WD

      IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON JUSTICE A.N UBAKA

DATED 2^nd OCTOBER, 2025                             

Suit No: NICN/LA/394/2022

BETWEEN

ADEFEMI OLAYINKA ADERIYE                                                       CLAIMANT

AND

REDDINGTON MULTI-SPECIALIST HOSPITAL LTD                    DEFENDANT

REPRESENTATION:

Folabi Kuti SAN, with Adejumoke Ademola and Oyewunmi Yussuf for the Claimant 

Bambo Adesanya SAN, with A.O Dare for the Defendant

JUDGMENT

By a general form of complaint filed on the 14^th October, 2022 the claimant claimed the following reliefs against the defendant:

Accompanying the complaint are statement of facts, written statement on oath, list of witnesses, documents to be relied upon on trial dated 12^th October, 2022 but filed 14^th October, 2022.

In reaction, the defendant entered formal appearance and then filed a statement of defence, witness written statement on oath and documents to be relied upon at trial dated and filed 9^th March 2023. 

The summary of the facts pleaded by the claimant is that he is a well skilled and experienced dentist and was a senior- level employee of the defendant until the abrupt and wrongful termination by the defendant on March 21, 2022. That following a successful interview process, he was employed by the defendant as the pioneer dentist in the defendant's hospital vide a contract of employment dated May 10, 2010 and that by the terms of his contract of employment, he was required to, amongst other duties, set up a dentistry department for the defendant and attend to all dental issues in the hospital and was also responsible for the following undertakings: 

(a)       Implementation of policies and tasks assigned by the defendant's Medical Director. 

(b)       General administration and inventory-taking of the defendant's dentistry department. 

(c)       Maintenance of good medical records for all patients under my care (in person or by delegation). 

(d)       Report of deficiencies in attendance and work-performance of other staff to the Medical Director. as well as other problems with the organization. equipment and supplies. 

That for the above responsibilities, his annual gross remuneration as of the date of employment was N5,484,000.00 (Five Million Four Hundred and Eighty-Four Thousand Naira) and which amounted to N400,000.00 (Four Hundred Thousand Naira) monthly after tax and pension deductions, as he contributed to the overall success and value creation of the defendant, his remuneration was increased by the defendant from time to time and that as of the date of his termination, his gross annual salary was N12,000,000.00 (Twelve Million Naira); that his role as the defendant's pioneer dentist cum head of the dentistry department was and remains crucial to the day-to-day operations of the defendant. That without the expertise skills and wealth of experience he deployed as a dentist, it would be impossible for the defendant to run a seamless dentistry unit within the hospital and to also function as a multi-specialist hospital with competence in dentistry which it represents to the whole world; that throughout the period of his employment he demonstrated sheer diligence and was valuable to the defendant's core business activities. At different times, he was adjudged an asset to the defendant given his unwavering dedication in service to the defendant and excellence with which he carried out his duties from day to day. That by the terms of his contract of employment, his employment was initially subjected to a 6-month probationary period which was later confirmed upon satisfactory and competent discharge of his contracted duties during the 6-month period; that prior to this confirmation, he was never confronted by the defendant's Medical Director whom to report to with any complaint or concerns on his performance because he believed that had his performance fallen below the defendant's standard requirements his employment would not be confirmed after the probation Indeed, his performance was never in question by the defendant. That the dental practice he successfully set up and managed for the defendant grew so rapidly that the defendant could not but appreciate his performance. Thus, by email dated January 26, 2017 he received a letter of salary increment dated January 26, 2017, from the defendant; that the defendant's dentistry continued to grow in leaps and bounds such that there was a need for practice-expansion and he was eventually redeployed to another facility known as "Super Maxy-Centre" at 14 Akin Olugbade Street Victoria Island Lagos to set up another dentistry for the defendant; that with no extra benefits or incentive he set up and managed the dentistry at Super Maxy Centre and up until his termination, the dentistry at Super Maxy Centre also functioned smoothly and remained a major revenue drive for the defendant. 

That he knows that his position was reserved for people of skill, reliability and merit and he was a most suitable fit for the role. That he continued to work for the defendant and all through the pendency of his employment, there was no pointer to the fact that the role he occupied was excess to the requirement of the defendant, as the role remained active, and vital to the defendant’s business operations; that despite his hard work and commitment to the growth of the defendant's business, the defendant showed no interest or keenness in his welfare or the condition of his work; that after a consistent use of inappropriate chairs and work-tools, he sometime in October 2019, came down with a severe back injury which would later be diagnosed as chronic case of Thoracic Radiculopathy and Thoracic Spondylosis and was placed on admission in the Emergency Room (ER) of the hospital and whilst at the ER, the Hospital's Consultant Orthopedic Surgeon who attended to him advised that he be put off work for some time. he consequently went on a three-weeks sick leave and returned to work and within two weeks of returning to work, he suffered another acute relapse of the same injury. That following the relapse, he underwent series of medical tests and scans, after which he was medically advised by the Hospital's Consultant to keep off work for a period of three months, at least and also advised him that his injury was largely posture related and that he should ensure that his chair and other inappropriate work-tools are replaced before resuming work; that the medical report/advise by the Medical Consultant who attended to him was forwarded to the management of the defendant and to his dismay, the defendant's Human Resource Manager (HRM) responded by forwarding a memo dated November 25, 2019 to him, stating that he had initially taken 18 days as paid sick leave-and that any subsequent leave period will be treated as -leave of absence which will attract the principle of "no work, no pay". Bewildered by the reaction, he immediately, escalated the issue to the Medical Consultant who was attending to his injury and that by email dated November 27, 2019, the Medical Consultant wrote the defendant's management and advised them of the implication of their decision. In the same vein, vide an email dated November 29, 2019, he also wrote back to the HRM, making a case of understanding that his injury was suffered in the course of his employment and as a result of the defendant's failure to provide a proper Ergonomic Dentists' Stool for work. 

That despite his case of understanding and the Medical Consultant's intervention, the defendant was hell-bent on its decision not to pay him during his sick leave and his salary was indeed stopped as he was not paid for the months of October and November 2019 when he was on leave which constitute an unfair labour practice; that after his recovery, he immediately returned to work and undeterred by the defendant's unfair and unreasonable treatment whilst he was on leave, he nonetheless continued to put in his best efforts at work. As a matter of fact, he was so efficient and productive at work that he was honoured with a long and outstanding service award by the defendant on December 12, 2020, in special recognition and appreciation of his numerous contributions and faithful service to the ideals and purposes of the defendant's business. That in what can be construed an indication of business growth, expansion and success, he knows that the defendant commissioned another 72-bed multi-specialist subsidiary hospital, called Duchess Hospital at Ikeja GRA, Lagos and that subsequent to the commissioning, the defendant in its usual style, proposed for him to be redeployed to Duchess Hospital to set up another dentistry practice like he did for Reddington and Super Maxi-Centre, he was ordinarily not averse to the proposition,  However, as would every reasonable man in such circumstances, he demanded for a fresh or revised contract of employment and a remuneration review. That for a very long time, the defendant was not forthcoming with either a fresh or revised contract of employment, and when it eventually shared a draft contract with him, the contract was totally unreflective of the demands he made as the new contract was largely the same as his extant contract of employment at the time. Dissatisfied, he shared his concerns regarding the contract with the defendant vide an email dated February 7^th, 2022, and March 1^st 2022, which till date, were not attended to by the defendant. That in the absence of a fresh contract or agreement, he was left with no option but to return to his previous position at Super-Maxy Centre and continued work in accordance with his subsisting terms of engagement; that throughout the time he waited for the revised contract for his proposed engagement at Duchess Hospital, he religiously and punctually reported for work at Duchess Hospital as he was willing and ready to work at Duchess Hospital but for the defendant's willful refusal to revise his contract of employment to conform with new realities. 

That for no just cause, his employment which was only two months shy of twelve years was abruptly terminated by the defendant in total disregard of the terms and conditions of his contract of employment; that by a letter dated March 21, 2022, the defendant terminated his employment on the purported grounds of redundancy with immediately effect. The letter reads that 

''as a result of continuing low volumes of patients using the Dental Clinic, your position is no longer needed. Regrettably this means your employment will terminate with immediate effect. This decision is not in any way a reflection on your performance" 

That upon careful inquiry and investigation, he found out that his employment was selectively terminated by the defendant as at no time was redundancy declared by the defendant and even in the assumption that same was declared, he was the only staff affected by the declaration, thereby making his termination selective and discriminatory; that he knows that his role, as the Head of Dentistry Unit was neither redundant, nor was the role excess to the requirements of the defendant and that being a no-fault termination as unequivocally admitted by the defendant at paragraph 2 of the letter of termination dated March 21, 2022, his employment was not terminated as a result of poor performance or any misconduct on his part as no time did he receive any negative assessment of his performance from the defendant; that he believe that there was no basis or justification for the alleged redundancy declared by the defendant as the purported redundancy did not affect any aspect of the defendant's business, neither were other staff of the defendant affected and that the alleged grounds of redundancy were disingenuously fabricated by the defendant to unfairly and unjustly terminate his employment as there were no other upon which the termination could be pigeon-holed. That the termination of his employment on the purported grounds of redundancy contravenes the provisions of his contract of employment with the defendant and by extension the mandatory provisions of the defendant's Employee Handbook. In that Chapter 9 of the said Handbook provides for the following conditions which were not met by the defendant: 

a.         There shall be consultation between the defendant's management and the employee before the employee is declared redundant. 

b.         The defendant shall apply the principle of Last in First Out (UFO) during the redundancy exercise. 

c.         The defendant-shall pay the affected employee a redundancy pay-out in addition to the employee's normal entitlements. 

That he knows that the defendant refused failed and neglected to apply the principle of Last in First Out (LIFO) in purportedly embarking upon the redundancy exercise, in view of the following facts:          

That he knows that not even one of the afore-mentioned mandatory provisions of the defendant's handbook was met by the defendant when it terminated his employment as there was no prior consultation between him and the defendant's management that he would be declared redundant and that being the pioneer and the most senior staff in the affected department - the dentistry, his termination could not have been a product of the application of the principle of LIFO; that he verily believe that up until his termination of employment, he remained the most skillful and most experienced dentistry consultant working for the defendant, hence the reason he was always saddled with the responsibility of setting up a dentistry practice whenever the defendant commissions a new outfit. More remarkably, he was not offered nor paid any redundancy pay-out or terminal benefits, either contemporaneously with or after his termination. That all that he was offered by the defendant was a one month's salary in lieu of notice which he was ordinarily entitled to under his contract with the defendant; that he believes that for his nearly twelve (12) years of unbroken faithful and devoted service to the business and overall value creation of the defendant, payment of one month's salary in lieu of notice purportedly as terminal benefit is highly unreasonable, ridiculous, scandalous, vexatious and cannot by any stretch of imagination be construed as the redundancy benefit contemplated by parties under Chapter 9 of the Employee Handbook and even the Labour Act. That Article 4 of the ILO Termination of Employment Convention of 1982 (No. 158) guarantees that the employment of a worker shall not be terminated unless there is a valid. justifiable, and cogent reason for such termination, which must be connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment, or service; that apart from the provisions of the defendant's Employee Handbook, it also accords with labour standards across the world and international best practices for the defendant to negotiate severance pay and exit entitlements with him before terminating his contract on the grounds of redundancy but the defendant never gave him notice of its intention to declare him redundant before it did nor did the defendant negotiate severance payments with him and that he was deprived of the opportunity to negotiate his severance pay and exit entitlements. 

