IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA
SUIT NO: NICN/LA/166/2015
DATE: JUNE 17, 2020
MR. ABE ADEWUNMI BABALOLA - CLAIMANT
EQUINOX INTERNATIONAL RESOURCES LTD - DEFENDANT
C.M Ohamuo Esq., (with J.O Muonye) -for the Claimant;
N. Chinwuba, Esq., (with O.J Chidozie)-for the Defendant.
1. The Claimant, whose employment asthe Head of Human Resources and Administration of the Defendant Company was terminated, commenced thissuit by legal support of the Lagos State Office of the public Defender, vide General Form of Complaint dated and filed on 7th May 2015, accompanied with the requisite frontloaded processes, basically seeking for recovery of his unpaid outstanding salaries and general damages for the financial hardship occasioned by the unduly delayed payment.
2. The Claimant’s endorsed Reliefs are as follows:
“1. An Order that the sum of N52, 000.00 (fifty-two thousand naira) only be paid by the Defendant as balance of salary for May 2012 having previously been paid the sum of N68, 000 (sixty-eight thousand naira) by the Defendant as part payment for May 2012 salary
2. An Order that the Defendant pay the sum of N120, 000.00 (one hundred and twenty thousand naira) each for the months from June to August 2012. Total: N360, 000.00 (three hundred thousand naira)
3. An Order that the Defendant pay the sum of N29.633.33 (twenty-nine thousand, six hundred and thirty-three naira, thirty three-kobo) being unpaid salary for seven (days) in September 2012 plus one month in lieu of notice in the sum of 120,000 (one hundred and twenty naira (sic)
4. General Damages in the sum of N500, 000 (five hundred thousand) for the financial hardship the Claimant was made to encounter as a result of the actions of the Defendant.
5. Cost of this Suit”.
3. Reacting to the Suit, the Defendant, in a Statement of Defence dated and filed on 21st August 2015, with the Witness Statement on Oath of KelechOzuzu deposed to 21st August 2015 ( later substituted with that of ObinnaEzeuko deposed to on 10th July 2017) denied the Claimant’s claims. The Claimant, in turn, filed a Reply to the Statement of Defence dated and filed on 3rd November 2015, and joined issues with the Defendant on his claims.
4. Upon re-assignment of the suit to this court, the matter was set down for trial denovo on 18th April 2018. At the trial proceedings, the Claimant testified for himself as Claimant’s Witness (CW),adopted his Witness Statement on Oath deposed to on 7th May 2015, and tendered 7 documents as described in the Claimant’s list of documents to be relied on at the trial dated 7th May 2015. The Defendant’s counsel however, objected to the admissibility of 4 documents. His objection on docts. nos. 3, 4and 6 are on the grounds that they are secondary evidence, being photocopies, and no foundation was laid. The ground of objection on doct.no.7 is that it is a statement of account and computer-generated, and did not satisfy the requirement of S.84 (2) (4) Evidence Act, in terms of its certification. His grouse against doct.no.8 is that it was not pleaded. In response, Claimant’s counsel contended that in respect of docts. nos. 3, 4 and 6, he laid proper foundation while tendering the documents through the CW at the trial. On doct.no.7, he urged the court to invoke its powers under the NIC Act 2006,to depart from the rules of evidence and admit same. On doct.No.8, he withdrew it having not been pleaded.
5. In a Bench Ruling, I had invoked Or.3 R.11 (3) (b) of the NICN (CP) Rules 2017, and deferred the Ruling on the Objections by the learned Defendant’s counsel, to be delivered in this Judgment. The said tendered documents were admitted inclusive of the objected ones, which were additionally marked ‘Subject to Ruling’ (SR). Accordingly, the said 7 sets of documents were admitted marked and marked as Exhibits CA1’ (offer of employment dated 20th Sept. 2011);CA2 (Termination of Appointment letter dated 7th September 2012); CA3’SR’ (Letter by Sokoya& Co to the Deft, dated 31st Oct. 2013); CA4‘SR’ (Letter of invitation dated 29th August 2014by the Directorate for Citizens Rights to the Deft); CA5(Letter of Reminder dated 21st Oct.2014); CA6 ‘SR’ (Statement of Acct) and CA7 ‘Withdrawn’SR’(ARM Pension Statement). I would in the course of the Judgment rule on these objections.
6. On the substantive dispute, gleaning from the testimony of the CW and the pleadings, the Claimant’s case is that by an Offer of Appointment Letter dated September 20 2011 (exh.CA1),he was employed to serve as the Defendant’s Head of Human Resources and Administration,with six (6) months probationary period, of which he accepted and commenced work. However, just within one year, the Defendant terminated the employment by a letter dated 7th September 2012 (exh.CA2), despite his having worked diligently. Thatas indicated by the Defendant in the said termination letter, the termination was due to the economic crunch that affected the Defendant. CW insists he did not do anything wrong despite alleged misdeeds and incompetence also introduced by the Defendant in the said termination letter and its pleadings.That at the point of the termination, the Defendant was owing him some arears of salary, made up as follows: balance of N52, 000 after paying half salary of N68, 000 for the month of May 2012; Salaries for the months of June, July, August and 7 days he worked in the month of September 2012 before the termination on 7th September 2012. And that he was not paid one month salary in lieu of notice as stipulated in the offer of appointment.
