IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR PhD

 

Dated:  28^th day of January, 2026                  SUIT NO: NICN/PHC/109/2022

 

BETWEEN

 

MRS. VICTORIA OBIOHA ------------------------------- CLAIMANT

 

AND

 

OHENMERGE COMPANY LTD -----------------------------DEFENDANT

 

 

Representations

O. S. Mkpuma for the Claimant

H. N. Akano for the Defendant

 

Judgement

This suit was commenced by way of a General Form of Complaint filed on the 4th of August, 2022 along with an affidavit of verification, a Statement of Facts, list of witnesses, witness statements on oath, list of documents and copies of the documents to be relied upon at trial.

 

Arising from the Complaint and Statement of Facts, the Claimant claims against the Defendant as follows:

 

a.    A DECLARATION that the termination of the Claimant’s employment by the Defendant without reason or notice is irregular and unlawful.

b.    A DECLARATION that the refusal of the Defendant to allow the Claimant proceed on 21 days’ paid annual leave for four (4) years is unlawful and contrary to the terms of employment.

c.    A DECLARATION that the Defendant’s refusal to show proof of payment of any pension scheme to the Claimant as stated in her contract of employment is illegal, unlawful and contrary to the terms of employment.

d.    A DECLARATION that the Defendant’s refusal to show proof or issue receipt of tax deductions from the Claimant’s salary for four (4) years is illegal and unlawful.

e.    A DECLARATION that the Defendant’s refusal to enroll the Claimant for life-insurance cover and other related insurance as stated in her letter of employment is unlawful and contrary to the terms of employment.

f.    The sum of ?50,000,000.00 (Fifty Million Naira) as damages for breach of the terms of employment contained in the employment letter dated 27th December, 2017.

g.    Full monthly salary/allowances from March 2022 until the determination of this suit.

h.    The sum of ?30,000,000.00 (Thirty Million Naira) as severance benefit.

i.      The sum of ?20,000,000.00 (Twenty Million Naira) as damages for emotional, physical and psychological trauma and health challenges allegedly suffered as a result of unlawful termination without notice.

j.     The sum of ?20,000,000.00 (Twenty Million Naira) as exemplary damages for breach of the terms of her employment.

 

In response, the Defendant on the 19th of August, 2022 filed a Memorandum of Conditional Appearance accompanied by a Statement of Defence, list of witnesses, witness statements on oath, list of documents and copies of same.

 

The Claimant filed a Reply to the Statement of Defence on the 26th of October, 2022.

 

Trial commenced on the 8th of June, 2023 with the Claimant testifying as CW1. She adopted her witness statements on oath, adopted and marked as C1(a) and C1(b). Through CW1, eight documents were tendered and admitted in evidence as Exhibits C2–C9.

 

Arising from the pleadings and evidence, the Claimant’s case is that she was employed by the Defendant via a letter of employment dated 27th December 2017. She averred that she diligently discharged her duties and made personal sacrifices without receiving the corresponding recognition or remuneration. She further stated that on 13th April 2022, she received an email from the Defendant titled:

 

“Reviewing your contract condition”

 

Informing her that her contract would be reviewed effective 1st May 2022 due to financial challenges in the company. This allegedly led to exchanges culminating in termination of her employment.

 

She contends that the termination was malicious, unfair and contrary to law and her employment agreement.

 

Under cross-examination, CW1 stated that:

·         she was issued a letter of employment

·         she was not queried

·         she was paid for work done, except March and April 2022

·         salary payments were irregular

·         she insists she was entitled to be paid all benefits before any renegotiation of contract terms

She denied knowledge of the Defendant suffering losses or going into liquidation and denied responsibility for any mismanagement.

She confirmed she is claiming:

·         salary for March and April 2022, and

·         ?50 million damages

 

The Defendant opened its case by presenting Henry Okwara, who testified as DW1 and adopted his witness statement on oath marked as D1. Nineteen documents were tendered and admitted as Exhibits D2–D20.

 

The Defendant’s case is that the Claimant was employed from January 2018 until April 2022, when she was dismissed for gross misconduct and incompetence. The Defendant alleged:

·         invoice errors

·         habitual lateness and absenteeism

·         disregard of directives

·         blackmail threats

·         refusal to hand over company property

 

It was further stated that although the Claimant was eligible for confirmation after one year, her appointment was never confirmed due to incompetence. Therefore, according to the Defendant, she was not entitled to annual leave benefits.

