude to constructive discharge, as the clamant was suddenly demoted without being fixed into any office and definitely to serve under his juniors without hearing so that he could be frustrated out of office. So, these articles are applicable by analogy – Ganelang’s case [supra] on constructive discharge.

Art 9 of the ILO C158 says the court shall inquire into the circumstances surrounding the discharge and that; it is the employer’s duty to proof valid reason for the termination. This nullifies the common law in Nigeria that an employer can discharge without giving reason and that it is entirely the employee’s duty to plead the terms of his employment violated in the unlawful termination. Burden of proof has been inverted. In a nutshell, strict pleading of the terms breached is no longer sacrosanct. It is enough to plead in plain language the grievances. It becomes the employer’s duty to state what rules or law justifies his alleged wrongful/unlawful actions. That is the extant of international best practice relating to termination of employment in civilized nations around the world and by virtue of SS. 254C-(1)(f) & (h) of the Constitution and 13&15 of the NICA, they are applicable under the equitable, fair labour practices and international best practices jurisdiction of the NIC - Sahara Energy Resources Ltd v. Oyebola (2020) LPELR-51806 (CA) and Adegboyu v. UBA [supra], which both approved NIC’s jurisdiction to apply international best practices. 

36.         Given the provisions of Sections 16[1], 17 and 122[1] and 2[l] of the Evidence Act, 2011, I hold that the Claimant can rely on the Termination of Employment

Convention without pleading it and proving its ratification. The unchallenged evidence before me is that the Claimant’s employment was terminated for services no longer required. There is also evidence that the Claimant served Defendant conscientiously for 19 years seven months, and consistently received good performance appraisals until 2017. In any event, I found in this judgment that the Claimant’s employment was not terminated for poor performance. Defendant argued that the relationship between the parties was contractual, and the Court cannot make a declaration that the termination of the Claimant’s employment is wrongful since he did not establish breach of any binding law or treaty. It is axiomatic that contracts are governed by law, and where in exercising its rights under a contract, a party breaches a binding law or convention, that act is invalidated by the breach. In this premise, I find as a fact that the termination of the Claimant’s employment without a valid reason connected with the Claimant’s capacity or conduct or based on Defendant’s operational requirements is wrongful. 

37.         The Claimant also testified that he was victimized for his active participation in trade union activities, and gave instances of the union activities for which he was victimized. See paragraph 10 of his witness deposition dated 21st October 2021. Defendant denied this allegation. See paragraph 29 of the amended statement of defence reproduced as paragraph 30 of the defence witness statement on oath. During cross-examination, the Claimant admitted that he was an active union member, and throughout his employment, Defendant did not give him any warning for his union activities. I have considered the Claimant’s evidence on this point, and I find as a fact that the Claimant’s allegation of victimisation for trade union activities has not been established.

38.         The next issue is whether the payment of N25,932,844.51 to the Claimant and discontinuance of Suit No. NICN/LA/373/2019, between Defendant, the Claimant and FOBTOB estops the Claimant from maintaining this suit. This is the crux of the defence. See paragraphs 58 to 63 of the amended statement of defence reproduced as paragraphs 60 to 65 of Defendant’s witness statement on oath. A summary of the defence evidence is that in apprehension of an industrial action, Defendant filed the Suit No. NICN/LA/373/2019, Cadbury Nigeria Plc v. Paul Udeh & FOBTOB seeking injunctive and other reliefs. While the suit was pending, Defendant and the Claimant agreed to an amicable settlement based on which Defendant agreed to withdraw the suit, and magnanimously agreed to pay the Claimant all his outstanding benefits as mutually agreed between the Claimant and Defendant. Based on the amicable agreement, Defendant paid N25,932,844.51 in full and final satisfaction of the Claimant’s entitlements. The payment was acknowledged by FOBTOB in their letter dated 18th November 2019, wherein they expressed appreciation to Defendant. Defendant, acting under the impression and representation made by the Claimant that the dispute in Suit No. NICN/LA/373/2019, Cadbury Nigeria Plc v. Paul Udeh & FOBTOB, had been resolved, withdrew the suit, which was struck out on 20th January 2020. Therefore, the Claimant is estopped from claiming the reliefs in the instant suit or any other sum whatsoever against Defendant as his purported outstanding entitlement and terminal benefits have been paid. Defendant tendered Exhibits D10 – D31, and D34 particularly Exhibits D12, D13, D34 to show the negotiations between the Claimant’s union, acting for the Claimant, and Defendant. The Claimant denied this assertion. See paragraphs 49 to 58 of the reply to statement of defence reproduced as paragraphs 49 to 55 of the Claimant’s further witness deposition and Exhibits 23 and 27. The Claimant’s evidence is that he was not aware of any agreement for Defendant to withdraw any case as no other process apart from a hearing notice was served on him. When he learnt of the Suit No. NICN/LA/373/2019, he caused an appearance to be entered for him and applied for the Court processes to prepare for the matter but when the matter came up in Court, Defendant had filed a notice of discontinuance and the case was struck out on 20th January 2020 in Defendant’s absence. He said Defendant’s lawyers by a letter dated 25th November 2019 informed him that the suit was inadvertently filed, and stated that when he received the N25,943,844.50 he indicated that it was not his full and final benefits, and his request for the basis of the computation was ignored instead Defendant maliciously sent another copy of the letter asking him to sign that he received his full benefits but he refused to sign. He insists that his entitlements were not correctly computed because he earned a net monthly salary of N1,200,000.00 and his gratuity ought to be N38,600,497.30 instead of N25,943,844.50.

