IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE BENIN JUDICIAL DIVISION
HOLDEN AT BENIN
BEFORE HIS LORDSHIP HON. JUSTICE A.A. ADEWEMIMO
DATED: 25TH JUNE, 2020
SUIT N0: NICN/AK/31/2018
JOSEPH SEUN OLADUNNI CLAIMANT
MUSIC AND CULTURE COMMUNICATIONS ………DEFENDANT
Otunba F.W. Akindiose for the claimant
Tegah Ojo Esq. for the defendant
1. The claimant initiated this action vide a complaint dated and filed 30th May, 2018, whereby he is seeking the following reliefs:
i. A DECLARATION that the dismissal of the claimant is wrongful, illegal, null and void.
ii. AN ORDER OF COURT directing the defendants to immediately pay all the accrued salaries/benefits/entitlements of the claimant from December, 2017, until the determination of this suit by the Honourable Court.
iii. AN ORDER OF COURT directing the defendants to pay Ten percent (10%) interest on the unpaid accrued salaries of the claimant until the final determination of this suit by this Honourable Court and Ten Percent (10%) interest on the judgment sum until the said judgment sum is liquidated
iv. AN ORDER OF COURT directing the defendants to pay the sum of Five Hundred Thousand Naira (N500,000.00k) to the claimant as general damages for illegal and unlawful dismissal.
2. The claimant was employed as an engineer by the defendant in its radio station in Ondo Town, Ondo State vide a letter dated 18th March, 2016, on a salary of N960,000.00k (Nine Hundred and Fifty Thousand Naira) per annum and was dismissed from the employment on the 9th of April, 2018. The claimant averred that he was not issued with any query prior to his dismissal, hence the dismissal was wrongful. He claimed that the defendant is owing him arrears of his salaries from December, 2017 to May, 2018, which adds up to a sum of N480,000.00k (Four Hundred and Eighty Thousand Naira) whereof he claims against the defendant as stated above.
3. The defendant filed its statement of defence in this suit, and later amended same, pursuant to the order of this court granting leave to amend on 26th March, 2019. The extant statement of defence was subsequently filed on the 27th of March, 2020, wherein the defendant denied each and every allegation of facts contained in the statement of facts. The defendant further contended that the claimant, while in its employment consistently displayed disrespect and insubordination, and alleged further that the claimant not only abandoned his duty post, he also instigated other staff of the defendant to orchestrate acts of sabotage, by exposing the defendant’s properties to theft and damage, all under the guise of a protest against delay in the payment of salaries of staff.
4. The defendant pleaded that the claimant’s instigation of other members of staff imparted negatively on the loyalty and productivity of its staff, and continued that the claimant was duly informed of the allegations against him through the defendant’s executive director who invited him through a telephone conversation to come and air his grievances.
5. The defendant alleged that the claimant’s action in holding on to the key of the radio station’s transmitter room was done with the intention to stop the station from going on air, and this amounted to gross misconduct which exposed the defendant to the sanction of the National Broadcasting Corporation. It further alleged that the radio station was shut down by the claimant between Friday and Tuesday, and when it finally reopened, the defendant had suffered a revenue loss of N600,000.00k and injury to its business reputation.
6. The defendant pleaded that the delay in payment of the claimant’s salaries was due to economic downturn and it has since paid the claimant two months’ salary after the institution of this suit. The defendant further averred that the claimant was issued with a verbal query and that it was his refusal to honour the invitation sent to him by the defendant that led to his eventual dismissal.
7. In conclusion, the defendant denied receiving a letter of demand for the arrears of the claimant’s salaries and pleaded that it has no intention of withholding same, whereof it urged this court to dismiss the claimant’s action with substantial cost.