7. It is also the Claimant’s case that he made several attempts to recover his outstanding salary arrears and benefits, even by engaging a Solicitor (Sokoya& Co) who wrote to the Defendant a demand letter dated 31st October 2013(exh.CA3), which it ignored. CW narrated how the Defendant rebuffed efforts he made whenhe contacted the Directorate of Citizens Rights and Office of the Public Defender, Lagos State Ministry of Justice, who both initiated a separate settlement drive vide invitation of the Defendant dated 29th August 2014 (exh.CA4) and 21st October 2014(exh.CA5),by both Agencies, respectively, hence this suit commenced with the legal support of the Office of the Public Defender, Lagos State Ministry of Justice.Claimant also contended that he has suffered financial hardship over the Defendant’s unreasonable delay in paying his outstanding salaries and benefits till date. He prayed the court to uphold his claims and grant his reliefs. CW was cross-examined, and as there was no re-examination, the Claimant’s case closed.
8. The Defendant opened its defence at the proceedings of 17th September 2019. ObinnaEzeuko, the Managing Director of the Defendant Company testified as the sole Defendant’s Witness (DW). He adopted his Written Statement on oath deposed to on 17th July 2017, and did not tender any document. He was cross-examined by the Claimant’s counsel, and as there was no re-examination by the Defendant’s counsel, the defence closed.
9. Going by the testimonies of the DW and the Defendant’s pleadings, the case of the Defendant tallies with that of the Claimant on the employment history, but differs markedly on the basis of the termination, amount of owed outstanding salary arears and months covered, and entitlement to salary in lieu of notice. Defendant admitted owing the balance of N52, 000.00 as balance of May 2012 salary, but contends that it does not owe the Claimant the salaries for the months of June, July, August and any part of September 2012. The Defendant contends that even though it terminated the employment of the Claimant on 7th September 2012, the Claimant has abandoned his duty post during these months, which amounts to constructive resignation of his appointment without notice.
10. TheDefendant insists that the Claimant is not entitled to any notice or salary in lieu of notice because he was dismissed for various infractions, ranging from gross misconduct, incompetence, dereliction of duty and absenteeism from work, as well as implicated in the erroneous employment of two relatives who conspired to steal the Defendant’s goods worth over N3M (three million naira). Defendant denied not being invited by the Office of the Public Defender over any petition on the matter, and that it honoured the invitation of the Citizens Mediation Centre, by briefing a lawyer for representation. It is the Defendant’s further contention that the suit is underserved, and prayed the court to dismiss it with substantial cost.
11. Upon conclusion of the trial, both counsel filed and exchanged their respective Final Written Addresses as ordered by the court.
Submissions by Defendant’s Counsel:
12. Learned Defendant’s counsel, NkachaChinwuba,Esq.,in his 6-pagedFinal Written Address, dated and filed on 30th September 2019, formulated a lone issue for determination-Whether from the totality of evidence before the court, the Claimant is entitled to arrears of June, July and August and 7 days in September 2012?
13. Canvassing arguments on the issue, learned counsel, submitted that apart from the claim for the balance of the sum of N52,000.00, which the Defendant admitted as the outstanding balance for the May 2012 salary, the claimant is not entitled to any payment at all for the other months of June to September 2012 he is asking for. To counsel, the burden of establishing such claims lies on the Claimant who asserts, and can only discharge the burden by preponderance of evidence and balance of probability.
14. Counsel cited and relied on a number of cases, particularly Daodu v. Abasi 3NWLR (Pt.538)355SC; Itaumav. Akpa-Ime 7SC(pt.11)24; Ins. Brokers of Nigeria v. A.T.M Co Ltd [1996)8NWLR (Pt.406)SC316,to contend that the Claimant in his Reply to Statement of Defence did not properly traverse the denial of the Defendant’s pleading that the Claimant was not entitled to any such salary arrears. More so, as the Claimant’s said Reply was not accompanied with Witness Statement on Oath which serves as evidence, thereby leaving the pleadings in the Reply bare without any supporting evidence.
15. Learned counsel, citing and relying on S.11(8) Labour Act, to the effect that ‘if an employer gives notice to a terminate the contract of employment of a worker who has been continuously employed for three months or more, the employer shall not be liable to make any payment in respect of a period during which the worker is absent from work without leave of the employer granted at the request of the worker’, further submitted that the Claimant is not entitled to payment for the period he did not work. Andthat a dismissed employee can only claim emoluments he has worked for in the course of his employment. Concluding, counsel urged the court to refuse the Claimant’s reliefs for the months of June, July August, when the Claimant was no longer coming to work.
