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 24^th OCTOBER, 2025                             

Suit No: NICN/LA/384/2022

BETWEEN

MR YUNISA AUSTIN                                             CLAIMANT

AND

AIR PEACE LTD                                                DEFENDANT

REPRESENTATION:

Oladele Ojogbede for the Claimant 

Ambrose Obi with Micheal Igbokwe for the Defendant

JUDGMENT

By a general form of complaint filed on the 7^th October, 2022 the claimant in paragraph 23 of the statement of fact claimed the following reliefs against the defendant:

The facts of the case are pleaded in paragraphs 1-22 of the statement of fact with    written statement on oath, list of witnesses, documents to be relied upon on trial dated and filed 7^th October, 2022.

The defendant filed its statement of defense in paragraphs 1-28, with witness written statement on oath and documents to be relied upon at trial dated 14^th November, 2022 but filed 16^th November 2022. 

The claimant testified in respect of his case. The summary of the facts pleaded by the claimant is that he was employed as an Office Assistant by the Defendant in this suit on the 30^th day of April, 2018 and throughout the duration of his employment as a staff of the Defendant, he was a devoted and hardworking employee, who worked, and served the Defendant diligently in the engineering and piloting department as an office assistant. That on the 27^th of June, 2019, there was an allegation of theft of laptop/computers from the Accounting Department of the company wherein he and seven (7) others were arrested and that on that same day and at the instruction of one Peter, a Staff of the Defendant, they were thoroughly punished and forced to pin their heads on the ground for almost two and half hours (before the soldiers at the entrance gate leading to the company in the Boy's Quarters provided for staffs at Minimah Estate, Ikeja) over an allegation of some missing computers from the Account Department of the company; that after the general punishment meted out on him and seven (7) others by the soldiers, each Departmental Head subsequently called on the affected staff and handed them over to the nearest police station close to the Airport; that he was specifically handed over to a female police officer who took his statement and thereafter asked him a couple of questions about the missing computers which he replied her that he knew nothing about it and that as a matter of fact, his work does not even extend to the account section of the company, whereupon, he was asked to bail himself and directed to keep reporting to the station every week. 

That by virtue of his employment letter and the terms and conditions of employment in conjunction with the information provided in the Employee Handbook, he is  entitled to be paid the sum of N420,000.00 (Four Hundred and Twenty Thousand Naira) per annum subject to statutory deductions such as PAYE, PENSION etc as an annual remuneration on a fixed term contract with the company; that his monthly net salary was N35,000.00 (Thirty Five Thousand Naira) and he  was made to understand that his pension stands at N2,000.00 monthly which alert he did not receive ever since he joined the company. That his salary account which he maintained with the company through Fidelity Bank was frozen after the police released him to go home and upon his several reporting at the police station, on the 17^th of July, 2019, himself and the seven (7) others were charged to court whereupon they were arraigned in court. However, despite protestation in the open court by the lawyer who represented him for the company to release his account and salary to him during the period, the company refused and/or neglected to instruct the bank to unfreeze his account and his salaries were unpaid. That after being charged to court, he applied for his bail before the Magistrate Court 1, in Ogba, Ikeja, Lagos (which application was graciously presented by B. A. Momodu of counsel) and it was granted in the sum of N130, 000.00 which amount he could not afford at the time (as he had no access to his account) and consequently, he was remanded in Kirikiri Prison for almost two weeks (9 days) before he was able to meet the bail conditions. 

That when the case had come up twice in court and the court was to adjourn same for the third time, (this time for trial), the Court directed Air Peace Limited, the Complainant, through the prosecutor, to come to court with evidence to prove its case at the next adjourned date and that whilst he and other Defendants were looking forward to the trial date, as fixed by the court, we all received an invitation from the Company through the HRM's office to come to the office whereupon we all visited the office at the appointed time and upon arriving at the company office, they were asked to sign an undertaking to the effect that they are guilty as charged, which  they vehemently declined due to the suspicion that they might have an interior motive of using such letter in court against them. That he received his termination letter dated 2^nd of October, 2019 through a dispatch from the company who delivered same to him in his house on 27^th November, 2019. That on the date fixed for trial, to his chagrin, he discovered that the Defendant was not ready for trial but instead, a letter was written to the court by the Company requesting for he and other Defendants to be released and equally urging the court to strike out the case "subject to the defendants' consent" and based on this withdrawal letter the prosecutor agreed with their Counsel's request to the Court that their bank accounts previously blocked through the Defendant's instruction would be unblocked. However, despite the application to unblock the accounts, his account still remains blocked and inaccessible to him till date. 

