NICN - JUDGMENT
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP: HON. JUSTICE R. H. GWANDU
DATE: 13th June, 2023
SUIT NO.:NICN/LA/178/2019
BETWEEN:
NKECHI CATHERINE OGBONNAH - CLAIMANT
AND
MIKANO INTERNATIONAL LIMITED - DEFENDANT
Representation
Efe Ize-Iyamu with Adekunmi Adeoti for the Claimant
Oyinkansola Badejo-Okunsanya Atilolaoluwa Taiwo-Nsirim and Adekola Thompson for the Defendant
JUDGMENT
This suit was commenced by the Claimant against the Defendant vide a Writ of Summons and Statement of Fact dated 10th of April 2021. The Claimant with leave of Court filed an Amended Statement of Fact dated 16th February 2021. The Claimant sought the following reliefs-
1. A DECLARATION that the Defendant’s termination of the Claimant’s employment is wrongful, unlawful and a breach of the terms of the Contract of Employment dated 12th day of September 2018.
2. A DECLARATION that due to the failure of the Defendant to properly terminate the Claimant’s employment, the Claimant’s employment continues until the definite and fixed period of two year (12th September 2018 to 11th September 2020)
3. AN ORDER that the Defendant pays the sum of ₦1,800,000 (One Million Eight Hundred Thousand Naira) being salary in lieu of notice of termination of the Claimant’s employment.
4. AN ORDER that the Defendant pays the Claimant the sum of ₦39,600,000 (Thirty-Nine Million Six Hundred Thousand Naira) being the total sum of salary the Claimant is entitled to for the remaining Twenty-two (22) months of her fixed two-year employment at ₦1,800,000 (One Million Eight Hundred Thousand Naira) per month based on clause 4 of the Contract of Employment.
5. General Damages in the sum of ₦50,000,000 (Fifty Million Naira) for breach of the Contract of Employment and the financial, physical, psychological, and emotional trauma the Claimant experienced as a result of the Defendant’s sudden termination of her employment.
Particulars of financial, physical, emotional, and psychological traumas suffered
a. Emotional distress – depression, anxiety, and loss of sleep.
b. Financial hardship – the Claimant has lost her sole source of income which has led to untold hardship, as the Claimant is unable to pay her bills and afford her usual comfortable and reasonable living. The Claimant’s rent is about to expire, and she is fearful of becoming homeless as she is unable to pay.
c. Loss of benefits – The Claimant has because of the Defendant’s termination of her employment lost the benefits of health insurance, housing, car, travel and leave allowance which she would have been entitled for the period of two (2) years based on the Contract of Employment.
d. The Claimant has suffered physically, as her health has been severely affected, her blood pressure is high from the trauma of losing her job so unexpectedly amongst other health issues. The Claimant can no longer afford to pay any hospital bills due to the loss of her appointment with the Defendant.
e. The Defendant’s sudden termination of the Claimant’s employment has caused a decline in the Claimant’s professional reputation.
6. The sum ₦1,000,000 (One Million Naira) being the cost of this action.
The Defendant also filed its Amended Statement of Defence and Counter Claim both dated 14th December 2021.
The Claimant then filed her Reply and Defence to Counter Claim both dated the 24th of February 2022.
BRIEF FACTS OF THE CASE.
The Claimants case is that she was employed by the Defendant vide a letter of employment dated 12th September 2018 as Director of Shared Services. And that the said letter stated that “The duration of your employment will be for 2 (two) years with a probation period of 6 (six) months and may be extended for a further period by mutual agreement.”, that by a letter dated 15th December 2018, the Defendant terminated the employment of the Claimant barely 2 (two) months after employment since she resumed at the Defendant’s Company on the 15th of October 2018. That all through her employment there was no allegations against her as she maintained a clean record and was professional at all times, that she was only paid N900,000 instead of N1,800,000 in lieu of notice despite her not owing the company anything.
The Defendant’s defence to the Claimant’s claims is that her employment was not for a fixed period of two years since the contract of employment was terminable by either party upon giving the agreed notice or salary in lieu thereof, that the employment letter does not signify that the employment duration was for a fixed or definite period of two years. Also, that the contract of employment was subject to a six-month probationary period, which the Claimant was still undergoing at the time of termination.
The Defendant also denied liability for the other financial entitlements claimed by the Claimant, that the termination of the Claimant’s employment came after a verbal reprimand from the Managing Director for her failure to carry out assigned tasks. No written queries were issued, and that the Claimant failed in her assigned responsibilities and since she was still on probation and given the fast-paced nature of the work, there were no written queries issued.
Regarding failure to give the Claimant notice of termination of her employment or payment in lieu of notice, the Defendant maintained that it had no such obligation and relied on its Employee Handbook and that it paid the Claimant a pro-rated salary for the month of December 2018 when her employment was terminated given that she worked only for half month.
Trial commenced on the 23rd of May 2022 and the Claimant called one witness; Nkechi Catherine Ogbonnah the Claimant. The lone witness adopted her witness depositions on oath sworn to on the 10th of April 2019, 16th of February 2020, 23rd November 2020 and 24th of February 2022 respectively.
The Defendant’s lone witness Mr. Joshua Adigun, was also cross-examined on the 23rd of May 2022.
After parties had closed their cases, the matter was adjourned for adoption of final written addresses. The Defendants final written address was filed on the 14th June 2022 and Counsel to the Defendant raised the following issues for determination by this Honourable Court to wit-
1. Whether the Medical Report issued by La Futura Hospital dated 16 March 2019 - Exhibit NCO 2 is admissible in law.
2. Whether by virtue of the Claimant’s letter of employment dated 12 September 2018, the Claimant’s employment was for a fixed and definite period of two (2) years.
3. Whether by the combined reading of the Letter of Employment dated 12 September 2018 and the Defendant’s Employee Handbook, the Defendant lawfully terminated the Claimant’s employment without the need for notice or payment of salary in lieu of notice.
4. Whether or not the Claimant’s claims for salary for the purported unexpired period of her employment and for one month salary in lieu of notice of termination are contradictory.
5. Whether in light of the evidence before the court, the claimant has successfully proved her claims and become entitled to the reliefs being sought.
The Claimants final written address was filed on the 10th August, 2022 and the Claimants Counsel raised the following issues for determination-
1. Whether having regard to the Claimant’s pleadings, and the totality of evidence at trial, the Claimant is entitled to the reliefs sought?
2. Whether the medical report from LaFutura Hospital dated 16th March 2019 is admissible in evidence.
The Defendant filed a reply on points of Law on the 18th August 2022.
