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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN IN LAGOS

 

BEFORE HIS LORDSHIP:                                    HON. JUSTICE M. N. ESOWE

 

DATE: DECEMBER 2, 2024                              SUIT NO: NICN/LA/144/2014

 

BETWEEN

MR JOHN AGBO                                                                CLAIMANT

 

AND

WARNER LEWIS LTD                                                     DEFENDANT

 

REPRESENTATION

Counsel for Claimant absent

Gbade Ageigbe, Esq for Defendant

 

JUDGMENT

1.     INTRODUCTION

2.     The Claimant is an Engineer employed by the Defendant as a Field Service Engineer on the 1st of April, 2013 with take home pay of N187,183.33. The Claimant avers that the Labour Agreement was to last from 1st April, 2013 to 31st day of March, 2015.  That he was never found guilty of any negligence or incompetence in the performance of his duties, yet the Defendant purportedly terminated his appointment on the 31st day of December, 2013 by a notice dated 29th November, 2013.  That despite the provisions of the Labour Agreement, and memo dated 14th July, 2013 the Defendant has refused to pay the compensation.  That is failure has caused him untold economic hardship.  It is for these reasons the Claimant has approached this Court seeking the following reliefs as per his Further Amended General Form of Complaint and the Further Amended Statement of Claim:

 

a)    A DECLARATION that the Claimant is entitled to compensation from the Defendant as stated and agreed under paragraph 9(d) of the Labour Contract Agreement.

b)    A DELARATION that the purported termination letter dated 29th day of November, 2013 is null and void having failed to comply strictly with the terms and conditions of the Labour Contract Agreement dated 1st day of April, 2013 whose paragraphs were made independent of each other" without any expressions such as “subject to the provisions of’’ or "notwithstanding the provisions of’’ that made any of the provisions of one paragraph subject to the provisions of the other paragraph(s).

c)     A DECLARATION that the Claimant is entitled to his full salaries and other entitlements from the 1st day of April, 2013 to 31st day of March, 2015 in accordance with paragraph 3 of the Labour Contract Agreement dated 1st day of April, 2013.

d)    AN ORDER directing the Defendant to pay full outstanding salaries and other entitlements to the Claimant from 1st day of January, 2014 to the 31st day of March, 2015. ALTERNATIVELY, AN ORDER of the court compelling the Defendant to pay to the Claimant six months' salaries of N1,123,099.98K (One Million, One Hundred and Twenty-Three Thousand, Ninety nine Naira, Ninety Eight Kobo) only, being the Claimant's take home salaries for six months as compensation for the purported termination of the Claimant's appointment.

e)    N9,000,000. 00 (Nine Million Naira only) as general damages for loss of earnings for the purported termination of the Claimant's appointment and non-payment of the compensation upon the purported termination of the Claimant's appointment.

f)      AN ORDER of the court directing the Defendant to pay to the Claimant 25% interest on the total sum after judgment and until final liquidation of the judgment sum.

g)    N400,000.00 (Four Hundred Thousand Naira only) as cost of this suit.

 

3.     Upon receiving the Claimant's General Form of Complaint and related documents, the Defendant appeared in Court, filed its Statement of Defence/Counterclaim, and later its Further Amended Statement of Defence. In its Counterclaim, the Defendant argued that the Claimant's termination was due to unsatisfactory performance and that a memo from July 14, 2013, was not part of their contract and was fraudulently obtained. The Defendant also denied any agreement for compensation and denied issuing any memo titled "QUALIFICATION FOR PAYMENT OF COMPENSATION." The Defendant contended that the lawsuit is frivolous, misconceived, and an abuse of the court process, and should be dismissed with punitive costs. Whereof the Defendant/Counterclaimant seeks against the Claimant/Defendant to the Counterclaim the following:

 

a.      The sum of N1,500,000.00 (One Million, Five Hundred Thousand Naira) being cost of this action.

 

4.     TRIAL

5.     The Claimant testified as CW1, he adopted his written depositions as his evidence in chief, through him three (3) documents were tendered in evidence, admitted and marked as exhibits C1 to C3 respectively. CW1 was cross-examined, and he thereafter closed his case. On behalf of the Defendant, one Olufemi Olutayo testified as DW1, he adopted his written deposition as his evidence in chief, through him three (3) documents were tendered in evidence, admitted and marked as exhibits D1 to D3 respectively. DW1 was cross-examined. One Seun Adeku testified as DW2. Upon the recall of DW1, 2 additional documents were tendered admitted and marked D4 and D5. DW1 was cross examined after which, the Defendant closed its defence. The matter was then adjourned to enable parties file and exchange their respective Final Written Addresses to be adopted at the adjourned date.