39.         I have painstakingly read and considered Defendant’s evidence in support of estoppel, including the relevant exhibits particularly Exhibits D12, D13 and D34. While it is true that FOBTOB engaged Defendant on behalf of the Claimant and one Mr. Sola Akinseli, there is no evidence that the sum of N25,932,884.51 was agreed with FOBTOB or the Claimant. There is equally no evidence of any agreement between Defendant and the Claimant before the withdrawal of Defendant’s suit. There are no terms of settlement or any document incorporating the agreement between Defendant and the Claimant or FOBTOB. By Exhibit 27, dated 25th November 2019, Defendant’s Solicitors wrote “We are in receipt of the Memorandum of Appearance dated 19th November 2019 filed on behalf of Mr. Paul Udeh, in respect of this suit. Please be informed that the said suit was inadvertently filed at the National Industrial Court, Lagos Judicial Division and same has subsequently been discontinued by a Notice of Discontinuance dated 6th August 2019.” This supports the Claimant’s evidence in paragraph 49 of his further statement on oath, and puts a lie to Defendant’s witness evidence in paragraphs 60 to 62 of her witness deposition and paragraph 4.7 of Defendant’s final written address. Exhibit D19, FOBTOB’s letter to Defendant’s Managing Director dated 7th May 2019, reads, in part, “Several engagements with the representatives of the company resulted in the resolution to convert the termination of appointment to redundancy, and commensurate benefits paid according to the Collective Agreement in the industry. We, however, felt insulted by the management’s total disregard for our harmonious relationship, when at the meeting of Friday, 26th April, 2019, we were presented with a fresh proposal to ignore the resolution of conversion to redundancy and accept a flat payment of Four Million Naira [N4,000,000.00] only, in addition to other benefits accrued to him.” Exhibits D14 and D14A are the minutes of meetings between Defendant and FOBTOB on 25th February 2019 and 26th April 2019. In Exhibit D14, it was recorded “In response, the HRM/ER Manager stated that in addition to the minutes of this meeting that will be used as official request from the union, management has asked for Paul Udeh to also write a letter appealing to the business to convert his Termination to

Redundancy.” Exhibit D14 gave rise to Exhibit D12, which is FOBTOB’s letter to Defendant dated 25th March 2019 forwarding the Claimant’s letter also dated 25th March 2019. Exhibit D12 is explicit. It reads “Please find attached letter from our member, Comrade Paul Udeh, as requested by the Management. We hope that with this letter, the management will embrace peace by allowing the matter to be laid to rest permanently and for us to forge ahead in our relationship.” The Claimant’s letter, which is the same as Exhibit D13, reads, in part, “Sequel to the resolution reached on the termination of my employment with the Management’s representatives that my termination of appointment be converted to redundancy, I hereby use this medium to inform you that I shall abide by the conclusion reached with my Association while promising that I will not institute any legal action against the Company in the future.” The Claimant’s undertaking was based on the ‘agreement’ to convert the termination of his employment to redundancy, and not otherwise. In Exhibit 14A, Defendant reported that “The business has decided not to accept the union’s request to treat the exit of Paul Udeh as a redundancy so as not to set the wrong precedence.” Exhibits D12 and D13 are predicated on Exhibit D14, and by Exhibit D14A, the basis for Exhibits D12 and D13 no longer existed. The request to convert the termination of the Claimant’s employment to redundancy having been rejected, the Claimant’s letter of 25th March 2019 was of no consequence, and incapable of barring him from prosecuting this action. Manifestly, the sum of N25,932,884.51 was not a product of any negotiation with the Claimant or his union. Therefore, Exhibit D10 dated 18th November 2019 from FOBTOB to Defendant wherein the union acknowledged payment of