Submissions by Claimant’s Counsel:
16. Learned Claimant’s lead counsel, C.M Ohamuo, Esq, in his 8-pagedFinal Written Address(settled with A.O Adeyemi and J.O Monye) dated and filed on 22nd October2019 also formulated a sole legal issue for determination- Whether the Claimantis entitled to the Reliefs sought?
17. Arguing the sole issue, learned counsel submitted that the DW’s testimony as contained in his Witness Statement on Oath adopted at the trial contradicts the clear contents of the termination letter (exh.CA2), which gave reason for the termination on ground of economic crunch and restructuring of the Defendant company.
18. Counsel argued that the contention by the Defendant that the Claimant was irregular act work was not established at the trial, as no evidence was laid to establish the allegation. Citing and relying on Gbafev.Gbafe 6 NWLR (Pt.455)417, counsel maintains that the onus of proof of such assertion lies on the Defendant, who did not lead any evidence to establish same. Counsel pointed that during cross-examination, the DW confirmed that the Claimant was not given any query over the alleged absence from work. Counsel also pointed, that as can be seen from the Claimant’s Statement of Account (exh.CA6’SR’), the Defendant paid in part-payment of the Claimant’s August Salary, which should be noted and subtracted from the total outstanding sum.
19. Learned counsel also contended that the Defendant’s counsel erroneously seems to have equated the termination letter (exh.CA2) as dismissal. Counsel also pointed that the learned Defendant’s counsel also turned around to argue that the Claimant constructively resigned, andthere was no evidence of such abandonment, and as such, S.11 (8) Labour Act cannot apply. More so, a there was no evidence that the provisions of S.11 (8) Labour Act applies to the Claimant. Counsel further argued that, assuming without conceding, that the Claimant was dismissed, he would still be entitled to arrears of his salaries that have accrued up to the time of the purported dismissal. Counsel anchored his submission on this point on the case of LakeChad Research Institute v. Mohammed (2004) LPELR-5796(CA).
20. Counsel submitted that having terminated the employment without notice, the Claimant is entitled to the payment of one month’s salary in lieu of notice, which is provided for in the employment letter (exh.CA1). Counsel argued that even by the contention of the Defendant’s counsel that the Claimant’s employment was not confirmed after the six-month probationary period, the Claimant is still entitled to some payment for two weeks’ notice. Counsel submitted that having completed the 6 month-probationary period, the Claimant became a permanent staff and should be so regarded, unless the court holds otherwise.
21. Concluding, counsel urged the court to construe the clear words of the contract of employment and uphold the Claimant’s reliefs as prayed.
22. At the proceedings of 3rd June 2020, both counsel adopted their respective Final Written Addresses, adumbrated on same, and urged the court to uphold their respective perspectives of the issues in dispute. Judgment was thereafter reserved.
23. I have reviewed the processes filed in the suit as well as submissions of both counsel filed and exchanged in their respective Final Written Addresses, and their buttressed adumbration on same. I have also duly evaluated evidence tendered at the proceedings and observed the demeanor of witnesses who testified on respective sides of the parties.
Ruling on the Admissibility Objection:
24. I will quickly deal with the objection raised by the learned Defendant’s counsel regarding admissibility of some documents tendered by the CW duringthe trial proceedings, the Ruling on the arguments, of which I had, pursuant to Or.3 R.11 (3) (b) of the NICN (CP) Rules 2017, differed. The said tendered documents were admitted inclusive of the objected ones, which were additionally marked ‘Subject to Ruling’ (SR).The affected exhibits are: CA3’SR’ (Letter by Sokoya& Co to the Deft, dated 31st Oct. 2013); CA4‘SR’ (Letter of invitation dated 29th August 2014 by the Directorate for Citizens Rights to the Deft); CA6 ‘SR’ (Statement of Acct) and CA7 ‘Withdrawn’SR’(ARM Pension Statement).The crux of the objections are-that there was no foundation for tendering some three documents which are photocopies; that there was lack of compliance with the provisions of S.84 Evidence Act in respect of the Statement of Account which is electronic evidence; and that the withdrawn document not pleaded could not be validly withdrawn after objection.
25. There was no dispute that the documents objected to on ground of being secondary evidence were all pleaded. The argument was that their tendering did not satisfy the rule of laying foundation for tendering them due to absence of ‘notice to produce’ by the Claimant in his pleadings. Learned Defendant’s counsel failed to recognize that there is an exception to requirement for serving ‘notice to produce’ in pleadings;where, as in the instant case, the Defendant ought to know that such document would be used at the trial, even by the objector. In such circumstance, formal request in pleading as ‘notice to produce’ could be dispensed with pursuant to S.91(b) EvidenceAct.Accordingly, this objection fails and is hereby rejected. I so hold.
