IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: TUESDAY 24THMARCH 2020
PASTOR IKECHUKWU ONOVO…………………...……CLAIMANT
1. PASTOR E.A. ADEBOYE
2. PASTOR J.F. ODESHOLA
3. PASTOR EZEKIEL AFOLAYAM [SIC] DEFENDANTS
4. INCORPORATED TRUSTEES OF
2. VICTOR AGUNZI – FOR THE DEFENDANTS.
This suit was commenced by way of Complaint on 26th March 2014. In paragraph 36 of the Statement of Facts, the following reliefs were claimed:
(i) AN ORDER setting aside the purported termination letter dated 14th August 2012 for being improperly laid, unlawful, illegal as same did not comply with the terms and condition [sic] of service of defendants and is an abuse of claimant constitutional right to fair hearing.
(ii) TOTAL OF N18,475,439.7 (Eighteen million, four hundred and seventy five thousand, four hundred and thirty nine naira, seven kobo) COVERING SPECIAL DAMAGES as stated above.
(iii) N10,000000.00 (ten million naira) representing general damages as stated above.
The defendant reacted to theabove by a joint Statement of Defence filed 12th September 2014. The claimant filed no reply pleadings. Summary of the pleadings is as stated below.
SUMMARY OF THE PLEADINGS
A. Statement of Facts
The claimant said he was a serving pastor of the Redeemed Christian Church of God and that;the defendants terminated his appointment by letter dated 14thAugust 2012 without obeying the conditions of service.He said he was initially employed as notional staff and issued a letter of employment as a pastor in 1999. The claimant said his appointment was terminated without fair hearing; and that, his financial entitlements were not paid. The claimant said he was framed up for mismanagement of N310,000, which led to his suspensionwithout salary and later, after recall, on half salary for five years, ostensibly to defray the N310,000 whereas, his handover note included the receipts of expenditures incurred with the N310,000. The claimant pleaded that, as an Assistant Pastor, he was not promoted till the termination of his appointment in 2012, even though, he had served more than five years required. Claimant said, in a bid to frustrate him out, he was given frequent punitive postings. The claimant pleaded too, that, his travails had ethnic colourations.The claimant pleaded that; his terminationwas turned into dismissal by failure to pay his entitlements. The claimant thereafter pleaded the special damages being claimed and signed off with the reliefs claimed. That ends the summary of the Statement of Facts. I turn to the Statement of Defence.
B. Statement of Defence
In joining issues, the defence pleaded jointly that, though, the claimant was a pastor of the 4th defendant, but the Conditions of Service of the 4th defendant as such, did not cover his service. The defence pleaded further that, the position of the claimant as provincial pastors does not entitle him to the benefits contained in the Conditions of Service;and that, he was also not entitled to any benefits for the loss of his wife. The defence pleaded further that, until the claimant presented himself for clearance, the defendants could not determine if he is entitled to anything; and that, when his entitlement was computed, he was only entitled to the sum of N76,360.14. The defence pleaded further in reply that, the letter of termination was properly issued; and that, the claimant is only entitled to one-month salary in lieu of notice. The defence accused the claimant of infidelity and that;a panel set up indicted him.
The defence also said the claimant was indicted for misappropriation of N310,000 contrary to his denial and for that reason, placed on suspension as punishment. The defence pleaded further,that the claimantadmitted the misappropriation in hisletter of apology to the defendants. The defence pleaded further that, contrary to the pleadings of the claimant, he was recalled based on the pleas and placed on half salary to recoup the misappropriated money. The defence pleaded too that, contrary to the pleadings of the claimant, evidence abound that the second wife divorced him for infidelity. Thereafter, the defence pleaded that the case be dismissed.That ends the summary of pleadings, as the claimant did not file reply pleadings. I move to the summary of proceedings before the Court.
The case first came up before my learned brother Hon. Justice A. Ibrahim on 2nd June 2014. It was opened before my learned brother with CW1 on 18th February 2015 and closed with DW1 for the defence on 16th February 2018 before my learned brother too.My learned brother adjourned it for adoption of final written addresses the same day but died before the adoption could take place. Consequently, the case started de novo before me on 29th October 2019. The claimant testified as CW1, adopted his written deposition, and tendered Exhibits C1, C2, C3(a)-(d), C4(a) & (b), C5, C5(a), C5(b), C6, C7, C8, C9, C10, and C11 and brought his testimony to an end. Cross-examination began in earnest the same day and Exhibit CC1 was tendered through CW1 under cross-examination. The cross-examination was brought to end the same day without re-examination. Thereafter, the matter was adjourned to the following day. CW2 testified for the claimant the following day 30th October 2019 by adopting the written deposition and ended the testimony without tendering any document. Cross-examination commenced and ended without re-examination the say day. The claimant closed his case with CW2.
Defence opened with DW1 on 13th November 2019. DW1 adopted his written deposition and tendered Exhibits D1, D2, D3, D4, D5, D6, and D7 and ended his testimony. The case, straight away proceeded to cross-examination, which ended the same day with re-examination. The case was thereafter adjourned to 21st January 2020 for adoption of final written addresses.
On 21st January 2020, the matter came up for adoption but the adoption could not take place because of the application for adjournment by the defence, which was granted. It came up next 28th January 2020 again for adoption and the learned counsel to the parties adopted their respective final written address. The case was thereafter adjourned to 26th February 2020for judgment. As judgment was not ready on this date, it was adjourned off recordsine die; and date communicated to the learned counsel to the parties when it was ready.
Having finished with proceedings before the Court, I proceed to summarise the addresses of counsel. There I go.
SUMMARY OF THE FINAL WRITTEN ADDRESSES
A. Defendants’ Final Written Address
LearnedVICTOR AGUNZI franked the defendants’ final written address. The learned counsel formulated only one issue for determination of the suit, to wit: “whether from the totality of evidence placed before the Honourable Court, the Claimant is entitled to the reliefs sought in this suit”. [Sic] The learned counsel argued that the claimant failed to adduce evidence to win the case and that, his contract did not have statutory flavour or any terms of employment; and could therefore, be terminated at the pleasure of the employer with adequate notice. The learned counsel cited Idufueko v. Pfizer Products Ltd (2014) 12 NWLR (Pt. 1420) 96 at 118, A-B and Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303. The learned counsel argued that, the claimant pleaded 1999 as the year he was appointed with a letter but contradicted this when he stated under cross-examination that he was employed in August 23 1998 and later October 23 1998. The learned counsel submitted that, whereas, last paragraph of page 28 of the said Exhibit C2 relied on as letter of appointment given in 1998 or 1999 showed that, it was only issued in 2005. The learned counsel submitted that, this showed that the claimant lied when he said Exhibit C2 was given to him in 1998 or 1999.
The learned counsel argued that, the fact that the claimant applied for national employment with the 4thdefendant on 30th July 1999 in Exhibit D1 showed that,the 4th defendant had never employed him and did not issue himletter of employment. The learned counsel argued that, only those employed at the national level of the 4th defendant could take advantage of the conditions of service, but not those employed at the provincial level, which was the reason why claimant applied for employment at the national level. The learned counsel argued that, the claimant did not file reply to deny that he only applied for employment at the national level thus, admitting the fact. The learned counsel cited Dike & Ors v. Aduba & Anor (2016) LPELR-41035 on effect of failure to file reply pleading. The learned counsel argued that, the fact that the claimant did not execute the acknowledgment portion of Exhibit C2, a fact admitted under cross-examination, and which showed he never received the touted conditions of serviceor accepted the terms therein contained.