N25,943,884.50 [sic, N25,932,884.51] and wrote “We want to use this medium to appreciate the management of Cadbury Nigeria Plc for honoring [sic] the agreement reached in respect of the matter” cannot be read in isolation or foist a non-existing agreement on the Claimant. It is not evidence of an agreement and cannot negate the Claimant’s request for the basis of computation of his final entitlements. See Exhibits D28 and D28A which are letters from Defendant to AFBTE and FOBTOB dated 2nd July 2019. Defendant stated in the letters that “the pending issue of Paul Udeh’s exit ended in a stalemate.” There is no correspondence expressing the agreement between Defendant and FOBTOB or the Claimant on the N25,932,884.51. I am mindful of Exhibit D21, FOBTOB letter dated 18th June 2019 to Defendant’s Managing Director. In that letter, FOBTOB wrote, on page 2 paragraph 4, “To our chagrin, both informal and formal meetings between our union and your management did not yield to an amicable resolution because your representative restated the offer of paltry sum of Four Million Naira [N4,000,000.00] only as compensation to the concerned member. For emphasis’ sake, we were very frank in pointing out, at all our meetings, that our Association would not accept the offer unless it is improved upon, bearing in mind the fact that the union has shifted ground by accepting to jettison the option of redundancy.” While this document shows that the union abandoned its request for conversion of the termination of the Claimant’s employment to redundancy, the further request for improvement of the offer of N4,000,000 is not in full and final settlement of the Claimant’s entitlements. Exhibit D22 is FOBTOB’s letter to Defendant’s Managing Director dated 8th July 2019 threatening industrial action due to Defendant’s refusal to grant the union’s request for an enhanced package for the Claimant. Exhibit D29 is Defendant’s reply to Exhibit D22 dated 9th July 2019 urging the union to comply with Article 9 of the Procedural Agreement, Exhibit D32. Exhibit D30 is Defendant’s letter to its union, AFBTE, dated 9th July 2019, urging it to intervene in the dispute. While, in Exhibit D31, Defendant invited FOBTOB to a meeting on 12th July 2019 to “further discuss the matter” there is no minutes of that meeting, or evidence of what was discussed and agreed. In this premise, I find as a fact that there was no agreement to pay the Claimant N25,932,884.51 in full and final settlement of his terminal benefits. Given Exhibit 27, I also find as a fact that Defendant’s Suit No. NICN/LA/373/2019 was not discontinued based on any amicable settlement with the Claimant or any one acting on his behalf. Defendant’s Solicitors wrote to the Claimant that the suit was filed in error and had been discontinued before parties joined issues. The question is, how does such an action constitute an estoppel? I cannot see. Learned counsel for Defendant referred to Chukwuma v. Ifeloye [2008] 18 NWLR [Pt 1118] 204 at 238 in support of the plea of estoppel, but there is nothing in that case that supports Defendant’s plea of estoppel. The Claimant has not made any representations to Defendant or concealed any material facts on the basis of which Defendant acted to its prejudice. While it is the law that payment and receipt of terminal benefits robs the employee of the standing to sue for wrongful termination of his employment, see Imperial Medical Centre & Anor v. Ahamefule [2017] LPELR-42886[CA] and

Iheanacho v. Consolidated Hallmark Insurance Plc [2013] 34 NLLR [Pt 102] 825 at 852-853, this is not so in all cases. An employee who complains that his terminal benefit was not fully paid can maintain an action against his employer. In conclusion, I hold that the plea of estoppel has not been made out, and it is consequently discountenanced. Resultantly, this Court has the jurisdiction to hear and determine this suit.  

40.         The Claimant also alleged victimization and non-payment of his acting allowance. See paragraphs 8 to 22 of the amended statement of facts. A summary of his evidence is that he was a victim of victimization, workplace harassment, threats and abuses by Defendant’s officers and he complained of workplace harassment by e-mail dated 6th December 2017 titled ‘People Issues’, which was ignored. He gave instances of the victimization and workplace harassment to include placing him on an unwarranted Performance Improvement Plan in 2017; giving him an ‘off track’ rating during the 2017 mid-year appraisal despite his performance; giving him a new assignment without appropriate working tools; delay in releasing his 2017 year-end appraisal score and the threat by his supervisor to give him a ‘Below Expectation’ rating without going through the goals/achievements for the year with him and despite 100% completion on four of the five goals; the appeal panel’s delay in resolving his grievances on the 2017 year-end appraisal. He stated that Defendant’s practice is that where a staff is awarded a ‘Partially Met Expectation’ score at the end of an appraisal year, he has one more year to shore up his performance and the staff would be placed on a Performance Improvement Plan after the year-end appraisal. However, he was placed on a Performance Improvement Plan after the 2017 mid-year appraisal and the letter contradicted itself. His complaint to his supervisor’s supervisor per Defendant’s grievance/discrimination policy was ignored. He was victimized for his active participation in trade union activities, was assigned heavy workloads which were deliberately designed to make him fail, he was transferred from the Finance Department to CS & L Department. His colleague who worked in the same department was rated ‘Achieved Expectation’ while he was scored ‘below expectation’. Treasury operations required extra manpower, but he did it alone and after his disengagement, an extra manpower was engaged to do the job. He insists that his unjust termination was an act of wickedness and malice and intended to prevent him from receiving the 20 years Long Service Award which was due on 15th July 2018. He relied on Exhibits 4, 5, 28 and other documents. Defendant denied this. See paragraphs 8, 11, 23, 26, 29, 30, 33 - 36 of the amended statement of defence. The defence witness testified that the termination of the Claimant’s employment was the last of a series of actions taken to address his poor performance. Defendant placed him on a Performance Improvement Plan in 2017 but he failed to meet up, and his performance continued on a downward trajectory and did not show any sign of improvement. According to her, the Claimant’s employment was terminated for poor performance and not because of his union activities, the workplace harassment complaint or his protest of the ‘Below Expectation’ rating. The Claimant was not victimized, harassed, threatened, or abused by Defendant’s officers whether during or after the termination of his employment, and the Claimant’s ‘People Issues’ email was not in respect of workplace harassment or victimization. The Claimant never made an official complaint about the alleged heavy workload and he was never given any heavy workload but was assigned tasks within his job description. In addition, the Claimant was not transferred to the CS & L department and the organizational structure was not changed with the sole intent of setting the Claimant up as inefficient, but to improve efficiency, increase productivity and ensure a smooth running of Defendant’s operations and the Claimant was not the only employee affected by the new structure. She explained that Defendant’s appraisal and promotion system is merit-based and non-discriminatory, and Defendant was not responsible for any act of victimization or harassment against the Claimant, and Defendant’s officers did not victimize the Claimant in any way.