 

Upon cross examination, DWI posited that although the Defendant employed the Claimant after interview, the company made a very big mistake in her employment because she was introduced by a senior friend as they overlooked all the standard criteria. DW1 admitted that the last salary paid to the Claimant was in February 2022 while admitting that the letter of employment binds both parties and the job description of the Claimant does not include contract negotiation and execution but one of her duties is to review contract that comes to the Defendant and the shortfall were due to the Claimant. DWI also stated that the sum taxed on Claimant's salary is in evidence while her pension contribution has been paid to her pension manager. DWI added that leave is based on condition stated in the Condition of Service and that the Claimant is not a confirmed staff. He concluded that staff dismissed do not get terminal benefit.

 

After the Defendant closed its case, parties adopted their final written addresses. The Defendant’s Final Written Address was filed on 14th October, 2025, wherein learned counsel H. N. Akano, Esq. formulated the following issues for determination:

      i.        Whether the Claimant has proved her case on the balance of probabilities to be entitled to the reliefs claimed.

    ii.        Whether the Defendant was justified in dismissing the Claimant for incompetence and gross violation of company policy.

 

In arguing issue one, counsel posited that the Claimant was handed Exhibits D1, D2 and D3 when she was employed by the Defendant and dismissed vide a 60 days’ notice for incompetence and the Defendant had led evidence to show that the dismissal of the Claimant was lawful. Counsel contended that assuming, without conceding that the claimant worked in the defendant company without terms and conditions of service, on what terms and conditions is she claiming her reliefs F, H, I, and J in her Claim. Counsel added that you cannot put something on nothing and expect it to stand. 

 

Counsel argued that in an action for breach of contract of employment, all the court can do is enquire into the procedure by means of which the employee was dismissed, whether prescribed procedure if any was followed, and whether the employee has been paid his statutory or common law entitlements such as appropriate month's salary in lieu of notice. Counsel cited the case of Oyedele v Ife UTH (1990) 6NWLR (pt. 155) 194.

 

Counsel also submitted that in a master and servant relationship, an employee's appointment can lawfully be terminated without first telling him what is alleged against him and hearing his defence or explanation. Counsel added that an employee in such a relationship can lawfully be dismissed without observing the principles of natural justice and cited the case of SB Olanrewaju v Afribank Plc (200) FWLR (pt. 72) 2008.

 

Counsel argued that assuming without conceding that her employment was terminated without Notice, the option open to her is to seek for the payment of her one or two month's salary in lieu of notice and nothing more while adding that the Defendant duly complied with giving notice to the Claimant. 

 

In arguing issue two, counsel referred to the testimony of DW1 and cited the case of Skye Bank Plc v Adegun (2018) LPELR-44702(SC) to contend that an employer can terminate an employee with or without reason for gross misconduct, serious breaches of contract, and illegality.

 

Counsel contended that trouble started between the claimant and the defendant when the defendant informed the claimant that her contract condition will be reviewed from the 1^st day of May, 2022 due to the fact that the defendant was experiencing financial issues. Counsel referred to Exhibit C3 and C4 and paragraph 7 of the statement of fact and also paragraph 7 of the claimant's statement on oath and paragraphs 8,9,10, and 11 of the statement of facts and paragraph 8,9,10, and 11 of the claimant's statement on oath.

 

Counsel submitted that from the evidence before the Honourable court, it is very clear that the employment of the claimant with the defendant was not wrongfully terminated by the defendant and assuming without conceding that the claimant's employment was wrongfully terminated, the remedy available to the claimant is the amount of money that is payable during the period of notice to be given by the employer as stipulated in the contract of employment and nothing more. Counsel cited the case of Onalaja v African Petroleum Ltd (1991) 7NWLR (pt 206) 691 Ratio 1.

 

Counsel concluded by urging the court to dismiss the Claimant’s suit and award cost to the Defendant. 

 

In response to the Defendant’s address, the Claimant filed her final written address on the 30^th of October, 2025 and arising therefrom, counsel to the Claimant, O.S. Mkpuma Esq. formulated two issues for determination to wit: 

          i.        WHETHER OR NOT THE DEFENDANT HAS BREACHED EXHIBIT C2 AND LIABLE TO PAY TO THE CLAIMANT 21DAYS PAID ANNUAL LEAVE PER YEAR FOR FOUR (4) YEAS AND SALARIES FOR THE MONTH OF MARCH AND APRIL 2022 RESPECTIVELY.

        ii.        WHETHER OR NOT THE CLAIMANT IS ENTITLED TO RELIEFS F, 4, I AND J (sic).

