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JUDGMENT Introduction and Claims 1. This is an action commenced by a General Form of Complaint dated the 5th day of August, 2015. The Claimant sought the following reliefs via the Complaint - 1. A declaration that the termination of the Claimant’s employment with the Defendant vide Defendant’s letter dated 07/01/2010 is invalid, oppressive, discriminatory, wrongful, null and void and of no effect whatsoever, and that the Claimant is entitled to all allowances, salaries of =N=53,716.00 (Fifty Three Thousand, Seven Hundred and Sixteen Naira Only) per month from January 2010 – July 2015 i.e. 55 months = =N=2,9954,380.00 (Two Million, Nine Hundred and Fifty Four Thousand, Three Hundred and Eighty Naira Only) (and still counting), emoluments and sundry payments. 2. =N=290,066,400.00 (Two Hundred and Ninety Million, Sixty Six Thousand, Four Hundred Naira Only) being 100% permanent disability compensation from the Defendant to the claimant for the permanent incapacitation of the claimant arising from injuries he sustained in an accident dated 28/11/08 while in the course and employment of the Defendant. 3. =N=5,000,000.00 (Five Million Naira Only) being damages for wrongly(sic) termination of employment of the claimant employment with the Defendant vide Defendant letter 07/01/2010. 4. Cost of this action. 2. The Form 1 was accompanied by all other documents as mandated by the Rules of this Court. Upon entering an appearance on 3/11/15 filed its defence processes denying liability, the Claimant filed a Reply dated the 10th day of May, 2016 to the Defendant’s Statement of Defence. On 1/12/16, the Defendant amended its statement of defence. Case of the Claimant 3. Claimant opened his case on 5/12/16, adopted his witness deposition of 5/8/15 as his evidence in chief and tendered 18 documents as exhibits. The documents were admitted in evidence and marked as Exh. C1-Exh. C18 respectively. 4. The case of the Claimant as revealed from his pleadings and evidence led is that he, by a letter of employment dated 5/12/06 and issued to him by the Defendant, became an employee of the Defendant and in line with the terms of the offer letter was subsequently placed on a compulsory six (6) months probation; that upon the successful completion of the six (6) months probation period, he was found fit and worthy of full employment by the Defendant, whereupon his employment was meritoriously confirmed to take effect on the 1st day of June, 2001 by the self-same Defendant; that in line with his avowed commitment towards working to realize the set objectives of the Defendant company as contained in his terms of contracts, he adroitly, steadfastly and painstakingly set out and undertook all his assigned duties, assignments and responsibilities of the Defendant; that as a testament to the overall significant contributions of the Claimant and in direct acknowledgement of his sterling qualities, the Defendant vide its letters dated the 29/1/08, 15/7/08, 16/7/08 and 21/8/09, reviewed and upgraded his remuneration as well as produced positive appraisals on his performances. It is the case of the Claimant that in furtherance of his avowed and committed discharge of his duties to the Defendant and in the course of his employment, but through no fault of his whatsoever, he was involved in a fatal accident along Adeola Odeku Road, Victoria Island, Lagos, on the 28th day of November, 2008, where he was left unconscious and thereafter rushed to the Accident Emergency Unit of the Lagos State General Hospital, Gbagada; that as a result of the various life-threatening injuries and permanent incapacitation which resulted from the Claimant’s accident, and the serial refusal of the Defendant to compensate him financially or to make available to him both his statutorily compensated entitlement as a workman or the necessary monetary compensation as provided for in the Defendant’s Human Capital Management Handbook, the Claimant had to expend and indeed sunk in so much money to aid his recuperation both at the Lagos State General Hospital, Gbagade, Baba-Ayo Herbal Centre, Rosebod Pharmacy and Stores, Maxx Supermarket and Medical Store, Peak Diagnostic Services; that shockingly and against all known humane considerations, despite his incapacitation occasioned by the accident sustained in the course of his employment with the Defendant, he received with utter embarrassment, a letter purporting to disengage him from the Defendant’s employment on the 7th day of January, 2010; that it is instructive to note and as boldly admitted by the Defendant, that prior to the alleged termination of his employment, he was neither queried as to his continued competence nor did the Defendant ever raise any doubts as to the performance of his assigned duties. The Claimant states that depressed by these sudden turn of events in his life and the fact that no employer was willing to accept him for a commensurate employment, in view of his accidental incapacitation in the course of his employment with the Defendant, he consulted his Solicitors NELSON & NELSON, who wrote to the Defendant for his entitlement and compensation and the withdrawal of the Defendant's termination letter. 