ARGUMENT OF COUNSEL
Arguing issue one of the Defendants final written address, whether the Medical Report issued by La Futura Hospital dated 16 March 2019 (Exhibit NCO 2) admissible in law, Counsel submitted that during the course of trial, the Defendant objected to the admissibility of a Medical Report issued by La Futura Hospital dated 16 March 2019 on three grounds:
(i.) that the Claimant was not the author/maker and could not tender it;
(ii.) that no proper foundation had been laid for the document and
(iii.) that the document had been prepared in anticipation of trial by a person interested.
On the witness not being the author/maker of the document and no proper foundation had been laid for the document, that Exhibit NCO 2 which the Claimant sought to tender in evidence is documentary evidence, that ordinarily, any statement made by a person in a document which seems to establish a fact for which direct oral evidence would be admissible is admissible as evidence of that fact. The admissibility of such documentary evidence is however hinged on the fulfilment of certain conditions laid down in Section 83 (1) of the Evidence Act. A document containing a fact shall be admissible if:
i. The document is an original;
ii. It is produced by the maker;
iii. It is relevant to the facts in issue; and
iv. The maker of the statement either had personal knowledge of the matters in the document or came to know of the contents of the statement during the performance of a duty recording information supplied to him.
That it is the Defendant’s contention that the Claimant did not fulfil the conditions required by the law for the admissibility of the said document. It was not produced or tendered by the maker. There was no explanation as to the whereabouts of the maker and no proper foundation was laid for the tendering of the document by the Claimant and failure to fulfil these conditions for the admissibility of the document means that this court cannot admit it in evidence, or look review its contents. The reason is not farfetched. When a person who is not a maker tenders a document, the witness is not in a position to be cross-examined on the document. It is only the maker who can competently answer any questions asked. The purpose of the law requiring that a maker tenders a document is so that the maker can be cross-examined on the contents of the document. He cited the case of FRN V. SAMUEL (2017) LPELR-43417 (CA) arguing that the conjunctive implication of the arguments canvassed above is that the failure to have the maker of the Medical Report present in court to tender it and the inability to lay any foundation regarding the absence of the maker renders the document inadmissible before this Honourable court. Throughout the length and breadth of her evidence before the court, the Claimant failed to give any explanation for the maker’s absence, that the proper order for this Honourable Court to make in the circumstances will be to reject the document tendered by the Claimant on the basis that it was not tendered by the maker of the document, or in this case – where the court admitted the document and directed counsel to address it on its admissibility in the final written address – for the court to expunge the inadmissible document from its records. He also cited and relied on OMEGA BANK (NIG.) PLC V. O.B.C. LTD (2005) LPELR-2636 (SC) and EMMANUEL V. UMANA (2016) LPELR-40659 (SC).
On the document being prepared in anticipation of trial by a person interested, Counsel submitted that the Claimant instituted this suit on 10 April 2019. Before this, the Claimant’s solicitor had sent a Letter of Demand to the Defendant dated 5 February 2019 – which is tendered in evidence as Exhibit NCO 2. In the solicitor’s letter, the Claimant made a demand for payment of the sum of N91,400,000.00 (Ninety-One Million Four Hundred Thousand Naira Only) for the wrongful termination of her employment. The solicitors also stated in the letter that the termination of the Claimant’s employment had caused her emotional distress, depression, anxiety and loss of sleep, raised blood pressure due to the trauma of losing her job unexpectedly. The solicitors proceeded to threaten litigation if the Defendant did not comply with the demands made in the letter.
Interestingly, that the Medical Report issued by La Futura Hospital was dated 16 March 2019 and the conclusion of the Report tallies with the prior diagnosis made by the solicitors in the Letter of Demand as to the cause of the Claimant’s high blood pressure. Counsel submitted that the Claimant procured the Medical Report when the present legal proceedings were anticipated, as is shown above. In its penultimate paragraph the report stated: “She reported she had been quite anxious concerning her unemployed status and had been dealing with legal issues related to her termination from her job.” This statement is enough to show the intent and purpose of preparing the Report. It was specifically made for use in the present proceedings, which was already underway. It was simply a regurgitation of what the Claimant wanted to say in the instant case and the author tailored the Report to fit the purpose and that apart from the fact that the report was written at a time when proceedings were anticipated, the author of the report is a person interested and had written the report in line with the views and opinions of the solicitors. Counsel cited the case of JARMAN V. LAMBERT & COOKE (CONTRACTORS) LTD (1951) 2 KB 937; ROBINSON V. STERN (1939) 2 K.B. 260 arguing that the Medical Report, which was procured in anticipation of the present suit, and which was intended to prove a dispute as to a fact which the Report he further cited the case of ANAGBADO V. FARUK (2018) 6 – 7 SC (PT. IV) 111; (2018) LPELR-44909 (SC) and that in AKPAN V. STATE (1994) LPELR-382 (SC), the Supreme Court in considering whether a court is duty bound to exclude inadmissible evidence wrongly admitted held:
“An appellate Court has a duty to exclude inadmissible evidence wrongly admitted and to deal with the case on the basis of the remaining legally admitted evidence. See Ayanwale v. Atanda (1988) 1 NWLR (Pt. 68) 22.
He also relied on the case of ZENITH BANK V. NACOIL INT’L LTD (2017) LPELR-49973 (CA).
Arguing issue Two; whether by virtue of the Claimant’s letter of employment dated 12 September 2018, was the Claimant’s employment was for a fixed and definite period of two (2) years, Counsel submitted that the Claimant’s claim before this honourable court is that her employment with the Defendant was for a definite period of two (2) years. At paragraph 4 of her Amended Statement of Facts, she placed reliance on the Letter of Employment dated 12 September 2018, the job description issued by the Defendant and the Employee Handbook of the Defendant, all tendered in evidence at the trial and that in its defence, the Defendant has denied this claim and relied on the terminability of the contract and the probation period to explain that a holistic reading of all the documents relied upon by the Claimant would reveal that the Claimant’s employment was not for a fixed and definite period of two (2) years, as wrongfully surmised by the Claimant. He argued that on interpretation of documents, the law is clear that documents are not to be interpreted in pockets or in isolation but are to be interpreted as a composite whole. Relying on the cases of NORTHERN ASSURANCE CO. LTD V. WURAOLA (1969) LPELR-25562 (SC) and AKINLADE V. AYINDE (2020) LPELR-49592 (CA) he submitted that it is without a doubt that a court has a bounden duty to interpret documents tendered in evidence as a whole and must not read any part in isolation. Furthermore, it has the duty to ensure that different parts of the document are interpreted in light of the whole document and must make an effort to ensure that the different parts of the document are given a harmonious interpretation, to avoid absurdity and that in the instant case, the relevant portions of the Letter of Employment dated 12 September 2018 are:
“We are pleased to offer you employment in the company as Director of Shared Services for a period of two (2) years under the following terms and conditions.