In arguing issue one, counsel posited that the relationship between the claimant and defendant was not governed by statute but primarily governed by Exhibit C2 which is the letter of Appointment issued to the Claimant by the defendant which by law means that the relationship is that of master-servant relationship whereby the employer can terminate for any reason or no reason at all. 

 

Counsel argued that the Defendant was not faithful to Exhibit C2 and the defendant's refusal and failure to comply with the Exhibit C2 in line with relief B and G amount to total breach of contract/relationship between the claimant and the defendant. Counsel added that the defendant in its defence has failed to show the court the reason for not paying the claimant the reliefs B andG, as contained in Exhibit C2.

 

Counsel argued that the Defendant did not present anything to show that the Claimant waived her annual leave for the four years while admitting that she worked for four years while also not denying that the Claimant worked in the month of March and April.

 

In arguing issue two, counsel submitted that it is trite in law that damages are such as the law presumes to be the direct and proximate consequences of the act complained of, assessed by the opinion of a reasonable man. Counsel cited the cases of Mobil Oil Nigeria Plc V. Barbedos Cars Ltd (2016) LPELR - 41603(CA) and Daniel Chinoha Bernard & Anor V. FCMB Ltd (2022) LPELR- 58194 (CA).

 

Counsel also argued that it is a fundamental and well-settled principle that the terms and conditions of employment are the bedrock upon which any claim predicated there upon must rest and where an employee complains wrongful termination, he must: (i) Place before the court the terms of the contract; (i) Prove the manner in which the terms were breached by the employer. Counsel cited the cases of U.T.C Nigeria Ltd. V. Peters (2009) LPELR - 8426(CA) and Organ & Ors V. Nigeria Liquefied Natural Gas Ltd. & Anor (2013) LPELR.

Counsel added that in the instant case, there is certainty of contract for which the Defendant was in breach without any reason as contained in Exhibit C2 by refusing to pay the claimant the monies she had worked for before the termination of her employment and this action of the defendant has cause a lot of pains, frustration, hardship and even the cost of litigating over the monies she had worked for.

 

Counsel concluded by urging the court to exercise its discretion by making award for the damages in favour of the claimant against the defendant.

 

In view of all the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, observed their demeanour, and assessed all the exhibits tendered and admitted. I have also taken into account the submissions of learned counsel for both parties in their respective final written addresses.

 

Arising from the totality of the issues raised and argued, the sole issue for determination in this suit is:

 

Whether the Claimant is entitled to the reliefs sought in view of the facts and circumstances of this case and the evidence before the Court.

 

In resolving this issue, I must state from the outset that five of the reliefs sought by the Claimant are declaratory in nature. The burden of proof in such claims lies squarely on the Claimant. The remaining reliefs are consequential and dependent on the success of the declaratory reliefs.

 

On the nature of declaratory reliefs, the Court of Appeal in Friday & Ors v. Governor of Ondo State & Anor (2012) LPELR-7886 (CA) stated:

 

“Black’s Law Dictionary (9th ed.) defines declaratory relief as a unilateral request to a court to determine the legal status or ownership of a thing. A declaratory judgment merely declares the rights of the parties. However, in seeking a declaratory relief, a claimant may go further in the same action to seek consequential orders, which become enforceable upon the declaration being made in his favour.”

— Per Kekere-Ekun, J.C.A. (as she then was) (P.40, paras. A–C)

 

Similarly, in Ikuma v. Civil Service Commission, Benue State & Ors (2012) LPELR-8621 (CA) the Court held:

 

“Declaratory reliefs are not granted as a matter of course but on credible evidence led. This is so even where the other party admits the claims.”

— Per Tsamiya, J.C.A. (P.22, para. A)

 

The principle was further reinforced in Sijuade v. Oyewole (2011) LPELR-4869 (CA) where the Court held:

 

“In an action seeking declaratory relief, an admission by the defendant does not automatically entitle the claimant to judgment. The claimant must succeed on the strength of his own evidence.”

— Per Adumein, J.C.A. (P.32, paras. B–E)

 

The next question that naturally arises from the foregoing authorities is:

 

“What specific legal rights does the Claimant seek to have declared as arising from the instant suit, and has the Claimant satisfactorily established the existence of such rights in view of the facts, circumstances and evidence placed before this court”.  