That he believe that there is no doubt that the purported termination of his employment with the Defendant was as a result of the unsubstantiated and baseless allegation of stealing of the missing laptops/computers and other items in the Account Department of the Defendant as illustrated in the letter back-dated 27/06/19 written by the Defendant to him; that his Solicitors, Messrs. Dele Ojogbede & Co., wrote a letter dated 13/09/22 to the Defendant demanding it to remedy the wrong done to him, but the said Defendant refused to take advantage of such letter; that the Defendant has no defense to this action because it failed to prove its allegation of theft against him in court whereupon he suffered several indignation and unwarranted pain and agony including the partial loss of his right leg in an accident in the cause of this whole matter despite the fact that the Defendant is being managed and/or superintended by notable Nigerians (such as Mr. Allen Onyema) who are supposed to uphold the interest of natural justice, equity and good conscience within the Company but has failed woefully to do so. 

Under cross examination by the defendant’s counsel, CW confirmed that he was employed as a Janitor (Cleaner) and not as office Assistant; that he was responsible for cleaning the Engineering department of the defendant and not the accounting department where the laptops were stolen; than he was interrogated because the Engineering Department and Accounting Department were both in Minimah Estate, Ikeja; that after the incidence of 27^th June,2019, he went back to the office but the defendant collected his I.D Card and was told to stay from the defendant.

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, Mrs. Stella Muomelite, the Senior Human Resources Business Partner of the defendant, wherein she adopted her witness statement on oath as evidence in this case. The defendant’s witness statement on oath is that the claimant was employed as a janitor and not as an office assistant in the piloting and Engineering Department of the Defendant by virtue of the letter of employment dated 30^th April, 2018; that the claimant could not have been diligent, devoted, hard-working in the employment of the defendant and still be linked and connected to a confirmed theft case involving the claimant and some other staff whom all  investigation confirmed him to have participated in the theft case and when given an opportunity he was unable to defend himself and sustain the trust between himself and the defendant; that following the confirmed case of theft against the claimant, his employment was accordingly terminated with immediate effect and handed over to the Police with his collaborators for prosecution until the defendant offered the claimant and his collaborators a leeway of respite by withdrawing the charge against them to give peace a chance and to allow the claimant and his collaborators the opportunity of a fresh start elsewhere. That the claimant left the employment of the defendant on the 27^th day of June, 2019 and never returned nor was re­-absolved in the defendant's employment after the incident of 27^th June, 2019 in line with the terms of his employment in the employment letter and  that the letter of 2^nd October, 2019 was only a mere formality having ceased to work nor appear in the premises of the defendant since the 27^th June, 2019 for assignment of any roles because he is well aware that his employment had been determined.

That neither the claimant nor any other suspects were maltreated, punished nor brutalized by the defendant and that it does not have military personnel at its operational gate but mere civil security guards who are unarmed and have no capacity to molest the claimant or anyone at all; that after its internal investigations and confirmation of the theft and the personnel connected to the crime, its Chief Security Officer Mr. Akinsola Musuru handed over the affected staff to the Airport Police for further investigation and prosecution; that the claimant's employment is in terms of the letter of employment and the worker's handbook and subject to statutory deductions such as PAYE, PENSION on the annual salary of N420,000.00 (Four Hundred and Twenty Thousand Naira) and that the claimant's employment was on a fixed term contract in terms of the contract of employment and that if the claimant wanted clarity of the standing of the pension contribution he ought to consult with the pension managers as same is not a direct payment into his bank account and the pension manager is well known to the claimant. That the defendant did not freeze the claimant's account and puts the claimant to the strictest proof of the claim and further maintains that the bail bond of N130,000.00 (One Hundred Thirty Thousand) was not to be paid except the claimant jumped bail. It is just a bond and not payable; that although it has its evidence in proof of the crime committed against the defendant, it only elected to withdraw its complaint to give peace a chance in view of the efforts the claimant made to resolve the matter by reaching out to the defendant. 