8. The defendant further counter-claimed against the claimant for the following reliefs;
a) The acts of sabotage of the claimant, as carried out in his threat not to appear in the studio and caused the doors of sensitive rooms to be thrown open caused economic loss to the defendant and damaged its corporate image and maligned the image of King Sunny Ade, the defendant’s proprietor and Radio 106.5 FM. is considered by the defendant as gross misconduct that deserves the claimant’s dismissal.
b) There was loss on advertisement slots, bookings and broadcasting up to the tune of N600,000.00k between Friday to Tuesday when the station was shut down by the claimant.
c) Damages in the sum of N1,000,000.00k
d) Solicitor fee for defending the action is N1,000,000.00k
9. The claimant in his Reply to the Statement of Defence, dated 29th May, 2019 and filed 30th May, 2019, averred that he was at his duty post on the date of the protest and he did not mastermind any acts of sabotage or had control over the defendant’s staff. He stated further that he did not exhibit any act of insubordination or disrespect towards any constituted authority while working for the defendant.
10. The claimant contended that he was never issued with a query nor was he ever warned in respect of any allegation while he was with the defendant. He continued that the key to the broadcasting studio was dropped with the security staff and denied having any conversation about his grievances with the Executive Director of the defendant. The claimant denied locking up the radio station and averred that the station was shut down by the police on the defendant’s instruction, because of the protest embarked upon by the staff over non-payment of their salaries.
11. The claimant averred that he was unable to resume his duty at the station thereafter because the defendant’s security staff acting on instruction, denied him access to the premises. He concluded by urging the court to dismiss the defendant’s counter-claim for being frivolous.
12. Trial commenced in this suit on 3rd June, 2019 with the claimant testifying as CW1. CW1 adopted his written depositions on oath, tendered Exhibits JD1-JD3, was cross-examined, and he thereafter closed his case. The defendant opened its defence on 10th July, 2019, by calling Mr Clement Ige, an Executive Director with the Defendant as DW1. He adopted his written deposition, and was cross-examined. DW1 also identified Exhibits JD1 and JD2 under cross-examination and the defence closed.
13. The case was adjourned for adoption of final written addresses, and pursuant to paragraph 10 of the Practice Directions and Guidelines for court sitting, 2020, issued by the Hon. President of the National Industrial Court, which became effective on the 18th of May, 2020, parties adopted their addresses vide letters adopting same. The claimant’s counsel’s adopted his address dated 28th October, 2019 and filed 29th October, 2019, vide a letter dated 27th May, 2020, while the defence counsel adopted his address filed on 25th September, 2019, vide a letter dated 9th June, 2020. The court deemed the addresses properly adopted at the court sitting of 10th of June, 2020 and this suit was subsequently adjourned for judgment.
14. It is on record that the defendant’s final address was regularized by an order of this court on 29th October, 2019. Learned counsel for the defence, Tegah Ojo Esq. submitted two issues for determination in the defendant’s address, to wit:
a) Whether the claimant’s action constitutes gross misconduct to warrant summary dismissal by the defendant?
b) Whether the claimant is entitled to the reliefs sought in his statement of claim (sic)
15. On the first issue, learned defence counsel submitted that the defendant has established through credible evidence, that the actions of the claimant amounted to gross misconduct and the totality of his acts and utterances were so grave that it undermined the defendant’s confidence in him and ultimately led to his summary dismissal. He posited that an employee may be summarily dismissed without notice and without wages, if he is guilty of gross misconduct, and relied on Eze v Spring Bank Plc (2001) LPELR-2892.
16. Learned Counsel referred to the testimony of DW1 under cross-examination, when he testified that the claimant was queried verbally and submitted that this satisfies the requirement of issuing a query. Learned counsel cited Maiphen v UNIJOS Consultancy Ltd. (2013) LPELR-21904 in support of his submissions and argued that the claimant’s dismissal for gross misconduct, was right and legal under the law.
17. On the second issue, learned defence counsel contended that an employee indicted for gross misconduct is not entitled to either notice or salary in lieu of notice. He noted that the claimant admitted receiving December, 2017 and January, 2018 salaries and a sum of N25,000.00k was mistakenly paid into his account by the defendant and the claimant admitted receipt of same. He thereafter surmised that what is admitted need no further proof, citing Ude v AG Rivers State (2004) NWLR (Pt. 756) Ratio 5 at pg. 78. The defence counsel argued that the claimant having admitted receiving part of the salaries he is claiming during the pendency of this suit, cannot turn around to demand for same. He stated that what is left to be paid to the claimant is the balance of his salary for February, March and April, 2018.
18. The defence counsel argued that in the event that this court finds the dismissal of the claimant wrongful, the only remedy available to him is in damages, which will be calculated in the sum he would ordinarily be entitled to as payment in lieu of notice.