41.         I have considered the evidence by parties on victimization of the Claimant. I found in this judgment that the Claimant was not victimised for trade union activities. There is equally no evidence that Defendant’s failure to promote him to senior manager was borne out of any ill will, and there is no evidence that he complained about victimization before 2017. I have read the Claimant’s email of 6th December 2017 to the HR Director captioned ‘People Issues’, and I agree with the defence witness that the email was not in respect of workplace harassment or victimization. The email exchanges of 18th and 19th May 2017 between the Claimant, Michael Adeloye and their supervisor are normal work emails and not evidence of victimization. The emails of 18th and 19th May 2017 and 6th December 2017 are merely complaints about processes, work flow and the Claimant’s supervisor’s management style. While the Claimant expects things to be done differently, the fact that it was not so is not evidence of victimization. I dare say that it behoves the employee to study his boss and devise a working arrangement that satisfies the boss’s management style. The Claimant’s inability to do this exposed him to avoidable problems. I have carefully read the Claimant’s email exchange with Vivek Sarbhai of 18th and 26th January 2018, and 28th February 2018, and to my mind, it was not a complaint against the Claimant’s supervisor which required Vivek Sarbhai, as Claimant’s supervisor’s supervisor to act, but a plea for assistance. The Claimant’s email of 18th January 2018 reads, in part,

I remember you are always concerned about the wellbeing of all colleagues within the MEA region, however, I have to share with you the attached 2017 year end PDR of which I was unfairly rate “below expectation” despite all the job done plus much more not scheduled in my 2017 goals but had to be done under emergency as they would benefit the business in monetary terms.

The matter has already been discussed with the HRD of Cadbury Nigeria who said I should send an email disagreeing with the rating to the HRBP, which I have done.

I am writing this email to you, for your information so that the matter can be handled fairly, independently and closed out early.

Manifestly, the Claimant’s complaint was already being dealt with by the HR Director, and there was nothing Vivek Sarbhai could have done at that point. At any rate, the email was for his ‘information’. I find as a fact that Defendant did not breach its discrimination and harassment policy. 

42.         Other documents relied on are Exhibits 4 and 5. Exhibit 4 is the letter appointing the Claimant ‘Acting ISC CS & L Controller, WA. It was for nine and half months from 15th October 2015, and states, in part, “This temporary assignment will not result in any adjustment in pay. Nonetheless, you will be entitled to monthly acting allowance during the period.” The acting allowance was to be paid for the nine and half months’ period. The Claimant admitted, under cross-examination, that he was paid for nine months, but acted for more than nine months. His evidence that he acted 25% of the role after the initial nine months was controverted by Defendant. The onus was, therefore, on the Claimant to prove that he acted after the period specified in Exhibit 4, which burden he did not discharge. Exhibit 5 is the letter transferring the Claimant to Customer Service & Logistics Team as Analyst Account Receivable, Nigeria effective 1st December 2016. There is nothing to suggest the transfer was intended to victimise the Claimant. Exhibit 12 is a summary of resolutions reached at Defendant’s meeting with FOBTOB on 25th July 2017 on staff impacted by Defendant’s re-organisation and declaration of redundancy, and clearly has no application to the Claimant. He has, equally, not linked this document to any aspect of his claims. Exhibit 13 is a bundle of documents containing an Agreement between AFBTE and FOBTOB on 21st February 2008, and domestication agreements between Defendant and FOBTOB Branch union on varying matters including gratuity. In the 2010 agreement, the agreed annual interest on gratuity was 3%. In the 2011 agreement, 3% annual interest rate was applied to the accrued gratuity balance as of 1st January 2010 up to 30th June 2011, while 7% annual interest rate was applied to the accrued gratuity balance as of 1st July 2011 to all management staff. In the 2013 agreement, interest on accrued gratuity balance was to be in “line with the prevailing bank deposit rate”. The exact figure was to be confirmed by the Finance Director. This was repeated