The learned counsel submitted further that, under cross-examination the claimant failed to produce his letter of employment but only retorted that, the fact that he had RCCG No. proved that he was employed. The learned counsel submitted that, failure to produce letter of employment is fatal, as Article 3:1.5 of the conditions of service [Exhibit C2] says, a person could only be an employee of the 4th defendant upon issuance with letter of employment.The learned counsel cited FMC Ido Ekiti v. Olajide (2011) NWLR (Pt. 1258) 256 at 282, Band Efuribe v. Ugbam (2010) 14 NWLR (Pt. 1213) 257 at 258-287.
The learned counsel argued that,the RCCG No. did not signify employment but only that, one takes stipends from the RCCG and that this was confirmed in DW1’s evidence under cross-examination.The learned counsel submitted that, the defendants denied the contract of employment and the applicability of the conditions of service but conceded contract of service thus, shifting the onus to the claimant to prove the existence of contract of employment. The learned counsel submitted that, the claimant failed to discharge this burden; and therefore not entitled to the declaration sought. The learned counsel cited Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Pt. 145) 506; Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83 at 136, F-H; West African Off Shore Ltd v. Ariri (2015) 18 NWLR (Pt. 1490) 177 at 198-199, G-H and Yusuf & 4 Ors v. Dornier Aviation Nig. Ltd (2004) 10 NWLR (Pt. 880) 1. The learned counsel submitted that, it is not the duty of the employer to prove that the termination was not wrongful and cited – Idoniboye-Obu v. NNPC (2003) 2 NWLR (Pt. 805) 589 and other cases. The learned counsel also submitted that, the claimant must succeed on the strength of his case and cited Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282 and Aji v. CBDA (2015) 16 NWLR (Pt. 1486) 554 at 568-569, F-B. The learned counsel submitted that, the claimant couldn’t therefore place reliance on Exhibit C2, the conditions of service, which did not apply to him but only to those with letters of employment and who duly executed the conditions of service.
The learned counsel argued that, the appointment of the claimant was terminated on ground of immoral conduct and divorce of his wife because these were contrary to the articles of faith of the 4th defendant. The learned counsel cited Oloruntoba-Oju v. Abdul-Raheem [supra] and Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 to the effect that, the claimant was afforded fair hearing before his appointment was terminated. The learned counsel submitted that, since the letter of termination did not state the reason for the termination, even if the termination was actuated by the claimant’s immoral conduct, the defendants have satisfied all that was necessary in law to terminate the appointment.The learned counsel argued further that, the defendants had no duty to justify the reason not stated in the termination letter. The learned counsel cited SPDC Ltd v. Olarewaju (2008) 18 NWLR (Pt. 118) 1 at 19, H and Olatunbosun v. NISER Council (1998) 3 NWLR (Pt. 80) 25.
The learned counsel argued that the conducts of the claimant are such that could not be condoned in the house of God. The learned counsel argued that, the fact that the claimant pleaded in paragraph 26(ix) that he was aware of the allegation against him and that the defendants investigated it, was proof of the fact that he was given fair hearing; and that, the defendants tendered Exhibits 4 and 5 as reports of their investigations, which formed the basis of their belief; and thus, satisfied the conditions set out in Oloruntoba-Oju’scase. The learned counsel argued that, the claimant did not place any contrary evidence before the Court; and that, his argument that one of the attachments to the reports was not signed was therefore of no moment, since all the others were signed.
Citing Imoloame v. WAEC [supra] the learned counsel submitted that, since the defendants have shown that the claimant is not covered by their conditions of service, he is not entitled to the one month salary in lieu of notice contained in section 15(4)(2) of their conditions of service but only entitled to reasonable notice as could be determined by the Court. The learned counsel argued that the letter of termination, Exhibit C1 showed that the claimant was given enough notice, considering the nature of the allegations against him. The learned counsel argued that, in common law employment the master could terminate for any misconduct and that the master determines what amounts to misconduct; and cited Borishade v. NBN Ltd (2007) 1 NWLR (Pt. 1015) 217 and others.
The learned counsel cited UBN v. Chinyere (2010) 10 NWLR (Pt. 1203) 453 at 471, C-F; 473, D-E, and submitted that, since the claimant failed to tender his letter of appointment, he could not rely on any other exhibit to justify his appointment. The learned counsel argued that the claimant is not a witness that is worthy of belief because, under cross-examination, he denied that he claimed ethnicity as the reason for his termination and denied knowledge of any other pastor of Ibo extraction in the 4th defendant until confronted with his written deposition. The learned counsel argued that, the lie by the claimant that no other Ibo pastor existed in the 4th defendant is debunked in Exhibit C11, the handing-over note, which showed that the claimant handed over to one pastor Chinedu Okoroafor, an Ibo man.
The learned counsel argued further that Exhibit C9 is doctored for the sole purpose of this case while Exhibits C3(a)-(d) are unrelated to the defendants, as they bear the name of the claimant. The learned counsel submitted that, the evidence of CW2 is also of no use to the claimant. The learned counsel also argued that, the testimony of the claimant that he delivered Exhibits C5, C5(a), C5(b), C7, C8 and C10 to the defendants was rubbished under cross-examination when the claimant agreed that the letters were never received by the defendants, when asked if there was anything on the face of the exhibits to show proof of receipt. The learned counsel urged the Court to discountenance the exhibits, as it is clear that they were cooked up. The learned counsel also submitted that the claimant failed to prove his claim to special damages. The learned counsel finally urged the Court to dismiss the case.
That ends the final written address of the learned counsel to the defendants. I move to the written address of the learned counsel to the claimant.
B. Claimant’s Final Written Address
Learned E.C. ANI franked the claimant’s final written address. The learned counsel formulated three issues:
1. Whether from the evidence on record and the exhibits before the court, the termination of the claimant’s employment was wrong. [sic]
2. Whether the alleged immoral sexual act upon which the claimant’s employment was terminated was proved. [sic]
3. Whether by the case of the claimant as presented to the court, he is not entitled to all the reliefs claimed in this suit [sic]
Arguing issue 1, the learned counsel submitted that, the defendants admitted in paragraph 3-10 and 34of their written deposition that the claimant is in their employment and wrongfully terminated; and therefore, there is no need to prove this and cited Efuribe v. Ugbam (2010) 14 NWLR (Pt.1213). The learned counsel submitted further that, the only issue at stake is the applicability of Exhibit C2 to the claimant. The learned counsel argued that, Exhibits C1 and D7 showed that the claimant served the defendants for 12 years, 11 months; and the defendants having admitted that the claimant was employed, the claimant tendered the conditions of service for ministers and workers and the defendants did not tender any other document in contradiction. The learned counsel argued that the defendants who used Exhibit C2 to deal with the claimant could not turn round to say it does not apply to the employment. The learned counsel argued that, under cross-examination, and in answer to what was used to calculate the claimant’s entitlements, DW1 answered that he used financial policy of the defendants, but failed to tender it. The learned counsel submitted that, when the admission of the defendants in paragraph 10 of their written deposition that they are willing to pay one month salary in lieu of notice, which is contained at page 23 of Exhibit C2, is considered alongside paragraph 14 of the written deposition, it becomes clear the Exhibit C2 regulated the claimant’s employment and that, the claimant is entitled to benefits.