 

6.     DEFENDANT FINAL WRITTEN ADDRESS

7.     Learned Defence Counsel on behalf of the Defendant/Counterclaimant formulated these issues for determination, to wit:

 

a)    Whether the termination letter dated 29th November 2013 is null and void and whether the termination of employment of the Claimant by the Defendant is wrongful.

b)    Whether the Claimant is entitled to his full salaries and other entitlement from 1st day of April 2013 to 31st day of March, 2015 or in the alternative whether the Claimant is entitled to six months’ salary as compensation from the Defendant for the termination under paragraph 3 and paragraph 9(d) of the Labour Contract Agreement.

c)     Whether the Claimant is entitled to general damages and post judgment interest.

d)    Whether the Claimant is entitled to the sum of N400,000.00 Four Hundred Thousand Naira] as cost of the suit.

 

8.     Arguing issue one, the Learned Counsel for the Defendant submitted that while the Agreement was to last until March 31st, 2015, it allowed the Defendant to terminate the Agreement earlier under Clause 9 of Exhibit C2. That the Claimant who seeks a declaration that the termination of his appointment was wrongful must prove employment by the Defendant and the terms for termination. The Defendant provided evidence, per Clause 9(d), that the Claimant's appointment was terminated due to unsatisfactory performance, as indicated in the Performance Assessment Report (Exhibit D1). On issue two, Counsel argued that the Claimant is not entitled to full salaries and other entitlements from April 1, 2013, to March 31, 2015, nor to six months' salary as compensation for termination. The Claimant’s appointment was properly terminated, and even if wrongfully terminated, he is only entitled to earnings over the notice period and any other entitlements. The Court must adhere to the contract terms.

 

9.     Counsel asserted that the Claimant is not entitled to N9,000,000.00 as general damages or loss of earnings, as damages can only be awarded where there is a proven breach of duty by the Defendant. Regarding 25% interest on the total judgment, Counsel maintained that no sum is owed by the employer if termination is legal. Counsel also argued that it is unethical to pass the burden of Solicitor’s fees to the opposing party. Solicitor’s fees are special damages that must be explicitly pleaded and strictly proved. He urged the Court to dismiss the Claimant’s suit in its entirety.

 

10.   CLAIMANT’S FINAL WRITTEN ADDRESS

11.   The Learned Counsel for the Claimant raised the following issues for determination:

 

a)    Whether the employment agreement between the Claimant and the Defendant can be lawfully terminated in view of the provisions of Clause 7 of the Labour Contract Agreement dated 1st April, 2013 (Exhibit C2).

Alternatively

b)    Whether assuming without conceding the provisions of Clause 7, the Defendant complied with the condition precedent under clause 9 of the Labour Agreement dated 1st day of April, 2013 in the purported terminated of the contract of the Claimant.

c)     Whether the Claimant is entitled to six month’s salaries of N1,123,099.98k (One Million, One Hundred and Twenty-three Thousand, Ninety-nine Naira, Ninety-eight Kobo) only, as compensation for the purported termination of the Claimant’s appointment.

d)    Whether the Claimant is entitled to damages for loss of earnings due to the purported termination of the Claimant’s appointment.

 

12.   Arguing the issues, Learned Counsel submitted for issue one that the case revolved around the interpretation of Labour Contract Agreement dated 1st April, 2013 (Exhibit C1).  That the contract between the parties is a contract for fixed term beginning from 1st April, 2013 to the target completion date of 31st March, 2015.  That the intention of the parties about duration is evident from the use of “shall” making it mandatory with no room for discretion for the Claimant to remain in the employment of the Defendant till the target completion date of the project.

 

13.   He further submitted that there are two contradictory paragraphs in the Labour Agreement. That a well drafted document employs words and phrases such as “notwithstanding the provision of clause 7” and “subject to the provisions of clause 7”. Since there are no such words and phrases in the document, both clauses are independent of each other, and none takes precedence over the other. That the Agreement was unilaterally prepared and drafted by the Defendant which by law should be interpreted strictly against it. He maintained that the Defendant negligently drafted Exhibit C2 in a manner that clauses contradict each other.

 

14.   Alternatively for issue two, Counsel submitted that while the Defendant stated in its witness statement on oath that the Defendant relied on paragraph 9(d) of the Labour Agreement which states that the employer reserves the right to terminate the agreement without compensation to an employee guilty of any gross negligence or incompetence or failure to observe the terms and conditions of the Labour contract, the Claimant insists that the particular clause 7 makes clause 9 ineffective and unenforceable and further submits that the terms and condition of clause 9 were not complied with by the Defendant in the purported termination of the Claimant’s employment.

 

15.   That the only document tendered in proof, or the condition provided in clause 9(d) of the Labour Contract was a copy of performance Assessment report dated September 10, 2013, which the Claimant denied existed. The Claimant also denied ever meeting with Mr. Femi Olutayo or any person to review the Claimant’s performance. That although the Exhibit D1 was clearly marked “Duplicate Copy” which presupposes that there was another copy for acknowledgment, the Claimant was never served with it. He further submitted that DW1 who testified that there was a report about the Claimant from expatriate and NNPC staff failed to tender it in evidence.