19. On the claim for general damages and cost, learned defence counsel posited that this is not supportable by law or evidence, and the cost of N500,000.00k sought by the claimant is at variance with the purpose of awarding cost in a contract of employment. He finally urged the court to dismiss the claimant’s action in its entirety.
20. Otunba F.W. Akindiose of counsel for the claimant, submitted two issues for determination in the claimant’s final address to wit:
i. Whether the claimant has successfully proved his claim before this Honourable Court
ii. Whether the claimant was given fair hearing before he was wrongfully dismissed from the service of the defendant.
21. On issue one, learned counsel cited Nigerian Gas Co. Ltd v Dudusola (2005) 18 NWLR (Pt. 957) 292 CA and submitted that the claimant has satisfied the evidential burden to prove his employment with the defendant, the terms of his employment and its breach by the defendant. He posited that the allegations of sabotage and insensitivity to the defendant’s corporate image levied against the claimant were unproven and there is no evidence before this court that he was afforded fair hearing before his dismissal.
22. Learned counsel argued that even though no notice period was stipulated in the claimant’s contract of employment, he was still entitled to reasonable notice before his employment can be terminated, he placed reliance on Akumechiel v Benue Cement Co. Ltd (1997) 1 NWLR (Pt. 484) 695 CA.
23. On the second issue, learned counsel argued that assuming the defendant found the claimant guilty of misconduct, the dismissal would still not have be valid, having not afforded him fair hearing as guaranteed by Section 36 of the 1999 CFRN. He submitted that where an employee is dismissed on the ground of misconduct, it is the duty of the employer to justify the dismissal with evidence that he was afforded fair hearing and the dictates of natural justice was not breached in the process leading to the dismissal, he relied on University of Calabar V. Essien (1996) 10 NWLR (pt. 477) 225 at 262 SC.
24. Learned counsel maintained that the claimant was not issued with a written query and no panel was set-up to investigate the allegations made against him. He added that there is no evidence that there was a committee established for such purpose and the assertion that the claimant was invited to discuss his grievances and refused to honour the invitation was unproven. He argued that calls made to the claimant to discuss his grievances is not equivalent to a disciplinary process and surmised that the dismissal of the claimant is wrongful, illegal and unconstitutional for lack of fair hearing.
25. In conclusion, counsel submitted that the claimant is still in the defendant’s employment with all his entitlement to be paid by the defendant, he urged the court to so hold.
26. I have thoroughly studied all the processes filed in this suit, the testimonies of witnesses and the submission of counsel on both sides and I have distilled two issues for the effective determination of this suit, to wit:
Whether or not the claimant’s dismissal was wrongful?
Whether or not the claimant is entitled to the reliefs sought?
27. On issue one, the law is trite that there are three categories of contracts of employment, and these are (a) those regarded as purely Master and servant, (b) those where a servant holds office at the pleasure of the employer and (c) those where the employment is regulated or governed by statute otherwise known as statutory employment. See the case of Seven-Up Bottling Company Plc. V Ajayi (2007) LPELR-8765 (CA)
28. It is evident that the employment relationship between the parties in this suit falls under the master-servant category and as such, it is the contract of employment that governs their rights and obligations. See John Oforishe v Nigerian Gas Company (2018) 2 NWLR (Pt. 1602) 35 at 53-54.
29. The claimant in pursuance of his case tendered Exhibit JD1 (contract of employment) which details the rights, powers and responsibilities of both parties in the employment. This court is therefore to interpret the rights and obligations of both parties as spelt out in Exhibit JD1, and in so doing, the court is enjoined to confine itself to the plain words and meaning derived from the terms of the agreement. See Owoniboys Technical Services Ltd. v UBN Ltd. (2003) 15 NWLR (PT 844) 545.
30. It is clear that the crux of the claimant’s grievance in this case is lack of fair hearing and failure of the defendant to issue him with notice of the termination of the employment. It is the position of the law that parties are bound by the terms in the contract of employment and any disciplinary action to be taken by an employer outside these terms is invalid. See the cases of SCOA (Nig.) Plc. V Ifebuzoh (2018) LPELR-46784 (CA) and Dornier Aviation NIG AIEP Ltd. v Oluwadare (2006) LPELR-11579 (CA).