26. On the objection on ground of not satisfying certification for admissibility of secondary evidence under S.84 (2) (4) Evidence Act, mainly, also that it is a Statement of Account from a bank, the only answer by the learned Claimant’s counsel is to beckon the court to invoke its liberal jurisdiction under S.12 NICA 2006, to dispense with the strict rules of evidence and overrule the objection.But then, little did he know that I seldom lend such helping hand to a counsel who did not make an honest mistake but merely displayed lack of understanding of the rules or acted with flippancy. I find that there was no certificate filed or even oral evidence laid at the trial on the functioning of the computer system and circumstance of the document’s retrieval as electronic evidence, as required by the extant provisions of Evidence Act. The learned Claimant’s counsel inexplicably failed to comply with the basic trial procedure for admissibility of computer-generated evidence and banker’s statement, copiously made provisions for under the extant Evidence Act.
27. In my view, the liberality preached in the S.12 NICA 2006, does not relieve a counsel fromcomplying with basic rules of practice, as such insistence is not being technical;after all, the law itself isa nest of technicality! On that note, I uphold the objection of the learned Defendant’s counsel on admissibility of exh.CA6 ‘SR’ (Statement of Acct). Same is hereby rejected and expunged from the record. I so hold.
28. There was also an objection on exh.CA7’SR’(ARM Pension Statement) even as it was later withdrawn upon objection and marked ‘Withdrawn’. It is difficult to decipher the actual legal basis for this later objection by the learned Defendant’s counsel. He first raised a substantial objection against admissibility of the sad document on the ground that it was not pleaded. The Claimant’s counsel conceded and withdrew it, yet, the Defendant’s counsel raised another objection, that the withdrawal could not be validly made once an objection was made. Counsel however, did not back his submission with any legal authority.
29. I find this line of objection as petty and quarrelsome. I reject same. The exh.CA7 having earlier been withdrawn remains withdrawn and so expunged from the record. I so hold.
Resolution of the Substantive Dispute:
30. Now back to the resolution of the substantive suit. Both counsel presented a sole issue, each, for determination. The Defendant’s sole issue is- Whether from the totality of evidence before the court, the Claimant is entitled to arrears of June, July and August and 7 days in September 2012?The Claimant’s own lone issue is-Whether the Claimant is entitled to the Reliefs sought?Both are on point and comprehensive to address the substance of the dispute between the parties, but only needed a re-phrase, to set forth a single main issue for determination in this suit- Whether from the facts and evidence before the court, the Claimant is entitled to the reliefs sought? I will proceed along this main issue.
31. From the submissions of the counsel for the respective party, whereas Claimant’s counsel maintained that the Claimant proved his case and entitled to his reliefs as claimed, on the other hand, learned Defendant’s counsel maintained a contrary viewpoint, and posited that the Claimant did not lay evidence to substantiate his claims, and therefore has failed to prove his claims to be entitled to the reliefs sought.The Claimant’s Relief (1), seeking for “An Order that the sum of N52, 000.00 (fifty-two thousand naira) only be paid by the Defendant as balance of salary for May 2012 having previously been paid the sum of N68, 000 (sixty-eight thousand naira) by the Defendant as part payment for May 2012 salary”, has been admitted by the Defendant and no longer in dispute. Same is granted. Accordingly, the Defendant is hereby ordered to pay the Claimant the sum of N52, 000.00(fifty two thousand naira), being the unpaid balance of his May 2012 Salary. I so hold.
32. The Claimant’sReliefs (2) and (3) are inter-related monetary entitlement claims, and should be taken together. Relief (2) is for an “Order that the Defendant pay the sum of N120, 000.00 (one hundred and twenty thousand naira) each for the months from June to August 2012. Total: N360, 000.00 (three hundred thousand naira)”. Relief (3) asks for an “Order that the Defendant pay the sum of N29.633.33 (twenty-nine thousand, six hundred and thirty-three naira, thirty three-kobo) being unpaid salary for seven (days) in September 2012 plus one month in lieu of notice in the sum of 120,000 (one hundred and twenty naira (sic)”.
33. The Defendant vehemently disclaimed any such liability, and presented a three-prong defence:(1).Claimant’s appointment was never confirmed due to incompetence after the 6 months probationary period, and therefore not a permanent/regular staff; (2). Claimant abandoned work which amounts to constructive resignation of his appointment without notice; and (3). Claimant was dismissed for gross misconduct.
34. These defences are in addition to the reason of economic crunch indicated in the ‘Termination of Appointment’ letter dated 7th September 2012 (exh.CA2).The first paragraph of the exh.CA2 reads: “The Executive Management wish to notify you that due to the present economic crunch, inability to pay staff salaries/wages, meet up with our short term obligations as at when due, the Board of Directors has approved the recommendations that the company’s operation be restructured to cope with the present challenges, pending when the situation improves”. In the third paragraph, the decision to terminate the appointment was communicated thus:“In view of the above circumstances, Management hereby inform you that your services are no longer required with effect from September 7th 2012. We have not found you very competent to handle the requirement of your office”.