in the 2016 agreement. The 12th March 2019 agreement has no provision on interest. The Claimant testified that Defendant applied 7% interest rate on the gratuity balance instead of the agreed “prevailing bank deposit rate” which was only applied at year end instead of half-yearly, and owes him N14,500,419.80 gratuity. See paragraph 26 of his witness deposition dated 21st October 2021. However, what the prevailing bank deposit rates were from 2013 to 2016 was not stated. Attached to Exhibit 28 is the Central Bank of Nigeria money market indicators from 2010 to 2017, and while the Claimant referred to the excel calculation of his gratuity, there was no explanation of the basis of computation of the amount claimed. The document attached to Exhibit 28 captioned “Paul Udeh’s right calculation based on signed agreement” was not spoken to. It is not a document that can ordinarily speak for itself. It is the Claimant’s computation, and there is no evidence that it was served on Defendant before commencement of this suit. As rightly argued by learned counsel for Defendant, the Claimant merely dumped these documents on the Court, and it is not the business of the Court to link the documents to specific aspects of the Claimant’s claims or to explain it.

43.         Exhibit 14 is the Claimant’s emolument in 2011, while Exhibit 15 consists of two Lagos State Blood Transfusion Service cards and does not show the state of the Claimant’s health. Exhibit 16 is R-Jolad Hospital laboratory form and two days excuse duty certificate for 26th and 27th July 2017. Exhibit 18 is the Claimant’s MIU Influencer award in recognition of his commitment to self-learning and development, and not an award for outstanding performance. Exhibit 19 is an email dated 14th August 2017 to the Claimant and other members of the CS & L team on the Globe awards. It was not an individual award to the Claimant but to the team and supports paragraph 40 of the defence witness’ deposition. Exhibits 20 and 21 [same as Exhibits D36, D37 and D37A] are the Claimant’s Solicitors’ letter on the unlawful termination of his employment and Defendant’s Solicitors’ reply. Interestingly, the letter was written about two years after the Claimant’s disengagement and five months after payment of his terminal benefits. Exhibit 22 is a bundle of documents containing the Claimant’s salary reviews and statement of accrued gratuity, the last statement is dated 23rd March 2017 for the Claimant’s gratuity as of 31st December 2016, which was N21,801,414.49. The Claimant received his statement of accrued gratuity for 2010, 2011, 2012, 2013, 2014, 2015 and 2016, and there is no evidence that he protested the amount stated on the statements or the interest rate applied. Therefore, his challenge of the interest rate applied to his gratuity in paragraph 26 of his statement on oath is untenable and, at best, an afterthought. Exhibit 23 [similar to Exhibit D34 which also consists of the first statement of final entitlements, exit documentation and credit advice] consists of two statements of the Claimant’s final entitlements both dated 5th September 2019. While the first statement has a net payment of N25,932,884.51, the second statement has a net payment of N25,942,884.51 with the addition of the N10,000 for the laptop bag which was deducted from the initial statement. The Claimant wrote on both letters. He protested the N10,000 in the first, and demanded for the gratuity statement for December 2017. On the second document, he noted that his earlier request was not responded to. There is no evidence that Defendant responded to the Claimant’s request, or expressed any difficulty doing so. Exhibit 25, the Claimant’s exit documentation [forms part of

Exhibit D34], shows that the Claimant did not return the laptop bag. Defendant eventually paid N25,932,884.51, see Exhibit D34. 

44.         Exhibit 24 is the collective agreement between AFBTE and FOBTOB on salaries, allowances and fringe benefits dated 15th December 2017. The Claimant did not link this document to his claim or show its relevance to his case. Exhibit 26 [same as Exhibit D9] is the Tripple Gee & Company Reference Check Form where the Defendant’s witness remarked that she would not consider hiring the Claimant if there was a vacant position in the company. While the employer is at liberty to make its judgment about an employee, the settled rule is that the work reference must be true, accurate, fair and not misleading. See Olubukonla Adegbulugbe v. Guaranty Trust Bank Plc, Suit No. NICN/LA/77/2021, which judgment was delivered on 10th January 2022. I thank the defence counsel for drawing my attention to this judgment. For an employee who was consistently scored ‘Achieved Expectations’ and then ‘Partially Met Expectations’, Exhibit 26 is not a true and fair assessment of the Claimant. The grading of the Claimant and Defendant’s final remarks are unwarranted, misleading and suggestive of malice against the Claimant, and supports the Claimant’s allegation of victimization. Exhibit 27 is Defendant’s Solicitors’ letter to the Claimant’s Solicitors with the attached notice of discontinuance, and reads, in part, “We are in receipt of the Memorandum of Appearance dated 19th November 2019 filed on behalf of Mr. Paul Udeh, in respect of this suit. Please be informed that the said suit was inadvertently filed at the National Industrial Court, Lagos Judicial Division and same has subsequently been discontinued by a Notice of Discontinuance dated 6th August 2019.” This supports the Claimant’s evidence in paragraphs 46 and 49 of his further statement on oath, and negates paragraphs 60 and 61 of Defendant’s witness statement on oath and paragraphs 4.10 and 4.27 of Defendant’s final written address.  