31. The defendant in this case pleaded and led evidence that the claimant’s dismissal was for acts of misconduct for which he was verbally queried. A careful examination of Exhibit JD1 i.e. letter of employment reveals no specific provisions guiding the discipline and termination of the claimant’s employment, and in the absence of such, resort will be made to the common law position, see Shena Security Company Ltd V. Afropak (Nigeria) Ltd & Ors. (2008) LPELR-3052(SC). Under the common law, an employer in a Master/ Servant employment who has the power to employ, also retains the undisputed power to dismiss an employee summarily on grounds of misconduct. See U.T.C. Nig. Ltd v Samuel Peters (2009) LPELR-8426(CA), where Kekere-Ekun JCA held that:
32. “At common law, in a master/servant relationship devoid of statutory flavour, an employer has the right to summarily dismiss an employee on grounds of misconduct or willful disobedience.”
33. See also Oniga v Government of Rivers State (2016) LPELR-40112(CA) where Elechi JCA held thus:
“Therefore, an employer has an undisputed right to dismiss or discharge his servant.”
34. It is therefore not in doubt that despite the absence of specified terms on discipline of staff in Exhibit JD1, the defendant still retains the power to discipline an erring staff, and in doing so he must adhere to the basic tenets of natural justice. See Federal University of Technology, Yola v Maiyuwa & Ors. (2010) LPELR-9001(CA), where Ndukwe Anyanwu JCA held that:
“in the dismissal or termination of the appointment of an employee on grounds of misconduct, all that the employer needs to justify his action is to show that the allegation was disclosed to the employee; that he was given a fair hearing, that is to say, the rules of natural justice were not breached and that the disciplinary panel followed the laid down procedure, if any…”
35. Tsamiya JCA also held in Ikuma v Civil Service Commission Benue State & Ors. (2012) LPELR-8621(CA) that:
“It is settled law that before an employer can dispense with the service of his employee under the common law, all he needs is to do is to afford the employee opportunity of being heard before exercising his power of dismissal even where the allegation for which the employee is being dismissed involves accusation of crime.”
36. In Maiphen v UNIJOS Consultancy Ltd. (Supra), Bdliya JCA held that:
“When an officer is about to be disciplined by his employer, it is normal or usual to ask such officer to explain certain things before any decision is taken. This procedure or process is often referred to as query… It is query that precedes the setting in motion the procedure for disciplinary action.
37. It is clear from the above cited authorities that the importance of issuing a query is fundamental to the initiation of a disciplinary process in an employment, especially when the allegation against the employee will attract the sanction of dismissal. A query will not only contain details of the allegations against an employee, but will also serve as adequate notice for him to prepare for his defence against the allegations of misconduct levied against him. Thereby the constitutional requirement of fair hearing would have been satisfied, in other words failure to issue a query in a disciplinary process goes against the tenets of natural justice and fair hearing.
38. In Obiageli v Federal College of Education, Zaria& Ors. (2014) LPELR-24010 (CA) Aji J.C.A held as follows:
“It is trite law that where an order or decision is reached by anybody exercising judicial function and that order or decision passed is in violation of the fundamental right of a person guaranteed under the Constitution or violates the principles of natural justice and or ultra vires the provisions of the relevant law, then the court of law can invoke its jurisdiction under the 1999 Constitution of the Federal Republic of Nigeria as amended to interfere with and set aside such order.”
39. It is pertinent to note that the claimant in this suit maintained that he did not receive any query and was not afforded fair hearing prior to his dismissal, while the defendant contended that it is the company’s practice to issue verbal queries as was done in the claimant’s case.