 

16.   That the Claimant’s employment was terminated after a period of 9 months as opposed to 3 months’ probation period which means that he had passed the probationary period and that his performance was satisfactory during probation and was subsequently confirmed by the Defendant. There is also no evidence of any query, or breach of any other conditions spelt out in Clause 9(d) of exhibit C1. That there is also no evidence that the assessment stated by DW1 to be done every 3 months interval was done during the probationary period, rather one was done six months for the sole purpose of terminating his employment.

 

17.   Furthermore, exhibit C2 provided outright dismissal if performance was unsatisfactory. The fact that the Claimant’s appointment was termination for purported unsatisfactory performance is a breach of the contract which entitles the Claimant to damages. The letter did not state or refer to the reason for termination, the Defendant only adduced the reason in its pleadings. On the issue of compensation, the Claimant maintains that he was in the Defendant's employment for 9 months and by the notification for payment of compensation many employees whose appointment were terminated before the expiration of the contract were entitled to compensation. That exhibit C3 which the Defendant claims is fraudulent did not proof beyond reasonable doubt. That the Defendant alleged that the font was different from what it would normally use but did not state what font it uses thus leaving the Court to speculate which the Court has no duty to do.

 

18.   That the letter heads used in exhibits D1, C1 and C3 are the same and are radically different from the letterhead used in D4 and D5. That exhibits D4 and D5 were prepared at different times yet had the same Letterhead. Although the Defendant under cross examination testified that it had their letterheads changed because of a foreign Partner, it only shows that the documents were prepared during the pendency of this suit and the Defendant hurriedly amended its defence after 9 years of the institution of the suit just to include exhibits D4 and D5. That the fact that exhibit C3 was issued before D1 makes the argument that the signature on exhibit C3 was electronically lifted from exhibit D1 ridiculous. That the nature of the Claimant’s contract was such that instructions could be given on Sundays.

 

19.   The Claimant argues that he is entitled to damages for several reasons. That the contract between the Defendant and the Claimant is a contract for a fixed term, intended to last until the completion date. Therefore, the purported termination amounts to a breach of the contract, which entitles the Claimant to damages. Secondly, the reason given by the Defendant for the termination was "unsatisfactory performance," but they relied on the wrong clause of EXHIBIT C2. By relying on clause 9(d) instead of clause 10, the Defendant breached the Labour Contract Agreement, entitling the Claimant to damages.

 

20.   The Claimant also submitted that the failure of the Defendant to pay compensation for the termination of the contract as and when due also amounts to a breach of the contract, which entitles the Claimant to damages. Fourthly, the Claimant's loss of earnings due to the termination of his contract also entitles him to damages. The measure of damages is typically the amount the employee would have earned if the employment had continued according to the contract, adjusted for any other income the employee should reasonably have earned.

 

21.   In conclusion, there are conflicting clauses in exhibit C2 due to negligent drafting by the Defendant. The contract for a fixed term was not intended to be terminated before the completion date, as stated in clause 7 of exhibit C2, which specifies that the Labour Contract Agreement will remain in force until March 31, 2015. Therefore, the termination of the contract by the Defendant constitutes a breach. The Claimant is entitled to all his salaries and entitlements from January 1, 2014, to March 31, 2015. Alternatively, the Claimant seeks six months' salary of N1,123,099.98 as compensation for the termination, and N9,000,000 as general damages for loss of earnings due to the termination and non-payment of compensation, as well as for breach of contract.

 

22.   REPLY ON POINT OF LAW

23.   The Defendant filed its Reply on Point of Law in response to the issues of law raised by the Claimant in his Final Written Address dated May 16th, 2024, wherein the Defendant formulated the issue of whether the employment agreement can be lawfully terminated under Clause 7 of the Labour Contract Agreement.

 

24.   The Defendant noted that the Claimant did not argue this point in his Amended General Form of Complaint or provide supporting evidence. The Defendant argued that Courts do not accept Counsel's arguments as evidence. The purpose of a Final Written Address is to demonstrate opinions based on evidence before the Court. Therefore, the Defendant urged the Court to disregard the Claimant's argument regarding Clause 7.

 

25.   Regarding the interpretation of "shall," the Defendant cited Supreme Court cases BPS Construction & Engineering Comp. Ltd v FCDA (2017) LPELR 42516 (SC), and Fidelity Bank PLC v Monye & Ors (2012) LPELR-7819(SC), to argue that "shall" can be mandatory or discretionary depending on the context. The Defendant contended that the employment contract could be terminated under Clause 9(d) despite the use of "shall" in Exhibit C2. That the Claimant’s attempt to distance himself from the Labour Contract Agreement is futile as parties are bound by their agreements and cannot evade corresponding duties.

 

26.   In response to paragraphs 5.4 to 5.16 of the Claimant's submission, the Defendant acknowledged that no reason was given for the Claimant's termination in the termination letter. The reasons emerged during proceedings and were not part of the relief sought but that the law is clear that an employer is not required to provide reasons for termination unless stated in the contract. The Defendant argued that the Court should not investigate reasons for termination if none are provided. The Defendant urged the Court to dismiss the Claimant's suit for lacking merit.