That his termination of employment by the defendant reeks of malice, mischief, discrimination, and utmost bad faith as no other staff of the defendant was affected by the so-called redundancy and that subsequent to his wrongful termination by the defendant, he launched an inquiry into his contributory pension balance with his Pension Fund Administrator - PAL Pensions wherein he applied for the balance of his Retirement Savings Account (RSA) PEN100013140313 domiciled with PAL Pensions and to his surprise, it was discovered that the pension deductions which were supposed to be made from his salary by the defendant between August 2018 and January 2021 were not remitted into his RSA, his pension contribution for the said period was in the sum of N180,000.00 (One Hundred and Eighty Thousand Naira) per month. Thus, for the thirty-month period which were unremitted, he knows that he is entitled to the sum of N5,400,000.00 (Five Million, Four Hundred Thousand Naira) as his pension contribution; that from February 2021 to March 2022 when his employment was wrongfully terminated, the monthly pension contribution that was remitted into his RSA by the defendant had a shortfall of N72,000.00 (Seventy Thousand Naira); that instead of his monthly sum of N180,000.00 (One Hundred and- Eighty Thousand Naira) which he is entitled to, the defendant remitted the sum of N108,000.00 (One Hundred and Eight Thousand Naira) monthly. Accordingly, he knows that he is entitled to a total pension shortfall of N6,336.000.00 (Six Million, Three Hundred and Thirty-Six Thousand Naira), being a total of his unremitted pension from August 2018 to January 2021 and his under-remitted pension from February 2021 to March 2022 when my employment was wrongfully terminated. That he consequently instructed his Pension Managers, PAL Pensions to notify the defendant of the non-remittances and demand for explanations. By email correspondence dated April 27, 2022, PAL Pensions notified the defendant of the said non-remittances and demanded for the way forward and also offered to meet with the defendant at its office for possible rectification of the issue. Regrettably, the defendant up until this material time has failed, refused and neglected to either respond to PAL Pensions' inquiry or remit the unremitted sums into his RSA. 

That the defendant has more than three persons under its employ and it is thereby bound by the mandatory provisions of the Pension Reform Act (PRA) 2014 to remit pension deductions within seven (7) days of it being deducted and its failure, refusal, and neglect to remit his deducted pension contributions for the period of August 2018 to March 2022 even after demand, violates the provisions of the PRA 2014, as well as his contract of employment. That in line with his contract of employment, the defendant's employee handbook, international best practices, and fair labour practice he is entitled to an exit-payment or terminal benefits considering the number of years he devoted into the defendant's business and the quality of value he added to the defendant's business; that the defendant failed to pay his redundancy benefits, that is, severance package and other exit entitlements contemporaneously with the termination of his employment and up until the filing of this suit. That he instructed his solicitors, Messrs Perchstone and Graeys to write the defendant to remedy its wrongful termination of employment via a letter of demand dated April 5, 2022, to the defendant wherein his solicitors demanded that he should be invited for a redundancy pay-out negotiation or in the alternative be paid certain sums as terminal benefits and compensation for the wrongful termination but rather than comply with my demands, the defendant vide a letter dated May 4, 2022, through its solicitors decided to stick to its gun, purportedly defended what was an otherwise wrongful termination and ultimately failed, neglected, and refused to comply with his modest demands. 

That affording the defendant another opportunity at amicable settlement and remedying its obvious wrong, he, through his solicitors, Messrs. Perchstone and Graeys addressed another letter/memorandum of claim dated May 11, 2022, to the defendant's solicitors, reiterating his aggrieved position and demanding a remedy and in similar fashion, the defendant failed, neglected, and refused to heed my demands; that left with no other option, he instructed the law Firm of Perchstone & Graeys to file the instant suit on his behalf to enforce his rights under his contract of employment against the defendant before the Honourable Court. 

In his Reply to the defendant’s statement of defence, CW stated that during his employment with the defendant, he did not at any point in time accept the change of his employment status from an employee to an independent contractor. In fact, he expressed disinterest in changing his employment status to independent contract through an email addressed to Human Resources dated September 27, 2018, while copying the defendant's COO and same was acknowledged by the HR and the COO on the same day; that he was in the employment of the defendant as an employee from his date of employment, May 10, 2010, until his wrongful termination on March 21, 2022; that he was the pioneer dentist with full time employment with the defendant, although the defendant had over time managed its dental clinic by seeking part time services of dentists without an on-ground dental specialist nor consultant to run its day-to-day practice, he was the first and pioneer dentist in the employ of the defendant who operated the defendant's dental clinic on a full-time scale, which drove innovation, client's retention, and prosperity in the defendant's dental clinic; that he tendered a notice of resignation on October 20, 2014, due to poor welfare, and, as a bargaining tool to negotiate better welfare, which was treated as same, as the defendant subsequently varied the terms of his contract of employment by a letter dated December 1, 2014, increasing his gross salary to N700,000.00 (Seven Hundred Thousand Naira) per month and that the so-called resignation never came into effect, and he was in the employment of the defendant as an employee and remained so until he was wrongfully terminated. 

That his full-time employment as a dentist in the defendant's company, and by virtue of his contract of employment, specifically at clause 5.2, he was charged to set up, the defendant's dentistry department where he deployed his expertise, skills, and wealth of experience to establish same. That Dr. Solomon Ofeimun was employed by the defendant in 2019 while he was recovering from the injury he sustained in the course of his duty. Likewise, he personally referred Dr. Adekunle Adegbayi to the defendant's practice manager following an unsatisfactory treatment on a patient by Dr. Boma Fashina, while Dr. Misbah Oleole was only announced as Clinical Director at the commissioning of Super Maxy Specialist Centre. Also, Dr. Ben Okoye Adaku started consulting at Super Maxy Specialist Centre after he was wrongfully terminated. These Doctors were all engaged and subsequently appointed by the defendant long after he had established a viable dental practice in the defendant's hospital since 2010; that without his expertise, skills and wealth of experience, the defendant could not have established a viable dental department in the hospital, Therefore, one of the major reasons he was employed was to establish a standard dental department in the defendant hospital, and upon his employment, he solely established the defendant's dental practice, initiated and implemented policies which had led to the smooth transition of the defendant's dental clinic from a part time clinic to a full-time standard clinic, ensured subsequent employment of other dentists and specialists and establishment of other dental clinics across Lagos. 

CW admitted to his relationship with Dr. Lawson as a work friend but denied any and all allegations of exaggeration of his illness contained therein as baseless and watery and put the defendant to the strictest proof thereof and that aside the consultant that attended to him who had given a valid report on the severity of his health, other physiotherapists who had attended to him also attested to the severity of the injury sustained in the course of business; that it is not true that he only attended to hospital patients and members of staff who were unable to attend clinic during the regular working hours of the week so as not to disrupt the regular clinic hours and other appointments during the week; that the defendant expanded its business and established the Duchess Hospital, Ikeja and re­deployed him to its new establishment to manage same to profitability and he however demanded for a revised contract of employment and a review in his remuneration which the HR confirmed that his remuneration will be reviewed but the defendant however reneged on its representation to revise his contract of employment and review his remuneration based on the redeployment, upon which he had resumed in good faith; that without a documented revised contract of employment nor a review in his remuneration as represented by the HR, he had no other option than to continue working in accordance with his subsisting contract of employment. That he never decided not to see patients on the request of the Practice Manager as claimed and that the defendant was strategic in redeploying him to a new facility without any patient record nor adequate facility at the time, and subsequently declaring redundancy and applying its principle of Last in Last out in a bid to tactically disengage him from its employment after redeploying him, the redeployment of which affected his work output and performance. 

That the defendant unilaterally came up with a paltry redundancy pay-out in the sum of N3,000,000 (three million naira), notwithstanding the fact that I was in active and full-time service of the defendant for over twelve (12) years; that there was no communication from the defendant since the termination of his employment except for the HR's late-night text of May 19, 2022, via WhatsApp where the HR had stated that he was reaching out to him on a personal note and to discuss as a family and end the dispute between him and the defendant; that he did not partake in any agreement to convert his contract of employment to that of an independent contractor at any point in time as alleged by the defendant. Although he was present at the meeting, h expressed his dissatisfaction and never subscribed to changing the modality of his employment with the defendant and always remained an employee of the defendant and that the defendant failed to remit my pension contribution his Retirement Savings Account for a cumulative period of 4 years from August, 2018 to January, 2021. 

Under cross examination by the defendant’s counsel, CW stated that exhibit AA7 is a long service award and not given in recognition of his hard work and dedication; CW confirmed that it is the discretion of the defendant to declare redundancy; that sitting down at all times at work is part of the hazards of the work; that the chairs were substandard for the dental surgeon and that the stool they used was for the dental assistant; that the defendant had facility for dentistry before he joined; that it was his sole effort that he built the defendant’s dentistry department; that he trained the doctors working in the department; that they were only given pay slips when they apply for such and that he saw the pay slip for the first time when he applied for visa; CW confirmed that there was a meeting of panel set up against him on 12^th March, 2019 for using the hospital facility for personal work and he apologized for not informing the practice manager that he will be seeing the defendant’s registered patients during the weekend as the centre was not operated during weekend   and the patients could not come during the week; that it is the prerogative of the employer to appraise his performance as an employee; that he is not aware that around March, 2022, about 11 other staff were declared redundant; that he was eventually paid in full during his absence from work due to his hospitalization; that he was not paid in full during the Covid-19; that his pay was not the same after the meeting on conversion at the hotel and likewise 5% withholding tax which was not deducted before the meeting was deducted after the meeting.

       There was no Re-Examination by the claimant’s counsel. The claimant thereafter closed his case.