35. The said termination letter nevertheless, directed the Claimant to do a handover and proceed to the Accounts Department for his terminal benefit, while wishing him the best in his future endeavours.The Defendant also acknowledged the difficulty being experienced by the Claimant due to his financial situation resulting from the Defendant’s economic crunch. The second paragraph of the exh.CA2 states: “You will appreciate the economic crunch by your inability to come to work today, due to your financial situation”.
36. The Defendant’s counsel stoutly argued that the Claimant abandoned his work and such amounts to constructive resignation and the letter of termination by the Defendant was a mere formality. He relied heavily on S.11 (8) Labour Act, but the facts and circumstances of this suit did not in any way fall within the confines of the constructive resignation, when juxtaposed with the copious acknowledgment by the Defendant of the difficulty experienced by the Claimant coming to work without being paid salary, since May 2012, about 5 months in September, when the termination letter was written. I find nothing in this exh.CA2 to support the Defendant’s allegation of abandonment of duty by the Claimant, and no evidence was presented at the trial in this regard. I find that Defendant did not exercise any disciplinary measure in form of query against the Claimant for his alleged abandonment of work.And there was no evidence of any attendance record justifying the allegation.
37. I agree with the submission of the learned Claimant’s counsel, contending that the Defendant would have exercised disciplinary measures against the Claimant if it was its reason for such absence from duty without leave. nothing stopped the Claimant from being disciplined as an erring employee, in the exercise of the employer’s unfettered power to discipline its employee, otherwise such errant conduct is deemed condoned by the employer, which also reserve right to condone indiscipline act of the employee, as even expressed in exh.CA2, by the Defendant justifying the Claimant’s absence from duty due to lack of funds.
38. To activate another line of defence by alleged incompetency, the exh.CA2 alludes to an infraction by the Claimant, when it stated in the closing of the first paragraph, that “We have not found you very competent to handle the requirement of your office”. But this is just in the passing and without any backed evidence even with a previous query for the alleged incompetence.
39. The Defendant, in its pleading and testimony of DW, again swerved to another reason. It had gone ahead to also allege that the Claimant was ‘dismissed for gross misconduct’. I am not sure that the Defendant and its counsel understand the dynamics of this line of defence and the consequent onerous burden on the Defendant to establish such allegation, which if proved, is capable of denying the Claimant his longings for terminal benefits and sundry due process for a dignified exit from the employment. Of note is that the Defendant did not raise this reason of ‘dismissal for gross misconduct’ in the termination letter, duly titled ‘Termination of Appointment’ (exh.CA2), yet placed it as a defence, thereby confusing and mixing up the legal terminology of the concept of ‘Termination’ and ‘Dismissal’, often viewed with discerning distinction because of their radical features and consequences in employment law jurisprudence. I will come to that soon.
40. Nevertheless, I have taken a curious look at this defence of ‘dismissal for gross misconduct’. The law is quite settled that in a common law rule of master–servant relationship, as in the instant case, an employer can relieve the services of the employee with or without reason, but where a reason is given, particularly based on allegation of misconduct, and is challenged by the employee, the employer has the evidential burden and duty to justify same, otherwise such employer incurs liability thereto. I so hold. In Shell Petroleum Co. Ltd v. Olanrewaju 18 NWLR (Pt.1118) SC1 @Pp.19-20, Paras. H;A-B, the Supreme Court per Tabai JSC, held :
“The guiding principle which has been articulated and applied in many cases including Olatunbosun v. N.I.S.R Council (1988) 1NSCC (1025)188, is that an employer is not bound to give reasons for terminating the appointment of his employee. But whereas in the case, he gives a reason or cause for terminating the appointment, the law imposes on him a duty to establish the reason to the satisfaction of the court. In the case, the appellant, having given gross misconduct to warrant his dismissal, has the onus to establish that the respondent was indeed guilty of alleged misconduct to warrant his dismissal. And in a case such as this, the court must be watchful to ensure that in the investigations or proceedings of the domestic panel culminating in the employee’s dismissal, the rules of natural justice were not breached”.
41. The pertinent question is- did the Defendant justify this allegation of ‘dismissal for gross misconduct’, it later levelled against the Claimant in its pleadings and testimony in court? I find that there was no pending issue of gross misconduct that arose between the parties prior to this suit. And as such, there is also no evidence of any compliance with the rule of natural justice, denoting that the Claimant should have been confronted with such allegation and be given opportunity to defend himself, before any such allegation of misconduct can be granted to ground a dismissal. Not doing so, constitutes aflagrant breach of natural justice rule of fair hearing- audialterampatem. In Odunlami v. Nigerian Navy  12 NWLR (Pt. 1367) S.C.P. 20 @ P. 52, para. D, the Supreme Court explained that: “Audi alteram partemmeans hear the other side. It is a maxim denoting basic fairness and a canon of natural justice”.I so hold.