That on account of the case of theft occasioning loss of trust by the defendant with the services of the claimant, the claimant's employment was thus terminated in terms of the letter of employment for gross misconduct and accordingly not entitled to any benefits and that although it withdrew the charges against the claimant to allow for peace it has no hand in the freezing or unfreezing of the account of the claimant and when the issue was raised in the open court the defendant's counsel confirmed that the account be unblocked in the event that same had been blocked and the defendant has no hand in the account being blocked or remaining blocked till date and put the claimant to the strictest proof the allegation. That the claimant's employment by virtue of the contract of employment of 30^th April 2018 was a fixed employment of month by month and the employment was validly determined on the 27^th June, 2019 being an employment that is fixed on month by month basis and on account of the fact that the defendant was not satisfied with the defence of the claimant in respect of the issues of theft and breach of trust around the issues of the theft of the defendant's valuable laptops and computers; that the claimant is not entitled to any prior notice to the determination of his employment by virtue of the letter of employment which clearly gave his employment as a fixed contract of employment and for the period of month by month, by which effect the claimant is on notice monthly that his appointment can be determined and this termination was eventually communicated on the 27^th June, 2019 in terms of the contract of employment. 

That assuming but not conceding that the letter of termination dated the 2^nd day of October, 2019 made effective on the 27^th day of June 2019 is held to be bad in law, the employment of the claimant still stands terminated as it is the right of the employer to hire and fire a servant and the servant cannot be forced on the master and the claimant could only be entitled to one month salary in lieu of one month notice but in view of the fact that the claimant's employment was terminated on the ground of the theft case and the loss of trust and the claimant's employment being a fixed, the claimant's employment was properly terminated for gross misconduct in terms of the letter of employment; that the claimant's solicitors Messrs. Dele Ojogbede & Co letter dated the 13^th  September 2022 is baseless, unfounded, speculative, spurious and old digging and did not derive from the contract of employment of the claimant and was not sustainable claims in terms of the claimant's contract of employment not being one with statutory flavour. That the defendant has accorded the claimant all his rights as a human being and it upholds the principles of natural justice in its dealings with the claimant and with other staff and members of the general public and does so in equity and good conscience and observed all these doctrines in its dealings with the claimant. She urged the honourable court to dismiss with substantial cost.

Under cross examination by the claimant’s counsel, DW stated that she was involved in the investigation on theft, as a Human Resources person; that there is no report on the investigation; that she has a right to investigate anything that happens in the defendant and that she has no qualification on investigation. That the claimant was never convicted for theft as the case was withdrawn against the claimant by the defendant; that she questioned the claimant and the other staff herself; that the claimant was not paid notice of termination in lieu.  

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

The parties were directed to file their final written addresses. The defendant’s final written address is dated 11^th March, 2025 but filed 13^th March, 2025 while the claimant’s final written address is dated 28^th April, 2025 but filed 7^th April, 2025. The defendant’s Reply on point of law is dated 8^th May, 2025 but filed 12^th May, 2025.

Learned counsel on behalf of the defendant framed a sole issue for the court’s determination viz:

It is the defendant’s counsel submission on the sole issue and in respect of Relief 1; that the claimant did not plead any singular facts as provided either by the Letter of Employment or the Employee Handbook on the procedure and process by which the claimant's employment ought to be terminated for which same was not followed; that it is settled law that he who asserts must also prove. That in the absence of any material contravening the evidence that the letter dated 2^nd October 2019 and similarly served on the same date on the claimant in terms of the evidence of the defendant's witness was good and properly determined the employment of the claimant as he never reported to work after that day and the letter of 2^nd October 2019 was stating the obvious since the claimant himself had stopped coming to work from the 27^th June 2019. He cited the case of Adesanya v Otuewu (1993) 1 NWLR and urged the honourable court to hold that the letter was dated and served on the same date in terms of the date on the letter and it effectively determined the employment of the claimant. 

On the employment being a fixed term of month by month, the defendant’s counsel submitted that the claimant’s employment will not require notice for its determination and in the event that a notice is required by the terms of employment, it is the claimant who ought to give one month notice by way of resignation of his intension to resign or one month salary in lieu of notice; that if the honourable court holds otherwise, then the only remedy available to the claimant is one (1) month salary in lieu of notice and nothing more.