Terms and Conditions of Service
2. The duration of your employment will be for 2 (two) years with a probation period of 6 (Six) months and may be extended for a further period by mutual agreement.
5. During your stay in Nigeria, you will be provided with furnished accommodation (after the end of the probation period).
8. The company reserves the right to terminate this agreement by giving one month written notice to the employee. In the case of any misconduct and breach of rules and regulations the company reserved the right to terminate the employment with immediate effect. The employee may terminate the agreement by giving one month’s notice to the company.”
Counsel argued that a holistic interpretation of the above quoted portion of the Letter of Employment shows that the parties did not intend for the contract of employment to be for a fixed and definite term, that the employment was subject to a 6-month probationary period and the contract clearly gave the Defendant the right to terminate the Agreement. Furthermore, the contract specifies that in the case of any misconduct and breach of the rules and regulations of the company, the Defendant reserved the right to terminate the employment with immediate effect, that it is elementary law that a court can and must only act on the evidence placed before it by the parties and must not speculate or assume facts not presented to it by the parties as held in KOTUN V. OLASEWERE (2010) 1 NWLR (PT. 1175) 411 and TORNO INTERNAZIONALE NIG LTD & ANOR V. FSB INT’L BANK PLC (2013) LPELR-22616 (CA).
Arguing issue Three; whether by the combined reading of the Letter of Employment dated 12 September 2018 and the Defendant’s Employee Handbook, did the Defendant lawfully terminate the Claimant’s employment without the need for notice or payment of salary in lieu of notice, Counsel submitted that the letter of employment dated 12 September 2018 reserves the Defendant’s right to terminate the employment agreement by giving one month’s written notice to the employee. It also gives the Defendant the right to terminate the employment relationship with immediate effect when there is a case of any misconduct or breach of rules.
Counsel submitted that the Letter of Employment and Defendant’s Employee Handbook clearly indicates that the Defendant may terminate an employee who is still on probation without giving notice. It is without a doubt that the Defendant acted well within the scope of its rights under the contract of employment when it summarily terminated the Claimant’s employment. Upon being sued in this action, the Defendant stated that the Claimant’s employment was terminated because of dereliction of duty, which is a breach of company rules and regulations. The Claimant under cross examination testified that dereliction of duties constitutes a breach of employment rules and also read out paragraph R. at pages 19 and 20 of Exhibit NCO 1 Page 1 – 28, also under cross-examination, the Claimant further testified that she wrote the email dated 30 November 2018 (Exhibit JA 1B) which explained her failure to complete her first major assignment, being the opening of the Lekki Branch scheduled for 1 December 2018. The Claimant failed in her obligation (dereliction of duty). The Claimant was clearly in breach of company rules and regulations and the Defendant was in a position to summarily dismiss without notice or payment in lieu of notice.
Arguing issue Four; whether the Claimant’s claims for salary for the purported unexpired period of her employment on the one hand, and for one month’s salary in lieu of notice of termination on the other are contradictory, Counsel submitted that the Claimant has set up her claims in a contradictory manner. In one breath, the Claimant agrees that her employment is terminable, upon giving one month’s notice or the payment of one month’s salary in lieu of notice. In another breath, she has claimed that the employment was for a fixed and definite period of two (2) years and she is therefore entitled to salaries for the twenty-two (22) months remainder of the term, that these sets of claims are contradictory and ought not to be granted by the court given that the claims are not being sought in the alternative. Counsel argued that the law is clear that the court is not charity organisation and that the question that comes to mind is – what really is the Claimant’s case? Can her employment be terminated or is it for a fixed and definite term? It appears that even the Claimant herself is unable to answer this question as her pleadings and evidence led in this matter do not provide any clear direction on the claim s being sought and that a party is not allowed to approbate and reprobate and that is the effect of nature of claims placed before this court by the Claimant. It is trite law that a party must be consistent in the presentation of a case. As decided in the cases of SCOA (NIG) PLC V. TAAN & ORS (2018) LPELR-44545 (CA), COPYTECH DESIGN AND PRINT (NIG) LTD V. FIRST BANK (2021) LPELR-53521 (CA), GONIMI V. BOLORI (2021) LPELR-55155 (CA), and FORTE OIL V. FIDELITY FINANCE CO. LTD & ORS (2021) LPELR-55877.
Arguing further he submitted that the law is well settled that a court has the power to grant less that what was claimed by the parties and as proved in evidence before it as held in SCOA (NIG) PLC V. TAAN & ORS. (supra) and that the Claimant has failed to prove her entitlements to any of the claims before this court. First, the Claimant has confused her claims by approbating and reprobating and has therefore failed to concentrate on proving any entitlement either to one month’s salary in lieu of notice or her entitlement to salary for 22 months of the alleged unexpired term of her employment contract. Parties are bound by the terms of contracts willingly entered into by them. They are therefore not at liberty to resile from the terms of the contract. One of the Claimant’s obligations was to ensure that she brought the full impact of her experience to bear on fostering the Defendant’s business in the role she was employed to fill. However, instead of doing that, the Claimant failed woefully in her responsibilities. Seeing that the hire was a mistake in the first instance and seeing how much loss its business stood to face in light of the Claimant’s incompetence and breach of its rules and regulations, the Defendant was placed in the difficult position of terminating the Claimant’s employment, that the Defendant has adduced cogent and conclusive evidence to show that the Claimant was derelict in her duties to the company, a fact which the Claimant herself has not denied. The Defendant has also shown this Honourable Court that the contract of employment was not for a fixed and definite term. The irresistible conclusion is therefore that the Claimant has failed to prove her entitlement to the claims.
Also that it is worthy of mention that the same contract of employment being relied upon by the Claimant states that the contract may be terminated or extended and may be terminated by the Claimant. Had the case been that the Claimant resigned her employment, would it have been appropriate for the Defendant to bring a suit for breach of contract claiming for the remainder period or salaries from the Claimant? In other words, had the Defendant sought to extend the contract beyond the purported fixed and definite 2-year term, would it be appropriate for the Claimant to insist that the term was fixed and definite, and refuse to allow the Claimant to go? He submitted that the answer to the above analogies would be in the negative. As such, he urged this Honourable Court to find that the employment was rightfully terminated in accordance with the agreement between the parties and commended this Honourable Court to the Court of Appeal decision in FBN LTD V. STALLIONAIRE (NIG) LTD & ANOR (2022) LPELR-57330 (CA).