The learned counsel argued further that Exhibit C2 covers the claimant, who was employed as national officer in 1999 as full time pastor. The learned counsel argued that, the defendants did not follow the proper procedure to terminate the employment as contained in paragraph 9.5.1 at page 23 of Exhibit C2. The learned counsel argued that, the defendants did not issue the claimant written query to be answered in writing too; and thus, he was not given fair hearing. The learned counsel argued that, the offence of sexual immorality with which the claimant was charged is contained at paragraph 9.2.1 of Exhibit C2 and attracts summary dismissal whereas, the claimant was punish as for offences that, at first instance, attracts warning. The learned counsel referred to paragraph 9.0 at page 19 of Exhibit C2. The learned counsel opined that, failure to give the claimant notice of intention to terminate his appointment as provided at page 23 paragraph 13.4.1 of Exhibit C2 is a breach, making the termination wrongful. The learned counsel cited Chukwumah v. SPDCN Ltd (1993) 4 NWLR (Pt. 289) 512, and Nigerian Society of Engineers v. Ozah (2015) 6 NWLR (Pt. 454) 76 at 93-94.
The learned counsel cited Ujam v. IMT (2007) 2 NWLR (Pt. 1019) 470 on the facts to prove in termination of employment and submitted that, the claimant has satisfied all these. The learned counsel argued that the claimant did not only prove the wrongfulness of the termination but proved that, it was punitive and predetermined. The learned counsel argued that,Exhibits C1 and C2 proved that the defendants employed the claimant and gave him RCC No. 1330. The learned counsel submitted that, the defendants never gave evidence of other pastors that were never covered by Exhibit C2.The learned counsel submitted that DW1, who is a pastor, did not swear on the Bible and did not properly affirm when he refused to lift up his hand and that these showed he could not be a witness of truth; and that, this came out under cross-examination when DW1 said the documents relied on to surcharge housing and car loans from the benefits of the claimant could not be traced and yet maintained that it was on record, which he failed to produce. Thus, the learned counsel signed off on issue 1; and moved to issue 2.
Under issue 2, which is whether the defendants prove allegation of sexual immorality against the claimant for terminating his employment, the learned counsel cited Institute of Health, Ahmadu Bello University Management Board v. Anyip (2012) 3 NILR 4 to the effect that, once an employee gives reason for termination of employment, he must justify it. The learned counsel referred to Exhibit D9 and said that it was the assistant pastor under the claimant who reported the alleged sexual immorality against the claimant and yet, he was not called as witness in the case. The learned counsel argued further that, it was wrong for the defendants not to attach the petition of the husband of the woman [or that of the woman herself] with whom the claimant allegedly committed adultery, if there was any, and not also to have confronted the claimant with the allegations against him. The learned counsel cited Kanda v. Government of Malaysia (1962) AC 322. The learned counsel argued that,the reports of the investigating committee did not contain the evidence adduced and that, what was contained was hearsay.
The learned counsel argued that Exhibit D5, which is touted as the approval of the general overseer was fabricated as there was, no name, signature and date but simply “Ok. Pls”,which could have been written by anybody. The learned counsel argued that, undated document is invalid, unless proved by oral evidence as to why the date was left vacant and cited Ogbahon v. Registered Trustee [sic] of CCGG (2001) FWLR (Pt. 80) 1496 ratio 14.On the basis of the above, the learned counsel urged the Court to hold that,the general overseer made no approval, more so, when the general overseer was not called to give evidence. The learned counsel cited Aderarasin v. Dayekh (2007) 11 NWLR (Pt. 1044) 89. The learned counsel also argued that, because, the two letters attached to Exhibit D4 were not signed by the panelists, they are valueless and cited ACB Plc v. Haston (Nig) Ltd (1997) 8 NWLR (Pt. 515 110 at 125-126; on when a document is deemed signed; and that, an unsigned document has no legal value and cited Edico (Nig) Ltd v. UBA Plc (2000) FWLR (Pt. 21) 792 r. 3.
The learned counsel submitted further that, an unsigned document would not carry any weight, especially when the maker did not testify before the Court; and cited Omega Bank v. OBC Ltd (2006) 4 WRN 1; Gararu v. Kwara Invest Co. Ltd (2005) 13 WRN 1 and Adesola v. Azee (2013) WRN 46. The learned counsel submitted further, that, based on the fact that both the minute in Exhibit D5 was not authenticated by signature and that Exhibit D4 too, was not signed, both are not admissible in law; more so, when DW1 who gave evidence and tendered them was not the general overseer that allegedly made them and did not participate in the panel and committee involved. The learned counsel argued that, it was even clearfrom the last paragraph of Exhibit DW [dated 24/7/2012] that the investigating committee did not complete its findings, as one of its recommendations was that, the claimant be suspended pending when the truth would come out, suggesting further investigation; and that,it was confirmed by DW1 that no further investigation was carried out. The learned counsel also said none of the findings relates to the sexual allegations. The learned counsel argued that, the defence, who did not give any reason for the termination in Exhibit C1, however pleaded sexual pervasion as the reason for the termination but failed to justify this at trial. The learned counsel then brought arguments on issue 1 to and end and moved to issue 2.
Under issue 2, which is whether the claimant is entitled to the reliefs sought, the learned counsel repeated his arguments earlier recorded and added that, the claimant pleaded special damages at paragraph 5 and deposed to evidence of same in paragraph 26 of the written deposition stating examples of two pastors whose wives died in service, who were each given two million naira; and that, provision for this is contained in Article 15.1 of Exhibit D1. The learned counsel argued that, a calculation of the claimant’s entitlement based on N76,491.38 is N15,000,000. The learned counsel cited Idufueko v. Pfizer (2014) 12 NWLR (Pt. 1420) 96 to the effect that, once an employment is wrongfully terminated, the employee is entitled to his full salaries till the determination of the case. The learned counsel argued that, the N940,000 is the sum wrongfully removed from the claimant’s salaries when he was placed on half salary for six months while the N310,000 was the amount he was wrongfully accused of mismanaging whereas, the receipts tendered showed judicious use of the monies. The learned counsel argued too, that, N630,000 was the amount owed the claimant on transfer transportation. The learned counsel argued that, the claimant was only compelled to write letter of apology; as a condition to recall him from suspension because,the items purchased with the monies were handed over to the pastor that took over from him.
The learned counsel argued that, even though, the claimant was accused of purchasing those properties in his name but the church did not reject the items. The learned counsel argued that, notwithstanding this and the fact of the pardon, the defendants still made it an issue in this case. The learned counsel cited Ajayi v. Kwara State Printing and Publishing Corporation & Anor (1997) 1 FNR 48, R. 2and Electricity Corp. of Nig. V. Nicol (1968) 1 ALL NLR 201 on the fact that, condonation cannot be revived to terminate an appointment. The learned counsel argued too, that, the defence did not deny that the claimant was not paid the balance of N630,000 transfer allowance. The learned counsel argued too, that, the claimant was owed six-month salaries of suspension without pay. The learned counsel argued that, since the pay-slips relied on to justify surcharging of the claimant on car and housing loans were not tendered and they were in the possession of the defence, it shows that, if tendered, they would not have favoured the defence and cited Nwabuoku v. Oti (1961) 1 ALL NLR 407. The learned counsel argued that, the defendants made an issue out of the divorce of the claimant’s second wife even when they are aware that the wife left him because he was transferred from Enugu to Zamfara State as evident in Exhibit D6 [the divorce summon]; and submitted that, even, divorce was not specified as one of the conditions for firing an employee.