 

In answering this question, it is evident from the declaratory reliefs sought that the Claimant prays the court to declare among others the termination of her employment without reason or notice is wrongful, that the Defendant’s refusal to allow her to proceed on annual leave for a period of 4 years is unlawful and that the Defendant’s failure to provide proof of remittances in respect of pension contribution, tax deduction and life insurance cover is equally unlawful.

 

With regards to discharge of the burden of proof, the law is also settled in terms of what the Claimant should present before the court to be entitled to declarations when the issue is related to termination of employment. In this regard, the court in U.T.C. NIGERIA LTD. V. PETERS (2009) LPELR-8426(CA) held that:

 

"It is a fundamental and well settled principle, that the terms and conditions of employment is the bedrock on which any claim predicated thereupon ought to squarely rest. Thus, where an employee as in the instant case, complains of a wrongful termination of his employment, he has the onus:

 

(i) To place before the trial court the terms of the contract of employment;

 

(ii) To prove the manner in which the said terms were breached by the employer thereof. See JOMBO V. PEFM (2005).14 NWLR (part 945) 443; AKINFE V. UBA PLC (2007) 10 NWLR (Part 1041) 185 at 196 paragraph H; 199-200 paragraph G-C." Per SAULAWA, J.C.A (P. 41, paras. A-D)

 

In an attempt to establish her case, the Claimant tendered her letter of employment as Exhibit C2 and email correspondence as Exhibits C3–C5. Her case is that on 13th April 2022, she received an email notifying her that her contract conditions would be reviewed effective May 2022. She further contends that while she demanded payment of her March and April 2022 salaries, the Defendant instead issued a letter titled “Re: Dismissal from Duty” on 4th May 2022, terminating her employment without notice. She also claims unpaid leave allowance for four years.

 

The Defendant’s position is that the Claimant was incompetent and repeatedly absent from duty. It asserts that the Claimant was served with a 60-day notice of dismissal dated 18th February 2022 and was informed she would be paid her entitlements upon handing over company property in her possession. The Defendant contends that the Claimant was never confirmed as a permanent staff due to incompetence, and therefore not entitled to leave benefits.

 

The Defendant tendered, amongst others:

·         Claimant’s Appointment Letter and Induction Certificate – Exhibit D2

·         Non-Disclosure Agreement — Exhibit D3

·         Condition of Service — Exhibit D4

·         Email correspondence — Exhibits D8–D10

·         Pension schedule — Exhibit D15

·         Group Life Policy — Exhibit D17

·         Notice of Dismissal dated 18th February 2022 — Exhibit D20

 

Upon evaluation, it is clear from Exhibit D20 that the Claimant was indeed issued a notice of dismissal dated 18th February 2022. The document expressly states that she was given 60 days’ notice of the company’s intention to dismiss her, citing incompetence, persistent absenteeism, and financial loss to the company arising from negligence.

The Claimant contended in her Reply to the Defendant’s Statement of Defence that she was never served with the said notice of dismissal. That assertion is, however, not credible in view of the fact that Exhibit D20 is accompanied by an email correspondence dated 18th February 2022 at 11:05 a.m., bearing the subject:

“Notice of Dismissal from Duty,” sent from ceo@ohenmergegroup.com to victoria.ohioha@ohenmergegroup.com. The Claimant merely asserted non-service of the notice; she did not challenge the authenticity of the accompanying email particulars.

 

The body of the email reads:

 

“Dear Victoria,

Kindly find attached a copy of the notice of dismissal from duty. Do read very well and acknowledge receipt of this mail.”

 

What is instructive from the above is that the Claimant was informed that she had 60 days’ notice, and she was also informed of the reason for her dismissal. When the pieces of evidence are aligned, the Defendant’s narrative becomes plausible, particularly because the Claimant herself admitted that on 4th May 2022 she received an email titled “Re: Dismissal from Duty.” The prefix “Re:” denotes reference to an earlier communication. It therefore strongly supports the inference that the Claimant had earlier received Exhibit D20, notwithstanding her denial.

In addition, the WhatsApp messages tendered as Exhibits D6 and D7, dated 24th September 2021, pre-date the dismissal notice and show complaints of lateness and absenteeism — forming the background to the dismissal communicated in February 2022.

 

I must also add that Exhibit C2, the Claimant’s letter of employment, contains no clause mandating notice prior to termination. While the term used by the Defendant is “dismissal,” Exhibit D4 — the Defendant’s Conditions of Service — provides under Clause 7.1 that employees at Manager grade and above are entitled to two months’ notice, and separately defines dismissal as a sanction normally occurring after gross misconduct has been established. Although the Claimant argued that she was never given the Conditions of Service, the 60-day notice contained in Exhibit D20 is in fact consistent with it.