 

27.   RESOLUTION

28.   Having regards to the facts and circumstances of this suit, the pleadings, evidence adduced, submissions of Learned Counsel on both sides, the Court distils the issues below for determination, namely:

 

29. Is the Claimant entitled to the reliefs sought herein in the light of the evidence adduced by him before the Court.

 

30.   Is the Defendant’s counterclaim meritorious to entitle him to the grant of claim in therein.

 

31.   The Learned Counsel for the Defendant objected to the admissibility of exhibit C3, arguing that the memo dated July 14, 2013, was fraudulently procured by the Claimant and does not follow the Defendant's usual internal memo pattern. The Defendant insists that samples of its internal memos from April 29, 2013 (Exhibit D4), and October 30, 2014 (Exhibit D5) demonstrate that the font, signature, and issuance date of the disputed memo are inconsistent with the Defendant's practices. Additionally, the Defendant's office does not operate or issue documents on Sundays, and it does not pay compensation to contract staff. Exhibit C3, the disputed memo, is a photocopy, and the Claimant claims the original is with the Defendant, which it denies issuing or signing it. The Claimant did not call any witnesses to corroborate the memo's issuance.

 

32.   The Claimant argues that the Defendant alleged in paragraph 16 of the Defendant's witness statement on oath that exhibit C3 was fraudulently procured by the Claimant. The Claimant asserts that this alleged fraud is a criminal act, and the standard of proof for criminal allegations is beyond reasonable doubt, which the Defendant failed to meet. The Defendant claimed that the font and pattern used in exhibit C3 are not those normally used by the Defendant without specifying the fonts used by the Defendant and the Claimant, leaving the Court to speculate. The Court should not assume or speculate, especially in criminal allegations where the standard of proof is beyond reasonable doubt. The Defendant also tendered exhibits D4 and D5 without pleading that the fonts therein are the standard fonts used by the Defendant. The letterhead used by the Defendant in exhibit D1, exhibit C1, and exhibit C3 are the same and radically different from the letterhead used in exhibits D4 and D5.

 

33.   However, since the Claimant denied the allegation of fraud, the burden of proving it rested on the Defendant, who is alleging fraud, to prove the allegation beyond reasonable doubt as required by Section 135 of the Evidence (Amendment) Act, 2023. Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt or any degree of certainty. It should be proof that excludes all reasonable inferences or assumptions except that which it seeks to support. It must have clarity of proof consistent with the guilt of the accused person. Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. This certainty is established by proving the essential ingredients of the offence and that it is the person charged who committed the offence. See Miller v Minister of Pensions (1947) 2 ALL ER 373 and Joda v State (2024) LPELR-61714(CA).

 

34.   The Court examined the exhibits, including C1-C3 and D1, D3, D4, all of which seemed to be on the Defendant’s letterhead and signed by DW1. The font style, size, and letterhead varies in a number of these documents. The letterhead and signatures in exhibit C3 and D1 appear to be the same, but all other documents had similar closings with "thanks" and "yours sincerely" or "yours faithfully," except for exhibit C3. The Defendant’s argument that memos were not sent out on Sundays was countered by the Claimant with exhibit D2, showing normal working hours for day and night shifts from Monday to Monday. Based on this reasoning, the Court finds that the Defendant’s failure to prove fraud renders the objection to the admissibility of exhibit C3 incompetent, and it is overruled and discountenanced.

 

35.   In law, the basis of admissibility of any document, public or private, is relevancy. Admissibility is based on relevance, not proper custody. For evidence to be admissible, it is sufficient that proper ground of its relevance is laid. See Gbenga v APC (2020) 14 NWLR (Pt. 1744) 248 and Torti v Ukpabi (1984) LPELR-3259(SC). The Court has a duty to reject inadmissible documents and act only on legal evidence. See Olomo v Ape (2015) 14 NWLR (Pt. 1478) 46. Although exhibit C3 appears relevant and was pleaded, it is secondary evidence as the original was not produced before the Court. The Claimant laid proper foundation as to the whereabouts of the original, stating it is in the custody of the Defendant, which the Defendant denies. Under Section 89 of the Evidence (Amendment) Act, 2023, secondary evidence may be given if the original is in the possession of the person against whom the document is sought to be proved, or any person legally bound to produce it, and does not produce it after notice. The Defendant denied its existence, so the burden fell on the Claimant to prove that the Defendant was the author of the memo, which the Claimant failed to do. The said memo was also not addressed to anyone; therefore, the Court would be speculating if it were to grant the Claimant any benefit based on it.  Hence exhibit C3 is marked tendered but REJECTED.

 

36.   For his relief one, the Claimant seeks a declaration that he is entitled to compensation from the Defendant under paragraph 9(d) of the Labour Contract Agreement. Declaratory reliefs are not granted as a matter of course, the Claimant has a duty to plead and prove his entitlement to the declaration. His evidence must be such that is overwhelming, total, convincing and credible, evidence which is natural, reasonable and probable in the peculiar circumstances of the case - In-Time Connection Limited v Ichie [2009] LPELR-8772[CA] 16.