The learned counsel cited Odulaja v. Hoddad (1973) II SC 357 to the effect that, general damages are damages from the probable consequences of a named act; and submitted that, the natural damages of posting the claimant from Enugu State to Zamfara State without notice before termination and without payment of one month notice, as provided in the conditions of service, was truly injurious because, this made all his children to stop going to school as evident in the testimony of CW2. The learned counsel said this made the claimant to develop psychological trauma and depression. The learned counsel cited WNDC v. Abimbola (1966) 1 ALL NLR 159 at 161; and Farris v. SWNS Tours Ltd (1973) ALL ER 71, where Lord Denning held that, damages could be awarded for mental distress and vexation arising from breach of contract just as damages for shock could be recovered in tort. The learned counsel also cited Mobil Oil Nig Ltd v. Akinfosile (1999) NMLR 217 to the effect that, whether or not damages is described as special or general, the main concern of the court is granting damages regarded as the probable consequence of the breach.
The learned counsel cited Iserhienrhien v. PSC Bendel State (1981) 2 Plateau State Law Reports 661, to the effect that, in rare cases, the court could hold that the contract subsists.The learned counsel argued that the rare situation is applicable herein in that, the claimant gave the better part of his youthful life to the service of the defendants, was unceremoniously terminated without fair hearing for sexual perversion which the defendants failed to prove thus, tarnishing the image of the claimant. The learned counsel argued that, arising from all said, the claimant is entitled to general damages resulting from denial of the benefits that would have accrued to him had the employment continued to the date of judgment and beyond, until the employment is lawfully determined and cited GB Olivant (Nig) Ltd v. Agbabeal (1972) 2 SC 137 at 144 and UCC v. Messrs Eldermpster Lines Ltd (1973) 1 NMLR 36 at 43. The learned counsel argued further that, the termination of employment of the claimant was void ab initiohaving failed to follow due process, thus, the claimant is still in the employment of the defendants and cited Ewerami v. SWACB Ltd (1978) 4 SC 99 at 103. The learned counsel finally urged the Court to grant the reliefs sought; and ended the address. There was no reply on points of law.
The next thing is for me to give my decision. As is the tradition, I hereby state that I have carefully read all the processes in the case file and the record of proceedings from beginning to the end, and fully digested the contents. I have also carefully listened to the testimonies of witnesses and took good notes of their demeanours. I have also carefully read the written addresses of counsel and took note of the focal authorities cited; and have taken the time to read them. I am aware that I did not summarise in full the testimonies of the witnesses as contained in their written depositions and cross-examinations; nevertheless, I am very conversant with these pieces of evidence. I shall make references to them where necessary, to justify my familiarity with them. Off to my decision I go.
From the facts of the case and arguments of counsel, it is my view that the issues formulated by the learned counsel to the parties did not well articulate the pertinent questions necessary for the determination of this case. I therefore formulate the three issues I consider relevant to the determination of this case. They are:
1. Whether the incompleteness of the Statement of Facts is fatal to the case?
2. If issue 1 is answered in the negative, whether failure of the claimant to tender his employment letter is fatal to his case?
3. If issue 2 is answered in the negative too, whether the claimant is entitled to the reliefs sought?
Taking issue 1, I found that in the pleadings of the defendants, under cross-examination of witnesses and the written deposition of the defendants’ witness together with the written address of the claimant that, heavy weather was made of the reasons for the termination. But strangely, I observed that, the part of the Statement of Facts containing the pleadings relating thereto is conspicuously absent; except a splinter snippet to this effect “and unfavorable allegation claiming that the claimant is befriending the wife.” Evidence was completely absent in the written deposition of the claimant in which he merely adopted the relevant portions of the Statement of Facts on the issue. A careful scrutiny showed that the portion of the Statement of Facts containing the pleadings on the issue of reasons for the termination was omitted in the Statement of Facts filed with the Court. These pleadings were supposed to be part of paragraph 26 of the Statement of Facts. They were supposed to be contained in paragraph 26 (vii), (viii) and (ix) of the Statement of Facts, which are missing in the pleadings before me. The pleadings on page 9 as numbered by the Registry ended on paragraph 26 (vi) and started on page 10 of the registry numbering at the end of paragraph 26 (ix) because, the next subparagraph is 26 (x). The necessary implication is that, a page is missing in the Statement of Facts and unfortunately this could not be easily detected, as the claimant did not page the Statement of Facts, which must have led to their error in not detecting before filing that a page was missing.
I have carefully studied the situation and observed that the error is entirely that of the claimant and his counsel and that, what they filed exactly was what was before me because, I did not find any alteration of the relevant pagination done by the Registry. It simply means that, the omission of a page occurred before the filing due to the carelessness on the part of the claimant’s team. I did not discover this omission before the case was heard to conclusion and judgment reserved. I only discovered it when I was writing the judgment. My predecessor who heard the case to conclusion and reserved it for judgment before His death did not also discover this before conclusion of trial. What then is the effect of this? I have researched and my research did not yield any direct case on missing parts of pleadings. But nonetheless, this is clearly a case of incomplete record and countless numbers of Court of Appeal’s decisions have stressed that incomplete record of appeal rubs the Court of jurisdiction to determine an appeal. I cite Mazang & Anor v. Bantama (2017) LPELR-43018 (CA) 12-13, C-B where the Court of Appeal held thus:
“The position of law is that an appellate Court has a duty not to hear an appeal on incomplete records…It is not for the Appellant to leave out very vital processes from the record as the writ of summons and statement of claim or even the memorandum of appearance as the Appellants have done in this appeal. No justice can be done in the appeal in such circumstances. Any decision by the Court of Appeal without the vital processes or exhibits would occasion a miscarriage of justice…” [Underlines for emphasis]
The question then, is: is the portion of the Statement of Facts omitted vital? Issue of vitality is central to whether a court of law could go on with deciding a case where portions of the processes are missing. In my view, the missing portions of the Statement of Facts are not vital to the determination of this case because, whether or not they were present, the decision would essentially remain the same. Why? This is because, first of all, the parts of the pleadings relating to the reasons for the termination are external to the Conditions of Service or the letter of termination. No reason was given in the letter of termination in the first instance; and thus, the question of the rightness or otherwise of the termination could be decided squarely with reference to the conditions of service alone. Secondly the distinction between termination and dismissal is focal here; the implication been that, whether or not I found the reason for the termination proved, the claimant would still be entitled to his earned entitlements or terminal benefits unless otherwise proved – see Julius Berger Nigeria Plc v. Nwagwu (2006) LPELR-8223 (CA) 25-26, E-D.
The only possible negative effect of the missing part of the Statement of Facts is that, it could affect the claimant’s entitlement to the relief of general damages, which is now grantable if the Court comes to the conclusion that the employer was highhanded or gave unjustifiable reasons tarnishing the image of the employee in terminating the appointmentby virtue of section 254C – 1(f) of the 1999 Constitution [as altered]. Hence, the real question for determination is not the rightness or wrongness of the termination but, whether the claimant is entitled to terminal benefits or not. Thirdly, it must be realised that the process in issue is the Statement of Facts, which has its peculiar rules. Where part of the Statement of Facts is missing, as in the instant case, and the remaining part makes a coherent case, it simply means issues are not joined on the missing part and any evidence led thereto go to no issue.