 

I am not unmindful of the confusion arising from the interchangeable use of “termination” and “dismissal.” The Claimant pleaded “termination,” whereas the Defendant used “dismissal.” Most importantly, however, the Claimant was afforded notice, whereas dismissal ordinarily takes immediate effect. If the Claimant’s real complaint were a lack of fair hearing prior to dismissal, such complaint was not pleaded.

 

Relief One clearly seeks a declaration that she was not given notice and was not informed of the reason for termination. Exhibits D20 and D8 conclusively prove otherwise.

 

In all and as reiterated by the court of Appeal in National Union of Civil Engineering Construction Furniture & Wood Workers v. United Bank for Africa Plc & Ors (2010) LPELR-4584 (CA), the Court held that a Court is not permitted to reformulate a case or reliefs for a party. Guided by that principle. The claimant bears the burden of establishing by credible evidence, the factual foundation upon which the declaration sought in Relief one maybe granted.

 

In the present case, the evidence before the court does not support the Claimant’s assertion that she was neither given notice nor informed of the reasons for the termination of her employment. There is nothing before the court to substantiate the allegation of lack of notice or absence of justification.

 

A declaratory reliefs cannot be granted on mere speculation but upon clear, cogent and convincing proof. The Claimant having not discharged this burden, there is no legal or factual basis upon which the court can make the declaration sought.

 

Accordingly, Relief One fails and is hereby refused.

 

Relief Two seeks for a declaration that the Defendant’s refusal to allow the Claimant proceed on twenty-one (21) days’ paid annual leave for a period of four (4) years is unlawful and contrary to the terms of her employment.

 

The evidence relied upon by the Claimant in support of this relief is Exhibit C2 — her letter of employment — which expressly provides that she shall be entitled to twenty-one (21) working days’ paid annual leave.

 

While the Claimant alleges that the Defendant refused to allow her proceed on leave during the four-year period in question, there is nothing in her witness deposition on oath specifying the particular occasions on which she applied for leave and was refused. It is only in her further deposition that she asserts that she applied “several times” and that the Defendant kept postponing same. She also stated an intention to rely on emails dated 15th and 16th September 2021; however, no such emails were tendered in evidence before this Court to demonstrate either an application for leave or a refusal thereof by the Defendant.

 

It bears reiterating that declaratory reliefs are not granted on mere assertions, neither do they rest upon the weakness of the Defendant’s case or even upon admissions. They must be established by credible, cogent, and convincing evidence emanating from the party seeking same.

 

I am not unmindful of the Defendant’s contention that the Claimant was not entitled to annual leave because she was allegedly unconfirmed. This contention is unsustainable, as Exhibit C2 contains no stipulation that the Claimant was on probation or that entitlement to leave was contingent upon confirmation of employment. Nevertheless, the declaration sought in Relief Two is not that the Defendant failed to pay leave allowance; rather, the Claimant seeks a declaration that she applied to proceed on leave and the Defendant refused to permit her to do so.

 

Within the strict scope of that declaratory claim, there is no scintilla of evidence before this Court demonstrating that the Claimant ever applied for annual leave in any given year and that such application was refused by the Defendant.

 

In the absence of such evidence, the Claimant has failed to discharge the burden required for the grant of a declaratory relief. Accordingly, Relief Two lacks merit and is hereby refused.

 

Reliefs Three, Four and Five seek “declarations that the Defendant acted unlawfully in failing to provide proof of payment of pension contributions, tax remittances and life-insurance coverage in favour of the Claimant. For clarity, the reliefs state as follows:

 

3.    A DECLARATION that the Defendant’s refusal to show proof of payment of any pension scheme to the Claimant as stated in her contract of employment is illegal, unlawful and contrary to the terms of employment.

4.    A DECLARATION that the Defendant’s refusal to show proof or issue receipt of tax deductions from the Claimant’s salary for four (4) years is illegal and unlawful.

5.    A DECLARATION that the Defendant’s refusal to enroll the Claimant in a life-insurance scheme, and other related insurance cover as provided in her letter of employment, is unlawful and contrary to the terms of employment.

 

It is pertinent to state that these reliefs are declaratory in nature, and therefore the Claimant bears the burden of establishing, by credible and positive evidence, the factual foundation upon which the declarations may rest.