5. Under cross examination, Claimant testified that the accident happened in 2008; that he was not offered any financial assistant by Defendant when it happened; that he applied for his annual medical allowances and was paid over Ninety Thousand Naira; that no other allowance was paid to him to assist him; that he was not paid any benefits when his appointment was terminated in 2010; that he was not issued any report to say he is permanently incapacitated by any hospital. Case of the Defendant 6. On 18/10/17, the Defendant opened its defence. It called one Andrew Enakhifo as its DW1. The witness adopted his witness deposition made on 1/12/16 as his evidence in chief and tendered 21 documents as exhibits. 18 of the documents tendered were admitted in evidence and marked as Exh. D1-Exh. D18 respectively while the remaining 3 were rejected and so marked. 7. The case of the Defendant is that Claimant was its employee; that the performance of the Claimant was less than stellar as the management had issued him with several queries in the past; that the Claimant was reportedly involved in an accident which was as a result of the collision of the Claimant with another motorcycle somewhere in Victoria Island, Lagos State; the Claimant was on a frolic of his own at the time of the accident; that Claimant had in the past taken unauthorised breaks to go and 'eat'; that it took steps on compassionate ground to ensure that the Claimant was given necessary medical attention including payment to him of his medical allowance and other sums of money to pay his medical bills; that Claimant was eventually discharged when found to be physically and mentally fit to continue with his endeavors; that the Defendant offered to pay Claimant the sum of =N=185,798.61 on humanitarian ground and the letter conveying marked as Without prejudice; that the Defendant continued to pay Claimant's salary and allowances as when due despite the fact that his attendance at work was irregular and further granted Claimant leave to receive medical treatment; that on Claimant's resumption of duty, upon consideration the Defendant reassigned Claimant to purely administrative duties in the hope that this would ensure undistracted performance of his duties; that it had to disengage the Claimant along with several other members of staff as a result of the global economic meltdown and down turn in the capital market operations in Nigeria which grossly affected and threatened to liquidate the Defendant's business; that upon disengagement it paid the Claimant the one month salary of =N=53,716.50 and additional sum of =N=70,384.98; that the Claimant is presently gainfully employed with Futureview Financial Services Limited and the purported permanent incapacitation alleged has not in any way prevented him from being lucratively; that the Claimant was not permanently incapacitated or distressed as alleged and that Claimant was certified by medical practitioner who examined him to be mentally and physically fit. 8. While under cross examination, DW1 stated that he was aware that Claimant was a full time employee of Defendant; that he knew one Taiwo Inyang Mrs. - the Head Human Capital Management who acted for Defendant in the course of her employment with Defendant; that the reason for disengage the claimant was economic recession; that the Defendant is still a going concern; that there is no financial statement before the Court showing Defendant to be in distress situation; that Defendant is a Capital Market Operator; that Defendant has not paid claimant any compensation as provided in Exh. C18 – Defendant Handbook; that he is not aware that application for compensation for an injured employee is always at the instance of the employer and that he is not aware of any application by Defendant for compensation to Claimant from any agency of government. 9. The DW2 called was a witness on subpoena. After being sworn in, witness gave his name as Oladipo Oke. Witness testified that he lives at 25, Aderupoko Hamadiya Bus Stop, Lagos State; that he works with Future View Financial Services of 22, Ojuolobun Victoria Island, Lagos; that he is the Head of Human Resources of the Company; that he has been in that position for 4 years now; that he is in Court on a subpoena; that he recognises the name of the Claimant on the subpoena being one of his staff; that he does not have Claimant's letter of employment in Court this morning; that it was one of the documents stated on the subpoena; that he is also to bring the Nominal Roll and Pay Roll of the Company; that he has no authority to bring these documents to Court not being the Managing Director of the Company; that he has known the Claimant about 4 years ago and that from his record, there is no record showing he has disability but I know that he limps. The witness was not cross examined. Submissions of Learned Counsel 10. At the close of trial and pursuant to the direction of the Court learned Counsel on either side filed their final written addresses in accordance with the Rules of Court. A 22-page final written address of the Defendant was filed on 6/3/18. In it learned Counsel canvassed the following issues - 1. The position of the law is that where an employee has been given the agreed notice or paid salary in lieu of notice, the termination of his employment cannot be said to be wrongful. The Claimant, in this case, was paid the requisite salary in lieu of notice. Having, therefore, been paid salary in lieu of notice, is the termination of his employment by the Defendant wrongful? 