I could have called attention of the parties to the missing part of the Statement of Fact before deciding this case, but I realised that no useful purpose would be served doing so because, the case had been heard to conclusion and judgment reserved before the discovery and the law is that, the process in the Court’s file is the original – see British American Tobacco (Nigeria) Limited v. AG of Ogun State (2013) LPELR-20674 (CA) 31, E. This means I could not use the one with any of the parties, except by their consent and which consent, in the adversary system, where parties are wont to take undue technical advantage of each other, it is certain would not be gotten. It would amount to share waste of time and returning the case to ground zero where the claimant would be allowed to amend his pleadings in line with evidence on record on the invitation of the Court.And it should not be forgotten too, that, the rule that judgment must be delivered within 90 days of adoption of final written addresses is there counting. The claimant’s team must bear the brunt of their carelessness in this regard, if any.
In view of all that I have said above, I hold firmly that the missing part of the Statement of Fact is not essentially fatal to the end of the claimant’s case. I now move to the two remaining issues: issues 2 and 3.
I shall take issues 2 and 3 together. I think, it must be made clear from the outset that, it is not an absolute rule that an employee must tender his letter of appointment to succeed in a case of termination of employment – seeNigerian Institute of International Affairs V. Ayanfalu  LPELR – 5960 [CA] p. 28–29, paras. G – G;Okoebor V. Police Council  LPELR – 2458 [SC] p. 37, paras. A – B; and the unreported decisions of this Court inSuit No. NIC/ABJ/141/2012 – Ujo Agbor Uzoma Simeon & 133 Ors v. Nigeria Security and Civil Defence Corps [Judgment delivered 10th September 2013] p. 32-33 and Suit No. NICN/OW/69/2016 –Austin Chikaodi Njoko V. Zenith Bank Plc. [Judgment delivered 29th November 2018] p. 23-24. The necessity of tendering letter of appointment depends squarely on the peculiar facts of the case and the reliefs sought; and whether the claimant could prove his case without tendering it. An authority has never been a catchall for all cases, irrespective of the facts – see Olusegun v. Ogunbi & Ors (2015) LPELR-40284 (CA) 28-29, F-C. Be that as it may. Where both sides are agreed that there is employment and the defendants pleaded, led evidence and argued that NOletter of appointment was, in fact, issued the claimant, it follows that, even if the claimant pleaded issuance of letter of appointment, he could not be liable for not tendering what the issuing authorities said they did not issue. In this regard, paragraphs5.1 and 5.3 at p. 11 of the Defendants’ Final Written Address become pertinent; and I quote extenso:
“Again my lord, the Defendants completely denied that the Claimant was ever issued with an employment letter and that the conditions of service of the 4th Defendants does not regulate the service…’
‘The Claimant never filed a reply to deny the fact that he only applied to be considered for National or full time employment and was never considered and that he was never issued an employment letter to entitle him to benefits under the 4th Defendants conditions of service…” [Underlines supplied for emphasis]
Statements of counsel bindhis clients in the prosecution of cases if they amount to admission against interests – see Ogboru & Anor v. Uduaghan & Ors (2013) LPELR-20805 (SC) 30-32, E-B. So, the statements contained in the arguments proffered by the learned defence counsel in the written address, which contained an admission against interest binds the defendants and obviate the need for the claimant to tender any letter of appointment, as this, admittedly, was never issued to the claimant.
Had the claimant succeeded in tendering it, it would only have disproved the claim of the defence that none was issued. Where the claimant fails to tender it or, as in the instant case, tenders the wrong thing, as the letter of appointment, which the court finds not to be a letter of appointment, but the letter of termination, it simply means the defence carries the day on the fact that no letter of appointment was actually issued. That is the necessary inference of logic.The logic is this: no letter of appointment was issuedequals:none was tendered. The defence must therefore either rise or fall with their victory on that point, as the legal effect of failure to tender letter of appointment is not coterminous with fatality to the case of the claimant – see Efuribe v. Ugbam & Ors (2010) LPELR-4079 (CA) 36-38, A-E. The legal effect must therefore be deduced from the facts and circumstances of the case.
Here, the claimant pleaded and led evidence that he was employed in 1999 and issued with letter of appointmentand tendered the letter of termination [Exhibit C1] issued by the defence, whichconfirmed his appointment. The claimant thus, established a prima faciecase needing rebuttal from the defendants. And to further strengthen the claimant’s case on this issue, his pleading and evidence on the point were not controverted – see paragraphs 1 and 9 of the Statement of Defence, which admitted the claimant’s employment with the defendants but only contested that the employment does not entitle the claimant to the Conditions of Service tendered. It simply means on the issue of being employed, the claimant led sufficient evidence to prove this and the parties wereid idem on it; otherwise, the claimant would not have been issued with letter of termination. It is only a person employed that could be terminated. The divergence only relates to the status of the employment and whether the Conditions of Service of the defendants tendered by the claimant are applicable to the employment.Those are the narrow questions to answer under this issue. Incidentally, the termination letter [Exhibit C1] puts the date of employment at 1st October 1999 and date of termination at 31st August 2012. While the letter of termination did not state any reason for the termination, it however stated the length of service as 12 years, 11 months.I quote the termination letter extenso for the sake of clarity:
“TERMINATION OF APPOINTMENT
We wish to inform you that the mission has decided to terminate your appointment with effect from 31st August 2012.
Your record of service with the Mission is as stated here under:
Date Employed: 1st October 1999
Date of Termination: 31st August 2012
Reason for Leaving: Termination
No of Years in Service: 12 Years 11 Months
You are advised to submit all the Mission’s property in your possessions, including your identity card and thereafter obtain a clearance letter from the Pastor I/C of your Province and forward same to the undersigned before approval is given for the computation of your final entitlement (if any).
You are also to vacate your official quarters immediately as your continued stay there will be illegal from the moment you receive this letter.” [Underline for emphasis]
From the above, what do we still need the letter of appointment for, if I may ask?The termination letter has stated the record of service, and that; the claimant is entitled to retirement benefits. In any case, contract of employment could be oral, written or by conduct, or a combination of both – see Bello v. Dadah & Anor (2016) LPELR-40337 (CA) 13-14, F-A.Though, I am aware that, section 7 of the Labour Act forbids unwritten contracts of employment, and mandates employers to issue letters of appointment to employees, the implication being that where none is issued, the employer suffers the consequences, as absence of letter of appointment does not obviate the employment relations.Though, this is of doubtful applicability to the claimant. In the instant case, the defence did not say they issued the claimant with a letter of appointment and he failed to tender it, but that, he was not issued with one because, he was not in the category of employees to which appointment letter is issued by the 4th defendant. It follows that, the claimant was either orally employed or by conduct; and terminated in writing. The fact that the claimant was terminated in writing is significant. I will come to that anon. It is therefore no longer necessary to prove the fact of employment by letter.
Now, since the defendants agreed no letter of appointment was issued, we cannot begin to search for the applicable conditions of service by reference to the non-existent letter of appointment. That is axiomatic. Arising from the foregoing, I find that the claimant was not issued with a letter of employment. It does not matter that he pleaded contrarily and touted his termination letter as letter of appointment. The factual error does not obviate the force of logic that he was never issued any letter of appointment and neither does it affect the correct position of law that, it was absolutely impossible for him to tender what was not issued to him. You cannot produce what you don’t have.