 

37.   The Claimant asserts that despite his diligence, his appointment was terminated on December 31, 2013, by a letter dated November 29, 2013. He claims the Defendant failed to pay him compensation as per the contract (Exhibit C2) and the memo dated July 14, 2013 (Exhibit C3). The Claimant argues he is entitled to six months' salary as compensation under the memo and the Labour Contract Agreement. However, the memo (Exhibit C3) has been rejected and expunged from the Court’s records. The Court must not rely on a document it has excluded - Oladele v Aromolaran II (1996) 6 NWLR (Pt. 453) 180 at 226. The parties agree their relationship is regulated by the Labour Contract Agreement (Exhibit C2) so in the absence of any evidence of fraud, duress or misrepresentation surrounding the execution of exhibit C2, the Court will resolve disputes based on this agreement. As it is the duty of the Court to interpret contract and not to rewrite them – Obanye v UBN Plc (2018) LPELR(SC).

 

38.   Paragraph 9(d) of the agreement states that the employer can terminate the Agreement without compensation if the employee is guilty of gross negligence, incompetence, misconduct, or breaches the terms. This paragraph is unambiguous and must be given its plain meaning, which allows termination without compensation under these conditions. The Defendant maintains that the Claimant’s employment was terminated because his performance was unsatisfactory as evinced by exhibit D1. The said report titled ‘Performance Assessment Report’ reads, ‘we refer you to the meeting you had with the undersigned in respect of the above subject matter. At the said meeting you gave an undertaking that you will improve on your performance and your attitude towards your job. However we are constrained to inform you that based on the confidential assessment report from our client, your performance is unsatisfactory… yours sincerely, Olufemi Olutayo.

 

39.   During cross-examination, DW1 testified that employees had periodic examinations and feedback on performance in the examinations reports were verbal. According to him, the Claimant’s performance report (Exhibit D1) was also based on Client’s feedback, though he did not have the report or feedback to support his stance. When questioned about a meeting referred to in exhibit D1, DW1 mentioned it might have been with a chief leader but was unsure. This uncertainty supports the Claimant's assertion that no meeting occurred between himself and Mr. Olufemi Olutayo, who signed the Assessment Report. The Claimant also pointed out that he never received a query during his probation period, suggesting the assessment report was aimed at justifying his termination. Additionally, the Claimant noted that his termination letter did not cite performance issues as the reason for termination.

 

40.   From these points, the Defendant failed to prove that the Claimant fell under the categories specified in paragraph 9(d) of the Agreement. However, declaring that the Claimant is entitled to compensation under paragraph 9(d) would be speculative and adding terms not present in the agreement. Courts must respect the sanctity of contracts. In Mubeco Pet. Co. Ltd v B.O.I. Ltd (2021) 13 NWLR (Pt. 1792) 139, it was emphasized that written agreements govern relationships, and disputes should be resolved based on the agreement without varying its terms. Similarly, in Clean Credential Ltd v I.T.F., Governing Council (2019) 17 NWLR (Pt. 1701) 318, it was held that Courts must give effect to the plain words of an agreement. Similarly, the Court has consistently emphasized that decisions cannot be based on speculation, no matter how closely aligned they may appear with the facts. Speculation differs from inference, which is a reasonable deduction drawn from established facts. In contrast, speculation is an imaginative guess and should not be used to fill gaps in evidence before the Court. See Overseas Construction Co. Ltd v Creek Enterprises Ltd (1985) 3 NWLR (Pt. 113) 409; Ivienagbor v Bazuaye & Anor (1999) LPELR-1562 (SC) (pp. 14- 14 paras. A - D); Sakamori Construction (Nig.) Ltd v Lagos State Water Corporation (2021) LPELR-56606(SC).

 

41.   The strength of a Claimant’s case determines its success, not the weakness of the defence or any admission by the Defendant especially where declaratory reliefs are sought - A.G., Rivers State v A.G., Federation & Anor (2022) 15 NWLR (Pt. 1852) 99 at 166, 218; Adama & Ors v Kogi State House of Assembly & Ors [2019] 16 NWLR (Pt. 1699) 501 at 531; Ilori & Ors v Ishola & Anor (2018) 15 NWLR (Pt. 1641) 77 at 94. Despite the Defendant’s failure to prove a breach of agreement or unsatisfactory performance, paragraph 9(d) does not entitle the Claimant to compensation upon termination. It is settled law that parties to a contract are bound by the terms of the contract. In determining the rights and obligations of the parties to the contract, the Court must respect its sanctity and not allow a term on which there was no agreement to be read into the contract. See Julius Berger Nigeria Plc & Anor v Toki Rainbow Community Bank Limited (2019) 5 NWLR (Pt. 1656) 219 at 257, paras. A-B. Therefore, this aspect of the Claimant’s relief is dismissed. I so hold.