Arguing issue Five; whether in light of the evidence before the court, has the Claimant successfully proved her claims and become entitled to the reliefs being sought, Counsel submitted that the question that arises at the end of this trial is – has the Claimant placed sufficient evidence before this court to successfully prove her entitlement to the claims sought? And that unfortunately, the answer to that question is in the negative, that in analysing the above distilled issue for determination, the fulcrum of the Claimant’s action brought before this Honourable Court is that her employment was wrongfully terminated, and she is entitled to one month’s salary in lieu of notice; that the employment was for a fixed and definite term of two (2) years and she is entitled to salary for the unexpired term; and general damages as well as costs of the action.
On Wrongful Termination of Employment, he submitted that the Claimant’s case is largely unsupported by any verifiable or cogent evidence. In the first place, the employment was not wrongfully terminated, relying on KATTO V. CBN (1999) LPELR-1677 (SC) and U.T.C. (NIG) PLC V. PETERS (2022) LPELR-57289 (SC) counsel argued that in determining whether a termination of employment is wrongful therefore, the court must restrict itself to the terms of the contract. That is the source of the rightness or wrongness of the termination. In the instant case, the terms of the contract between the parties are contained in the Letter of Employment dated 12 September 2018 and the Defendant’s Employee Handbook. As argued in the earlier portion of this Written Address, the combined reading of these agreements shows that the Defendant had a right to terminate the employment without notice in the case of breach of company rules and regulations and in the case of employee on probation. The Claimant falls within these two categories and as the Claimant’s employment was not wrongfully terminated.
He submitted that judicial authorities are clear that an employee’s remedy for wrongful termination of employment lies in damages calculated on the basis of what he would have earned for the period it would take to properly terminate the employment and relied on OFORISHE V. NIGERIAN GAS CO. LTD (2017) LPELR-42766 (SC) arguing that the Claimant has asserted that this period is one month. The Defendant has maintained that in certain circumstances, the employee loses the entitlement to one month’s notice or salary in lieu of notice where certain terms and conditions, rules and regulations of the company are flouted, as the Claimant did in the instant case, also that further to the above, once the employment was not wrongfully terminated, there is no basis for the award of one month’s salary in lieu of notice.
On the issue of salary for 22 months being the unexpired period of purported Fixed Term Employment, Counsel submitted that the Claimant has prayed this court to declare that her employment was for a fixed and definite period of two (2) years and that given that she spent only two (2) months in the Defendant’s employment, she has become entitled to payment of her salary for the remainder of this period but that this head of claim remains unproven and that it is contradictory to the principal relief in this action. The principal relief being for wrongful termination of employment.
Also that a unique part of the Claimant’s claim that by Clause 2 of the contract of employment, the duration of the employment is for 2 years, but the contract is subject to a probation period of 6 months. Further, either party is entitled to terminate the employment upon giving one month’s notice of termination to the other party. The Claimant has relied on the said Clause 2 to contend that her contract of employment was for a fixed contract and therefore the Defendant could not validly terminate it before the expiration of the 2-year period.
On the contrary however, that the same contract also provided in Clause 8 that the Defendant reserved the right to terminate the agreement. This right was exercised by Mikano when it terminated the employment on 15 December 2018. The stipulated period of the employment does not automatically translate into giving the Claimant a claim for salaries for that period, since the Defendant had a right to terminate the contract at any time during the duration of the contract.
On general damages for breach of contract and loss as in tort, Counsel referred to the case of U.T.C. (NIG) PLC V. PETERS (Supra) and submitted that the Claimant claims general damages for breach of contract but has failed to adduce any evidence showing in what manner the contract of employment has been breached. The Claimant also claims general damages for physical and other losses she allegedly suffered due to the termination of her employment. he submitted that this is a tortious head of claim to which she is not entitled and has not proved any entitlement to. The Defendant had a contractual relationship with the Claimant, a relationship that was terminated in a manner specified by the contract of employment. There is therefore no basis upon which an award for general damages can be made and the Claimant has not successfully made out a case for one. He also relied on the Supreme Court case of MAIHAJA V. GAIDAM (2017) LPELR-42474 (SC) and that flowing from the above, the Claimant has presented her claims before this court and has the legal burden of proving her entitlement to these claims. The Claimant has failed to prove these claims. Counsel relied on the case of INAKOJU & ORS. V. ADELEKE & ORS. (2007) LPELR-1510 (SC) and urged this Honourable Court to dismiss the claims accordingly.
Arguing issue one of the Claimants final written address; Whether having regard to the Claimant’s pleadings, and the totality of evidence at trial, the Claimant is entitled to the reliefs sought, Counsel submitted that issue one shall be argued by raising and answering cogent sub issues/questions that are important for effective determination of the main issue and the questions are as follows:
a. Was the Claimant’s employment for a fixed term according to the employment letter dated 12th September 2018?
Counsel submitted that there has not been any dispute between parties on the employment of the Claimant by the Defendant. Both parties are at a consensus that indeed the Claimant was an employee of the Defendant from 15th October 2018 to 15th December 2018 consequent upon an offer of employment letter dated 12th September 2018, that a closer look at the introductory clause of the offer letter dated 12th September 2018 which reads thus “We are pleased to offer you employment in the company as Director of Shared Services for a period of two (2) years, under the following terms and conditions.”, the express mention of a thing is to the exclusion of others. The Contract/Letter of Employment by literal interpretation stated that the Claimant’s employment is for a period of two (2) years. There are no doubts whatsoever as to the intention of the Defendant who is the offeror – employer in this circumstance.
And that it was held in the case of IGBE V GOVERNOR OF BENDEL STATE (1983) 1 SCNLR 73 that where a contract of service is for a fixed term, that is, where the term of service is pre-determined at the commencement of the contract, the effect is that the employee cannot be removed during the period of the term contracted except for misconduct or where the employer dies. If the contract of an employee is determined before the expiration of the term agreed, the employer shall be made to pay the employee the full salary he would have earned for the unexpired period of the employee’s fixed contractual term. He also relied on the cases of GOV. OF IMO STATE & ORS. V. DELU ENT. (NIG) LTD. (2021) LPELR – 54724 (CA) per Per Ayobode Olujimi Lokulo-Sodipe, JCA (Pp 29 - 30 Paras F - B) arguing that the offer of employment letter speaks for itself, and oral evidence cannot contradict documentary evidence as held in AYORINDE V. KUFORIJI (2022) LPELR 56600 (SC) per Mary Ukaego Peter-Odili, JSC (Pp 91 - 91 Paras D - A).
b. Was the termination of the Claimant’s employment wrongful and a breach of the Employment Letter dated 12th September 2018?