In the case at hand, the learned counsel to the defendantsargued that the claimant had contract of service with the defendants but not contract of employment – see paragraph 6.3 of the Defendants’ Written Address. I wonder what the distinction is. For the sake of removing the ignorance of law displayed by the learned defence counsel, “a contract of employment connotes a contract of service or apprenticeship, whether express or implied, and if it is express, whether oral or written.” – see Bello v. Dadah & Anor [supra]. In any case, the argument of the learned defence counsel in this regard cannot hold, in view of the termination letter, which stated clearly that the claimant was employed on 1st October 1999 and did not say such employment was contract of service or that, he was employed as a provincial pastor or on part-time basis.
The defence argued further that the status of the employment would not entitle the claimant to the Conditions of Service tendered by the claimant because, it is only those given letters of appointment and nationally employed that are so entitled; and that, the claimant was a mere provincial pastor. Yet evidence abound that the claimant was being posted to different states of the federation that transcended different regions of the nation: Benue, Enugu, Ondo, Lagos, and Zamfara,not at his request, but at the whims and caprices of the 4th defendant. I wonder whether all these states that cut across different regions belong to the same province in the 4th defendant-church, to make the employment of the claimant a provincial one.Common sense suggests that states in the northern, western and eastern parts of the country could logically not belong to the same province. This clearly established that the claimant was not a part-time or provincial pastor but a pastor employed nationally on full time basis.
I found that, the tag ‘Assistant Pastors in Charge of Province’, which the learned counsel to the defence argued, consigned the claimant to provincial pastor, is just a cadre in the organogram of ministerial positions in the 4th defendant as attested by the Conditions of Service at Article 1.2.0 [p.5] at “Hierarchical Structure and Inter-Relationships”, particularly at Article 1.2.9 [p.6]; and not that the claimant was a provincial pastor, whose employment does not come under the banal of the Conditions of Service. Finally on this issue, if the claimant was truly a provincial pastor employed at the province, his employment ought to have been terminated at the province and not from the national headquarters. As Exhibit C1, the termination letter, showed, the Special Assistant to the General Overseer in charge of Admin/Personnel authored the terminationletter; and merely passed it through the Pastor in charge of Province, contrary to what the argument of the learned counsel to the defendants suggests.Exhibit D5 by which approval of the General Overseer was purportedly sought to terminate the appointment of the claimant, apart from proving that the claimant was employed as Assistant Pastor, equally showed that, the claimant was nationally employed, otherwise, approval would not have been purportedly sought from the overall head of the 4th defendant to terminate the claimant’s purported provincial appointment. I will come to the issue of applicability of the Conditions of Service anon.
So, the fact that the claimant applied for national employment on 30th July 1999 is of no avail on the issue of the claimant being a provincial pastor on part-time basis because, the said application predates the 30th October 1999 that he was appointed as Assistant Pastor in charge of Province as attested by the letter of termination [Exhibit C1] thus, showing that, he was subsequently appointed on full time basis and nationally too. The fact of his national appointment is proved to finality by the attestation of the letter of termination that the national headquarters has the record of service of the claimant.
For, if his position was not a pensionable one, he could not have been subjected to such cross-country transfers; and purportedly given housing and car loans, which are only given to long-term employees, from whom the loans could be defrayed from salary deductions over years.He was also housed in official quarters, a benefit enjoyed only by permanent full-time staff. For the claimant’s letter of termination to have mentioned final entitlement, if any, is signification of career employment with the 4th defendant.Final entitlement is synonymous with terminal or retirement benefits. And it should be noted that, the defendants did not give evidence of any other job held by the claimant at the same time he was with them nor the financial policy or conditions of service they used to calculate his final entitlements different from the Conditions of Service tendered by the claimant. The argument that the claimant was being paid stipend and not salary was also debunked by Exhibit D7[the Final Entitlements] tendered by the defendants, which indicated clearly in item 1 under tabulation ‘Monthly Basic Salary’. Nevertheless, Exhibit D7 is of no value because, it did not indicate the source of authority [conditions of service] used in calculating the final entitlements of the claimant and the defence tendered none.
The agitation that the claimant was being paid stipends, and as such, a part-time minister, was finally laid to rest by Article 3.0 [p. 35] of Part B of the Financial Regulations in the Conditions of Service. Itcontains the various amounts paid to the different cadres of part-time ministers and which sums are far below the salary of the claimant. For instance, while Article 3.1.4 provides the sum of N15,000 per month for Part-Time Assistant Pastors in charge of province, a cadre to which the claimant belongs, the claimant was being paid N76,491.38 per month on the same rank – see paragraph 28(b) of the Statement of Facts and the monthly gross pay of the claimant contained in Exhibit D7 tendered by the defendants. Article 1.1.3 of the Financial Regulations, which captures acting appointments provides N8,000 per month for Acting Full Time Assistant Pastor in charge of Province, which is yet lower to the salary of the claimant. It is thus clear that the argument of the learned counsel to the defendants in that regard is bereft of factual basis and cannot therefore stand. It is more so, because, the evidence of the DW1 under cross-examination on the issue stands in sharp contradiction to his Exhibit D7 [Final Entitlements], which showed unequivocally that the claimant was employed and paid salaries and not stipends. A document speaks for itself and oral evidence could not be used to vary the contents of a document – see Touyo & Ors v. Agba & Ors (2014) LPELR-24533 (CA) 39, A-E.I therefore hold that the claimant was nationally employed as a full time pastor.
In the face of the admission by the defendants of non-issuance of letter of employment coupled with the absence of explanations, as noted abovein, no reasonable tribunal or court of law could believe the story of the defendants that the claimant was not a pensionable staff or that he was a part-time pastor. And in this wise, the absence of employment letter actually favours the claimant. For, if the defendants have issued him one, it would have been easy for the defence to prove the nature of employment and the applicable conditions of service; and for the Court to see these at a glance. But, as a mute point, it does not follow that, if the terms and conditions contained in a letter of appointment and the conditions of service are totally unreasonable, they would avail the defendants in thislegal regime of the Third Alteration Act, by which section 254C-(1) of the 1999 Constitution, as altered, gives this Court the obligation to enforce international labour conventions, treaties and standards, and to prevent unfair labour practices in tune with international best practices.
For it would be patently unlawful, unfair and totally not in tune with international best practices as encapsulated under the current legal regime of employment relations in Nigeria for an employer not to have conditions of service that provides for well-articulated retirement benefits – see section 254C (1)(f) of the 1999 Constitution [as altered]. Section 1(2) of the Pension Reform Act 2004shows the incongruity as it mandates retirement benefits for workers. The defendants in the instant case cannot be allowed to profit from their wrong in failing to issue the claimant with appointment letter clearly stating the applicable conditions of service.
It is the duty of the defendants to issue their employees letters of appointment, stating clearly the applicable conditions of service. Where they failed to issue one, as in the instant case, it does not lie in their mouth to deny the applicability of the only Conditions of Service tendered by the claimant; and which they accepted as their Conditions of Service and even relied on against the claimant. So the Conditions of Service [Exhibit C2] tendered by the claimant is the applicable conditions of service in the instant case; and I so hold. The argument of the learned counsel that the Conditions of Service was not executed and as such, invalid is a nonstarter in that,the execution in view, at p. 29 is only to be signed by the claimant excluding the 4th defendant, implying that, the signed copy is to be kept by the defendants and not the claimant, as evidence of receipt of the said Conditions of Service from the defendants.That is why it was headed “Acknowledgment”. Hence, the defendants are meant to keep the acknowledgment copy and not the claimant. Hence, they owe the responsibility of tendering it, if necessary.