The defendant opened its defence by calling its sole witness, Mr. Gabriel Akomolafe, the HR Manager of the defendant, wherein he adopted his witness statement on oath as evidence in this case. The defendant’s witness statement on oath is that the claimant was employed on the 10^th day of May, 2010 as a Consultant Dentist by the Defendant until 31^st day of July, 2018 and, thereafter as an Independent Contractor from 1^st of August, 2018 to 31^st of January, 2021. From the 1^st of February, 2021, the Claimant reverted to his employee status with Defendant until the 21^st of March, 2022 when his employment was terminated by reason of redundancy; that the claimant worked as a Dental Surgeon for the entire term of employment, and that the termination of his appointment aforesaid was" neither abrupt nor wrongful; that the Claimant was not the pioneer dentist in the Defendant's Hospital as way before his appointment, the Defendant had employed Dentists on part time basis; that there had been a Dentistry Desk before the Claimant's employment, managed by part time Dentists and Consultants. That the initial gross emolument of the Claimant as at the date of employment was Four Hundred Thousand Naira (N400,000.00) per month and that sometime in the year 2014, the Claimant being the only full time Dentist resigned his appointment with the Defendant with the aim of putting pressure on the Defendant to increase his salary, in the event, the Defendant increased his salary to Seven Hundred Thousand Naira (N700,000.00) per month; that in 2017, the Defendant increased the Claimant's salary to N1,000,000.00 (One Million Naira) per month with the hope that the increase would spur the Claimant to work harder. That the Dentistry Department of the Defendant was set up and run through the joint efforts of the Management of the Defendant, other Dentists in the employ of the Defendant, visiting Orthodontists, Maxilo Facial Consultants and the Claimant; that Dr. Boma Fashina was employed as full time Dentist in 2016 and is current Head of Department of Dentistry; that Dr. Solomon Ofeimun was employed in December, 2019; that Dr. Ben Okoye Adaku, a renowned Orthodontist Consultant worked part time with the Defendant for many years; that Dr. Misbah Oleolo and Dr. Adekunle Adegbayi part time workers, all contributed jointly to the setting up and running of the Dentistry Department from inception till now. 

That the policies of the Dentistry Department of the Defendant were created in the main, by the Quality Assurance Department of the Defendant, which Department was responsible for creation of policies and strategies of various Departments of the Defendant, with professionalism and profitability in mind; that the claimant did nothing special, and in the main, only, carried out his contractual duties as a Dentist; that it was the Business Development Unit of the Defendant that marketed and still markets all departments of the Defendant's Hospital, including the Dentistry Department and the claimant did not in any way attract patients to the Dentistry Department; that the claimant was the only full time Dentist in the Defendant's Hospital until November, 2016, when the Defendant opened the Maxy Specialist Centre with a view to domicile the Defendant's Clinical services in a separate unit including a Dentistry Department; that the Defendant created two additional dentist chairs in expectation of the expansion and its attendant profitability; that it was in these circumstances, that the Claimant was given a revised contract and benefits packages to encourage him to deliver a more competitive service and increase the Defendant's revenue from the new Maxi Specialty Clinic Unit, which is a unit of and part and parcel of the defendant’s Hospital chain; that the setting up of the Maxi Specialty Clinic Unit was clearly a business and marketing decision by the Defendant and has nothing to do with any appreciation of self-glorifying and egoistic feats of the Claimant; that the revenue from the Dentistry Department under the Claimant from the time of his employment until his deployment to the new outfit was below expectation, hence the need for the business decision which culminated in the setting up of the Maxy Specialist Clinic. 

That the chairs and other work tools of the Dentistry Department and Super Maxy Centre were chosen by the Claimant in his capacity as Head of the Dentistry Department at all times and the Dentistry chairs were of the highest quality, the top range of Castellino chairs; that as is usual for all who carry out posture prone activities, the Claimant's ailment was diagnosed as thoracic spondylosis, for which the Claimant was adequately and firmly treated by the Defendant's Consultant and that the Defendant bore the full cost of the treatment of the Claimant for the aliment of thoracic spondylosis, even when there was a relapse and until his full recovery; that the Defendant did pay the Claimant his entitlements during his sick leave; that the illness of the Claimant was grossly exaggerated by Dr. Babajide Lawson, the Orthopaedic Consultant of the Defendant's Hospital, as a result of his friendship and unholy alliance with the Claimant. In particular: - 

That the Claimant was honoured not because he was so efficient and productive at work or that he contributed numerously or faithfully served the ideals of the Defendant's business but was honoured with an award for "Long years Services" and nothing else; that the Claimant was one out of Forty-Eight (48) other employees of the Defendant who had been in employment of the Defendant for ten years and above, as at December, 2020.; that the only criterion for being on the List of Awardees is employment for a period of ten (10)years and above, and not the reasons set out by the Claimant in Paragraph 16 of his Statement of Facts; that the Claimant disingenuously referred to the Award as "long and outstanding Service Award" in Paragraph 12 of the Statement of Facts, when on the face of it, the certificate of the award only referred to "long years’ service award"; that the Claimant certainly did not keep a track record of excellence and diligence whilst working for the Defendant as sometime early in 2019, the Claimant was indicted for making frequent use of the Defendant's facilities (Maxy Super Specialty Centre) at the week-ends without the knowledge and/or approval of the practice manager of the Centre or senior management of the Group. The Claimant furthermore did not document the patients, thereby making it clear that he used the Defendant's facilities to treat his private patients, an act of disloyalty and dishonesty which should have automatically warranted a dismissal. That the Claimant whilst still in the employment of the defendant, breached his conditions of service by carrying out private practice at Perle Dental Clinic, 433, Herbert Macauley Way, Yaba, Lagos and exhibited acts of disloyalty, dishonesty and unauthorized use of Defendant facilities, insubordination, acts that should have warranted instant dismissal. 

That the initiative to commission the Duchess Hospital at Ikeja was primarily due to the need for the Defendant to adequately serve its patients in the Lagos Mainland and on the Ogun State axis and had nothing to do with a perceived success of the Dentistry Department. As a matter of fact, as at the material time, the Dentistry Department relative to other Departments, was performing well below par; that the Duchess Hospital is a subsidiary of the Defendant and more or less a unit of the Defendant and the Defendant had the contractual right to deploy any member of staff including the Claimant to the Duchess Hospital at its discretion, indeed over 150 members of staff of the Defendant were redeployed to Duchess Hospital at the material time; that as the Dentistry Unit headed by the Claimant was performing below par in terms of patronage and profitability, mainly due to the less than required zeal and commitment to duty of the Claimant, the Defendant decided to redeploy him to Duchess Hospital, with the expectation that he would see it as a new challenge and opportunity to re-start his career at the Defendant's brand new facility via a re-deployment e-mail on the 1^st of June, 2021, effective date being 14th of June, 2021; that although the Claimant was transferred to Duchess International Hospital (DIH) in June 2021, as he was surplus to requirement at the Maxy Clinic, he was however asked to work (two) 2 days at the Duchess International Hospital (DIH) and (three) 3 days at the Maxy Clinic until October 2021 when he was expected to resume on a full­time basis at Duchess International Hospital (DIH) after the launch of the Defendant's hospital. However, the Defendant's management discovered that the Claimant had resumed on a full-time basis sometime in January 2022 to Reddington Maxy Clinic without authorization from the Defendant's senior management at Reddington Maxy Clinic or Duchess International Hospital (DIH), which was a breach of the terms of his employment; that  the Claimant was redeployed to the Defendant's sister company on a level transfer basis which did not require a new or renegotiated contract with Duchess International Hospital (DIH). That the Defendant's Practice Manager at Reddington Maxy Clinic invited the Claimant to a meeting wherein the Claimant stated that he was back to full-time work at Super Maxy, and Human Resources Department should be notified of his decision; that the Claimant with all the years of service in the Defendant's organization and having full knowledge of the due process and procedure as stated in the Staff Handbook as it relates to Staff Communications Policy and Grievance Procedure decided to act on his own volition and without due authorization. That the Defendant reviewed performances individually during the management team Monthly Performance Review (MPR) meetings and also in order to reposition business units particularly the Dental unit due to the very low performance of the unit and that as a result of the unauthorized actions of the Claimant, he was invited into a meeting with the General Manager and Practice Manager to review his current position within the organization. He was notified that he had two options to either return to his deployed place of employment Duchess International Hospital (DIH) or leave the organization as there was no sufficient patient load for two consultants at Reddington Maxy Clinic; that the Defendant's General Manager had a consultative meeting with the Claimant on 24^th February, 2022 to discuss the performance at the center and his personal performance due to his refusal to see some patients on the request of the Practice Manager and indeed the Claimant confirmed his refusal to see patients and requested for additional fees to be paid for his services which is against his contract of employment. 

That as at the period of about a year before the Claimant's employment was terminated, the Defendant had started experiencing low volumes of patients using the Dental Facilities of the Hospital whilst costs were rising astronomically, this state of affairs also affected a few other departments in the Defendant's Hospital. In the event, the Defendant had to take remedial measures and decided to reduce staff of the Dentistry Department in order to rationalize its operations; that a management decision was taken to declare at least one member of staff of the Dentistry Department redundant under provisions of Chapter 9 of the Defendant's Staff Handbook and the defendant consulted the Claimant in this regard on the 24^th February, 2022, took into consideration the principle of last in, first out (LIFO) but it was the opinion of the Defendant that given the merit and ability of the two Dentists in its employ (the Claimant and Dr. Boma Fashina) the principle of last in, last out (LILO) should be applied strictly on the basis of the merits and abilities of both Dentists and the relative number of patients seen by both of them; that Redundancy can apply to only one member of staff, however, it was not the Claimant alone that was made redundant at the material time as same affected the Dentistry Department in particular because it was not being run profitability. That Article 9 of the Defendant's staff Handbook clearly provides for an exception to the principle of Last-In -First out (LIFO) in the case where the merit and ability of less senior officer(s) are in the opinion of the management of the Defendant, greater than those of a staff with longer service. 