On relief 2; counsel submitted that the claim cannot stand and serves no purposes being that the employment of the claimant-has no statutory flavor, the claimant cannot be forced on the defendant and being already terminated even by the concurrence of the claimant in his testimony that he was served a letter of termination, he cannot justifiably seek for a declaration that he remains a staff of the Defendant and entitled to his full salary and emoluments until his employment is properly terminated by the defendant. He urged the honourable court to discountenance the relief and dismiss same for being unfounded.

On reliefs 3, 4 6 and 7; counsel submitted that there is no single shred of evidence to establish the right of the claimant to these reliefs; that both the letter of employment and the employee handbook which were tendered and received in evidence in this matter did not provide that the claimant will be entitled to salary for periods not worked for and that by the testimony of the claimant himself he stopped working on the 27^th day of June 2019 upon the allegation of the theft and his employment was terminated. That it does not lie in the mouth of the claimant to claim that he was not given notice after knowing that upon the suspicion of crime perpetrated on the defendant the defendant is entitled to terminate the appointment without necessarily having to wait for the conviction of the claimant before it can undertake such action; that once the notice of termination is given even if found to be defective which the defendant deny in this case being that the claimant's employment was terminated for theft of the laptops leading to loss of trust.

That reliefs 5, 6 and 7 are claim for special and general damages but which also is predicated on the success of the Claimant's case that his employment was wrongfully terminated and unjustified and that with the finding that the employment was not wrongfully terminated, the claim ought not to succeed and same reliefs be refused. That it is settled law that the honourable court cannot grant to the claimant what it did not apply for, so in the circumstances even if the honourable court finds that the notice is defective, it will be overreaching to grant the claimant one month salary in lieu of notice being that the claimant did not seek for that remedy before the honourable court.

On the claimant’s claim for payment of pension; counsel submitted that in pursuing this claim the claimant did not join the pension manager nor provide any evidence that he demanded for the payment of his pension from the pension managers and same was denied; that the absence of such evidence will mean that the cause of action in respect of that issue has not arisen and same ought to be discountenanced.   

Learned counsel on behalf of the claimant formulated three (3) issues for the court’s determination viz:

It is the claimant’s counsel submission on issue one (1) that there is no legal foundation for the purported determination of the Claimant's employment by the backdated Exhibit YA 4; that an establishment such as the Defendant would not serve a momentous and weighty piece of document, such as the purported Letter of Termination of Employment on the Claimant without making him endorse an acknowledgment that he did indeed receive it as and when alleged; that the provision of Section 167 (d) of the Evidence Act, 2011 (as amended) ought to operate against the Defendant in this instance. That that a cursory consideration of the normal course of business will lend credence to the presumption that a legally - acceptable panel of inquiry/investigation could not have been convened in compliance with the provision of the Employee Handbook (Exhibit YA 6) in the absence of the Claimant, since he was either in custody of the Police and or awaiting trial while being barred from the premises of the Defendant at all material times; that the testimony of DW as to the events surrounding the alleged involvement of the Claimant in the theft of the missing laptops as well as the alleged events leading up to the purported service of Exhibit YA 4 on the alleged date of 2^nd October, 2019, reeks of substantial hearsay, lacks the requisite probative value and ought not to be relied on by the Honourable Court.

That assuming without conceding that Exhibit YA 4 was validly served upon the Claimant, the summary dismissal contained therein does not meet the legal threshold for the summary dismissal of an employee; that exhibits YA9 & YA6 (Contract of Employment and Employee Handbook) are the relevant documents forming the basis of the contract between the parties and which ought to guide the dismissal of the Claimant or the determination of the contract between the parties. That DW testified that the Defendant convened a panel of inquiry/investigation on the issue of the alleged theft against the Claimant before the decision to terminate his employment was made but nowhere in that witness's testimony was it stated that the Claimant was given an opportunity to state his case or defend himself; that it does not matter that the panel of inquiry set up by the Defendant and consisting of its staff was an administrative one, it still has to conform with the stated provision of the highest law of the land (the 1999 Constitution as amended) and any contrary decision to so do amounts to the Defendant being a party and a judge in its own case. He cited the case of F.M.C, Ido - Ekiti vs. Alabi (2012) 2 NWLR (Pt. 1285) 411 at 443, paras E – F.