Therefore, the copy of the Conditions of Service given to the claimant is not expected to be the signed copy. So, the Conditions of Service herein is valid. In any case, signing of Conditions of Service is not prerequisite for its validity, as it is supposed to be part and parcel of the letter of appointment; and if it is to be signed at all, it is the defendants who made the conditions of service that must sign the document to authenticate the conditions therein contained; and where such document is not signed, the defendants take the blame. And thus, the absence of signature does not affect its validity as explained earlier on. In any case, the defence counsel did not challenge the validity of the Conditions of Service but only argued that, the claimant could not take advantage of them because he did not execute the document. The continuance of employment relations amounts to waiver of the need to sign,if it was necessary to sign in the first place – see AG Nasarawa State v. AG Plateau State (2012) LPELR-9730 (SC) 28, D-F; 59-60, E-C.And whether or not the Conditions of Service was issued in 2005 is irrelevant in as much as the claimant was captured in their provisions. Conditions of Service could always be amended in the course of service of an employee, provided it does not negatively affect an accrued right.
While the definition of ‘worker’ in section 91(1) of the Labour Act might not make the provisions of section 7 of the Labour Act applicable to the claimant herein, it is nonetheless, a pointer to the fact that, it’s against public policy for an employer not to issue an employee with letter of appointment; and therefore, very reprehensible for such an employer to turn round to use the occasion of her failure to issue same, as an opportunity to escape incidental liability arising from the employment. It becomes more wrongon the part of the defendants, particularly the 4th defendantwhen it is realised that Article 3.1.5 of the Conditions of Service tendered by the claimant [Exhibit C2] actually mandates the 4th defendant to issue letters of appointment to her employees.
And much more reprehensible for the learned counsel to the defendants to have cited this provision to insist that the case of the claimant be thrown out for not tendering a letter of appointment he, at another breath, had stated was not issued the claimant. What sort of doublespeak is that! The law abhors doublespeak – seeGufanti Nigeria Plc v. Pidrella Instalt-Vaduz & Ors (2012) LPELR-8027 (CA) 25-26, D-A. The learned counsel to the defence cannot rely on these conditions of service when the provisionspurportedly favoured his clients [the defendants] and deny their applicability to the claimant in a contract that is two-sided when the conditions do not favour them. By relying on the provisions to argue against the claimant, the learned counsel unwittingly conceded their applicability to the claimant.
Even if the claimant lied about having a letter of appointment, it does not affect the substance of the case, when the defendant admitted they did not issue any.It is only if the defendants had pleaded they issued the claimant one with particular emphasis or terms, which excludedhim from the Conditions of Service tendered by him, and the claimant, who pleaded he had one, but failed to tender it, could the presumption that, if he had tendered it, it would not have been favourable to him, become applicable. Now that the defendants admitted they did not issue a letter of appointment to the claimant, the presumption could not apply. The implication of the claimant’s pleading that he had a letter of appointment was tantamount to asserting a factual impossibility because; this letter was never in existence.A court of law is not bound to believe utterly improbable statement even if made under oath – see Dibiamaka&Ors. v. Osakwe&Ors. (1989) LPELR – 940 (SC) at 16, paras. D – EandAnzaku v. Gov., Nassarawa State (2005) 5 NWLR (Pt. 919) 448 at 502 paras. C – F. No wonder that the claimant pointed to the letter of dismissal under cross-examination as the letter of appointment. If the claimant made a mistake of fact in that regard, it does not affect the legal effect of the evidence on record.
The law that declaratory reliefs could only be granted on the strength of the claimant’s case and not on the admission of the defence was eminently satisfied in the instant case, where the letter of termination tendered by the claimant [Exhibit C1] reiterated the exact dates of appointment and termination and stated clearly that, the claimant spent 12 years, 11 months in the employment of the defendants thus, fulfilling the dual function of providing the evidence of appointment and termination. By this, the burden shifted to the defence to displace the prima facie case established by the claimant; and in doing this, curiously the absence of the letter of appointment was corroborated by the admission of the defence that none was issued. What else could anyone further demand from the claimant?None.
The claimant pleaded the conditions of service [Exhibit C2] – see paragraphs 5(b), 9, 10, 26(xii) of his Statement of Facts.The claimant pleaded that since he was terminated and not dismissed, he was entitled to his terminal benefits; and relied particularly on Articles 15 and 9 of the Conditions of Service. That is the law. Termination only ends employment relations and does not negatively affect accrued employment benefits or rights – see Seven Up Bottling Company PLC v. Augustus (2012) LPELR-20873 (CA) 26, B-Eand Idufeko v. Pfizer Products & Anor (2014) LPELR-22999 (SC) 20, A-D. I have checked Article 15 and found that it does not contain what is attributed to it and that the alleged contents actually fall under Article 13.4.1 and 13.4.2. I have equally combed through the whole gamut of the Conditions of Service and could not find where it excluded the claimant; rather, what I found was that, it captured gratuity and pension rights for the claimant.In the absence of any other Conditions of Service before the Court and the fact that the letter of termination indicated clearly that the claimant was entitled to terminal benefits and even proceeded to purportedly calculate same in Exhibit D7, the irrefutable conclusion to arrive at, is that, the Conditions of Service tendered by the claimant is the one applicable to his appointment; and I so hold.
In fact, the Conditions of Service provides under Article 13.6.5 at p.24 thus: “However, any officer who has spent up to minimum of 10 years will be entitled to full pension in addition to gratuity at retirement as stated below…” and further provides that, anybody that has spent 12 years is entitled to 120% gratuity and 130% gratuity for a person that spent 13 years. The defendants agreed, via their letter of termination[Exhibit C1], that the claimant served 12 years, 11 months from 1st October 1999 to 31st August 2012. By the doctrine of mathematical approximation, as expounded by His Lordship, N.C.S. Ogbuanya, in the unreported decision of the Lagos Division of this Court inSuit No. NICN/LA/588/2017 – Ajah v. Fidelity Bank Plc [Judgment delivered May 14, 2019] p. 23, the claimant is deemed to have served 13 years and therefore, entitled to 130% gratuity.And I so hold. This is more so when it is realised that he was not given a month notice to which he was entitled nor paid one-month salary in lieu thereof.
Let me state clearly that, issue of pension is one of law, for which the defendants in the instant case has no option by virtue of section 1(2)(b) of the Pension Reform Act 2004. The exemption under section 8 of the Act is inapplicable herein, in that, the Pension Reform Act took effect in 2004 and the claimant herein was terminated in 2012; so, Article 16.1-16.2 at p. 26 of the Conditions of Service becomes applicable. In Article 16.1-16.2, the defendants adopted, without reservation, the commands of section 1(2)(b) of the Pension Reform Act, 2004. It is the Pension Reform Act 2004 that is applicable therefore because, the next one that amended it came in 2014; and that was after the termination of the claimant.
In the instant case, where the defendants have denied being bound by the Conditions of Service in relation to the claimant and the Court found contrariwise that, the claimant is entitled to both pension and gratuity in accordance with the Conditions of Service [Exhibit C2]; and there is no evidence before the Court that the defendants complied with the provisions of the Pension Reform Act in relation to deduction of percentage of the claimant’s salaries joined with the 4th defendant/employer’s percentage contribution for deposition with a pension administrator, and the defendants adopted the provisions of the Pension Reform Act; and there is no evidence that the claimant attained 60 years as at the time the Pension Reform Act took effect in 2004 or even at the time of his termination, it follows that, the defendants are bound by the provisions of section 9(2) of the Pension Reform Act 2004. This deems the 4th defendant to have elected to bear the whole brunt of contributing 15% monthly contribution for the 13 years served by the claimant, that is: 13 yearsx 12 months= 156 months.