That the above principle was applied to the Claimant's case before his employment was terminated on grounds of redundancy, as the younger consultant in the Reddington Maxy Clinic who was employed after the Claimant, was adjudged by the Defendant to be more capable, productive, reliable, skillful, honest and loyal than the Claimant; that the Claimant is the more, expensive and lesser productive Consultant and the Defendant had no commercial reason or justification to apply the LIFO principle in favour of the Claimant in this circumstance; that the Defendant's working conditions and hours are the same for both Consultants, yet Dr. Boma his colleague was seeing more patients on the average per month than the Claimant; that the Defendant carried the Claimant's wages for the past three (3) years despite Covid-19 restrictions and gave the Claimant good opportunity to restart his career with the Defendant's flagship hospital Duchess Hospital, but the Claimant failed to take up the opportunity as it would mean more work load for him and he was not prepared for same. That the Claimant did not personally recruit Dr. Boma Fashina or any staff howsoever as all recruitments are done through competitive process by the Human Resources Department and that the Defendant calculated the redundancy pay of the Claimant the rate of one' week's Pay for every year of service which translates to N3million (Three Million Naira) and that the final emoluments of the Claimant came to: - 

(i)        Redundancy pay                                           N3,000,000.00

(ii)       One month's pay in lieu of notice              N1,000,000.00

(iii)      Unused Leave                                                           N 227,272.00

Total 4,227,272.00

That the Defendant on various occasions called upon the Claimant to come and collect his final emolument letter and cheque, but he has refused to collect same up to date and that the Claimant's entitlements in the circumstance are limited to his redundancy pay, payment in lieu of notice and pay for unused leave, other than these, the contract between both Parties and the Staff Handbook do not make provision for numerous heads of reliefs claimed by the Claimant in this suit. That as a result of pressure by consultants in full employment of the Defendant, including the Claimant, to change their status from that of Employees to Independent Contractors, a decision was reached between Employees and the Management on the 13^th of July, 2018, to effect the change and convert the contracts of Employment to the status of Independent Contractor; that in effect, between August, 2018 and January, 2021, when his status reverted to that of Independent Contractor, the Consultants including the Claimant were responsible for their taxes and became ineligible for participation under Pensions Reforms Act. The only deductions made from the emoluments of the Claimant during this period was the 5% withholding tax which governs transactions with Independent Contractors; that the Claimant knew fully well that on his election of independent contractor status, no contribution of pension was expected of the Defendant and the Defendant made no such contribution or deduction from the Claimant's emoluments. Likewise, the Claimant knew that no deductions could have been made and were indeed made from his emoluments which the Defendant was liable to remit to the Pension Fund Administrator. That the Defendant indeed made deductions from the Claimant’s emolument for the period February, 2021 to February, 2022 and paid same and the Defendant’s contribution to Pension Alliance Limited and that there was no shortfall in the deductions made as the percentage deduction is calculated not on the gross monthly emoluments, of the Claimant, but on the net emoluments after other allowances are taken into consideration. 

That the deduction of N108,000.00 is the correct deduction having been based on net emoluments, and the Claimant was aware all along that the Employer and Employee contributions and deductions were based on his net pay; that the Defendant made deduction of N48,000.00 per month from the Claimant's pay slip as his contribution for pension as against the N80,000.00 per month he is now claiming and he never raised any objection. That under the Employee Handbook, International best practices and fair labour practices, the Claimant, given his antecedents, is not entitled to any other payments other than as stated above.

Under cross examination by the claimant’s counsel, DW stated that the claimant was disengaged for his non-performance of his unit in year 2022; that they had discussion on the benefit in year 2023 but did not wait to collect the benefit and that he sent text message to him to resolve the issue but he did not respond; that all consultants are expected to see the business flourish in their units; that no one was declared redundant in the defendant’s business development department; that the claimant mentioned his concerns-that he did not like the new contract; that the defendant did not have the opportunity to discuss the redundancy with the claimant.   

There was no re-examination by the defendant’s counsel. The defendant thereafter closed its case.

Upon conclusion of trial, Final Written addresses were filed and exchanged by counsel to both parties. The defendant’s final written address is dated and filed 17^th February, 2025 while the claimant’s final written address is dated 7^th March, 2025 but filed 21^st May, 2025. The defendant’s Reply on point of law is dated 19^th June, 2025 but filed 20^th June, 2025.

Learned counsel on behalf of the defendant formulated two (2) issues for the court’s determination

It is the defendant’s counsel submission on issue one (1) that by virtue of Chapter 9 of exhibit AA8, the defendant is empowered with an absolute discretion to weigh the relative merit and ability of contending employees for redundancy and that the Claimant has no say in respect of which of these principles the Defendant should apply; that there is copious uncontroverted evidence which shows the comparative ability and merit of the Claimant and Dr. Fashina as shown in exhibit AA34 wherein in the year 2021, the Claimant saw a total of 301 patients as opposed to 431 seen by Dr. Fashina, in the first three (3) months of 2022, the Claimant saw a total of 59 Patients while Dr. Fashina saw a total of 101 Patients and that the claimant has led no evidence to show that he was relatively better in merit, skill and ability than Dr. Fashina. That is on record that no less than 11 members of the defendant’s staff were also laid off on grounds of redundancy and that the claimant having refused to collect his redundancy pay cannot seek for an order labelling his termination on the ground of redundancy wrongful. 

Continuing, counsel submitted that to declare a redundancy, it does not have to be on bold banners and documentation on a Notice Board or elsewhere saying that a redundancy has been declared. Afterall, the purpose of declaration of redundancy is to notify the employees likely to be affected of the impending action of the employer, which then leads to consultation with the staff involved and terminally leading to the employee being made redundant. The Defendant therefore urged the honourable to hold that there is no need for a formal declaration of redundancy, and if there is such requirement, the documentary and oral evidence proffered by the DW1 shows clearly that there was a declaration of redundancy before the Defendant had consultations with the Claimant and finally informing him of him being made redundant. 

That article 4 and 14 of the ILO Convention on termination of employment No. 158 of 1982 as it stands, has no applicability to the dispute of the instant suit and that the claimant has not discharged the burden of proving that he was constructively dismissed.

On issue two (2); counsel submitted his arguments on each of the claimant’s reliefs respectively. It is the defendant’s counsel submission on relief 1 that there was indeed prior consultation and that the Claimant has not proved on the balance of probabilities that he was not consulted before the termination. He urged the honourable court to so hold.

On relief 2; counsel submitted that in the circumstances of the case, it was not wrongful, unfair or unjustifiable for the Defendant not to apply the Last In, First Out principle, given the reasons adduced above and that the non-application of the said principle was not in contravention of the Claimant’s contract of Employment Exhibit AA8 Chapter 9 of the exhibit allows the application of the Last In, Last Out principle in certain circumstances that were evident in the Claimant's case. 

On relief 3; counsel submitted that the clause in respect of redundancy that binds both the Claimant and the Defendant does not provide for a contemporaneous payment of redundancy payout with the termination of appointment; that exhibit AA8 does not likewise have any provision for such payment method and that the clear evidence before the honourable court is that the Claimant refused to collect his terminal benefits when called upon to do so, whilst at the same time refusing to collect his letter of termination; that even if payment should be made contemporaneously with termination, the Claimant has waived his right to have such mode of payment by refusing to collect his letter of termination and refusing to collect his entitlements when called upon to do so. 

On relief 4; counsel submitted that the claimant has not discharged the onus to prove constructive discharge of his employment.

Counsel submitted that relief 5 has been adequately addressed above

On relief 6; counsel submitted that there is no iota of evidence in the claimant’s Witness Statement pointing to any part of this recommendation that has been breached by the Defendant; that no-particulars regarding any breach of these recommendations were pleaded, and no evidence proffered. He urged the honourable court to completely discountenance the Relief (F) based on all an alleged infraction of an International Recommendation which has not been specified. 

On relief 7; counsel submitted that that the use of the phrase "with immediate effect" in the circumstance the letter Exhibit AA19 was written, does not have an element of stigma as to constitute an unfair labour practice; that in the absence of positive evidence that the claimant intends to seek employment from future employers as it is on evidence before the honourable court that the claimant is a qualified dentist who could open a dental clinic of his own without the need to produce any letter of termination or reference from his previous employer, it would be speculative to hold that the Claimant's future employment prospects would be impaired.  

On relief 8; counsel submitted that y virtue of Sections 2(1), 4 and 120 of the Pension Reforms Act 2014, contribution under the Pension Reform Act is expected from employees only and not from Independent contractors, therefore the defendant could not and was legally barred from deducting contribution from the emoluments of an independent contractor such as the claimant from the period of August 2018 to January 2021; that the Claimant has failed to establish his entitlement to these reliefs and that it is settled law that declaratory orders/reliefs are not granted on mere admission of the other party or default of defence; that a claimant must succeed on the strength of his case and not on the weakness of the defendant's case or admissions. He cited the case of Anyaoke v. Adi (1986) 3 NWLR (pt. 31) 731 at 749 and urged the honourable court to so hold. 

On relief 9; counsel submitted that even if it is shown that there has been a wrongful termination of the appointment of the Claimant, all the Claimant would be entitled to by way of damages would be what is agreed upon by both parties in Exhibits AA18 and Exhibit AA8.; that exhibit AA18 Clause 8.2 thereof states that upon termination, the Claimant is entitled to one month salary in lieu of notice and that in relation to gratuity pay, the Claimant, by virtue on Chapter 9 of Exhibit M8, is entitled to an amount that the Claimant agreed, should be decided by the Defendant; that if "severance" as used in the Relief means damages payable upon a wrongful termination, then there is no severance pay in this case beyond the amount payable in lieu of notice and redundancy pay as determined by the Defendant. That in a claim for wrongful dismissal, the measure of damage is prima facie the amount the Claimant would have earned had the employment continued according to the contract. He cited the case of NPMB v. Adewunmi (1972) 1 NLR (Pt. 2l 433 and urged the honourable court to so hold.

On relief 10; the defendant’s counsel submitted that the Claimant sought a Relief for N25,000,000.00 and N10,000,000.00 respectively for wrongful termination of employment in Relief 9, whilst at the same time seeking a relief for another sum of N100,000,000.00 for the same wrongful termination of employment; that it matters not that the Claimant is giving different reasons for seeking these reliefs as the bottom line still remains that on two different Reliefs, the Claimant is praying for judgment for the same alleged injury - wrongful termination of employment which would amount to double compensation. That the Claimant has not proffered any credible evidence to prove the various allegations itemized in Paragraph 5.28 above and that the redundancy exercise cannot be termed victimization and hardship and emotional distress. 

On relief 11; counsel submitted that the Claimant has not shown by evidence that there was an agreement between the Claimant and the Defendant that the fees of the unsuccessful party's Solicitors shall be paid by the successful party and that in the absence of such plea and evidence this relief should fail. He cited the case of Emirates Airline v. Aforka & Anor (2014) LPELR - 22636 (CA).

Continuing, counsel submitted that there is also no document showing the payment of the balance of =N8.5million, neither is there any document showing that this sum of money would be paid to Counsel by the Claimant; that exhibit AAll tendered by the Claimant shows that he paid N1,500,000.00 to an account and nothing on the exhibit to show that the amount of money went into the account of Claimant's Counsel. 

On the issue of interest, at the rate of 10⁰/0 per annum from date of judgment, counsel submitted that this Relief is premature, as it pre-supposes that the Claimant has already won the case and the Defendant has been damnified in terms of money that should attract interest. That no doubt, the honourable court has the power to grant post judgment interest in deserving cases, but the Claimant should not be so presumptuous and he should keep this gun powder dry.