45.         Exhibit 28 is a bundle of electronic documents consisting of emails, the Claimant’s 2017 appraisals, pay slip, computation of gratuity and other documents. Some of the attached documents have been discussed in this judgment, suffice to say that the 2017 year-end performance review shows that the Claimant completed four out of the five deliverables, and his supervisor agreed to place him on a performance improvement program to ensure he performs at the expected level in 2018. The question is what happened afterwards to warrant the termination of the Claimant’s employment? The Claimant proffered an answer in paragraph 7 of his statement on oath that his employment was terminated because he, amongst others, challenged the 2017 year-end appraisal rating. Even though Defendant denied this in paragraphs 7 and 8 of the defence witness deposition, a calm consideration of the evidence and sequence of events after the Claimant lodged his complaint supports the Claimant’s evidence. In his email of 28th February 2018 to vivek.sarbhai@mdlz.com, the Claimant wrote “Unfortunately, I was issued a letter of “Services no longer required” as shown below by Azuka, showing the unfairness in the process of getting a fair rating.” The email of 28th April 2017 from Shamsi Muhammad Amir to the Claimant and other members of the team shows that the Claimant’s sleeping in the office for two nights was not due to improper organisation of his work or incompetence but a determination to accomplish the assigned task. 

46.         Exhibit D38 consists of two emails dated 4th October 2017 and 14th November 2017 summarising the ‘1-1 discussion’ between the Claimant and his supervisor, which highlighted areas for improvement. Exhibit D39 is a memo to the Claimant dated 30th August 2006 notifying him of breach of Defendant’s email/internet policy and advising him to desist from such misconduct. This document was tendered to show that Defendant had queried the Claimant in the past, but still does not support the allegation of poor performance or justify the termination of his employment. Exhibit D40 is Shamsi Muhammad Amir’s email dated 10th October 2017 to the Claimant and his team on ‘Credit customers payment tracker with BG balances’ urging them to resolve the issue. This email was tendered to show poor performance, but the delay was not solely attributable to the Claimant, and does not depict incompetence or inefficiency. Exhibit D41 is email correspondence between the Claimant and his supervisor dated 16th October 2017 on ‘Bank Instruction Tracker’, and like Exhibit D40 was tendered to show concerns about the Claimant’s performance. However, it does not support the allegation of poor performance given the effort the Claimant made to resolve the issue. It also does not support Defendant’s assertion in paragraph 20 of the amended statement of defence that the Claimant was not pragmatic in doing his job, hence making Defendant to lose sale/revenue. This is a mere repetition of the Claimant’s supervisor’s allegation, which was not substantiated but was echoed by the 2017 review panel.

Based on the foregoing, the sole issue for determination is resolved partly in the affirmative and partly in the negative.

 Consideration of the reliefs

47.         The first relief seeks declaration that the termination of the Claimant’s employment by the Defendant without stating any valid or justifiable reason, or any reason at all, amounts to a contravention of the laid down regulations of the International Labour Organisation, particularly Articles 4 and 5 of Convention No. 158 of 1982 and consequently invalid, null, void and of no effect whatsoever. I found in this judgment that the termination of the Claimant’s employment without a valid reason connected with the Claimant’s capacity or conduct or based on Defendant’s operational requirements is wrongful. However, given the relationship between the parties, and the circumstances of this case, the termination of the Claimant’s employment is not null and void. Defendant has dispensed with the Claimant’s services this Court must respect that decision. The Court will not impose a willing employee on an unwilling employer. The Claimant’s remedy, if any, is in damages. See Aforishe v. Nigerian Gas Company Ltd [2018] 12 ACELR 1 at 13. Moreover, there is evidence that the Claimant already works with another company. This claim succeeds in part.   

48.         The second claim is for an order re-instating the Claimant. This relief is ancillary to the first claim, and that claim having succeeded in part, this relief should ordinarily succeed. See Tarfa v. Federal Capital Development Authority & Anor [2023] LPELR-60491[CA] 18 – 19. However, given the relationship between the parties, the circumstances of this case, and having found that the termination of the Claimant’s employment is not null, and void, the basis for an order for reinstatement does not exist. This claim is hereby refused.

49.         The third claim is for an order directing the Defendant to pay the Claimant all entitlements/emoluments due to him from March 2018 till date with accumulated interests. This claim is predicated on the success of relief two. That relief having failed, this claim must equally fail. See Tarfa v. Federal Capital Development Authority & Anor [supra]. It is consequently refused.

50.         The fourth claim seeks an order directing the Defendant to re-rate the Claimant’s mid-year and year-end appraisals for the year 2017 from ‘off-track’ and ‘below expectation’ to ‘on-track’ and ‘exceeded-expectation’ respectively. I found in this judgment that the Claimant’s employment was not terminated on account of poor performance. That being the case, it will serve no useful purpose to re-rate the Claimant as sought. In any event, it is not within the province of the Court to substitute its opinion for that of the employer in a matter that is the prerogative of the employer. Thus, this claim is refused.