 

I observe, however, that in the Claimant’s primary Statement of Facts, she did not plead any fact showing that at any time during the subsistence of her employment she requested proof of pension remittances, tax deductions or insurance enrolment, nor that such requests were refused. There is similarly no pleading that such deductions were not made, nor any allegation that she suffered prejudice as a result. Ordinarily, the failure to plead such foundational facts is sufficient for the Court to decline consideration of these claims.

 

Nevertheless, since the Defendant joined issues on these matters in its pleadings and proceeded to place evidence before the Court, I shall evaluate same.

 

The Defendant averred that it complied with statutory obligations by:

·         remitting pension contributions into the Claimant’s Retirement Savings Account (RSA);

·         deducting and remitting PAYE tax on her behalf; and

·         enrolling her in statutory group life and social insurance schemes.

 

In support, the Defendant tendered the following:

1.     Exhibit D15 — pension remittance schedule and cheque details confirming payment to ARM Pension Managers Plc, showing the Claimant’s RSA Number PEN200423597733.

2.    Exhibit D19 — PAYE remittance schedule submitted to the Rivers State Government, wherein the Claimant is expressly listed.

3.    Exhibits D17 and D18 — comprising:

·         the Group Life Insurance Policy issued by Royal Exchange Prudential Life, naming the Claimant among insured employees; and

·         correspondence to the NSITF dated 26th March 2018, forwarding the Claimant’s details for statutory employee compensation coverage, together with contribution schedules.

 

These documents speak for themselves and establish, prima facie, that the Defendant indeed complied with the statutory and contractual duty to:

·         deduct and remit pension contributions;

·         deduct and remit PAYE tax; and

·         enroll the Claimant for insurance cover.

 

On the other hand, the Claimant neither pleaded nor proved:

·         that the Defendant failed to make such remittances; or

·         that any lawful request for proof was made and refused; or

·         that she suffered loss or detriment arising therefrom.

 

It must be emphasized that this Court cannot grant declaratory reliefs in abstract, or based on speculation, or merely because an employer failed to volunteer proof unsolicited. Reliefs Three, Four and Five presuppose a wrongful refusal to provide proof, yet no factual foundation was laid to show refusal, whereas the Defendant has positively established that the statutory obligations were duly complied with.

 

Accordingly, the Court finds that the Defendant has discharged the evidential burden placed upon it, while the Claimant has failed to establish any breach of duty.

 

In the circumstances, Reliefs Three, Four and Five are completely devoid of merit and are hereby refused.

 

Relief Six seeks “The sum of ?50,000,000.00 (Fifty Million Naira) as damages for breach of the terms of employment contained in the employment letter dated 27th December 2017.”

 

It is clear from the pleadings that this relief is predicated on alleged breach of contract, namely the breach of the Claimant’s letter of employment — Exhibit C2. Although the Claimant did not expressly identify the specific clause alleged to have been breached, it is reasonably inferable from her pleadings and evidence that the alleged breach relates primarily to:

·         the non-payment of her March 2022 salary, and

·         the non-payment of the annual leave allowance allegedly due for the four years she served with the Defendant.

 

This is consistent with the email exchanges admitted as Exhibits C3–C5, which predominantly centered around requests for payment of outstanding salary.

 

Learned counsel for the Claimant also framed an issue arising from breach of Exhibit C2, particularly on the failure to pay leave allowance and the outstanding salaries for March and April 2022.

 

The Defendant’s response was that the Claimant was not entitled to paid leave because she had not been confirmed as a permanent employee. However, Exhibit C2 contains no provision suggesting probation, nor any clause conditioning leave entitlement upon confirmation. I had earlier held that the Claimant’s leave entitlement accrued annually upon each completed year of service. Consequently, failure to pay accrued leave allowance constitutes a breach of the express terms of Exhibit C2.

 

With respect to the unpaid salaries for March and April 2022, the Defendant did not deny withholding same. Its justification was that the Claimant allegedly failed to perform assigned duties and failed to return company property in her possession.

 

Upon examining the email trail in Exhibits C3–C5 and C8, it is beyond dispute that the Claimant persistently demanded her March salary. The Defendant’s Managing Director responded by requesting financial work files (“TB” and “GL”), and that a certain Mary must be on ground for the Claimant to show where she  kept all the vital documents while indicating that payment was being withheld pending assessment of alleged losses. On 4th May 2022, the Claimant wrote stating that she had been waiting at the company premises for the said Mary to finalize hand-over, yet payment was still not made. The Defendant replied that payment would only be made “after seeing the damages caused.”