40. The common concept of our legal jurisprudence is that he who asserts must prove, thus, the defendant having led evidence on the practice of issuing verbal queries and verbal invitation to staff facing a disciplinary procedure for an interface, must adduce evidence in proof of the said practice. The defendant however failed to place such evidence before this court, rather the evidence on record reveals that the claimant was employed vide a letter and his employment was also terminated in writing, see Exhibits JD1 and JD2. The issuance of a verbal query to the claimant in the circumstance, considering the serious allegations raised against him is not only perplexing, but the fact that the content of the oral query is not ascertainable from the evidence adduced is also detrimental to the defence in this suit. In addition, the defendant’s assertion that the claimant was invited by its Board of Directors vide a telephone conversation to discuss his grievances falls short of a disciplinary process. On the above assertions of the defence, the claimant had this to say in his Paragraphs 9 and 13 of his reply to the statement of defence:
“… that the only conversation he had with Mr. Ige was when he asked for the key to the studio which he told him, that he had dropped the key with the security men at the defendant’s company when he wasn’t allowed to access the premises…”. Paragraph 13 thereof reads “… the claimant avers that he was never invited formally to address any grievances before the dismissal letter was issued to him.”
41. In the light of the above averments, the defendant ought to have adduced credible evidence to establish its assertions on the content of the conversation between its Executive Director and the claimant, but on this again the defence failed to adduce any evidence, as a consequence its assertions on the verbal query and oral invitation issued to the claimant remains unproven.
42. It is a well-established position of law that an employer need not give reasons for terminating an employee’s appointment, but where he does, he must justify same. See Sections 131, 132 and 133 of the Evidence Act, 2011 and Nigerian Postal Service v Musa (2013) JELR 35757 (CA) where Ige JCA held as follows:
43. “… an employer is not bound to give reasons for terminating the appointment of his employee. But where as in this case, he gives reasons or cause for terminating the appointment, the law imposes on him the duty to establish the reason to the satisfaction of the court…..”
See also Institute of Health ABU Hospital Management Board v Anyip (2011) LPELR-1517(SC).
44. Thus a thorough perusal of the claimants letter of dismissal i.e. Exhibit JD2 is called for, and it reveals the following:
“In view of recent developments in the company, the Board of Directors found your role in the disruption of services which occurred on March 23rd, 2018 and the strike action by the workers as acts of sabotage and insensitivity to the corporate image of the company.
The Board, therefore, orders your immediate dismissal from the services of the company. This is part of the re-organization embarked upon by the Board as a result of the ugly events.”
45. In addition, paragraph 3 of the extant statement of defence reveals that:
“…the claimant masterminded acts of sabotage against the Defendant by causing the doors of the radio premises including the studio, broadcasting room and other sensitive equipment rooms to be thrown open and exposed to theft and damage without the knowledge of the director, as a protest against delay in payment of salary.”
46. It is clear from the above expositions that the defendant hinged the claimant’s dismissal on his alleged involvement in the event that took place on 28th March, 2018 amongst other allegations against the claimant. The claimant on his own part denied any involvement in the disruption of the defendant’s services when he averred in paragraph 2 of his reply to the statement of defense that:
“… on the day of the protest, he was at his duty post and he was not the one that masterminded acts of sabotage against the defendant… he has no control over the staff of the defendant”
47. The defendant in this suit having ascribed the dismissal of the claimant to a specific act of misconduct bears the evidential burden to establish the misconduct to the satisfaction of the court. The evidence of DW1 however falls short of the standard of proof required in this instance, same having been rebutted by the claimant. In view of the rebuttal, it is clear that the defendant retains the burden to strictly proof its assertions before this court, but DW1 opted to rely on oral/verbal query and invitations, which this court has earlier held to be unascertainable. In the light of the above, the defendant failed to justify the claimant’s dismissal and its adherence to the basic tenets of natural justice as encapsulated in the twin pillars of natural justice i.e.“audi alteram patem” and “nemo judex in causa sua” in the dismissal of the claimant. This I find, is a fundamental flaw which invalidates the entire process leading up to the dismissal of the claimant.
48. In Avre v Nigerian Postal Service (2014) LPER-22629(CA), Angie JCA held that:
“Where an Employer pleads that an Employee was removed or dismissed for a specific misconduct, the dismissal will not be justified in the absence of adequate opportunity offered to explain, justify or else defend the alleged misconduct.”
49. It is based on the reasoning above that I hereby resolve this issue against the defendant in this case. The dismissal of the claimant is unjustified from the evidence placed before this court and is hereby declared wrongful. I so hold.