Counsel submitted that the termination of the Claimant’s employment was a gross breach of the terms of the Claimant’s employment letter. Paragraph 8 of the Defendant’s employment letter provides that “The company reserves the right to terminate this agreement by giving one month written notice to the employee. In case of any misconduct and breach of rules and regulations the company reserves the right to terminate the employment with immediate. The employee may terminate the agreement by giving one month’s notice to the company” , that it can be gleaned from the termination of employment letter dated 15th December 2018 that the Claimant was not given a month written notice of termination of employment. The shocking introductory clause of the said letter of termination of employment reads that “The Management regrets to inform you that your employment with the company is hereby terminated with effect from December 15th 2018. That further to the foregoing paragraph, the Defendant’s sole witness upon cross-examination confirmed that the one month notice was not complied with it neither was the one month salary paid in lieu of notice. The reason advanced for this monumental and flagrant violation was the alleged fundamental breach of her employment letter. further that the Defendant’s also contravened paragraph 3 of the Defendant’s Termination of Employment letter dated 15th of October 2018 which states that “By a copy of this letter, the accounts department is directed to pay you all entitlements, less all indebtedness to the Company.” And the Defendant failed to pay the Claimant her entitlements upon the unjust termination of her employment. Counsel submitted that as a matter of fact, no reason whatsoever was stated for the sudden termination of the Claimant’s employment and that the National Industrial Court in the case of DURU V. SKYE BANK PLC [2015] 59 NLLR (PART 207) per Justice F.I Kola-Olalere NLLR (PP. 724-725 Paras D-B) held that:
“ The termination of Employment Convention, 1982 (No. 158) and recommendation No. 166 regulate termination of employment at the initiative of the employer. Article 4 of this Convention requires that the employment of an employee shall not be terminated unless there is a valid reason for such termination connected with his capacity or conduct or based on the operational requirements of the undertaking, establishment or service. The Committee of Experts has frequently recalled in its comments that; the need to base termination of employment on a valid reason is the cornerstone of the Convention’s provisions. This is the global position on employment relationship now. It is the current International Labour Standard and International Best Practice. Although this Convention is not ratified by Nigeria, since March 4, 2011 when the Constitution of the Federal Republic of Nigeria (Third Alteration ) Act 2010 came into effect, this International Best Practice and International Labour Standard to matters like this by virtue of Section 254C(1) (F) and (H) of this Constitution as amended. In other words, by the provisions of Section 254C(1)(F) and (H) of the Constitution as amended, the National Industrial Court can now move away from the harsh and rigid common law posture of allowing employer to dismiss its employee for bad or no reason at all”.
c. Was the Claimant’s employment terminated in line with the Defendant’s Employee Handbook?
Counsel submitted that the Defendant gave absolutely no reason for the termination of the Claimant’s employment. To put clearly, the Defendant in the course of trial and clearly a demonstration of an afterthought, sought to make out a case of dereliction of duty as reason for the termination of the Claimant’s employment. Curiously, this was not given as reason in the Termination Letter nor contained in any averments of their pleadings, that in response to paragraph 5.37 of the Defendant’s Final Written Address that contrary to the Defendant’s position, the provision in paragraph M at page 15 of the Defendant’s Employee Handbook, actually tilts in favour of the unconfirmed staff resignation from the Company. The unconfirmed staff is not under any obligation to give the mandatory one month notice or give one month salary in lieu of notice. This squarely lies with the Defendant (employer). Also that paragraph 5.38 of the Defendant’s Final Written Address suggests that the Claimant’s termination was further to the infractions listed in paragraph R(i) at pages 19-20 of the Employee Handbook whilst the Defendant curiously failed to implement and or follow the ancillary provision of its own disciplinary procedure as provided at paragraph XVII (Disciplinary Procedure) at page 26 of the Defendant’s Employee Handbook, that assuming without conceding that the Claimant was guilty of serious misconduct as alleged, and thereby guilty of dereliction of duty, the Defendant’s Employee Handbook provides steps for disciplinary procedure to be taken such as issuance of query, verbal warning, written warning and in the case of misconduct suspension. This point was admitted during cross-examination of the Defendant’s witness that query was not issued to the Claimant as well as other disciplinary procedures contained in the Employee Handbook.
Also that in further justification that the Claimant’s employment was unjustly terminated without any cause as well as the subsequent attempt by the Defendant’s counsel to hide under the nebulous clause of dereliction of duty is contained in the last paragraph of the Termination of Employment letter dated 15th December 2018 wherein the Defendant expressly stated to the Claimant that the “Management hereby expresses gratitude to you for the precious services rendered to the company”. This clearly underscore the Defendant’s assertion of dereliction of duty as an afterthought, that it is trite that counsel is not allowed to give evidence in their addresses as address of counsel no matter how brilliant cannot pass for evidence. See the case of UMEJURU V. ODOTA (2009) ALL FWLR (PART 494) 1605 AT 1623 (PP. 728-729, PARAS. G-B). In the instant case, in paragraphs 5.38-5.39 of the Defendant’s Final Written address, the Defendant’s counsel made strenuous effort to introduce the reason for the termination of the Claimant’s employment to dereliction of duty. The issue of dereliction of duty is a new fact introduced to the case in the Final Written Address of the Defendant and it is unfounded.