Continuing, counsel submitted that exhibits YA 3 & YA 2, which clearly shows that no criminal liability were found against the Claimant in respect of the events of 27^th June, 2019 on account of the fact that the Defendant herein wrote on its own volition as Complainant in Charge No. MIK/Q/68/20 19 to the court to withdraw its complaint against the Claimant and other co - accused with prejudice and the charge was subsequently struck out and that if, as alleged by DW and the contents of Exhibit YA4, the guilt of the Claimant had been conclusively confirmed, the voluntary withdrawal of the charge would not have been made and the criminal charge would not have languished in court, suffering repeated adjournments all at the instance of the Prosecution; that the withdrawal of the charge only lends credence to the presumed innocence of the Claimant and the arbitrary haste of the Defendant in passing unilateral and unlawful judgment on the Claimant. He cited the case of Osisanya vs. Afribank Nig. Plc (2007) 6 NWLR (Pt. 1031) @ 565 @ 576 - 577, paras H - A and urged the honourable court to so hold.

On issue two (2); counsel submitted that the summary termination of the employment of the Claimant without the stipulated notice is unlawful, against the express terms of the contract between the parties and same ought to be declared as null and void and that the failure of the Defendant to comply with the express terms of Exhibit YA 1 (Contract of Employment) as it concerns the summary termination of the employment of the Claimant, the Defendant is liable to make settle all outstanding payments due under the contract of employment as it has knowingly and willfully failed and refused to abide by the express terms of the contract of employment as it concerns the termination of the said contract. He cited the case of Imoloame vs. WAEC (1992) 9 NWLR (Pt. 265) 303 at 4.

That DW's attempt at merely passing the blame upon the Claimant for allegedly not visiting his Pension Fund Administrator has not discharged the onus of proof on the Defendant to show with cogent evidence that the statutory remittances were done as and when due; that if the Defendant had truly made the remittances, it would be a simple matter to present the evidence of such purported remittances. That to allow the Defendant escape payment of the outstanding wages and entitlements due to the Claimant will amount to permitting the Defendant to benefit from the egregious acts of not only unlawfully terminating the Claimant's contract of employment but also causing his arbitrary detention and saddling him with a defence of a baseless criminal prosecution. He cited the case of Nitel Trustees Ltd. vs. Syndicated Inv. Holdings Ltd. (2023) 5 NWLR (Pt. 1876) 93 at 121, paras. F - and urged the honourable court to resolve this issue in favour of the Claimant and order the Defendant to pay the said wages and entitlements to the Claimant as per the agreement of the parties and as claimed on the Statement of Claim.

On issue three (3); counsel submitted that the law is trite that when assessing the quantum of damages to award, the honourable court is to attempt, as best as possible, to return and or place the successful claimant to a position he would have been, had the wrongful act of the Defendant not occasioned him injury; that not only are the actions of the Defendant a breach of the contract of employment and a breach of the constitutional rights of the Claimant, the said actions also fall short of International Labour Standard and International Best Practice. That while "International Labour Standard" and International Best Practice" might not be explicit parts of the contract between the parties, the Honourable Court, by virtue of a communal reading of Sections 7(6), 13, 14 and 19 of the National Industrial Act, 2006 is imbued with an overriding power to apply best labour practices across board, in its adjudicatory work. 

On Reply on point of law, the defendant’s counsel submitted that the withdrawal of the criminal charge does not exculpate the claimant from the suspicion and allegation of theft; that parties are bound by the terms of their engagement. He urged the honourable court to determine the position in favour of the defendant being that by the employee's handbook alone, it is sufficient for the defendant to take steps to protect itself. 

That the claimant employment stands terminated under the law and the honourable court is only obliged to construe the terms of employment and not import other terms into the contract of employment. That it does not lie in the mouth of the claimant to claim that his pension was not paid when he did not tender any document before the honourable court to show where he was denied his pension upon his application.