51.         Relief 5 seeks N14,500,419.80 [fourteen million, five hundred thousand, four hundred and nineteen naira eighty kobo] being the shortfall on the Claimant’s gratuity entitlement which was wrongly and unfairly calculated on a fixed interest rate of 7% by the Defendant as against the signed agreements for the interest to be calculated twice a year based on C.B.N deposit rate. The evidence in support of this claim is paragraph 26 of the Claimant’s witness deposition dated 21st October 2021. The Claimant testified that Defendant applied 7% interest rate on the gratuity balance instead of the agreed “prevailing bank deposit rate” which was only applied at year end instead of half-yearly, and owes him N14,500,419.80 gratuity. However, I found in this judgment that the prevailing bank deposit rates for 2013 to 2016 were not stated. I also found that the Claimant attached the Central Bank of Nigeria money market indicators from 2010 to 2017 and another document captioned “Paul Udeh’s right calculation based on signed agreement” to Exhibit 28. While the Claimant referred to the excel calculation of his gratuity in paragraph 26 of his witness deposition, there was no explanation of the basis of computation of the amount claimed. The Claimant did not speak to the documents. The document, in this case, cannot speak for itself. It is the Claimant’s computation, and the onus is on him to prove it. Being a claim for a specific sum, the Claimant must show how he arrived at the sum with mathematical accuracy.

This must be done in his pleading and witness deposition. See Niger Delta Power Holding Company Plc v. Antiv [2022] LPELR-57538[CA] 43 and Adekunle v. United Bank for Africa Plc [2016] LPELR-41124[CA] 36 - 38. This proof is lacking. Accordingly, this claim is refused. 

52.         The sixth claim is for an order directing the Defendant to grant the Claimant his 20 years Long Service Award which was unjustly denied in 2018 by the unjust termination of his employment, together with all the benefit of the award, to wit:

a      giant deep freezer, two and half month of annual basic salary and the number of cartoons of gifts for 20 years in service. I found in this judgment that the Court cannot usurp the functions of the employer unless in deserving circumstances. Long service award is the prerogative of the employer to appreciate employees who have served it for the specified period. There is evidence that the Claimant did not serve for 20 years. I cannot, in this circumstance, decree an award the Claimant is not entitled to. Thus, this claim fails.

53.         Relief 7 seeks an order for payment of acting allowances shortage as CS & L Finance Controller from January 2017 to February 2018 with accumulated interest counting to date. The unchallenged evidence is that the Claimant’s appointment as  Acting ISC CS & L Controller, WA, was for nine and half months, and payment of acting allowance was for that period. There is no evidence of extension of the acting appointment. The Claimant’s evidence of performing 25% of the role was contradicted by Defendant. At any rate, this claim is vague. What the acting allowances are is not stated, and the Court cannot make an order in vain. This claim is refused.

54.         The eighth claim is for annual merit increase due to an ‘‘exceeded performance’’ from 2018 to date. There is no evidence that the Claimant worked for Defendant after 28th February 2018. There is equally no evidence that he exceeded expectations in any of his appraisal reviews. Therefore, there is no justification for this claim. It is refused.

55.         The ninth claim is for NJIC increment of 6% effective from 15th December 2018 and subsequent NJIC agreements to date. This claim is predicated on the success of relief two. That relief having failed, this claim must equally fail. See Tarfa v. Federal Capital Development Authority & Anor [supra]. In any event, the Claimant’s employment was terminated effective 28th February 2018, and he has since joined another organisation. It is not the policy of the law to pay employees for services they have not rendered. This claim is misconceived, and consequently refused.

56.         Relief 10 seeks a refund of underpayment of 10% National Joint Industrial Council [NJIC] agreement on 15th December by 3.34%. This affected the Claimant’s 2017 leave allowance, 2017 13th month, pension contribution to date, gratuity computation and net monthly pay until he got the letter of service no longer required. The evidence in support of this claim is paragraph 27 of the Claimant’s witness deposition dated 21st October 2021, and Exhibit 26. Defendant denied the Claimant’s assertion and put the Claimant to the strictest proof. See paragraphs 39 and 43 of the amended statement of defence reproduced as paragraph 44 of Defendant’s witness’ statement on oath. Defendant’s witness testified that N10,530,200.04 was the Claimant’s annual basic salary when he exited in 2018, and the increment was considered in January per Defendant’s reward policy, but the Claimant’s salary as of December 2017 was N9,873,065.61. The Claimant did not disprove this evidence. Accordingly, I hold that this claim has not been proved, and it is refused. 

57.         Relief 11 seeks N20,000,000.00 [twenty million naira] as damages for victimisation and work place harassment deliberately orchestrated against the Claimant by the officers of the Defendant. General damages are presumed by law to flow from the wrongful act of the Defendant and are awarded to assuage the loss caused by an adversary. See Mobil Producing Nig. Unlimited & Anor v. Udo [2008] 36 WRN 53 at 103 and Hamza v. Kure [2010] LPELR-1351[SC] 22. The Court is also empowered by Section 19[d] of the National Industrial Court Act 2006 to award compensation or damages in any circumstances contemplated by the Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear. Where the Court finds that there is a breach, damages follow.  However, I found in this judgment that the Claimant has not established victimisation and work place harassment. Therefore, there is no justification for the grant of this claim. It is refused. 