Learned counsel on behalf of the claimant formulated four (4) issues for the court’s determination viz:

It is the claimant’s counsel submission on issue one (1) that the understanding of the law is that redundancy is an involuntary and permanent loss of employment caused by an excess of manpower and that it is not termination based on performance or any disciplinary issue, rather one that applies to the role and not the person; that the defendant flagrantly ­failed to comply with any of these requirements as there was no consultation done at any material time, no notification to the claimant of the intention to undergo a redundancy exercise, no exploration of alternatives and certainly no mitigation efforts. The defendant's conduct, in this regard, amounts to a flagrant breach of international best practices and renders the termination of the claimant's employment procedurally and substantively wrongful. That assuming without conceding, that the Labour Act does not apply to the claimant - as a professional in the health sector - the Honourable Court is not thereby divested of its jurisdiction or competence to apply international labour standards. He cited the case of Sahara Energy Resources Limited v. Mrs. Olawunmi Oyebola (2020) LPELR-51806 (CA) where Ogakwu JCA and urged the honourable court to so hold.

Continuing, counsel submitted that the wordings of Exhibit AA1 - Contract of Employment dated May 10, 2010 show that the job description of the claimant was not inclusive of any professional role/duty of dentistry. He urged the Honourable Court to find and hold that the provisions of Section 20 of the Labour Act, 2024 are applicable to the claimant as the claimant was never hired to operate in any professional capacity whatsoever and that the claimant falls under the ambit of persons who are covered by the provisions of Section 20 of the Labour Act, 2004 as he is not a management staff of the defendant. That assuming without conceding that the claimant is not bound by the provisions of Section 20 of the Labour Act, 2004, the provisions of chapter 9 of the Staff Handbook - Exhibit AA8 suffices in establishing how the defendant failed to comply with the requirements and procedure prior to the declaration of the employment of a staff such as the claimant as being redundant. That the redundancy decision, premised on exhibit AA34, lacks fairness, objectivity and rational justification as it offends natural justice by introducing bias, denying a fair hearing and misapplying equitable principles and that the defendant is not permitted, under law and equity, to claim redundancy when the assessment itself is flawed, unreasonable and inequitable; that the entirety of the submission of the defendant’s counsel under paragraph 4.12 of the final written address and the assertion that the purported refusal of the claimant to collect his entitlements at the time of his discharge is what occasioned that failure to pay him is untenable as the duty is on the defendant to PAY and not on the claimant to COLLECT. He cited the case of Chindo World Wide Limited v. Total (Nig.) Plc. (2001) 16 NWLR (Pt 739) 291 (pg. 314, Paras., A-B and urged the Honourable Court to find and so hold. 

That given the distinct nature of redundancy, the defendant is obligated and under a strict duty to issue a formal declaration of redundancy before termination as it represents a fundamental element of fairness, transparency and due process and that for a declaration of redundancy to be valid, legal and effective, it is one which must be made in a structured and transparent manner with the following procedural steps being followed strictly: 

a.         A written notification to employees and relevant stakeholders (trade unions or organizations) must be issued by the employer (defendant, in this instant case) as the defendant must communicate the redundancy decision in writing, specifying the rationale for the redundancy, the positions affected, and the criteria used to determine the employment of the affected staff. 

b.         Consultation with employees and trade unions 

c.         Provision of adequate notice period 

d.         Issuance of redundancy benefits and final entitlements. 

On issue two (2); counsel submitted that the failure of the defendant to pay terminal dues and redundancy payout contemporaneously with the unlawful termination of the claimant is wrongful and amounts to unfair labour practice while being a breach of the contractual relationship between parties; that the duty rests on the defendant to pay the terminal benefits to the claimant having being aware of the bank accounts of the claimant as well as his pension contribution account but willfully refused to make that payment to the claimant. That there is equally no evidence before the Honourable Court that the claimant refused to collect any payment made to him as the purported letter addressed to the claimant was never received nor acknowledged by the claimant or his representatives, there is no conversation or correspondence between-the claimant and any representative of the defendant wherein the claimant outrightly stated - directly or in passing - that he would be refusing to collect his due and outstanding contemporaneous terminal benefits. He cited the case of Ikedigwe v. Fai (2012) 10 NWLR (Pt 1308) 375 (pg. 415, Paras., F-H) and urged the Honourable Court to find and hold that the duty rests on the defendant to make payment and that the defendant failed to carry out this duty. 

On issue three (3); counsel submitted that it is a trite principle of labour law that constructive dismissal occurs when an employer, without formally terminating a contract of employment, makes the work environment or employment relationship so intolerable or hostile for the employee that the employee is left with no reasonable option but to resign or regard himself as having been dismissed; that constructive dismissal is established where the employer's conduct is so unreasonable or wrongful that it evinces an intention not to be bound by the terms of the contract any longer. That the entire circumstances and factual trajectory of the instant suit support the finding of constructive dismissal and that the cumulative effect of the defendant's actions and omissions amounts to a breach of the fundamental obligation to maintain mutual trust and confidence in the employment relationship by effectively frustrating the claimant out of employment without due process, fairness or clarity amounting to unfair labour practice. That the Honourable Court, by virtue of Section 254(C)(1)(f) and (h) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), has the power to find and hold that the defendant's actions and inactions led to the constructive dismissal of the claimant from its employment. 

On issue four (4); counsel submitted in respect of relief 1 that the failure of the defendant to consult with the claimant prior to the termination on grounds of redundancy further infringes on the claimant's rights under the ILO Termination of Employment Recommendation, 1982 (No. 166), Paragraph 20 and Chapter 9 of the defendant’s staff handbook. He cited the case of Natural Gas Senior Staff Association of Nigeria v. Schlumberger Anadrill Nigeria Ltd [2008J 11NLLR (Pt. 29)164.

On relief 2; the claimant’s counsel submitted that where redundancy is declared, established labour practices - including the Last In, First Out principle - should be observed and that the wordings of ILO Recommendation No. 166, Paragraph 23 states that selection criteria for redundancy should be based on transparent and objective principles, including the length of service.

On relief 4; counsel submitted that the failure of the defendant to provide objective evidence of financial distress or operational change means that the redundancy exercise so carried out was pretextual and further amounts to a case of constructive dismissal of the claimant herein. 

On relief 5; counsel submitted that the termination of the claimant's employment was selective and unfair which corroborates the position that the termination was premised on victimization or bias.

On relief 6; counsel submitted that an appraisal of the witness deposition before the Honourable Court, which remains uncontroverted, shows relevant paragraphs wherein the claimant led evidence as to the actions and inactions of the defendant which outrightly contravene the provisions of the convention. He urged the Honourable Court to find and hold that the relief stated therein is not one which requires specific particularization as this does not represent the position of the law on declaratory reliefs.

On relief 7; counsel submitted that an appraisal of the portion of the letter of termination which carries the term "with immediate effect" has the implication of being perceived that the claimant has misconducted himself in such a manner that the defendant desires not to have any further relationship with him, thus affecting future employment prospects. 

On relief 8; counsel submitted that the claimant never accepted any pay as an independent contractor but rather accepted his pay as a full-time employee of the defendant in the dentistry department. More particularly, Exhibit AA39 does not show that the said letter was addressed to the claimant or that the claimant even received the said letter; that the onus remains on the defendant to establish that the claimant was present when the purported decision to change his status from that of employee to an independent contractor was made. That the defendant has offended the guiding principles of equity by taking maximum advantage of its position in the relationship between parties by forcing and strong-handing the claimant into an agreement he never wanted to be a part of and one which he made clear his intention not to be a part of and that the defendant has failed to plead any defence of acquiescence-either directly or in passing -as it relates to the purported actions of the claimant.

On relief 9; counsel submitted that the redundancy exercise claimed to have been done by the defendant was not genuine and the eventual determination of the claimant's employment amounted to a constructive dismissal; that the position of the law is resolved that where the redundancy exercise which led to the termination of an employment of a staff is deemed to have been unjustified, the erring employer is duty bound to make a severance pay available; that the claims of N25,000,000.00 and N10,000,000.00 are justifiable and represent due compensation for the actions and inactions of the defendant herein.

On reliefs 10 and 11; counsel submitted that the obligation of payment and remittance of pension contributions is on the defendant and the defendant has failed to present any evidence before the Honourable Court showing compliance and that the evidence of the claimant on the non-remittance of his pension contributions remains uncontroverted and the Honourable Court is duty bound to rely on same. 

On relief 12; counsel submitted that the Honourable Court's power of adjudication over fact matters depicting unfair labour practice(s), along with its ancillary power to award compensatory damages, is now long settled and has further progressed into benchmarking the quantum of damages to be awarded in favour of a claimant as being against a commensurate number of years' worth of salaries which the claimant would have been entitled to had his employment continued. He urged the honourable court to so hold. 

On relief 13; counsel submitted that the claimant's request for damages against the defendant for the loss suffered by the claimant from emotional trauma to pecuniary loss could only be assuaged by the damages requested; that it is clear that the honourable court is imbued with the power to award damages in appropriate cases as deserving as this one, taking cognizance of the pains, trauma and humiliation the claimant suffered due to the actions of the defendant. He urged the honourable court to so hold. 

On relief 14; counsel submitted that cost follows event and that premised on Exhibit AA11, the event herein is the fact that the claimant had made payment to the law firm of Messrs. Perchstone & Graeys LP in order to resolve the disputes between the claimant and the defendant which the defendant refused to accede to vide the letter of demand - Exhibit AA12 & AA14; that the Honourable Court ought to grant the said relief as it is in the overriding interest of justice for the event occasioned by the defendant herein. He cited the case of Sogunro v. Yeku (2003) 12 NWLR (Pt. 835) 644 (Pg. 667, Para. A.

On relief 15; counsel submitted that that the rules of this Honourable Court support the grant of the relief of 10% per annum from the date the judgment is delivered until the eventual liquidation of same and that this relief is not one which is premature but rather one which is backed by the rules of the Honourable Court. That the failure of the claimant to have included this relief in the complaint would have led the Honourable Court not to grant same as the law is trite that the courts would not grant a relief not expressly sought by parties. Therefore, the arguments of counsel to the defendant as contained in paragraph 5.40 of his final written address is misplaced in law. He urged the Honourable court to so hold. 