2. The Workmen’s Compensation Act stipulates that Application for compensation under the Act shall be made within six (6) months from the date of the accident. The claimant, in this case, applied for his compensation fourteen (14) months after the accident. Going by the provision of the Act, is the Claimant’s claim under the Act Competent? 3. The law is settled that a party who sets out to assert the existence of a claim bears the burden of establishing the claim and must fail if he does not succeed in establishing what he has undertaken to do. Will the Claimant still be entitled to the claims he has sought if he has failed to establish his entitlement to same through preponderance of evidence? 11. In arguing these issues, learned Counsel submitted that by paragraph 3.18(iii)(c) of Exh. C18, when the service of a member of staff is terminated by the Company in accordance with the relevant clause in the contract of service, he/she should be paid a salary in lieu of notice if the notice period is waived; that in the absence of a similar provision in Exh. C1 - Claimant's letter of employment, a community reading of paragraph 3.18(iii)(c) of Exh. C18 and section 11(2)(d) and (6) of the Labour Act will show that in the determination of the employee/employer relationship between the Claimant and the Defendant, the Defendant is either required to give the Claimant a one-month notice or pay the Claimant one month salary in lieu; that Claimant was paid a month salary in lieu of notice as stipulated in his contract of service; that Claimant did not deny receipt of the money and that his employment was properly brought to an end citing Layade v. Panalpina World Transport Nigeria Limited (1996) LPELR-17688 & Odiase v. Auchi Polytechnic (1998)4 NWLR (Pt. 546) 47. On issue 2, learned Counsel submitted that an application for compensation under Workmen's Compensation Act must be brought within 6 months of the accident complained of and that same is a condition precedent to bringing an action for compensation under the Act citing Section 13(1)(b), Workmen's Compensation Act; that by Claimant's evidence the accident occurred on 28/11/08 while application was made for compensation on 19/1/10 lapse of about 14 months. Counsel prayed the Court to dismiss the claims of the Claimant citing Mr. Onyema Azagba v. Hotel Presidential, Port Harcourt & Anor. Suit No: NICN/PHC/59/2013 Judgment of which was delivered on 1/12/15. On issue 3, Counsel submitted that Claimant failed to prove his case to be entitled to any relief; that the second relief is predicated on the grant of declaratory relief which Claimant failed to prove. Counsel prayed the Court to dismiss the entire case of the Claimant for lack of proof. 12. The 29-page final written address of the Claimant was dated and filed on 5/7/18. In it learned Counsel set down these issues for determination - 1. Whether and in view of the surrounding facts and circumstances of this case, the Claimant is entitled to his claim as contained in his General Form of Complaint and Statement of Facts dated the 5th day of August, 2017 in that he Claimant being an employee of the Defendant sustained an industrial accident in the course of discharging official responsibilities, with permanent disability resulting there from on the 28th day of November, 2008. 2. Whether the Defendant on the 7thy day of January, 2010 wrongly terminated the employment of the claimant with it on the mischievous Ground of his incapacitation, which said incapacity resulted from an accident sustained in the course of the discharge of official duties. 3. Whether the Claimant is entitled to damages for the wrongful termination of his employment with the Defendant. 4. Whether by the apparent and admitted permanent disability of the Claimant, he is entitled to a commensurate under the Workmen Compensation Act as well as under the Defendant’s contract of service as contained in the Defendant’s Human Capital Management Handbook – Exhibit C18. 13. In arguing these issues, learned Counsel submitted that in order to succeed on the claim of wrongful termination of employment, the only duty on the Claimant as an employee of the Defendant is to place before the Court the terms and conditions of his contract of employment and to prove the way and manner by which these terms were breached by the Defendant citing NDLEA v. Zakari (2015)7 NWLR (Pt. 1458) 361; that under Exh. C18 - Staff Handbook which forms part of the terms and conditions of engagement Claimant's employment could only be terminated based on unsatisfactory performance or misconduct citing Clause 5.2; but that in terminating Claimant's employment the reason for doing so was based on the current advise effects of the global recession and financial meltdown which resulted in daunting revenues of the organisation and we are constrained to disengage you from the services of Spring Capital Markets Plc; that the reason given is not contained in the terms and conditions of engagement; that the Defendant is a going concern; that there is financial statement before the Court to show that the Defendant is in a distressed situation; that the Defendant being subject to the Security and Exchange Commission there is no document tendered from SEC placing the Defendant on distress. Counsel submitted that a Court of law always respect the sanctity of agreement reached by the parties and that where the intentions of the parties are clearly expressed in a document, the Court cannot go outside the document to give effect to the intention of the parties while no extrinsic evidence is allowed to add to or avry the content of such document citing Babatunde v. BON Limited (2011)18 NWLR (Pt. 1279) 738. Learned Counsel prayed the Court to hold that the termination of the employment of the Claimant was in breach of the Defendant's Staff Handbook - Exh. C18. 