Having carefully considered the processes filed, the evidence adduced, the written submissions and authorities cited by the parties, the crux of this case are

The claimant’s case is that he was employed as office assistant by the defendant since April 30^th 2008. That on the 27^th of June 2019 there was an allegation of stealing and was arrested and eventually taken to kirikiri prison until he was released on bail and has not been recalled but that his employment was terminated.  The defendant disagrees with the claimant’s contention as he was a janitor and not an office assistant. In proof of his case the claimant tendered offer of employment (exhibit YA1), Charge at Magistrate court (exhibit YA2), Withdrawal of complaint (exhibit YA3), Termination of employment (exhibit YA4), Claimant’s Solicitors Letter (exhibit YA 5). The defendant tendered Employee handbook (exhibit YA6), Withdrawal of complaint (exhibit YA7), Ruling of the magistrate court (exhibit YA7), Termination of employment (exhibit YA 8). The parties are ad idem that the claimant worked for the defendant and so there is a relationship between the parties. The claimant tendered Exhibit “YA1” which is the letter of employment dated 30^th April 2018 as a Janitor. The claimant is to plead the documents and any other terms of his contract with the defendant as these are the terms of his employment. See Akinfe V U.B. A PLC (2007) 10 NWLR (pt. 1041)185. Once the party asserts, he must prove the assertion. See Section 131 (1) of the Evidence Act. See also Elegushi v Oseni (2005) 14 NWLR (pt. 945) 348, Egharevba V Osagie (2009) LPELR -1044(SC). 

There is no controversy that the claimant stopped working for the defendant since June 27^th 2019, as a result of allegation of theft of laptop/ computers from the accounting department of the company, he was arrested with 7 others and charged to court.  The claimant on his part in paragraph 4.4 of his written address referred to the date the letter of termination dated 2^nd October 2019 but was given to the claimant on the 27^th of November. It is necessary to determine when the claimant stopped working for the defendant as both parties have given different dates.   Further to this, the defendant would in paragraph 6 of the statement of defense aver that the claimant left the employment of the defendant on the 27^th of June 2019 and never returned nor was reabsorbed in the defendant’s employment after the incident of 27^th June 2019.  In all of these the parties agree in their pleadings that the date that the claimant was last seen in the office as a staff of the defendant is 27^th of June 2019. See paragraph 5 of the statement of fact and paragraph 6 of the statement of defense. it is Pertinent at this stage to look at the letter of termination exhibit YA 4. Below is part of the letter 

2^nd October 2019 

Dear Yunisa Austin, 

We refer to the incident of theft of laptops belonging to the company that occurred on 27^th June 2019 at Minimah Estate 

Kindly be informed that management is not satisfied that you exonerated yourself from the incident and this has impaired the working relationship.

Consequently, this communication serves to notify you that your services are no longer required effective 27^th June 2019. 

The law in Nigeria is that while an employer is not enjoined to, where, however, the employer chooses a reason for terminating the employment of the employee; it lies on that employer to justify the reason if challenged. See Angel Shipping & Dyeing Ltd v Ajah (2000) 13 NWLR (pt. 6985) 532 CA and Afribank v (Nig) Plc V Osisanya (2000) 1 NWLR (pt. 642) 592 CA, the reason given for the determination of the claimant’s employment is the involvement of the claimant in the theft of laptops in the defendant’s office though was later exonerated. For giving this reason, it is the duty of the defendant to justify them. Did the defendant follow-up with the criminal allegation against the claimant?  In Eze v N.A.M.A & Ors (2016) LPELR-41453 (CA) on whether an employer is bound to give reasons for terminating the contract of employment of his employee, the court held thus  

It was clearly made out above that an employer can terminate for good reason or no reason at all. See also Idoniboye – Obu V N.N.P.C (2003) LPELR – 1426) (SC) which held thus ‘’ under the common law, an employer is entitled to bring the appointment of his employee to an end for any reason or no reason at all, so long as he acts within the terms of the employment, his motive for doing so is irrelevant”

It is also settled that where a reason is given for the termination, the reason must be one that can justify the termination. In Institute of Health Ahmadu Bello University Hospital Management Board v Mrs. Jummai R.I. Anyip (2011) LPELR - 151 (SC) p 21. A-C.  Chukwm Eneh J.S.C held thus

Although it is trite that an employer is not obliged to give reason for firing his servant all the same it is settled law that where he has proffered any reason at all it is obliged to satisfactorily prove the same as the onus is on him in that regard otherwise the termination /dismissal may constitute a wrongful dismissal without more.