Arguing issue two; Whether the medical report from LaFutura Hospital dated 16th March 2019 is admissible in evidence, Counsel submitted that during the examination-in-chief of the Claimant, the Defendant’s Counsel objected to the admissibility of the Medical Report dated 16th March 2019 which was made on behalf of the Claimant on the state of her health condition but that the Medical Report by a medical doctor who is a professional expert in his own right cannot be described as persons interested in the outcome of this suit. Relying on the case of UMORU & ORS V. ORIRE & ANOR. (2010) LPELR-9065(CA) Per Ignatius Igwe Agube, JCA (Pp 59 - 67 Paras B - D) held that:
“The grouse of the Appellants on this issue is on the interpretation of Section 91(3) of the Evidence Act, Cap. 112, Laws of the Federation, 1990, on the admissibility of the survey plan countersigned by the Surveyor-General on the 19th April, 2004, whilst a suit was pending. I have already resolved the issue of the document annexed to the motion for interlocutory injunction and the holding by the learned trial Judge that the said document was different from that tendered and admitted at the trial Court. I have also held that the learned trial Judge rightly admitted the survey plan in spite of the fact that it was countersigned on the 19th of April, 2004, during the pendency of the suit. The position I have taken is borne out of the fact that contrary to the submission of the Appellants, the plan was made in May 2001, seventeen months before the institution of the proceedings on the 11th of October, 2002. More so, the Plaintiffs have pleaded that they shall rely on all the relevant plans given to them in proof of their case. Thus, the learned trial Judge in my view rightly held at page 44 of the Record of proceedings while ruling on the provision of Section 91(3) of the Evidence Act that:- "Although, the Survey plan in question carried the date of May, 2001, as the period the land was surveyed which preceded the institution of this action in October, 2002, but contained the name and signature of Acting Surveyor-General dated 19th April, 2004, yet, I hold that, that does not invalidate the said survey plan as it was not drawn by the claimants but by the government agency who is not interested in the pending proceedings". Now Section 91(3) of the Evidence Act which has been cited by the Appellants with all the enthusiasm they can muster provides thus:- "(3) Nothing in this Section shall render admissible as evidence any statement made by a person interested at the time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish." Luckily, the above provision has not suffered from any paucity of decided cases both by the apex Court and this Court. Basically, this section of the Evidence Act couched in the form of a proviso to the preceding two sections on the admissibility of statements in documents which-include maps and plans as in this case, prohibits the admissibility of such documents or statements made under the following circumstances:- 1. If the statement is made by a person interest and 2. When proceedings were pending or anticipated, involving a dispute as to any fact in issue which the statement might tend to establish. For a statement to be admitted under this Section therefore, such a statement must not be made by "a person interested" in the outcome of the proceedings or put differently a likely beneficiary of the fruits or outcome of the litigation in question. In the English case of Evon v. Noble (1949) I .K .B. 222, 225 , the term a person interested' was defined as not being confined to the maker of the document but as including "any person whatsoever provided that he is interested." To be considered a person not interested so as to make such a statement admissible therefore, the said person must be "a person who has no temptation to depart from the truth on one side or the other-a person not swayed by personal interest, but completely detached, judicial, impartial, and independent". Thus, it has been held in the said English case that there must be a real likelihood of bias before a person making a statement can be said to be a "person interested". See again Bearmans Ltd. v. Metropolitan Police District Receiver (1961) W.L.R 684 per Jacob M.R. at 637. As for the second 'condition that is that the statement was made when proceedings were pending or anticipated", the English decisions which have been followed by our apex Court and indeed this Court, have held that a statement made by a driver involved in an accident is a statement made by an interested person when a dispute or proceedings were anticipated. The position is the same irrespective of whether the maker of the statement was cautioned or not. See Bowskill v. Dawson (1854) 1 Q.B 288; and Robinson v. Stern (1939) 2 K.B 260 ; where it was further held by the English Court of Appeal in Jarman v. Lambert and Cooke (Contractors) Ltd [1951] 2 KB. 937 , that the word 'anticipated' must be construed as including 'likely' as was interpreted in Barkway v. South Wales Transport Co. Ltd [1949] 1. KB 54 at 61. The above interpretation was given judicial assent by the eminent and erudite Law Lord, Evershed M. R; when he held that by "proceedings-were anticipated" was meant "proceedings were regarded as likely" or even "reasonably probable", see Evon v. Noble (Supra) . Back home in Nigeria, the Supreme Court had in some land mark cases where the principles enunciated in all the English cases cited above were received and adopted, laid solid foundation for the resolution of the vexed issue as to the admissibility of the survey plan said to have been made in May, 2001, but counter signed by the Acting-Surveyor- General of Kwara State on the 19th of April, 2004, when proceedings initiated in October 11th 2002, was said to be pending. The Supreme Court also had the occasion to pronounce on the contention that the document sought to be tendered was nonexistent as at the time of initiation of proceedings even when not made by the Plaintiffs/Respondents but by a Government Agency. Beginning from Highgrade Maritime Services Ltd v. First Bank of Nigeria Ltd. (1991) 1 S.C.N.J 110 at 121; Wali, J.S.C adopted the definition of 'a person interested' as in Evon v. Noble (Supra) hook, line and sinker. Perhaps, the most illuminating and enamoring opinion on this subject was given by Karibi-Whyte, J.S.C, when he in the same case ( Highgrade Maritime Services Ltd v. First Bank of Nigeria Ltd.) Supra at pages 126-127 ; posited inter alia:- " Thus the general principle is that the document made by a party to litigation or person otherwise interested when proceedings are pending or is anticipated is not admissible. Barkway v. South Wales Transport Co. Ltd. (1949) 1 K.B. 54. The disqualifying interest is a personal interest not merely interest in an official capacity. See Bearmans Ltd. v. Metropolitan Police District Receiver (1961) 1 W.L.R. 634 Where however the interest is purely official or as a servant without a direct interest of a personal nature, there are decided case that the document is not thereby excluded. See Evon v. Noble (1949) 11 K.B. 222. See The Atlantic and the Balyk (1946) 62 T.L.R. 461; Repower v. Barclays Ltd. (1956) P. 110 and Galler v. Galler (1955) 1 W.L.R. 400". The learned emeritus Justice maintained further:- "Hence where an official is discharging a ministerial duty which does not involve any personal opinion, the question of bias will not be in issue." See also Uwais, J.S.C, (as he then was) in Mrs. Elizabeth N. Anyabosi v. R.T. Briscoe {Nig.) Ltd (1987) 6 S.C. 15 at 49-50. In the same case, Karibi-Whyte, J.S.C, again took the view that the disqualifying interest referred in Section 91(3) of the Evidence Act, must be given a narrow and technical definition to ensure its effectiveness and allow the continuance of evidence of ordinary legitimate transactions untrammeled by the exclusionary rules of evidence. See also per Salami, J.C.A, (as he then was) in Gbadamosi v. Kabo Travels Ltd (2000) 8 NWLR (Pt. 668) 243; on the test to apply in determining an interested party; P.I P.C. Security Ltd. v. George & Vlachos & Anor. (2008) 4 NWLR (PT 1076) 1 at 26 paras. C-E per Belgore, J.C.A and Anisu v. Osayomi (2008) 15 NWLR (Pt. 1110) 275 paras. C-E (a decision of this Honourable Court, per Abdulahi, J.C.A). What emerges from the totality of all the authorities cited is that a statement (the survey plan as in this case, assuming it was made when the suit on appeal was pending or anticipated, which is not conceded), is not inadmissible under Section 91(3) of the Evidence Act, where such a statement is made by an independent person who is dispassionate, unbiased or impartial and cannot be tempted to depart from the truth or swayed from departing from the truth on the side of any of the parties. Such a person or persons must not have any personal interest to protect as far as the subject matter of the suit is-concerned”.