On Reply on point of law; the defendant’s counsel submitted that it is not enough to plead these International Convention and Best Practices without showing how; that Article 12 of the ILO Convention does not apply to termination for economic reasons and even if it does, nothing therein states that there should be contemporaneous payment. It is submitted that given the fact that exhibits AA1 and AA8 are silent on contemporaneous payment and given the clear evidence that the Claimant refused to sign for his letter of termination and refused to collect his terminal benefits, there has not been a wrongful termination of the Claimant's employment and that in the event that the honourable court holds otherwise, all that the Claimant would be entitled to under this head of claim is not the high multiple millions of Naira the Claimant is asking for, but the amount the Claimant ought to have received in lieu of notice, which is one month's salary. 

Continuing, the defendant’s counsel argued that the Claimant is not entitled to make alternative claims, the foundations of which are, in Law, inconsistent; that it is only if the Claimant resigned and he presents facts to show that he was forced to resign, that an issue of constructive dismissal can arise. He cited the case of Western Excavating Ltd v. Sharp (CA) 1978 1 QB 761 at 769 and urged the honourable court to so hold.

That it is the position of the law that even if acquiescence or estoppel was not specifically pleaded, once the pleadings show that matters constituting the estoppel or waiver or acquiescence are stated in the pleadings, the party pleading can rely on this equitable doctrine; that paragraphs 16 and 17 of the Statement of Defence shows clearly that the claimant never complained of change of status and cannot now complain. He urged the honourable court to dismiss the Claimant's case with heavy costs. 

I have considered the pleadings, the evidence led and submissions of counsel to both parties. It is my view that the following are the issues for determination:

1. Whether the claimant led sufficient evidence to prove that the termination of his employment on ground of redundancy was wrongful, unfair and unjustifiable 
2. Whether the claimant’s contract of employment was varied 
3. Whether the claimant is entitled to reliefs claimed 

The case of the claimant is that he was employed as a dentist and after the faithful discharge of his duties, he was confirmed and was eventually redeployed to a facility known as super maxy – center. The claimant stated that there is no evidence to show that the role he occupied was in excess of the requirement of the defendant and was shocked to receive a letter of termination of employment by reason of redundancy from the defendant. It is not in contention that the claimant was at a stage deployed to another hospital owned by the defendant called Duchess Hospital at Ikeja GRA Lagos, resumed there but returned to the defendant - super maxy center. He also stated that when the defendant tried to make him an independent contractor, he refused and opted to remain as an employee. That for a period of four (4) years when the defendant unilaterally changed his employment to an independent contractor, his pension was not sent to his Pension Fund Administrator.  It is the law that he who asserts must prove and that evidence must be tendered in proof of a fact. See Ohochukwu v A.G of River State & Ors (2012) LPELR -7849 (SC). The parties have placed before the court the following documents: Offer of appointment (exhibit AA1 tendered as exhibit AA18 by the defendant), Salary upward review (exhibit AA3), Leave of absence (exhibit AA4,AA5, AA6), Staff handbook (exhibit AA8), Termination (exhibit AA9 tendered as exhibit AA19 by the defendant), Email unremitted pensions (exhibit AA10) H/R, (unsigned contract (AA15), Redeployment (exhibit AA16), Notice of resignation (exhibit AA21), Variation of contract (exhibit AA22), Payment voucher (exhibit AA23,AA24), Sick Medical Report (exhibit AA25), Minutes of meeting (exhibits AA28, AA29, AA31, AA33, AA34, AA36) Change of contract (exhibit AA 39). 

It is settled law that in the determination of employment rights, it is the duty of the employee that complains that there is breach of employment contract that has a duty to place before the court the terms and conditions of the contract of employment and in what manner the said terms were breached. The claimant’s assertion is that the termination is wrongful as the basis for singling him out and declaring him redundant is contrary to established principles of law.  This action is founded on wrongful termination of contract and both parties agree that exhibit AA1 tendered as exhibit AA18 by the defendant govern the employment relationship between the parties. They move apart in their different ways on the construction or interpretation of exhibit clause 9.1 of exhibit AA8. In the light of the facts of the case, in proof of his claim the claimant tendered his letter of employment, the said document regulates the contract with the defendant. The defendant’s submission is that the claimant was employed as a dentist and was transferred to open up a flagship branch in Ikeja Lagos wherein he refused to report but requested for increase in salary which was granted but did not eventually go. It is the claimant’s grouse that despite his hard work for the number of years he worked with the defendant, it decided to pick him for termination whereas he interviewed the young dentist who joined the defendant after him and the dentist have remained as employee of the defendant. He views his selection for termination on ground of redundancy as discriminatory.

The first issue to be resolved is whether the defendant has established the ground for terminating the employment of the claimant, once there is compliance with the terms of contract of employment, the termination/ dismissal will not be said to be wrongful.   The claimant’s termination of employment was via exhibit AA9 tendered as exhibit AA19 by the defendant.  The claimant’s argument is that he was singled out for termination by redundancy despite being the most senior dentist and also more hardworking than the others. The hard work and appreciation by the defendant are all captured in paragraphs 9, 10 and 11 of the statement of facts.  To the claimant, after setting up the dental clinic for the defendant, it grew rapidly and in order to appreciate him the defendant increased his salary and he continued to work and there was no time the defendant discussed the issue of the role he occupied as being excess to the requirement of the defendant as the role remained active and vital to the defendant’s business operations. The defendant denied these and state rather that initially the claimant was the only full time Dentist in the defendant’s hospital until November 2016 when it opened Maxy Specialist and later created two (2) additional dentist centres to cater for more dentists, this to the defendant shows that other dentists were employed in addition to the claimant.   

Leg 1 of the claimant’s claim is for declaration that the claimant’s employment terminated on grounds of redundancy without consultation with the claimant was wrongful, unfair, unjustifiable and a direct contravention of the claimant’s contract of employment. The law is settled that when an employee complains of wrongful termination, he has the onus to prove the breached terms of the employment. See Amodu v Amode (1990) LPELR-466 (SC). In the instant case, the claimant pleaded his letter of employment exhibit AA1 and the staff handbook exhibit AA8.  These documents set out the terms and conditions of employment between the parties. In this case, the documents set out the consideration of the length of notice which either of the parties is entitled to, how much in lieu of notice, the manner the employment can be determined.  Having considered the pleadings and evidence and relevant law, it becomes necessary to look at the letter of termination to see which of the conditions for termination has been breached, more particularly the reason adduced for the termination of the employment of the claimant and whether justified or not. It is pertinent at this stage to produce the letter of termination exhibit AA9 tendered as exhibit AA19 by the defendant as that is the starting point.  Is there any evidence of redundancy? Below is part of the letter of termination exhibit AA9 

 Dear Dr Aderiye 

Termination of Employment by Reason of Redundancy 

The purpose of this letter is to confirm the outcome of an ongoing cost review by the Hospital Management of its operational requirements and what this means to you.

As a result of the continuing low volumes of patients using the Dental clinic, your position is no longer needed. Regrettably, this means your employment will terminate with immediate effect. This decision is not in by way a reflection on your performance 

In Adibuah v Mobil Oil Nigeria Plc (2015) LPELR -40987(CA) the court held ‘’ Redundancy in service is a mode of removing an employee from service when his post is declared redundant by his employer. It is also not a voluntary or forced resignation, nor is it termination. As for redundancy there is a particular procedure to be adopted. See also Isheno v Julius Berger Nig Plc (2003) 14 NWLR (Pt 840) 289. There is indication in the letter of termination of appointment of the claimant that it was done on ground of redundancy.  while the defendant’s contention is that the defendant had several meetings with the claimant, the claimant’s response is that it was a general meeting. A look at exhibit AA29 is on the concerns of management as the dental clinic was not meeting its target over the months and emphasized that the practice manager, the dental surgeon and the other staff were expected to improve their customer service. They concluded that

                       Dr Aderiye to move or get redeployed to Duchess International hospital.

If the defendant was not making enough to pay the dental surgeons, what criteria was employed to declare that his job was no longer available. Now to the conclusion arrived at by the management that Dr Fashina sees more patients than the claimant can also not be relied on. A patient who has more serious and major medical issue will spend more time than if you are consulting for minor problem. How can the number of patients seen by a doctor in a specialist field be used as basis to conclude that an employee should not be retained. There is no evidence before the court save for the number of patients seen by each dentist as basis for declaring the claimant redundant.  One pertinent point is that it is the duty of the marketing department to bring in business to the defendant while the claimant as the dentist is to treat the patients. On this issue of number of patients seen can only be resolved if it is shown that the dentist approves and selects his patients as against the department’s duty. Under cross examination, to the question ‘’ pls confirm if it is the duty of the claimant to market or do business development ‘’ and DW responded that it is ‘’ All consultants are expected to see the business flourish in their unit. As has been clearly shown that DW failed to convince the court on the basis of how the defendant arrived at the criteria used in terminating the claimant’s employment. See Eniwomake Ovivie & Ors v Delta Steel Company Limited (2023) LPELR-60460 (SC) where the apex court held that in the declaration of redundancy the principle of last in first out shall be adopted in the discharge of the category of workers subject to merit, including skill, ability and reliability. See also Evans Brothers (Nig) Publishers ltd v A.S Falaiye (2002) 47 WRN 74 the court held on employer’s duty where he terminates an employee’s employment on the ground of redundancy and held that where a reason is given, such will be examined with a view to determine if such reasons come within the terms of contract of employment. In the instant case, the reason proffered by the defendant in exhibit AA9 is for continuing low volumes of patients using the clinic. If the reason is considered along the provisions relating to redundancy in clause 9.1 of exhibit AA8 of the employee handbook provides that before a staff is declared redundant, there shall be consultation between management and the staff concerned and then the principle of last in first out (LIFO) shall apply and if in the management’s opinion the junior officer in the line of merit and ability is greater than a staff with longer service then the principle of (LILO) will be applied. The provision is well spelt out and the court is bound to follow same but the defendant did not justify the reasons given in terminating the employment of the claimant. How did the defendant arrive at the principle applied as paragraph 15 (c) of the statement of defense, it states that the younger consultant in the Reddington Maxy who was employed after the claimant was adjudged to be more capable, productive, reliable, skillful, honest and loyal than the claimant. There is no record of these before the court. 