58.         The Claimant claimed, in the alternative, N200,000,000.00 [two hundred million naira] being damages for untold hardship on the Claimant and his dependant[s] due to [the] unfair disengagement from work which is [not] due to incompetence on his job or due to service not required as claimed by the Defendant, as his role is still relevant to the Defendant’s business as a whole. As I said in the preceding paragraph, general damages are presumed by law to flow from the wrongful act of the Defendant and are awarded to assuage the loss caused by an adversary. See Mobil Producing Nig. Unlimited & Anor v. Udo [supra]. I found in this judgment that the termination of the Claimant’s employment without a valid reason connected with the Claimant’s capacity or conduct or based on Defendant’s operational requirements is wrongful. Where there is a wrong, there must be a remedy. See Bello & Ors v. A. G., Oyo State [1986] 5 NWLR [Pt 45] 828 and

Mekwunye v. West African Examination Council [2020] 6 NWLR [Pt

1719] 1 at 22. In addition, this claim is predicated on relief one which succeeded in part. Therefore, this claim must equally succeed. Given that the Claimant is gainfully employed, I award him N1,000,000.00 [one million naira] as general damages.

59.         Relief 12 is for the cost incurred by the Claimant in prosecuting this suit. Cost follows events in litigation, and a successful party is entitled to his costs, whether specifically claimed or not unless there are special reasons to deprive him of cost. See Egypt Air Limited v. Ibrahim & Anor [2021] LPELR-55882[CA] 35-36 and Ubani-Ukoma & Anor v. Seven-Up Bottling Company Plc & Anor [2023] 2 NWLR [Pt 1867]117 at 184. The essence of costs is to compensate the successful party for part of the loss incurred in the litigation. This Court has unfettered discretion to award cost which discretion, must in all circumstances, be exercised judicially and judiciously. See Order 55 Rules 1 and 5, National Industrial Court of Nigeria [Civil procedure] Rules, 2017. The Claimant spent about N65,840 as filing fees, was present in Court three times, and was represented by counsel five times. The case spanned about 4 years. Therefore, cost of N500,000.00 is awarded to the Claimant. 

60.         The next claim is for post-judgment interest at the rate of 21% per annum, from the date of judgment until the judgment is fully and finally liquidated. This Court

has power under Order 47 Rule 7 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 to award post-judgment interest at a rate not less than 10% per annum. The Claimant has not proved his claim for 21% interest. Therefore, Defendant shall pay interest on the monetary awards at 10% per annum. This claim is granted.

61.         Before I conclude, I would like to make two comments. Learned counsel for both parties cited several unreported judgments of this Court without proper citation, and without furnishing the Court with certified true copies of the judgments. For the avoidance of doubt, Order 45 Rule 3[1] of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017, provides, in part, “Where any unreported judgment is relied upon, the certified true copy shall be submitted along with the written address.” Secondly, I need to mention the sad practice of copying the pleadings verbatim and filing them as witness depositions. Sadly, learned counsel for both parties are guilty of this. The witness statement on oath is not the same as the pleading. While the pleading is a statement of facts that sets forth the cause of action, or responds to allegations, a witness statement on oath is a concise statement of the witness evidence in support of the pleading. The witness does not deny paragraphs of opponent’s pleadings or put the opponent to strictest proof, but tells his story as one familiar with the facts. So, it is wrong to repeat the averments in the pleadings in the witness statement on oath. Talba, JCA, observed in Sudais Oil & Gas Limited & Anor v. Guaranty Trust Bank Plc [2022] LPELR-57512[CA] 50 “It is a matter of concern for a counsel to file pleadings and turn around to copy the pleadings verbatim and file same as a witness deposition. A court process is a sacred and most important document which must be thoroughly done. The function of a counsel is to get the facts from his client and make use of them in the light of the law of which he is an expert.” I need not say more.   

62.         In the final analysis, this action succeeds in part. Reliefs 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 fail and are dismissed. Relief 1 is granted in part. Reliefs 12 and 13 and the alternative claim are granted. For the avoidance of doubt, judgment is entered for the Claimant against the Defendant as follows:

a      It is declared that the termination of the Claimant’s employment by Defendant without stating any valid or justifiable reason, or any reason at all breached Article 4 of the ILO Convention No. 158 of 1982 and consequently wrongful.

b     Defendant shall pay to the Claimant N1,000,000.00 [one million naira] general damages for unfair disengagement.

c      Defendant shall pay the cost of this action assessed at N500,000 [five hundred thousand naira] to the Claimant.

d     The monetary awards shall attract interest at the rate of 10% per annum from today until it is fully liquidated.

Judgment is entered accordingly.

……………………………………….…..

IKECHI GERALD NWENEKA

JUDGE

        3/10/2024

Attendance: Claimant present, Defendant absent

Appearances:

G. O. Okpe Esq. for the Claimant

Obafemi Agaba Esq. with Richmond Idaeho Esq., Saheed Kareem Esq. and Oladiran Kazeem Esq. for the Defendant