42. I had earlier noted the incongruous mixture and confusion of the concept of ‘Termination’ and ‘Dismissal’ by the learned Defendant’s counsel, who settled the pleadings, conducted the defence and presented the Final Written Address, for the Defendant, yet did not stick to either of the two diametrical employment-exit pathways by Dismissal or Termination. Could it be ignorance or mischief? In my view, it smacks of both ignorance and mischief, as learned counsel, who ought to know better, strenuously canvassed this needless erroneous terminological admixture, by not just interchanging the two concepts (as often done out of ignorance) but also deliberately supplanted ‘Dismissal’ with ‘Termination’, even in the copious face of ‘exh.CA2’, to the contrary.
43. Though Dismissal and Termination are both legally recognized exit pathways for employee in employment relationship, and are often misconceived as interchangeable, some key distinguishing features mark them out with divergent outcome in employment exit pathways. Basically, ‘Termination’ is an employment contractual exit available to both employer and employee, and may go with or without reason, as it may not be for disciplinary purpose, but just for mere compliance with extant contract of service to bring the employment relationship to a lawful end. On the other hand, ‘Dismissal’ is solely a disciplinary measure available for only the employer with consequential denial of pecuniary entitlements of employee’s earned terminal benefits and image battering; casting doubt of future employability.
44. In Leonard Oyinbo v. Guinness Nig. Plc (Suit No. NICN/LA/639/2012, Judgment delivered Sept.20 2019)Ihave had theoccasion to restate the underlying consequential basis for the distinction between ‘Termination’ and ‘Dismissal’, wherein I held thus: “In my humble but tenacious view, for the simple reason that Dismissal has the adverse effect of taking away the employee’s earned terminal benefits, the employer is not at liberty to dismiss an employee without justifiable reason and observance of due process and fair hearing. The standard remains the same whether in statutory employment or master/servant employment governed by common law”.
45. The Defendant’s penchant for swerving and scratching for reasons to justify its induced exit of the Claimant, to say the least, is unbecoming, and learned Defendant’s counsel would have been cautious not to be entangled with such approach. Disputing parties are usually enjoined and indeed expected to be and remain consistent in presenting their case before a court of law; a trite litigation principle, of which the Defendant ignored. In that light, it is expected that the Defendant ought not to dabble and grapple with strained efforts trying to justify the purported dismissal of the Claimant in the face of exh.CA2, wherein the same Defendant copiously expressed its intention to terminate the employment relationship with the Claimant. I so hold.
46. From the foregoing analysis, I find that there was no ‘Dismissal’ of the Claimant for any alleged misconduct, and their employment relationship duly subsisted from September 20 2011 (exh.CA1) up to 7th September 2012(exh.CA2).I find also that the employment relationship was terminated by the Defendant and not by the Claimant under any purported constructive resignation/abandonment of duty. I so hold.
47. The outstanding period the Claimant is claiming for recovery of owed arrears of salaries and entitlements are from June, July, August and September 2012. The Claimant was said to have worked for only 7 days in September upon termination of the employment vide the termination letter dated 7th September 2012 (exhCA2). Although the Claimant is requesting for a fraction of the monthly salary for the month of September, but what is the position of the law on such issue? I go with the law. In Grant Mpanugo v. CAT Construction Nig Lt & Anor. (Suit No. NICN/LA/660/2015, Judgment delivered on Sept.20 2019), I took out an opportunity to reviewthe principle underpinning payment of salary in periodic employment, and came to the conclusion that pro rata payment of salary is not applicable to workers in periodic employment, but only applicable to daily paid workers.
48. It was reasoned that pro rata/fractional payment of salary is not applicable to workers in periodic employment who receive salary per calendar month; not calculated by the number of days, otherwise, there will be no equal salary monthly per year, given that the twelve months of a year do not have equal days, particularly the month of February, with days as low as 28 or 29 days. I adopt the same reasoning. Consequently, in my considered view, in a periodic employment of this kind, an employer who decides to terminate an employee within a new month is liable to pay for full salary of that exit month and not fraction of the days the employee worked in the month. I so hold. On that note, the Claimant is entitled to payment of his full salary in the month of September 2012, the last month of his employment before his exist by way of the termination on 7th September 2012. I so hold.
49. Both parties and their respective counsel also joined issues on the Claimant’s entitlement for one month salary in lieu of notice. On the side of the Defendant, it was contended that the Claimant’s employment was never confirmed due to incompetence after the 6 months probationary period. And not being a permanent/regular staff, he is not entitled to any ‘notice’ or payment of any amount as ‘salary in lieu of notice’. For the Claimant, it was maintained that he is entitled to notice of termination or salary in lieu of notice as stipulated in the Offer of Appointment letter dated September 20 2011 (exh.CA1). It was argued for the Claimant, that even if his employment was not confirmed after the 6 month-probationary period, he is still entitled to some payment in lieu of notice, even if not for one-month salary.