50. It is trite that a court will not impose a willing employee on an unwilling employer. Likewise, the court will not order specific performance in an employment except it is statutory. Flowing from the above, the only remedy available to an employee who successfully proves a case of wrongful dismissal in a Master/ Servant employment is in damages, to be calculated in form of salary in lieu of notice. See Adewunmi v Nigerian Eagle Flour Mills (2014) LPELR-22557(CA) Dongbam Mensen JCA held :
“…in a master and servant relationship a dismissal of the employee cannot be declared null and void and of no effect whatsoever. The employee’s remedy is in damages where the termination of employment or dismissal is held to be wrongful.”
51. A perusal of the contract of employment between the parties in this suit i.e. Exhibit JD1, reveals no provision as to the period of notice required to terminate the employment relationship, and again resort will be had to the common law position as espoused by several authorities on this issue. See Shena Security Company Ltd. V AFROPAK (Nig.) Ltd. & Ors. (Supra), where Muhammad JSC held that:
“Where there is no mode of termination of the contract of service by any form of notice. The common law rule will apply. That rule is that the court will imply a presumption that contract of service is to terminate by reasonable notice given by either party…”
52. In the same vein, Galadima JCA held in Emuwa v Consolidated Discounts Ltd. (2001)2 NWLR(Pt. 697) 424 thus:
“… Where the contract of employment is silent as to the required notice of termination, the court will imply that a reasonable notice is necessary….”
53. After a proper consideration of the authorities on this point and the evidence adduced in this case which sums up as follows;
i. the claimant was employed by the defendant as an Engineer ;
ii. the length of his employment with the defendant is two years i.e. 2016- 2018;
iii. the claimant was the Ag head of the defendant’s engineering department.
This court arrived at the conclusion that a reasonable notice in the circumstance of this case will be a month’s notice or a month’s salary in lieu of notice. The claimant led evidence on his annual salary while working with the defendant see Exhibit JD1 which disclosed the sum of N960,000.00k per annum which translates to a monthly salary of N80,000.00k. The defendant did not controvert this and actually admitted same in paragraph 2 of the statement of defence. Flowing from the above, the claimant is entitled to the equivalent of a month salary in lieu of notice i.e. N80,000.00k as damages for his wrongful dismissal, to be paid by the defendant in this case. I so hold.
54. The claimant is also seeking the payment of accrued salaries for six months covering December, 2017 to May, 2018. The defendants in response admitted owing the claimant and ascribed the failure to pay the claimant’s salary arrears to economic downturn in the defendant’s fortune. The defendant further led evidence that since the commencement of this suit, the claimant has been paid his salaries for two months, i.e. December, 2017 and January, 2018, and another N25,000.00k was mistakenly paid to the claimant. The claimant admitted the payment and accepted that the N25,000.00k paid into his account be deducted from his remaining outstanding salaries under cross examination as follows:
“I recall that two months’ salary of December, 2017 and January, 2018 were paid to me after I left.
A sum of N25,000.00k was erroneously paid into my account by the defendant at the time I left and I told the Executive Director that , that was part of the amount the defendant was owing.
It is true that the defendant is owing me part of February, March, April, 2018, I stopped working with the defendant on 9/4/2018.”
55. In summary, the claimant having admitted that he has received salaries for December 2017, January, 2018 and part payment of February 2018, from the defendant can no longer lay claim to same. On the claim for salaries for April and May 2018, it is worthy of note that the claimant was dismissed on the 9th of April, 2018, and so as at that date his employment with the defendant ceased, thus he is only entitled to be paid for nine (9) days in April 2018 and cannot lay claim to any salary for May, 2018. In effect, I find that the claimant is yet to receive salaries for February, March, and up until 9th April, 2018 less N25,000.00k, erroneously paid to the claimant’s account.
56. The claimant’s entitlement can therefore be calculated follows;
Annual salary; N960,000.00k x 12 (months) = N80,000.00k
February 2018 Salary: N80,000.00K – N25,000.00K = N55,000.00K
March, 2018 Salary: N80,000.00k
April, 2018 Salary N80,000.00k / 30 (days) =N2,667.00k per day
N2,667.00k x 9 (days) = N24,003.00k
The claimant in this suit is therefore entitled to a total sum of N159,003.00k as his arrears of salary for February, 2018 - 9th April, 2018, due and to be paid by the defendant. I so hold.