 

42.   Relief two is for a declaration that the purported termination letter dated 29th day of November 2013 is null, and void having failed to comply strictly with the terms and conditions of the Labour Contract Agreement dated 1st day of April 2013 whose paragraphs were made independent of each other" without any expressions such as “subject to the provisions of’’ or "notwithstanding the provisions of’’ that made any of the provisions of one paragraph subject to the provisions of the other paragraph(s). The Claimant’s contention is that his appointment was not terminated in accordance with the terms of the contract, that by the provisions of paragraph 7 of the Labour Contract Agreement, the employment was not to be terminated until the completion date of 31st of March, 2015. The Defendant on the other hand argues that the Defendant was allowed to terminate the employment of the Claimant under the agreement.

 

43.   In Ovivie & Ors v Delta Steel Co. Ltd (2023) LPELR-60460(SC), the Supreme Court held, "it is the law that when an employee complains that his employment has been wrongfully terminated, he has the onus, first, to place before the Court the terms of the contract of employment and, second, to prove in what manner the said terms were breached by the employer. It is not in principle for the employer who is a Defendant to an action brought by the employee to prove any of these.” In Katto v CBN (1999) LPELR-1677(SC) (p. 10, paras. C- F) expatiated it thus: "As the contract of service is the bedrock upon which an aggrieved employee must found his case, he succeeds or fails upon the terms thereof. Therefore, in a written or documented contract of service, the Court will not look outside the terms stipulated or agreed therein in deciding the rights and obligations of the parties... In the latter case, this Court observed at p. 94 that the provisions of a written contract of service bind the parties thereto and that it was "outside the province of the learned trial Judge to look anywhere for terms of termination of the contract other than in the Agreement.’’

 

44.   The Claimant has a duty to show in what manner the said terms of exhibit C2 were breached by the Defendant. The Claimant relied of paragraph 7, the said provisions are reproduced as follows; ‘this agreement shall remain in force from 1st April 2013 till the target completion date of Project i.e. 31st March 2015 and be extendable upon a joint agreement between employer and employee, if the need arises.’ The Claimant argued that the intention of the parties about duration is evident from the use of “shall” making it mandatory and leaving no room for discretion. That the intention was for the Claimant to remain in the employment of the Defendant till the target completion date of the project. This presupposes that the agreement was for a fixed term.

 

45.   Where the term of service is pre-determined at the commencement of the contract. Notice may or may not be in the contemplation of the parties. The proposition here is that in such a contract the employee cannot be removed during the period of the term contracted except for misconduct or where the employer dies. Usually where the contract of an employee is determined before the expiration of the term agreed, the employer shall be made to pay the employee the full salary he would have earned for the unexpired period of his fixed contractual term. See Shena Security Co. Ltd v Afropak (Nig) Ltd & Ors (2008) LPELR-3052(SC), Swiss Nigeria Wood Industries Ltd v Bogo (1970) NCLR 423.

 

46.   However, paragraph 9(b) of the same agreement provides, ‘the EMPLOYER shall reserve the right to terminate this Agreement at any time giving to the EMPLOYEE twenty eight (28)’ calendar days’ notice in writing.’ The terms of the exhibit C2 envisioned that a party desirous of terminating the employment should give a notice in accordance with the agreement. The question at this point is, did the Defendant give the Claimant the required notice? ‘The letter of termination dated 29th November, 2013 (exhibit C1) reads, ‘in accordance with the terms of your engagement, you are hereby put on notice that your services shall no longer be required effective December 31st, 2013’. This by implication means that the Claimant was given 31 days’ notice which more than satisfies the requirement of notice on the Defendant. The law is settled that a document speaks for itself, and no amount of evidence can contradict the document, and not even the contention of Counsel in his Written Address. See Hyeladzira v Omonijo & Anor (2024) LPELR-62213(CA) (pp. 13 – 13, paras. A - A).

 

47.   Though the Claimant insist that there are two contradictory paragraphs in the Labour Agreement.  That a well drafted document employs words and phrases such as “notwithstanding the provision of clause 7”and “subject to the provisions of clause 7”. Since there are no such words and phrases in the document, both clauses are independent of each other, and none takes precedence over the other. That the Agreement was unilaterally prepared and drafted by the Defendant which by law should be interpreted strictly against it. He maintained that the Defendant negligently drafted exhibit C2 in a manner that the clauses contradict each other.

 

48.   The law is settled that in the construction of a document or an instrument, the document or instrument must be read and construed together. In Sacoil 281 (Nig.) Ltd & Anor v Transcorp (Nig.) PLC & Ors (2020) LPELR-49762(CA), the Court of Appeal held, ‘It is the cardinal principle of interpretation that in construing the meaning of a document, reference must be made to what precedes and what follows it. In Nigerian Army v Aminun-Kano (2010) LPELR-2013 (SC), the Supreme Court per Muhammad, JSC reiterated this principle in the following words: "In order to read the mind of the maker/author of that document it is necessary to subject such document to an appropriate rule of interpretation that a passage is best interpreted by reference to what precedes and what follows it. This makes it mandatory for one to read the whole passage or document and every part of it should be taken into account.”