The claimant was charged by exhibit YA2 but the said charge was withdrawn by the defendant by exhibit YA3. From the above authorities, the law is clear on when an employee fails to justify reason for termination, then the termination is wrongful.  The declaration sought by the claimant is not for wrongful termination but on the failure to adhere to the procedure in the handbook.  It is trite that the court is without power to grant to a party relief not asked for not so even when there is prompting to do so in equity. Any award made not asked for is perverse. The court is no father Christmas and never grants orders not prayed for. See Adesida v Abegunde & Ors (2009)LPELR-3613 (CA)

It is very clear from the letter of termination (exhibit YA4) that the claimant’s termination was backdated and no notice to the effect.  In exhibit YA1 under ‘Notice’ provided thus:

At the end of your probation and upon being confirmed as a staff, you may voluntarily terminate your employment at any time by reason of resignation by giving one month notice or payment of one month salary in lieu of notice.   

This is equally provided for in the employee’s handbook under clause 16 of exhibit YA6 on termination of employment. The letter of termination exhibit YA4 did not give such notice. The claimant is entitled to one (1) month salary in lieu of notice.

The next issue is whether the termination of the contract of employee be made to take effect from a retrospective date?  Exhibit YA4 is the letter of termination, it is dated 2^nd of October 2019 but the termination is to take effect from 27^th of June 2019 which means the letter of termination of employment was backdated by the defendant.  On whether termination of employment can be done retrospectively to deprive the employee of salary and entitlement, the court in Underwater Eng, Co Ltd v Dubefon (1995) 6 NWLR (PT 400) 156 held thus   

An employee’s salary becomes due and his right to it is vested at the end of each month. Hence, the employer cannot dismiss or terminate hie employee’s employment with retrospective effect with a view to denying him his vested right to salary. 

The effective date of termination of employment is 27th June 2019 but the letter itself is dated 2^nd of October 2019. The claimant is entitled to his salary from June – October 2^nd 2019 which is 35, 000 x 3 = N105,000

The 1^st relief is for a declaration that the purported termination of the Claimant's employment, in so far as it failed to adhere to proper procedure, as enshrined in the Employee’s Handbook, the Company's Code of Conduct Rules and Regulations and rules of natural justice is null, void and of no effect. There is no pleading on this and no reference to the employee’s handbook and the procedure the defendant failed to adhere to in terminating the claimant’s employment. The contention of the defendant as espoused in paragraph 3.11 of the final address is that the claimant did not plead any singular fact as provided either by the letter of employment or the employee’s handbook on the procedure that was not followed and concluded that there is no single piece of evidence adduced by the claimant. There is no doubt that exhibit YA6 (employee handbook) provides in clause 22 for disciplinary procedure. I looked through the pleadings of the claimant and the final address, the claimant did not refer to the procedure.  The law is settled that he who asserts must prove. The relief fails and is dismissed.   

The next relief is for a declaration that the Claimant still remain a staff of the Defendant entitled to his full salary and emoluments until his employment is properly terminated by the Defendant.  It is settled law that he who avers must prove. There is evidence that the claimant was employed by the defendant vide exhibit YA1 dated 30^th April 2018. On the claim that the contract of employment between the parties is subsisting, what the court needs to ascertain is whether the claimant’s employment was terminated or whether he was told to stop work unjustly. There is no evidence of letter mandating the claimant to keep away from the premises of the defendant but the action of the defendant is to the effect that the claimant was arrested on the allegation of stealing laptop and computers and charged to court. The defendant in exhibit YA3 withdrew the complaint against the claimant and 7 others. Below is part of the letter withdrawing the case against the claimant.

we are complainants in the above matter and write to inform you that we wish to withdraw our complaints against the defendants. 

The claimant is aware that his employment with the defendant has been terminated, to turn around and claim that the employment is subsisting cannot be correct. In paragraph 16 of the statement of fact the claimant averred that when they were charged of the offence, and the trial case fixed for trial they received an invitation to visit the office. The claimant’s averment in paragraph 13 of the statement of facts shows he was charged with criminal offence 

The claimant avers further that after being charged to court , he applied for his bail before magistrate court 1, in Ogba Ikeja Lagos (which was graciously prosecuted by B.A Momodu) and it was granted in the sum of N130,000 which amount he could not afford at the time and he was remanded in kirikiri prison for almost two weeks before he was able to meet the bail conditions.