Counsel submitted that the Medical Doctor is an independent person who is dispassionate, unbiased or impartial and cannot be tempted to depart from the truth or swayed from departing from the truth on the side of any of the parties and the medical expert does not have any personal interest to protect as far as the subject matter of the suit is concerned. He also cited the case of MULIMA & ANOR V GONIMI (2021) LPELR-56157 (CA) per Tunde Oyebanji Awotoye, JCA (Pp 26 - 26 Paras E - F) and argued that the Medical Report is relevant and admissible as it goes to the root of certain claims of the Claimant and as well as facts in issue before the Court, that it is ordinarily expected that a person who effectively resigns from a previous appointment on the 9th of October 2018 after a one month notice and resumes at the Defendant’s office on the 15th of October 2018 vide an employment letter of 12th September 2018 only to be fired on the 15th of December 2018 will develop not only health issues but psychological imbalance. He further relied on the case of EASTERN BREWERIES PLC, AWO OMAMMA & ORS. V. HENRY NWOKORO (2012) LPELR -7949 (CA) and urged this Honourable Court in view of the facts of this case, legal arguments and legal authorities cited above; to enter judgment for the Claimant as per the Claims.
COURT’S DECISION
I have gone through the processes filed and the argument of Counsel as well as the testimony of witnesses of both parties, from the issues raised by Counsel one major issue can be distilled and that is whether the Claimant has proved her case such as to be entitled to the reliefs sought against the Defendant.
The Claimant was employed vide a letter dated 12th September 2018, her employment was meant to have been for a period of two years subject to renewal by mutual agreement of both parties and a six month probationary period.
It is trite Law that an employer/employee relationship is governed by the contract of employment, in MINTING PLC v. OLALEYE(2020) LPELR-50409(CA) the Court Per MOHAMMED LAWAL GARBA, JCA (Pp 13 - 15 Paras B - E) held that-
"There is no doubt that the parties in the appeal agree that the relationship between them was one of contract of service between an employer and employee based on an offer by the employer and an unqualified acceptance by the employee of all the terms and conditions set out in the offer. The terms and conditions offered and accepted by the parties therefore formed the foundation which governed and regulated the agreement and relationship between them. Therefore, in the contract of employment, the parties are bound by the terms and conditions freely agreed to by them and each will be liable for the unilateral breach of any of the terms and conditions in the course of the relationship. Where therefore, there is an allegation of breach of any of the terms and conditions of a contract of employment, by an employer in terminating the employment of an employee, the specific terms and conditions become the bedrock upon which the case will depend and be determined. Amodu vs. Amode (1990) 5 NWLR (Pt. 150) 356; Baba vs. NCATC (1991) 15 NWLR (Pt. 192) 383; Layade vs. Panalpina World Transport Nigeria Limited (1996) 6 NWLR (Pt. 456) 544; Araromi Rubber Estates Limited vs. Orogun (1999) 1 NWLR (Pt. 586) 302; Emenite Limited vs. Oleka (2005) 6 NWLR (Pt. 921); Momoh vs. CBN (2007) 14 NWLR (Pt. 1055) 504, Coca-cola Nigeria Limited vs. Akinsanya (2013) 18 NWLR (Pt. 1386) 255. In its judgement, at page 176 - 7 of the Record of Appeal, the Lower Court stated that:- "It is a common ground amongst the parties that the employment of the Plaintiff, which was conveyed to her by Exhibit J, the letter of provisional offer of employment, dated the 21st day of September, 2007, which offer she accepted, implicitly, because there was not before the Court, the letter of acceptance, however, paragraph 3 and 8 of the said letter stated as follows: - 2. The appointment may be terminated upon given one month's notice in writing by either party or payment of one month salary in lieu of notice. 3. Your service with the company will be governed by the company's condition of service enforce from time to time, and your place of engagement in Abuja factory. 8. You will hereby agree to be bound by the condition, rules and regulations of employment of this company as provided in the Employment Handbook. Section C paragraph 1(c) of Exhibit A, the Employee's Handbook provides as follows: - (c) Appointment during probation or after confirmation may be either by the employee or by the company on giving one month notice or payment of one month salary in lieu of notice." The above terms and conditions form part of the terms and conditions freely agreed to by the parties in this appeal to govern and regulate their contractual relationship of employer and employee or contract of service and so both of them are legally bound to abide by and comply with them in the determination of the contract as clearly stipulated therein."
The Claimant has argued that since her contract was for a specified period of two years, the Defendant cannot terminate her appointment before that time and in the event it does so, must pay her salaries and emoluments for the remaining period, I do not agree with this premise because while the contract stipulated for a two year duration, it still allowed for parties to terminate by giving one months’ notice or payment in lieu of notice and then there is the matter of probation, generally the sole purpose of putting an employee on probation is to give the employer an assurance that the employee is a fit and proper person to be placed on permanent appointment and probationary period is a period of observation. Therefore once the condition laid down for the termination of appointment during the probationary period is satisfied or complied with, an employee cannot justifiably complain, see AL-BISHAK v. NATIONAL PRODUCTIVITY CENTRE & ANOR(2015) LPELR-24659(CA) Per SAMUEL CHUKWUDUMEBI OSEJI, JCA (Pp 41 - 41 Paras B - D).
On whether an employer can terminate the services of an employee on probation, the Court in NITEL PLC & ANOR v. AKWA(2005) LPELR-5971(CA) Per AMIRU SANUSI, JCA (Pp 24 - 26 Paras B - A)
"...From the wordings of the appointment letter, i.e. Exhibit A, it is clear that the appointment of the defendant was made subject to the approval of the 1st appellants' management. There is no evidence led by the plaintiff/ respondent at the trial to show that the management of the 1st appellant had confirmed his appointment. Therefore, the plaintiff/respondent could still be regarded as a probationary staff. By the provisions of Paragraph 2.19 at page 6 of Exhibit M, probationary staff are those "employees who have to serve for specified period of time before their appointment are confirmed subject to satisfactory performance." Again, under Paragraph 5.2 at page 15 of the same exhibit (i.e. M), the company, i.e. 1st appellant can at any time during period of probation for any reason terminate appointment of its employees on probation for any reason if it considers that he is unsuitable for the post on which he was engaged and such could be done by giving such employee one month notice in writing or one month salary in lieu of notice. See Paragraphs 5.30 to 5.34(2) at pages 15-16. In the case of Alhaji Baba v. Nigerian Civil Aviation Training Centre Zaria & Anor (1991) 7 SCNJ (Pt. J) 1 at 13, (1991) 5 NWLR (Pt.192) 388, it was held that in the termination of the appointment of an officer on probation, no procedure is provided for, that need be followed once the master/employer is satisfied that there is good case for the termination. Also, in the case of Ihezukwu v. University of Jos & 2 Ors. (1990) 4 NWLR (Pt. 146) 598 or (1990) 7 SC NJ 95 at 105, it was held that the fact that the appellant was given a probationary appointment. ... does not mean and it cannot be implied, that his appointment cannot be lawfully terminated within the probation period on reasonable notice. In that case at page 615 of the NWLR it was stated, inter alia, as follows: "It appears to me a startling proposition of law that during a probationary period an employer has no right to terminate the appointment of the employee notwithstanding the breach of the terms of his appointment or has done anything contrary to the interest of his employer."