 

49.   Likewise, it is against public interest to allow a person who has benefitted from an agreement to turn around and claim that the agreement is illegal, null and void. Equity will not allow a party to challenge the legality of a transaction from which he has immensely benefitted - Passco Intl Ltd v Unity Bank Plc (2021) 7 NWLR (Pt. 1775) 224 at p. 255, paras. A-B. When parties enter into an agreement and have reduced same into writing, the written agreement governs their relationship. If there is any dispute, the agreement is the reference point and none of the parties would be allowed to vary, add, subtract or resile from it. U.B.N v Ozigi (1994) 3 NWLR (Pt. 333) 385; Akubuiro v Mobil Oil Nig. Ltd. (2012) 14 NWLR (Pt. 1319) 42.

 

50.   In this case, the Claimant who admitted that exhibit C2 (labour contract agreement) is the basis of the relationship between the Defendant is bound to restrict itself to the terms of agreement between them and cannot resile from it. Parties are bound by their agreement. Its terms and conditions must be respected by the Court. Where the terms and conditions are clear and unambiguous, the duty of the Court is to give effect to the plain words, and on no account should the Court rewrite the contract for the parties. See Clean Credential Ltd. v I.T.F., Governing Council (2019) 17 NWLR (Pt. 1701) 318. To the mind of the Court the termination of the Claimant’s appointment by exhibit C1 was in accordance with the terms in paragraph 9(b) agreed by the parties and therefore cannot be null and void. For this reason and all the reasons above stated, the Claimant’s relief two hereby fails, I so hold.

 

51.   For his relief three and four, the Claimant is seeking a declaration that the Claimant is entitled to his full salaries and other entitlements from the 1st day of April, 2013 to 31st day of March, 2015 in accordance with paragraph 3 of the Labour Contract Agreement dated 1st day of April, 2013 and; an order directing the Defendant to pay full outstanding salaries and other entitlements to the Claimant from 1st day of January, 2014 to the 31st day of March, 2015. In this case, since both parties acknowledged exhibit C2 as their binding agreement, they are obligated to adhere to it. The Court determined under relief two that the termination of the Claimant’s appointment followed the established procedure. It is trite that a Court of law must always respect the sanctity of the agreements reached by parties as it favours the inalienable rights of the freedom of formation of contracts by parties and would not make a contract for them or re-write the one, they have already made for themselves.

 

52.   Also based on the evidence presented, the employment relationship between the parties is not statutory but a master-servant relationship governed by common law. It is a well-settled principle that when an employer terminates an employment contract, the termination is considered final and cannot be declared ultra vires, null, or void. Isievwore v NEPA (2002) 13 NWLR (Pt. 784) 417 SC. The reason being the fact that an employee cannot compel the employer to retain him no matter how desirable that may be on humanitarian or other grounds the same way an employer cannot compel an employee to remain in his service no matter how indispensable his services may be to his employer. Even if the termination is wrongful, reinstatement is not a remedy for wrongful termination of such an employment as this. An employee under this circumstance is entitled to damages, the measure of which is the amount representing the length of notice prescribed, see the case of Afribank (Nig) PLC v Osisanya (2000)1 NWLR (Pt.642)592. Odinkenmere v Impresit Bakolori (Nig.) Ltd (1995) 8 NWLR (Pt. 11) p. 52 at 66. See also SPDC (Nig.) Ltd v Ifeta (2001)11 NWLR (Pt.724) 473.

 

53.   An employee cannot choose to treat the contract as subsisting and sue for an account of profits, that is, salary, gratuity and other allowances which he would have earned to the end of the contractual period. Therefore, items such as expected salary, leave grant, furniture grant, transport allowance, utility allowance, housing allowance, snacks allowance, covering the period of years in which the plaintiff would have been in service are not maintainable as they are futuristic. See Abukogbo v African Timber & Plywood Limited (1966) NMLR 312; Agbo v C.B.N. (1996) 10 NWLR (Pt.478) 370; Igwilo v Central Bank of Nigeria (2000) 9 NWLR (Pt. 672) 302 at p.335, paras. F-G). The Court cannot grant this leg of the Claimant claim as it would amount to the Court forcing a willing employee on an unwilling employer. Moreover, since the appointment was validly terminated, the Claimant is cannot be entitled to payment for period he did not work since the employment relationship between the parties has come to an end. Also, the Claimant did not lead evidence to show that he had any outstanding salaries or unpaid allowances from the period in which his appointment was subsisting. Accordingly, the Claimant’s relief three fails. I so hold.

 

54.   The Claimant claims in the alternative to the last relief, an order of the Court compelling the Defendant to pay to the Claimant six months' salaries of N1,123,099.98K (One Million, One Hundred and Twenty-Three Thousand, ninety nine Naira, Ninety Eight Kobo) only, being the Claimant's take home salaries for six months as compensation for the purported termination of the Claimant's appointment. Where a claim is in the alternative, the Court should first consider whether the principal or main claim, ought to have succeeded. It is only after the Court may have found that it could not, for any reason, grant the principal or main claim, that it would now consider the alternative claim. See the case of Mercantile Bank of Nig. Ltd. v Adalma Tanker & Bunkering Services Ltd. (1990) NWLR (Pt.153) 747. Since the preceding relief which is the main relief failed, the Court will now consider this relief. The Court already found above that the there is no provision in exhibit C2 which entitled the Claimant to compensation. In the light of this reasoning, and in the absence of any evidence in proof of this leg of the Claimant’s claim, it accordingly fails. I so hold.