50. The relevant paragraphs of the exh.CA1 states: “During the six (6) months probationary period, termination of employment by either side shall be subject to two weeks notice or two weeks salary in lieu of notice. On successful completion of the probationary period, and your performance been adjudged to be satisfactory in every way, you shall be considered for retention as a permanent staff of the company and should you continue in the employment of the company, termination of employment on either side shall be subject to one month (1) notice in writing on either side or equivalent of salary in lieu “. It is the application of this clause in the employment letter that is in issue. The core contention of the Defendant is that the Claimant’s employment was not confirmed, even though the evidence on record, as shown by exhs.CA1 (employment letter of Sept112011 and CA2 (termination letter of Sept 7 2012), is that the employment history span for one year, with 1st six months billed for probation, but which was not formally confirmed.
51. Let me state right away that the Defendant’s disposition as if confirmation must be express and probationary period is only for the employee, is far from the position of the law on employee- probation. Probationary period is a specified time at early stage of employment whereby an employee’s suitability is assessed for continued employment, and also affords the employee an opportunity to also assess the suitability of the employment. In other words, probationary period is akin to courtship period for a new employee and the employer to assess each other for suitability in the new employment relationship. The law is that unless the employer terminates the employment within the probationary period, if it feels that the employee’s conduct and competence are not satisfactory during the probation, the employee is deemed to have been confirmed if he/she continues to work for the employer after the probationary period. See: Dr. AdewunmiRaji v. Obafemi Awolowo University (2014) LPELR -22088 (CA). On that note, the Claimant is deemed to have been confirmed after March 2012, being the 6th month of the probationary period, and therefore entitled to the one-month salary in lieu of notice. I so hold.
52. Having gone thus far, it is time to revisit the Claimant’s Reliefs (2) and (3) under consideration. It is not in dispute that the Claimant’s monthly salary is N120, 000.000. The outstanding period of employment the Defendant was not paid covers June, July, August and September 2012 (4months), totaling N480, 000.00 (four hundred and eighty thousand naira). The Claimant attempted to supply evidence of receiving some part-payment in the month of August 2012, but this was rebuffed by the Defendant and it suffered two evidential mishaps. Learned Defendant’s counsel, had contended that the Claimant’s Reply to the Defendant’s Statement of Defenceintroducing the issue was not accompanied with Statement on Oath. Thus, the pleading was not backed by evidence. I agreed with him, and did not take into cognizance the averments in the said objected Claimant’s Reply.Also, learned Defendant’s counsel had successfully objected to the admissibility of the Statement of Account tendered by the CW, where this vital information of the said part-payment issaid to be contained in. In the preliminary Ruling earlier in this Judgment on admissibility of some documents tendered at the trial, I had upheld the objection by the Defendant’s counsel, and expunged the said document earlier admitted ‘subject to ruling’. I cannot revisit the issue at this stage again. The evidence of any such part-payment is not before me, and as such, I cannot pronounce on it. I so hold.
53. On the whole, the Claimant’s Reliefs (2) and (3) succeeds to the extent that the Defendant is hereby ordered to pay the Claimant the sum of N480, 000.00 (four hundred and eighty naira) representing the Claimant’s owed arrears of salary for the months of June , July, August and September 2012. The Defendant is hereby further ordered to pay the Claimant the sum of N120,000.00 (one hundred and twenty thousand naira) being the sum representing one month salary in lieu of notice which the Defendant did not give while terminating the employment with effect from the same day on 7th September 2012. I so hold.
54. Relief (4) is for “General Damages in the sum of N500,000.00 (five hundred thousand) for the financial hardship the Claimant was made to encounter as a result of the actions of the Defendant”. The quick reaction by the learned Defendant’s counsel is that the claim has been abandoned by the Claimant as it was no longer reflected in the Statement of Claim/Facts, which by case law authorities, he relied on, supersedes the Writ/Complaints. But is this true? I have gone back once again to the Claimant’s said Statement of Facts dated and filed on 7th May 2015, and have compared it with the endorsed Reliefs in the General Form of Complaint (equivalent to Writ) with which the Suit was commenced. From the exercise, I noticed that contrary to the allegation of the Defendant’s counsel that the Claimant abandoned two other Reliefs after the first-three reliefs in the Complaint, which is far from the truth. From the records, I find that the Claimant maintained 5 Reliefs in the two processes (Complaints and Statement of Facts), only that in the later process (the Statement of Facts), the Claimant did not indicate the sum of N500,000.00, which he asks to be awarded as general damages, leaving the court with discretion of assessing the general damages to award in the circumstances of the suit.
55. Going by the submissions of the learned Defendant’s counsel on the issue of the relationship between the Writ/Complaint and Statement of Claim/Facts, and the authorities relied on, I agree with him, even to the same effect, where the Claimant had modified the Relief (5) at the stage of Statement of Facts, to exclude the sum of N500,000.00 (five hundred thousand naira) earlier stated in the Complaint. Accordingly, on the basis of this established principle of practice and procedure on superiority of Claim over Writ, as canvassed by the learned Defendant’s counsel, I will therefore, proceed to consider the Relief (5)on the basis of the Claimant’s averment in the Statement of Facts, that is – for the Relief (5), the Claimant asks for ‘General Damages’. I so hold.