The claimant pleaded that he became a pastor in the 4th defendant in 1994 but that, when his appointment was regularised in 1999, his previous service was disregarded – see paragraph 5(a) & (c) of the Statement of Facts. Thus, the disregard of his service from 1994-1999 is not just coming to his attention now; and could nottherefore be brought at this twelfth hour to calculate his terminal benefits. He has waived his right to complain on such allegation, which was being brought up more than 18 years of its occurrence. He has acquiesced it. In any case, no credible evidence is led on that aspect of the case. Thus, the terminal benefits to which the claimant is entitled, as found above, must be and is based on the 13 years of his service to the defendants.I therefore hold that the claimant is entitled to pension deductions of 15% of his monthly emoluments [salaries] for 156 months in accordance with section 9(2) of the Pension Reform Act, 2004.
I come to the issue of outstanding transfer allowances. This is a species of special damages,and must be proved to the hilt. The claimant did not particularise how he arrived at the sum of N630,000 being claimed nor did he point to the part of the Conditions of Service that served as authority for the claim; so, he is not entitled to it – seeNNPC v. Clifco Nigeria Limited (2011) LPELR-2022 (SC) 30, B-E. The claimant is without doubt not entitled too, to the sum of N310,000 allegedly removed from his salary when he was purportedly placed on half salary for six months and the sum of N458,948.28 claimed for salaries not paid for 6 months due to suspension. Why? He ought to have brought the issues up before now with his employer; and has thus, waived the right to complain, having acquiesced – see Nabore Properties Limited v. Peace-cover Nigeria Limited & Ors (2014) LPELR-22585 (CA)36-37, B-Aand Nwosu v. Ogah & Ors (2016) LPELR-40851 (CA) 56-58.So, the current complaint is belated. The claimant was reinstated after these and he accepted the reinstatement without complaining about refund of the moneys allegedly deducted. All these happened before 2006 and the claimant was terminated in 2012 and filed this suit in 2014. Besides, being in the nature of special damages, evidence of the deduction ought to be produced to make the claimant entitled and this was not done, so, the claimant is doubly not entitledfor failing to adduce evidence in support of the special damages –NNPC v. Clifco Nigeria Limited [supra].
I now come to the issue of car and housing loans. Without much ado, the defendants could not take these into account in computing the final financial benefits of the claimant; because, these alleged indebtedness, even if not denied by the claimant by way of filing reply pleadings, are nevertheless special damages that must be proved to the hilt and not granted as a matter of course – see NNPC v. Clifco Nigeria Limited [supra] andUnion Bank of Nigeria Plc v. Ajabule & Anor (2011) LPELR-8239 (SC) 35-36, F-B. It does not matter that these are coming from the defendants in the nature of set-offs or counterclaims, the defendants are bound just like the claimant, to prove them to the hilt; and I cannot find any scintilla of evidence adduced. The evidence of applications for and grant of the loans in issue are conspicuously missing while at the same time, the defendants did not particularise when the loan was granted and the amount deducted till the time of the termination.Apart from the incongruous Exhibit D7 by which the defendants sought to deduct the alleged loans from the equally incongruous final benefits of the claimant, no other scintilla of evidence was presented to back up the claims out of the blues. So, like most of the special damages claimed by the claimant failed, the special damages claimed in the car and housing loans set-off against the claimant’s final or terminal benefits fail too; and I so hold. In effect, the defendants are estopped from deducting any form of set-off from the final entitlements of the claimant; and I so hold.
I have checked the Conditions of Service regarding allowance to spouse of dead partner and found that, the dead person must be staff of the 4th defendant for the bereaved to benefit; and there is no evidence that the wife of the claimant worked in the 4th defendant at the time of her death, so, the husband is not entitled to the allowance being claimed – see Article 15.2.1 [p. 25] of the Conditions of Service.I found that the claimant claimed the sum of fifteen million as the cumulative derived from the Conditions of Service. I could not see the arithmetical basis of the calculation. I therefore hold that the calculation claimedat paragraph 28(c) of the Statement of Facts is baseless; and that, the claimant is only entitled to the amounts accruable as per the Conditions of Service from the findings of the Court in this judgment and nothing more.
I realised that the learned counsel to the claimant made heavy weather of the issue of the termination letter being void because of irregularities in signing, absence of seal and non-compliance with the Conditions of Service. These attacks are specious. It does not matter whether or not the termination or instrument of termination is irregular, once the employer terminates in a master/servant relationship, which the claimant’s employment is, the termination remains and the contract is brought to an end, except in few instances, and to which this case does not fall–see Wilbros Nig. Ltd. & Anor v. Macaulay (2009) LPELR-8507 (CA) 21, B-E. In addition, the claimant did not tender the Constitution of the 4th defendant to make me know the appropriate person to sign the letter of termination or to terminate the appointment. The claimant could only talk of damages in view of the failure to give the required notice or pay in lieu thereof and any accrued benefits or entitlements. So, the termination remains and the claimant is not entitled to reinstatement since he did not come under the few instances where reinstatement could be ordered in common law employment; and I so hold. I grant one-month salary in lieu of notice, to which the claimant was entitled and conceded by the defendants.
I am also of the view that the claimant is not entitled to general damages claimed, though grantable under the current employment relations regime because, the issue of interference with the education of the children as a result of the sudden termination was not pleaded in conjunction with the omission of the part of the Statement of Facts dealing with the reasons for the termination. For these reasons, it is impossible for the Court to deduce that the claimant suffered any trauma as claimed or to conclude that, the defendants were high-handed and unconscionable in their dealings with the claimantor tarnish the image of the claimant to warrant grant of general damages in the peculiar circumstance of this case.
In view of all that I have said under issues 2 and 3, I firmly hold that issue 2 is totally resolved in favour of the claimant and against the defendants while issue 3 is resolved in part in favour of and against both sides, as explained abovein earlier. I shall now proceed to end the case.
In concluding the case, I restate the reliefs granted and refused thus:
1. Relief (i) claimed by the claimant is refused. The termination remains sacrosanct, but the defendants are ordered to pay to the claimant one-month salary in lieu of notice.
2. Relief (ii) claimed by the claimant for special damages is granted only to the extent that, the claimant, having been deemed to serve 13 years, is entitled to 130% gratuity; and to pension of 15% monthly contributions for the 13 years served, that is: 13 years x 12 months = 156 months.
3. Relief (iii) claimed by the claimant for general damages is refused in its entirety.
4. The set-offs of car and housing loans claimed by the defendants are refused in their entireties.
5. The defendants are to calculate and pay the terminal benefits of the claimant as granted above.
6. The sum of N300Hundred Thousand Naira [Three Hundred Thousand Naira Only] is awardedas cost in favour of the claimant and against the defendants.
The judgment takes immediate effect but the monetary aspects are to be complied with within 30 days of the delivery of the judgment failing, which 10% post-judgment interest shall begin to count.
Judgment is entered accordingly.
HON. JUSTICE OLUWAKAYODEO. AROWOSEGBE
NATIONAL INDUSTRIAL COURTOF NIGERIA