Having ascertained from the foregoing that the Claimants employment with the Defendant could be terminated by giving the requisite notice, it therefore means that this Honourable Court is tasked only with ensuring that the terms of the contract between parties were adhered to. The Defendant has argued that the Claimant was found wanting in her duties which was the reason her employment was terminated, there is no evidence the Claimant was formally queried and while the employee handbook (exhibit NCO1 pg 1-28 at pg 26) states that an employee may be given a verbal warning, that is only to bring the employees notice to his/her shortcoming and in case of a serious misconduct a written warning may be given. It is trite to assume that any allegation the Defendant has tried to levy against Claimant during this suit and wants the Court to believe led to the termination of her employment was serious enough that verbal waring wouldn’t have sufficed; the Defendant clearly did not follow its handbook in this regard.
Again the Defendant said that it paid the Claimant one month’s salary in lieu of termination but only paid her Nine Hundred Thousand Naira(N900,000) half of her salary as she had not worked a full month and was paid on prorated terms, however there is no evidence this was paid, in fact the defence witness testified that the Claimant was not paid one month’s salary, this witness who is a lawyer should have known that failure to pay this one month’s salary was a breach of the terms of the contract of employment and that his insistence she was incompetent and was terminated as a result of this implies dismissal which cannot be unless the Claimant was given fair hearing, it is trite facts admitted need no further proof and the Court is expected to act on it, see EZEKWEM v. BARNAWA MICROFINANCE BANK LTD(2020) LPELR-51224(CA) Per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA (Pp 20 - 22 Paras A - F).
I hereby hold that the failure of the Defendant to give the Claimant one months’ notice or pay the Claimant one month’s salary in lieu of termination is a breach of the contract of employment. To determine whether or not the Claimant is entitled to the reliefs sought I will take each relief serially-
On the Claimants relief for a Declaration that the Defendant’s termination of the Claimant’s employment is wrongful, unlawful and a breach of the terms of the Contract of Employment dated 12th day of September 2018, I have held that the Defendant breached the contract of employment by not adhering to the terms stipulated therein, this relief hereby succeeds and is granted.
On the Claimants relief for a declaration that due to the failure of the Defendant to properly terminate the Claimant’s employment, the Claimant’s employment continues until the definite and fixed period of two year (12th September 2018 to 11th September 2020), this relief fails for the reason that despite the contract being for a period of two years, there was room for termination and even though the Defendant failed to adhere to the terms of the contract, it does not mean that the contract will continue, the termination is only wrongful and not invalid. This relief is hereby refused.
On the Claimants relief for an order that the Defendant pays the sum of ₦1,800,000 (One Million Eight Hundred Thousand Naira) being salary in lieu of notice of termination of the Claimant’s employment, I hereby grant same, the Defendant is to pay the Claimant the said sum accordingly.
On the Claimants relief for an Order that the Defendant pays the Claimant the sum of ₦39,600,000 (Thirty-Nine Million Six Hundred Thousand Naira) being the total sum of salary the Claimant is entitled to for the remaining Twenty-two (22) months of her fixed two-year employment at ₦1,800,000 (One Million Eight Hundred Thousand Naira) per month based on clause 4 of the Contract of Employment, I refuse the grant of this relief for the reason given above at relief 2.
On General Damages in the sum of ₦50,000,000 (Fifty Million Naira) for breach of the Contract of Employment and the financial, physical, psychological, and emotional trauma the Claimant experienced as a result of the Defendant’s sudden termination of her employment, I award the sum of N10,000,000 (Ten Million Naira) as general damages, this is because I have ascertained that the Claimant lost more than the payment of a month’s salary will assuage, that the loss of employment without reason and so suddenly after one resumes will naturally destabilize the trajectory of not only personal lifestyle but also ones career, hence the reason the ILO stipulates that an employee’s service can no longer be terminated as it was before, for no reason at all. Moreso the National Industrial court can award damages far beyond the payment of notice if it deems it so, see MOBIL PRODUCING NIG. UNLT & ANOR v. UDO(2008) LPELR-8440(CA) and BRITISH AIRWAYS V MAKANJUOLA (1993) 8 NWLR (PT. 311) 276 AT 288.
Also in BADMUS & ANOR v. ABEGUNDE(1999) LPELR-705(SC) Per SYLVESTER UMARU ONU, JSC (Pp 24 - 25 Paras E - A)
the supreme Court on general damages held that-
"On the other hand the quantum of general damages need not be pleaded and proved; for it is the loss which flows naturally from the defendant's act and it is generally presumed by law. The manner, therefore, in which general damages is quantified is by relying on what would be the opinion and judgment of a reasonable person. See Odulaja v. Haddad (1973) 11 S.C.357 at 360; Incar (Nig.) Ltd. v. Benson Transport Ltd. (1975) 3 S.C.117; Omonuwa v. Wahabi (1976) 4 S.C. 37; Lar v. Stirling Astaldi Ltd. (1977) 11- 12 S.C. 53 at 62 and Odumosu's case (supra). See also Sommer v. F.H.A. (1992) 1 N.W.L.R (Pt.219) 548 at 561."
I hereby Order that the Defendant pays to the Claimant the sum of N10,000,000 (Ten Million Naira) as general damages.
The Defendant will also pay to the Claimant the sum ₦1,000,000 (One Million Naira) being the cost of this action.
I also Order that the above ordered sums are to be paid within one Month of this Judgment after which they will attract an interest of 10% per annum until final liquidation of the Judgment.
On the Defendants Counter claim, no tangible evidence was led, it was not proven and is hereby dismissed.
This is the judgment of this Honourable Court and it is entered accordingly.
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Hon. Justice R.H Gwandu
Judge