 

In my view, this position is untenable.

Salary or wages arises as consideration for services rendered. The Labour Act (Section 91) defines wages as:

 

“remuneration or earnings… payable by virtue of a contract by an employer to a worker for work done or to be done or for services rendered or to be rendered.”

 

Once work is substantially performed within a given salary cycle, the right to salary crystallizes. Even where an employer alleges lapses or dereliction of duty, the proper remedy lies either in appropriate disciplinary action or proportionate deduction but not the outright forfeiture of earned salary.

 

Thus, even if hypothetically some duties remained outstanding, the Defendant had no lawful basis to withhold the entirety of the Claimant’s monthly salary. The obligation under Exhibit C2 to pay agreed monthly remuneration at the end of each month is absolute. Non-payment amounts to breach of contract.

 

Accordingly, I find that the Defendant breached Exhibit C2 in at least two key respects:

1.     Failure to pay accrued leave allowance; and

2.    Failure to pay salaries for March and April 2022.

 

Having so found, the question that follows naturally is what remedy is applicable in the circumstances.

 

The Claimant seeks ?50,000,000.00 as general damages. However, the Court is guided by Section 19(d) of the National Industrial Court Act 2006, which empowers the Court to award compensation or damages considered just in the circumstances of the case.

 

In exercising this discretion, the Court considers:

·         the nature of the breach

·         the employment relationship

·         the period affected

·         the need to compensate, not punish

It would not be justifiable, on the facts, to grant the full sum of ?50,000,000.00 as claimed, bearing in mind that the breach relates to unpaid contractual entitlements rather than egregious or oppressive conduct.

Nevertheless, the Claimant is entitled to reasonable general damages to cushion the hardship occasioned by the unlawful withholding of salary and failure to honour financial terms of employment.

 

Accordingly, I hold that Relief Six succeeds in part, and pursuant to Section 19(d) of the National Industrial Court Act 2006, I award the sum of ?2,000,000.00 (Two Million Naira) as general damages against the Defendant for breach of the employment contract dated 27th December 2017.

 

Relief Seven seeks “Full monthly salary/allowances from March 2022 until the determination of this suit.”

 

This Court has already found that the Defendant failed to pay the Claimant her salaries for March and April 2022, and that her employment came to an end in April 2022. There is no evidence that the Claimant continued to render services to the Defendant thereafter. Accordingly, the Claimant cannot validly claim salaries beyond the termination of her employment.

 

However, having established that the Claimant duly earned her salaries for the months of March and April 2022, and same remain unpaid, she is entitled to those outstanding sums.

 

Consequently, Relief Seven succeeds only to that limited extent, and this Court hereby orders the Defendant to pay to the Claimant her full salaries for the months of March and April 2022.

 

Relief Eight seeks “The sum of ?30,000,000.00 (Thirty Million Naira) as severance benefit.” I have carefully examined the Claimant’s statement of facts, her witness statement on oath and the documentary exhibits tendered.

There is, however, no pleading or evidence showing that the Defendant operates a severance policy or explaining how the Claimant became entitled to any severance benefit, nor how the specific figure of ?30,000,000.00 was computed. This court is therefore in no position to speculate as to the existence, content or applicability of any alleged severance benefit arrangement in favour of the Claimant. Courts of law decide issues on the basis of credible evidence and not based on conjecture or assumptions.

 

In the case of EJEALOR & ORS v. GOV OF IMO STATE & ORS (2017) LPELR-42290(CA) the court held that:

 

"There are many cases dealing with what constitutes academic question. See in this regard the case of PLATEAU STATE OF NIGERIA V. ATTORNEY-GENERAL OF THE FEDERATION (2006) LPELR-2921 (SC) wherein Tobi, JSC, (now of blessed memory) said thus: "... A suit is speculative if it is based on speculation. A suit is speculative if it is not supported by facts or very low on facts but very high in guesses. As Courts of law are not established to adjudicate on guesses but on facts, such actions are struck out. A suit is hypothetical if it is imaginary and not based on real facts. A suit is hypothetical if it looks like a "mirage" to deceive the defendant and the Court as to the reality of the cause of action. A suit is hypothetical if it is a semblance of the actuality of the cause of action or relief sought." See also SALIK V. IDRIS (2014) LPELR-22909 (SC) "Per LOKULO-SODIPE. J.C.A. (Pp. 47-48, Paras. D-D).