57. On the claim for General damages, It is settled law that these are awarded by the court, on the basis of what the law presumes to be the consequence of an act complained of and does not need to be specifically pleaded or specially proved by evidence. They are also termed compensatory damages which are awarded for the wrong done to a party, and at the discretion of the court. It is on record that this court earlier awarded a month salary in lieu of notice to the claimant as damages for his wrongful dismissal, which I find is adequate compensation in the circumstances of this case. Thus, this court is not inclined to grant the claimant’s quest for general damages as claimed as this will amount to double compensation, see Access Bank Plc. v Sijuwade (2016) LPELR-40188(CA) per Danjuma J.C.A where he held that:
“It is elementary that both law and common sense frown at double compensation… a party who has been compensated under one head of damages for a particular injury, cannot be awarded damages in respect of the same injury…”
58. It is premised on the above that I find that the claim for general damages fails and is hereby refused. I so hold.
59. On the issue of pre and post judgment interest sought by the claimant, I find that the claimant led no evidence whatsoever on the claim for pre-judgment interest. It is the duty of a claimant seeking pre-judgment interest to plead and lead evidence to prove same. See UBA v Oranugba (2013) LPELR-20692 per Iyizoba JCA where he held:
“The law is that pre-judgment interest is awarded where there is an agreement for payment of interest or under mercantile custom or under a principle of equity such as breach of fiduciary duty. In such cases, the pre-judgment interest must be pleaded and proved” See also Berliet (Nig) Lt. V. Kachalla  9 NWLR (Pt.420) 478. It is therefore clear that for a claim for pre-judgment interest to succeed, it must arise from the mutual agreement between the parties to the litigation or by the custom governing the transaction, or by statute, or under a principle of equity such as breach of a fiduciary relationship. See Order 47 Rule 7 of the NICN (Civil Procedure) Rules, 2017; and Farasco Nig. Ltd & Anor v. PZ Ind.  LPELR-4142 (CA). There is however no evidence of the above in the instant case, and as such the claim for pre- judgment interest fails. I so hold.
COUNTER - CLAIM
60. The defendant counter-claimed against the claimant for the reliefs captured above, and against the pecuniary loss suffered by the company on the perceived wrong done to it as a result of the action of the claimant. There is no doubt that a counter claim is a distinct action on its own, and the defendant/counter-claimant retains the burden to adduce evidence in proof of its entitlements to the reliefs sought in the counter-claim.
61. The defendant/counter claimant in proof of its case relied on the testimony of DW1 on the attendant loss of profit and injury to its reputation and goodwill as a result of the claimant’s action in leaving the defendant’s radio premises and studio open for days. The claimant on his part vehemently denied this allegation, thereby putting the defendant/counter-claimant to the strictest proof thereof.
62. There is no doubt that the reliefs sought by the counter-claimant in this case are in the realm of special damages, which must be specifically and concisely proved. The defendant however failed to adduce any evidence in proof of the injury it suffered and particulars of the pecuniary loss incurred as a result of the alleged action of the claimant. Consequently, the defendant’s counter-claim is unproven, unmeritorious and untenable, and is hereby dismissed. I so hold.
63. In conclusion I hold that the claimant’s action succeeds in part and for the avoidance of doubt, I declare and order as follows;
1. The dismissal of the claimant from his employment with the defendant is wrongful
2. The defendant is hereby ordered to pay to the claimant the sum of N80,000.00K (Eighty thousand naira only) as one-month salary in lieu of notice for his wrongful dismissal.
3. The defendant is hereby ordered to pay to the claimant the sum of N159,003.00K (One hundred and Fifty-Nine thousand, Three naira only) as his outstanding salaries balance to be paid by the defendant.
4. The claim for general damages and pre judgment interest fails.
5. All sums awarded in this judgment is to be paid by the defendants within 30 days from the date of this judgment, failing which the sum shall attract a 10% interest per annum.
6. The Defendant’s counter claim is dismissed
A sum of N100,000.00k is hereby awarded as cost to the claimant to be paid by the defendant.
Judgment is accordingly entered.
Hon. Justice A.A. Adewemimo