 

55.   The next relief is for the sum of N9,000,000. 00 (Nine Million Naira only) as general damages for loss of earnings for the purported termination of the Claimant's appointment and non-payment of the compensation upon the purported termination of the Claimant's appointment. In UBN Plc. v Onuorah & Ors [2007] LPELR-11845(CA), the Court of Appeal held that “general damages are such as the law will presume to be the direct natural or probable consequences of the act complained of and that the Court can make an award of general damages even when it cannot point out any measure of assessment except what it can hold in the opinion of a reasonable man”. I have considered the evidence before the Court and though the Claimant avers that failure of the Defendant to pay the requisite compensation as contained in the Labour Contract Agreement dated 1st day of April, 2013 upon demand has grievously inflicted economic hardship on him, the Defendant maintains that the Claimant is not entitled to any compensation under the agreement.

 

56.   The purpose of awarding general damages is to compensate the Claimant, as far as money can, for the damages, loss, or injury suffered. The guiding principle is restitution in integrum, which aims to restore the party to the position they would have been in if they had not suffered the wrong. This means compensating for the loss that inevitably and unavoidably flows from the breach, as established in the case of MTN v Corporate Communication Investment Ltd (2019) LPELR-47042(SC). However, the Court finds that the Claimant has failed to establish any breach or loss arising from the acts of the Defendant. Therefore, the Court cannot grant this relief, and it is hereby dismissed. I so hold.

 

57.     Relief six is for an order of the Court directing the Defendant to pay to the Claimant 25% interest on the total sum after judgment and until final liquidation of the judgment sum. Order 47 Rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 empowers the Court to award post judgment interest of not less than 10% per annum upon any judgment. In view of the circumstances of this suit, this Court cannot award 25% interest in favour of the Claimant since there is no judgment sum herein. Accordingly, this relief fails. I so find and I so hold.

 

58.   For his relief 7, the Claimant sought N400,000.00 as the cost of the suit. Costs are awarded to compensate a successful party without being punitive to the unsuccessful party, meant to alleviate financial burdens rather than cover all litigation costs. Referencing Anazodo v Pazmeck Intertrade (Nig.) Ltd & Anor (2023) LPELR-59879(SC) and EKSU & Ors v Fajembola & Ors (2022) LPELR-57501(CA), it is noted that under Order 55 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, awarding costs is at the Court's discretion, to be exercised judicially and judiciously. In this case, the Court is not inclined to exercise its discretion in favour of the Claimant. Consequently, this relief fails and is dismissed.

 

59.   This brings us to issue two: the Defendant’s Counterclaim.  In Abe v Damawa (2023) 3 NWLR (Pt. 1871) 335, the Supreme Court held that a counterclaim is an independent action that must be proved on the balance of probabilities. It does not need to be related to the Plaintiff’s claim or arise out of the same transaction. Nigerian adjectival law requires it to be filed separately, allowing the Defendant to enforce a claim against the Plaintiff as effectively as an independent action. The fate of a counterclaim is independent of the Plaintiff’s claim. Even if the Plaintiff’s case is dismissed, stayed, or discontinued, the counterclaim can proceed. For the Counter Claimant to succeed, he must adduce evidence to substantiate his claims.

 

60.   The Counterclaimant claims against the Defendant to the Counterclaim the sum of N1,500,000.00 (One Million Five Hundred Thousand Naira) being cost of this action. It is the law that cost follows event and the award of cost by the Court is at the discretion of the Court which discretion must be exercised judicially and judiciously. See Yakubu v Min. Housing & Environment, Bauchi State (2021) 12 NWLR (Pt. 1791) 465, Order 55 Rules 2 and 3 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. It is the considered view of this Court that given its findings that the Claimant’s claims are dismissed, it would be judicious to exercise the Court’s discretion in favour of the Defendant/Counterclaimant by awarding cost. Consequently, cost assessed at the sum of N100,000.00 (One Hundred Thousand Naira) is awarded to the Defendant/Counterclaimant payable by the Claimant/Defendant to the Counterclaim. I so hold.

 

61.   Issue one is resolved in the negative against the Claimant. The Claimant’s case is dismissed in its entirety. Issue two is resolved in favour of the Defendant/Counterclaimant. I so hold.

 

62.   For the avoidance of doubt, the order of the Court is as follows:

 

63.   Cost of action set at N100,000.00 (One Hundred Thousand Naira) is awarded in favour of the Defendant/Counterclaimant against the Claimant/Defendant to the Counterclaim.

 

64.    Judgment is entered accordingly.

 

 

Hon. Justice M. N. Esowe, FCIArb

Presiding Judge