Again, in this case, the claim that the claimant was not a redundant employee of the defendant by virtue of the length of service, job performance, job availability and his status must be dependent not on any matter of law but on the contract of employment and same must be proved. An employee has no general right not to be declared redundant beyond what his contract or a collective agreement provides but the conditions to be declared redundant are not found in the terms and conditions of service but in the collective agreement between the employer its employee.   See Shell Pet Dev Co (Nig) Ltd v Nwawka (2003) 6 NWLR (Pt815) 184. It is imperative at this juncture to distinguish between termination of appointment and redundancy. As already set out earlier above, the claim of the claimant is that he is to be paid redundancy benefit. While redundancy in service is mode of removing of an employee from service when his post is declared ‘redundant’ by his employer, it is not a voluntary or forced retirement.  It is not a dismissal from service. it is a form unique only to its procedure where an employee is quietly and lawfully relieved of his post. Such type of removal from office does not carry along with it any other benefit except those enumerated by the terms of contract to be payable by an employer to an employee declared ‘’ redundant’’ 

The defendant’s contention is contained in paragraphs 9, 10, 12, of the Statement of defence.  From the pleadings of the defendant, there is no dispute that the claimant was the only full-time dentist in the defendant’s hospital until November 2016. I find the criteria used in assessing the performance of the claimant is not in line with the principles of redundancy as the job was available but had to be given to a junior doctor who the defendant felt was more capable and there is equally no proof of same before the court. I am of the view that the claimant has discharged the burden placed on him to establish discrimination. It is then the duty of the defendant to present evidence in rebuttal of the assertions made by the claimant. The defendant did not deny that the claimant was terminated as it relied on the number of people seen by each dentist to determine efficiency. Having considered the entire pleadings and evidence before me, I have no difficulty in coming to the conclusion that though the employer can terminate and if there is a reason must justify same, it has not justified same. The claimant has asserted that the termination on the ground of redundancy without prior consultation is wrongful, unfair. It has not been justified and so is wrongful. if the claimant was not efficient enough, the defendant would not have transferred him to set up a flagship hospital of the defendant. The law imposes on the defendant the duty to establish the reason for the termination to the satisfaction of the court. See Olatubosun v Niser (1988) 3 NWLR (Pt 80) 25. The court of Appeal in Sahara Energy Resources v Oyebola (2020) LPELR -51806 has held that this honorable court, the National Industrial Court has the duty to apply International best practice. The convention 1982 (158) is evidence of international best practice and by article 4 that no worker shall be terminated unless a valid reason has been given. That article 13 ILO convention 1982 (no 158) when the employer contemplates termination for reasons of economic, technological, structural or similar nature, the employer shall provide the workers representative in good time relevant information including reasons for the termination. As early as possible an opportunity for consultation on measures to mitigate the adverse effect of any termination on the workers concerned for finding alternative job.  Section 20 of the Labour Act Cap LI LFN 2004 is reproduced below 

1. The employer shall inform the trade union 
2. The principle of last in first out shall be adopted in the discharge of the particular category of workers 

Pursuant to the above provision, the burden of redundancy is on the defendant vis a vis international best practices, what evidence has the defendant placed before the court.  I have looked through the processes filed and to the defendant, the meeting with the claimant where the issue was raised is enough evidence. That in itself is not enough to sway the court to rely on it as the reason adduced.  Redundancy occurs when the service of a worker is no longer required by his employer due to no fault of the worker and is caused by excess manpower. The defendant then outlined why the claimant is the employee to leave the dental clinic. In paragraph 14 and 15 of the statement of defence, the defendant averred that as result of low patronage in the dental facilities, and the defendant had to take remedial measures and decided to reduce staff in order to rationalize its operations. The contention of the defendant is that considering the principle of last in first out decided based on ability of the two dentists to use the principle of LILO. The first averment is that while low volumes of patients using the facility, cost were rising astronomically and this affected a few other departments in the defendant’s hospital. These are mere assertion without evidence as the dental department is one of the many departments, so low patronage in that department alone cannot affect other department as a professional in a medical field cannot be specialist in all the fields. Under cross examination to the Question ‘’ is it correct to say that the time of termination he was a departmental head and had supervisory role over every other dentists in that department to which DW answered in the positive and to another question ‘’ please confirm if it is the duty of the claimant to market or do business development to which DW responded that ‘’ All consultants are expected to see the business flourish in their unit.  To a further question ‘’ Are you saying that the responsibility of patronage and to generate business was solely that of the business development department ‘’ and DW answered ‘’ yes ‘’.  It is my view that the above responses by DW, the sole witness for the defendant succinctly captures the situation of the case that the claimant was singled out for termination as it was not his duty to bring in patients and could only attend to patients assigned to him. The defendant took into consideration the principle of last in first out but was of the opinion that given the merit and ability of the two dentists in its employ (the claimant and Dr Boma Fashina), the principle of last in last out (LILO) should be applied relying on the figure for year 2021 and 2022 as regards patients seen by both dentists over the period. If there is insufficiency of job as against the principle that the job is no longer viable, same will not avail the defendant. The decision to send the most senior dentist to a new hospital opened in Ikeja means that he is capable and cannot rely on the refusal of the claimant to work in Ikeja, Lagos as absence of job in Victoria island. How can the number of patients seen by a doctor in a specialist field be used as basis to conclude that the employee should not be retained. There is no evidence before the court save for the number of patients seen by each dentist as basis for declaring the claimant redundant. 

Exhibit AA33 is the consultative meeting. The claimant during the meeting told the other members that ‘’ it’s not his responsibility to increase or generate sales or traffic of patients for the business unit even though he agreed that there is not enough job. There is no evidence that the defendant carried out redundancy exercise as there is nothing before the court to show the names of other staff terminated based on redundancy. The reason given by the defendant is not valid to justify termination on ground of redundancy as the defendant did not apply international best practices. The claimant on his refusal to work in Ikeja did not keep to the rules of master and servant as he refused to be transferred by the defendant.  It was at the consultative meeting that the issue of his redeployment to Ikeja arose and the claimant did not have a defense for leaving the flag ship Duchess hospital.  Transfer means that an employer has more than one place of business and the employee is called upon to work in a different place of business from the one in which he worked previously. As the employer has a right to appoint, it equally has a corresponding right to transfer or terminate.

On the contention of the defendant that the claimant was deployed to duchess hospital because he was a surplus staff to the requirements of Reddington maxy clinic, however he abandoned same and returned to Reddington. What the law is on Redundancy is removal as there is no longer work and not deployment to start a clinic in the same department, but where there is deployment, the employee is bound to obey. See Mbachu v A.I.R.B.D. (2006) 14 NWLR (Pt1000) 691SC.  Exhibit AA 17 is the letter of redeployment to Duchess Hospital Ikeja and it reads

You are hereby deployed to Duchess hospital Ikeja effective June 14 2021 as a Dental Surgeon who will head the unit for the purpose of furthering the activities to make Reddington Hospital group, a Nigerian most advance independent tertiary hospital working to highest standard of technology and care.

This presupposes that the claimant is capable hence the reliance to set up the dental department in the new flagship hospital. Under cross examination CW stated that he decided not to stay there after sometime and came back to Maxi center without official directive.  Exhibit AA31 during a meeting on the 19^th of January 2022 on the issue of moving back to Reddington without instruction to do so. Can the claimant without authorization refuse to be deployed?  See Chukwuma Hope Nwaubani v Golden Guinea Breweries Plc (1995) (Pt 400) 166 on the legal effect of disobedience in a master/servant relationship the Apex court held thus

            When a servant grows too big to obey his master, the honorable cause open to him is to resign in order to avoid unpleasant consequences should an occasion which calls for disobedience be serviced with disobedience. Both common law and statute law brook no disobedience of lawful order from any servant, high or low, big or small. The claimant who had no authority to return to his original place as per the defendant statement of defense in paragraph 13 (k) cannot be seen to do that as the employer has the right to transfer an employer from one department to another and if he was not disciplined then, the employer cannot use same against him in future. The mandate given by the defendant is not before the court and no disciplinary action was taken against the claimant. see Adebayo v V.C FUTA & Anor (2019) LPELR-48208 (CA).

From the forgoing, it is obvious that the defendant did not give a concrete and cogent reason for terminating the claimant’s employment among other staff during the process of redundancy, notwithstanding the contention of low patronage. The claimant from the number of years spent with the defendant as the most senior dental surgeon had no report from the patients on inefficiency. Reliefs 1& 2 succeed         

The next relief is for a declaration that the failure to pay the claimant’s terminal dues and redundancy payout contemporaneously with the termination letter up to the time of filing this suit is wrongful and unfair and a contravention of the claimant’s contract of employment. The claimant has claimed for wrongful termination as the salary in lieu of notice was not paid contemporaneously within the time the appointment WAS terminated.  The provision in exhibit AA8 in clause 9 of the Employee handbook is clear and provides ‘’    The defendant shall pay the affected employee a redundancy pay-out in addition to the employee’s normal entitlements’’ The claimant has in paragraph 39 of the Statement of facts averred that the defendant failed to pay his redundancy benefit, that is severance package and other exit entitlements contemporaneously with the termination of   his employment and up till the filling of this suit.  On this issue, the defendant in paragraph 15(p) of the statement of defense stated that the claimant was called upon to come and collect his final emolument letter and cheque but he has refused to collect same up to date. Where a contract of service gives a party a right of termination of contract by either giving a particular length of notice or salary in lieu of the length of notice and the latter course is chosen, the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice at the time of termination of the contract. It is not enough that in the letter of termination he offers to pay salary in lieu of notice. However, where such salary is not so offered contemporaneously with the letter of termination, the remedy of the employee is in damages and is what he is entitled to in the amount of money in lieu of notice. See NNPC v Idoniboye -Obu (1996) 1NWLR (pt 427) 655CA.

It follows that the salary in lieu of notice in the instant case was not paid when the letter of termination was given to the claimant on the 21^st of March 2022.  The fact remains that the salary in lieu must be paid with all other entitlements. The claimant’s solicitors wrote a letter of demand and rather than comply the defendant refused to pay. The claimant’s demand in relief 9 is for an order directing the defendant to pay to the claimant the sum of N25,000,000 for the termination and additional N10,000,000 for constructive discharge. Clause 9.1 provides 

The hospital does not anticipate redundancy, however should it be necessary to lay off an employee through lack of no fault of his own, the hospital shall pay in addition all his normal entitlements an amount the management committee may decide upon.

In response to the assertion, the defendant in response in paragraph 15 (p) of the statement of defence outlined what is due to the claimant as N4, 227, 272.00 and with these word

The defendant on various occasions called upon the claimant to come and collect his final emolument letter and cheque, but he has refused to collect same up to date.

What is clear here is that the defendant admit that the claimant has not been paid his one-month salary including his redundancy pay and other entitlements.  In the defendant’s Final Written Address in paragraph 5.03 the defendant contended that there is no provision for contemporaneous payment of redundancy pay out with termination of appointment, that the claimant refused to collect his terminal benefits whilst at the same time refused to collect his letter of termination.  There are plethora of cases that pleadings do not constitute evidence. See Aero contractors Co of Nig ltd v Daramola (2023) LPELR – 60767(CA) where the court held thus

 I do not need to overlabor or stretch long elementary law, because it is clear that pleadings do not constitute evidence in law. Both pleadings and evidence are like siemens twins that through separate but conjoined and one cannot do without the other because they are somewhat complimentary.  They must at times work together. In ither words, an averment in pleadings is not evidence and can never be so construed.