The criminal case against the claimant before the magistrate court in ikeja was struck out. it then means that the claimant was discharged and in law a discharge is a favourable termination of the case.  To the claimant, having been discharged, he was not recalled and in paragraph 28 of the statement of fact the claimant stated that he visited the office of the defendant and refused to write an undertaking, and he was thereafter issued with termination letter. Under cross examination to the question ‘’ after the incident of 27^th June 2019, you never reported back to the office and CW responded ‘’ Yes. I reported but they collected my I.D Card and was told to stay away from the office. See Texaco (Nig) Plc v Kehinde (2006) 6 NWLR (Pt 708) 224 CA on whether where there is termination can parties treat as subsisting and the court held thus

Whether the dismissal of an employee is lawful or unlawful in a purely master and servant relationship, it has brought the relationship to an end. The parties cannot pretend that the relationship continued, because it was wrongfully brought to an end, the court cannot therefore force a willing servant on an unwilling master.

The claimant is aware of the termination; the employment cannot be subsisting.

The next relief is for an order for the payment of N1, 260,000 being two years and six months salaries from the 27^th June 2019 to 30^th June 2022 at the rate of N35,000 per month and at the rate of 35,000 per month from 1^st of July 2022 till final determination of the case.    The first issue to be determined is the claimant’s salary.  Under cross examination the question ‘what was your salary and he answered N35,000.  Both parties agree that the claimant was on a salary of N35,000 per month. The claimant’s employment was terminated on the 27^th of June 2019 but the claimant has claimed salary up to 2022 when he filed this case. When an employee’s employment is terminated wrongfully or otherwise, all he is entitled to is what he would have earned over the period of notice required to lawfully terminate his employment. In the instant case there is no finding or holding that the termination is wrongful as the court held earlier in this judgment that there is no relief on that.  See Nitel Plc v Akwa (2006) 2 NWLR (Pt 964) 391 CA. The relief fails and is dismissed.

Relief 4 is for an Order for the payment by the Defendant of all the Claimant's outstanding Pension Allowance at the rate of N2,000.00 per month from the month of April, 2018 until his employment is considered to be validly terminated. On the issue of the Pension, the claimant averred in paragraph 9 of the statement of facts that he is entitled to be paid pension from his salary which is N420,000 per annum.   The defendant admits same in paragraph 2 of the statement of defense.  Facts admitted need no proof. See Umeh v Ejike (2013) LPELR2-23506 (CA). The claimant has alleged that the defendant did not remit his pension contribution to his retirement savings account. To the defendant, the claimant is familiar with the pension manager. He also testified under cross examination that the defendant deducted pension from his salary Section 9 (a) (b) of the Pension Reform Act 2014 provides that:

The employer shall not later than 7 working days from the day the employee is paid his salary remit an amount comprising the employee’s contribution under paragraph (a) of this subsection and the employer’s contribution to the Pension fund custodian specified by the Pension Fund Administrator of the employee. 

There is no evidence that the defendant contributed its own share which is violation of the law. Section 6 of the 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 % 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.

Section 11(5) of the Pension Reform Act 2014 provides 

Where an employee fails to open such retirement savings Account within a period of six (6) months after assumption of duty, his employer shall subject to guidelines issued by the commission, request a pension fund Administrator to open a nominal retirement savings account for such employee for the remittance of his pension contribution.

The Pension Reform Act of 2014 is 10% contribution for the employer and 8% contribution for the   employee.  Paragraph 4 of the statement of facts put the pension at N2000 per month. From 30^th April 2018 to 2^nd October 2019 = 18months x 2000= N36,000. Pension is not to be paid to the claimant’s account directly but to retirement savings account. The claimant is to provide details of his pension manager and the defendant is to remit same. 

The claimant has claimed as general damages in the sum of N1,000,000. There is no doubt that the defendant deliberately prosecuted the claimant maliciously as it later withdrew the criminal charges in the magistrate court, did not remit his pension throughout his employment with the defendant, no notice was given and no salary in lieu of notice paid, then his employment was terminated by backdating it. This is unconscionable. Based on these that I find the claimant is entitled to substantial damages. I accordingly hold that the claimant is entitled to be paid the sum of N750,000 as damages.

On cost, I award the sum of N100,000 against the defendant.   

For all the reasons given above, I hereby make the following orders:

Judgment is entered accordingly 

HON. JUSTICE A.N. UBAKA

JUDGE