56. From the record, I find that the available evidence proffered by the Claimant points to the unwarranted delayed payment of his outstanding salaries since May 2012, and not even paying the balance of the May 2012 salary it did not contest but held three years later in 2015 when this suit was commenced, and continued to withhold the salaries all through the duration of this case up to this Judgment, without any evidence of even an attempt at amicable settlement or payment of even admitted sum. This seemingly unjustified holding on to payment of the salaries and salary in lieu of notice constituted the financial hardship the Claimant complained about, inclusive of returns from profitable ventures, the sums would have been accruing to the Claimant if he was paid at appropriate time when his employment was terminated in September 2012 and they parted ways.
57. In my view, such acts of protracted post-employment dispute over recovery of accrued salaries and entitlements, which would have been wisely sorted out along with the employment termination, constitutes a specie of the emerging jurisprudence of the concept of unfair labour/employment practice, of which this court frowns at, and curtails, howsoever it rears up.In Leonard Oyinbo v. Guinness Nig. Plc (Suit No. NICN/LA/639/2012, Judgment delivered Sept.20 2019), I held thus: “I hasten to add that an employer who persists to practice unfair labour practice at workplace risks liability for compensation of victimized employee”. I adopt this view herein. This compensation is by way of award of general damages.
58. The rational for award of damages in litigated matter of this kind, has been further elucidated in Shukka v. Abubakar 4NWLR(Pt.1291)CA497, when the court stated: “The basic object of award of damages is to compensate the plaintiff for the damage or injury or loss he had suffered as a result of the action of the defendants, premised on the guiding principle of restitution in interregnum- that is, putting the plaintiff in a position in which he would have been, if he had not suffered the wrong for which he is being compensated”. In N.A.C.B Ltd v. Achagwa 11 NWLR (Pt.1205) CA 339 @369. Paras. C-D, the court clarified how general damages are determined thus: “One of the characteristics of general damages is that it is fixed by the opinion of the court, such as the law will presume to be the direct natural or probable consequence of the act complained of”. See also: Odumosu v. A.C.B Ltd (1976)11SC55; Samouris v. Maja 7NWLR (Pt.460)336;Union Bank of Nigeria v. Alhaji Adams Ajabule& Anor (2011) LPELR- 8239(SC).
59. In the circumstance, this Reliefs (4) succeeds, to the extent that I award the sum of N1,000,000.00 (one million naira) as general damages in favour of the Claimant against the Defendant, for the wrongful withholding of his accrued salaries and not paying him off upon termination of his employment since September 2012, thereby exposing him to undue financial difficulties. I so hold.
60. The Claimant asks for cost in Relief (5). I am not unmindful that this matter was commenced since 2015, and has been diligently prosecuted by the Claimant. On that note, cost pursuant to Or. 55 R.1&4 NICN (CP) Rules 2017is to be awarded. Accordingly, I hereby award the cost of N500, 000.00 (five hundred thousand naira) in favour of the Claimant against the Defendant. I so hold.
61. For clarity and avoidance of doubt, and on the basis of the reasons advanced in the body of the Judgment, the terms of this Judgment are as follows:
1. Relief (1)succeeds, having been admitted by the Defendant and no longer in dispute. Accordingly, the Defendant is hereby ordered to pay the Claimant the sum of N52, 000.00(fifty two thousand naira), being the unpaid balance of his May 2012 Salary.
2. Reliefs (2) and (3) succeeds to the extent that the Defendant is hereby ordered to pay the Claimant the sum of N480, 000.00 (four hundred and eighty naira) representing the Claimant’s owed arrears of salary for the months of June, July, August and September 2012. The Defendant is hereby further ordered to pay the Claimant the sum of N120,000.00 (one hundred and twenty thousand naira) being the sum representing one month salary in lieu of notice which the Defendant did not give while terminating the employment with effect from the same day on 7th September 2012.
3. Reliefs (4) succeeds, to the extent that I award the sum of N1,000,000.00 (one million naira) as general damages in favour of the Claimant against the Defendant, for the wrongful withholding of his accrued salaries and not paying him off upon termination of his employment since September 2012, thereby exposing him to undue financial difficulties.
4. Cost of N500, 000.00 (five hundred thousand naira) is hereby awarded in favour of the Claimant payable by the Defendant, pursuant to Or. 55 Rules 1& 4 of the NICN (Civil Procedure) Rules 2017.
5. All monetary payments ordered in this Judgment shall be paid and complied with by the Defendant within one (1) month of this Judgment, failing which 10% interest rate per annum, shall accrue on the Judgment Sums until fully liquidated.
62. Judgment is entered accordingly.
HON. JUSTICE N.C.S OGBUANYA