I hold the view that these issues cannot be addressed without evidence being adduced. See Mbonu v Nigerian mining corporation 2006 LPELR-12911(CA).

If the claimant in paragraph 20 of the statement of facts stated that his employment was terminated by the defendant in total disregard of the terms and conditions of contract of employment and referred to the letter of March 21^st 2022. This means the claimant was aware of the termination of his employment and same cannot be used to support non-payment upon termination of his employment.  I agree with the claimant’s submission in paragraph 5.36 of final written address that failure to pay terminal dues and redundancy payout contemporaneously with the termination of claimant is wrongful and amounts to unfair labor practice. The claimant’s claim is for the sum of N25,000, 000 (Twenty-Five Million Naira) and additional N10,000, 000 (Ten million Naira) for constructive discharge.  The claimant has not told the court how he arrived at the amount claimed for since his salary is N1, 000, 000 (One Million Naira) monthly, it follows that his salary in lieu is N1, 000, 000 being one month’s salary in lieu. That the defendant is aware of the bank account of the claimant is not in doubt as there is no pleading by the defendant that the claimant’s salaries has been paid by hand to the claimant prior to his termination.  The defendant has not told the court why the claimant has to collect the entitlement personally as the mode for payment of his salary for the period of employment has been through his bank account. what matters here is that the claimant was not paid his severance and redundancy pay off along with the termination of his employment. I entertain no doubt in my mind that the defendant’s defence that there is no provision for contemporaneous payment is framed in error and misdirection. This is what the law forbids.  The court of appeal was apt on what an employer’s duty on payment of salary in lieu of notice in NEPA v Isiereore (1997)7 NWLR (Pt 511) 135 CA and held thus 

Where a contract of service gives a party right of termination of the contract by either giving a particularly length of notice or payment of salary in lieu of the length of notice and the latter course is chosen, the party seeking to end the contract must pay to the other party the salary in lieu of notice at the time of the termination of the contract. it is not enough that in the letter of termination he offers to pay salary in lieu of notice.

It is accordingly my holding that the termination was wrongful.  See Chukwuma v Shell Petroleum (1993) LPELR 864 /9(SC) 1 at.  The claimant is entitled to the sum of N4, 227, 272.

The next relief is for a Declaration that the termination of the claimant's employment with the defendant on a purported grounds of redundancy which was neither declared nor supportable by the prevailing facts and events at the time of the claimant's termination amounts to a constructive discharge of the claimant from employment.  The termination is not constructive dismissal.

Relief 7 is for a declaration that the employment with immediate effect has an element of stigma.  To the defendant there is no stigma as the claimant is at liberty to start his own dental practice. The termination with immediate effect suggest wrongdoing. 

Relief 8 is for a declaration that the defendant's failure, refusal and neglect to remit the claimant's deducted pension contribution and its own counterpart contribution for the period of August 2018 to March 2022 when his employment was wrongfully terminated into the claimant's RSA domiciled with PAL Pensions amounts to flagrant violation of the Pension Reform Act 2014 as well as the claimant's contract of employment. The claimant averred that when he applied for the balance of his RSA domiciled with PAL pensions, he discovered that the pension deductions were not made from the claimant’s salary by the defendant between August 2018 and January 2021 and same not remitted into his RSA. The claimant averred that his contribution was in the region of N180,000 per month and same was not remitted for 30 months amounting to N5, 400, 000.  The response to this is in paragraph 16 (b) of the statement of defense 

In effect between August 2018 and January 2021, when his status reverted to that of independent contractor, the consultants including the claimant were responsible for their taxes and became ineligible for participation under pensions reforms Act. 

In his reply to the statement of defense, the claimant denied partaking in any agreement to convert his contract of employment to that of an independent contractor. What evidence is before the court on how the claimant became an independent contractor. Ex AA39 is a letter to all consultants and the subject matter ‘’ change of contract to independent contractor. The response of the claimant is that he did not agree to the change of the terms as seen in exhibit AA15. The defendant’s memo in AA15 confirmed same with the subject ‘’ unsigned contract ‘’ and it states 

Dear Aderiye 

It is noted that the independent contractor agreement given to you in August 2018 has still not been signed.

I find that the idea to change the terms of contract was not communicated to the claimant in any way.  An employer cannot change the rule of the game midway, but in this case, it was done unilaterally by one of the parties and the execution was carried out by the defendant.   See Yaro v Arewa Construction Ltd & Anor (2000) LPELR -3516 (SC) where the court held that the implication of a single individual executing the agreement without the knowledge of the other party, smirks of a deliberate deceit which radically changed the game. it certainly goes to the foundation of the agreement.  The defendant admitted the fact that the claimant was not paid from August 2018 – January 2021. The admission is reinforced by an email dated April 27^th 2022 titled unremitted pensions (exhibit AA10).  The claimant in his evidence before the court said that there was a meeting at in 2018 between the employer and some staff. Under cross examination to the question ‘’ What was discussed was for conversion of employment status of some staff to consultant in the hospital and CW responded ‘’ it was a proposal and we needed to accept the proposal.       See Enebong & Ors v Federal Ministry of Lands and Housing (2023) LPELR – 60599 (CA). From the evidence before me, it is clear that what the defendant terms agreement between the claimant and the defendant is a mere proposal for conversion to a consultant which was not accepted by the claimant.  See Chris Aondo v Benue Links Nigeria Limited (2019) LPELR – 46876 (CA) where the Court of Appeal explained the meaning of proposal as follows 

Exhibit A was merely a proposal by the General manager of the Respondent for the appellant to suspend the accrual of further interest on the investment Agreement. 

A proposal is something for consideration or acceptance.

From the above authorities, the law is clear that once the claimant did not accept the new modified contract of employment, it is not binding. Parties to a contract are bound by the terms and conditions of the agreement entered into between them. Once the parties are ad idem on the terms and conditions of the contract it becomes enforceable. See Henbel Chem ltd v A.G Ferrero & Co (2003) 4 NWLR Pt 810 page 306.   Exhibit AA39 is also a letter on change to independent contractor and is not an acceptance from the claimant.  Finally, the question is whether the employer is allowed to alter the conditions of service between the parties and the court has held in Baba v Nig Civil Aviation & Anor (1991) LPELR -692 (SC) the Apex court held that 

Therefore, all documents cannot vary unilaterally the terms of employment especially A16& A17. it can only vary the rate of payment of commission but cannot vary the term of payment of commission because what makes the employee choose to stay put in his best. Once it is withdrawn, it knocks the bottom off the contract or employment

Once a right is vested in one party in a contractual situation, it cannot be taken away by the other to the contract except with the consent of the beneficiary.

The principle of law governing contracts of employment is akin to that of other contractual obligations is that parties have agreed to be bound in their relationship by written agreements, such contract must be governed by the terms of the contract. See P.A.N.v Oje (1977) 11 NWLR (pt 530) 625 CA.

I hold that the unilateral conversion of the claimant’s regular contract of employment to an independent contractor is wrongful and is bound to fail. The claimant is accordingly entitled to his pension from 2018 to 2021 by virtue of  Section 6 of the Pension reform Act 2014  provides as follows ‘’ An employee who fails to deduct or remit the contributions within the time stipulated in subsection (3) (b) of this section shall, in addition to making the remittance already due, be liable to a penalty to be stipulated by the commission and that the penalty shall not be less than 2 percent of the total contribution that remain unpaid for each month or part of each month the default continues and the amount of the penalty shall be recoverable as debt owed to the employee’s retirement savings account as the case may be . The claimant averred that his pension is N180, 000 (One Hundred and Eighty Thousand) and for 30 months amount to N5, 400,000. The contention of the defendant is that between 2018 – 2021 when his status reverted to that of independent contractor, the consultants including the claimant were responsible for their taxes and became ineligible for participation under pension Reform Act, that the claimant knew that no deductions could have been made and indeed were made from his emoluments which the defendant were liable to remit to the Pension fund Administrator. From the entire pleadings and evidence of both parties in respect of the unremitted pension, the defendant admitted non-remittance of same.  The documentary evidence before me is that exhibit AA15 shows that the HR team sent an email to the claimant and the subject ‘’ Unsigned Contract ‘’ and it states that the independent contractor agreement given to you in August 2018 has still not been signed, it confirms the claimant did not accept to be an independent contractor. In the instant case, the onus is on the defendant to show that he accepted same which the defendant has not done. I accordingly order the defendant to remit the sum of N5, 400,000 into the claimant’s RSA account and the defendant is to be penalized for its failure to remit the claimants pension when due.   

The next relief sought by the claimant is for an order directing the defendant to remit the sum of N936, 000 into the claimant’s RSA, as shortfall for the period of February 2021 to March 2022 when his employment was terminated. The claimant in paragraph 11 of the statement of facts averred that the defendant had a monthly sum of N180,000 but the defendant remitted the sum of 108,000 monthly. To the defendant there was no shortfall in the deductions made as the percentage deduction is calculated not on gross monthly emoluments but on net emoluments after other allowances are taken into consideration. There is nothing before the court to guide on the deduction of the sum claimed. Having considered the pleadings, the evidence. I hereby hold that the claimant has failed to prove this leg of his claim.

The next relief is for General damages in the sum of N100,000,000 for the unfair treatment, victimization, hardship. wrongful termination, discrimination, emotional trauma and financial distress caused to the claimant by virtue of the defendant’s breach of the claimant’s contract of employment and wrongful termination of the claimant’s employment.  General damages are said to be damages that the law presumes and flow from the type of wrong complained about by a party who alleges the wrong. It is the claimant’s contention that the defendant’s action resulted in pains, trauma, and hardship.   On the issue of damages, there is no doubt that the claimant has been injured by the method of termination of the claimant’s employment which is selective and amounts to discrimination, the financial hardship caused by refusal of the defendant to pay his redundancy benefit when due, and refusal to remit the claimant’s pension benefits for three years, these caused untold hardship on the claimant.  This singular act of refusal to pay what is due to the claimant is unfair. He is entitled to an award of general damages pursuant to the provisions of Section 19(d) of the National industrial Act 2006. Consequently, I award the claimant the sum N9, 000,000, (Nine Million Naira) being the equivalent of 9 months’ salary for hardship caused by refusal of the defendant to pay terminal benefit and remit his pension on termination for years. I make no award for wrongful termination as the defendant had calculated same and the court had made an order to pay one (1) month salary in lieu of notice.            

The last leg of the relief is for cost of engaging lawyers in the sum of N10,000,000. There is no proof of this. 

 In summary, I declare and order as follows:

HON. JUSTICE A.N. UBAKA

JUDGE.