In addition, the court in the case of U.T.B. v. Ozoemena (2007) 3 NWLR (P1.1022) 448 held that:

"A court is not entitled to assume or speculate anything. It is dangerous and unfair to do so. Often times, it leads to a miscarriage of justice as appears in the instant case." Per Ogbuagu, JSC. (P. 47, paras. D-E).

 

Given the total absence of factual or contractual basis establishing entitlement to severance benefit — let alone the quantum claimed — Relief Eight is ungrantable, devoid of merit and is accordingly refused.

 

Relief nine is for “the sum of N20,000,000.00 (Twenty Million Naira) only as damages for the emotional, physical and psychological trauma and health challenges suffered by the Claimant as a result of the unlawful termination of her employment without notice.”

 

This relief is clearly predicated on two essential pillars:

1.     that the termination of the Claimant’s employment was unlawful; and

2.    that the said termination occasioned the Claimant some recognizable emotional, physical or psychological trauma or health challenge warranting compensation.

 

With respect to the first foundation of the claim, this Court had earlier found that the Claimant was duly notified of the intention to terminate/dismiss her employment via Exhibit D20 and that reasons were also conveyed therein. In the light of that finding, the determination of the Claimant’s employment cannot, in law, be characterized as unlawful. Having failed to establish that her exit from employment was wrongful or unlawful, the basis upon which damages are sought in this relief automatically collapses. It is trite that where there is no wrong, there can be no remedy.

 

Turning to the second component, it is incumbent on the Claimant to plead material facts and lead credible evidence to show that she indeed suffered emotional distress, physical trauma, psychological injury, or health complications traceable to the acts of the Defendant. I have carefully reviewed the pleadings and evidence before this Court, and I find that there is a complete absence of:

·         any pleading describing the nature, extent, or diagnosis of the alleged trauma or health challenge;

·         any medical report, prescription, hospital record or expert evidence linking such condition to the termination of employment; or

·         any witness evidence corroborating the assertion of psychological or emotional injury.

 

This Court cannot proceed on conjecture or assume the existence of facts not proved.

 

The law is well settled that he who asserts must prove. Where a party claims damages, especially of the nature sought here, the Court must be satisfied through credible evidence that the alleged injury indeed occurred and was occasioned by the wrongful conduct of the opposing party. In the instant case, not only has the Claimant failed to prove the alleged trauma or health challenge, the very premise upon which the damages are sought—namely that the termination was unlawful—has not been established.

 

Accordingly, I hold that the Claimant has failed to establish any factual or legal basis for the award of the sum of ?20,000,000.00 as damages for emotional, physical or psychological trauma.

 

Relief nine therefore fails and is hereby refused

 

Relief Ten seeks “The sum of ?20,000,000.00 (Twenty Million Naira) as exemplary damages for breach of the letter of employment.”

 

The law is settled that exemplary damages are awarded only in limited and exceptional circumstances.

 

Exemplary damages is a unique class of damages and in describing the circumstance where the said damages is awarded, the Supreme court in Allied Bank (Nig.) Ltd v. Akubueze (1997) 6 NWLR (Pt. 509), where it was held that exemplary damages are awardable only:

 

1.     for oppressive, arbitrary or unconstitutional acts by government officers,

2.    where the defendant’s conduct is calculated to profit from wrongdoing, or

3.    where expressly authorized by statute.

 

The Claimant has not pleaded or proved any circumstance falling within these exceptions. While I have awarded general damages for breach of the contract of employment, the facts of this case do not warrant the additional punitive sanction of exemplary damages.

 

Accordingly, Relief Ten is refused.

 

In the light of all the foregoing, and having carefully considered the pleadings, evidence and submissions of counsel, the sole issue for determination is resolved partly in favour of the Claimant, to the extent that the Claimant is entitled only to:

 

1.     General damages in the sum of ?2,000,000.00 (Two Million Naira) for breach of contract, pursuant to Section 19(d) of the National Industrial Court Act 2006; and

2.    Payment of her full salaries for March and April 2022.

 

In the final analysis, the case of the Claimant is only meritorious in the extent to which Reliefs 6 and 7 have been granted.

 

All other reliefs lack merit and are hereby dismissed in their entirety.

 

Judgment is accordingly entered.

 

I make no order as to costs.

 

 

……………………………………………………………….

HON. JUSTICE Z. M. BASHIR, Ph.D.

JUDGE