14. Counsel submitted further that Claimant has made out a case for adequate compensation as a result of the accident he sustained in the course of his official duties with the Defendant referring to paragraphs 7 & 8 of the Statement of Facts; that the Defendant failed to place any evidence before the Court to support its claim that Claimant was on a frolic of its own when the accident occurred and that pleadings not supported by evidence go to no issue citing Udom v. Umana; that Claimant sustained an accident in the course of his employment with the Defendant on 28/11/08; that the accident resulted in Claimant's permanent disability; that Claimant is entitled under the Group Accident Insurance Scheme to permanent disability benefit and that Claimant is also statutorily entitled to adequate compensation under the Workmen's Compensation Act considering that he sustained the accident in the course of his duties and resulted into permanent incapacitation and disability and that the contention of the Defendant that Claimant's application for compensation having not been made within 6 months bars him from litigating this matter in this Court is not only misplaced but against the spirit and letters of the law as provided n Section 13(3) of the Workmen Compensation Act. Learned Counsel submitted that Claimant has by the quality and quantity of his evidence proved that he sustained an industrial accident while in the service of the Defendant on 28/11/08; that by virtue of Exh. C18 -Defendant's Staff Handbook Claimant is entitled to all his unpaid salaries, allowances, terminal benefits and compensation for the said accident as well as statutorily under the Workmen's Compensation Act. Counsel thus prayed the Court to grant all the reliefs sought by the Claimant. Decision 15. I have read and clearly understood all the processes filed by learned Counsel on either side. I heard the testimonies of the witnesses called at trial, watched their demeanor and patiently evaluated all the exhibits tendered and admitted at trial. Having done all this, I narrow the issues for the just determination of this case down to the following - 1. Whether the employment of the Claimant was properly terminated. 2. Whether Claimant has proved all or any of the reliefs sought to be entitled to same. 16. Claimant had sought among other reliefs a declaration that the termination of his employment by Defendant’s letter dated 7/1/10 is invalid, oppressive, discriminatory, wrongful, null and void and of no effect whatsoever, and that the Claimant is entitled to all allowances, salaries of =N=53,716.00 (Fifty Three Thousand, Seven Hundred and Sixteen Naira Only) per month from January 2010 – July 2015 i.e. 55 months = =N=2,954,380.00 (Two Million, Nine Hundred and Fifty Four Thousand, Three Hundred and Eighty Naira Only) (and still counting), emoluments and sundry payments. The law is trite that in an action for wrongful termination of employment, the burden is on the Claimant to lay before the Court his contract of employment containing the terms and conditions of his engagement. The Claimant is thereafter to show to the Court who has the power to terminate his employment as well as the manner the termination should take and proceed to show how the termination of his employment in the instant by the Defendant failed to comply with the agreed terms and conditions. Claimant tendered Exh. C18 which is the Staff Handbook of the Defendant. According to the Claimant the reason given for the termination of his employment was economic meltdown but that that was not a reason for possible termination of employment under Exh. C18 and that in any event, the Defendant is still a going concern. There is no controversy that Claimant was paid a month salary in lieu of notice of termination. There is also no controversy respecting the fact that Claimant was paid yet some additional sums as contained in paragraph 24 of the Amended Statement of Defence. The position of the Claimant is that his employment remained intact and sought a declaration to that effect and to additional effect that his salary from the date of termination of his employment till date of filing this suit and still counting be paid. It is a trite law that an employee whose employment has been terminated cannot continue to hold same to remain in existence. From the day Claimant was served his letter of termination of employment, his employment with the Defendant remained severed. The relationship between him and the Defendant came to an end. His rights against the Defendant, if any, are only in the realms of post employment rights. I resolve this issue in favor of the Defendant and against the Claimant. I hold that the employment of the Claimant was properly determined by the Defendant. There is no basis for the Court to grant the first head of claim sought by the Claimant. The declaration sought is therefore refused and dismissed. 17. The second issue for determination is whether Claimant has proved all or any of the reliefs sought to be entitled to same. Claimant sought 4 main reliefs. Relief 1 for declaration has been addressed and refused. 18. The second relief sought is =N=290,066,400.00 (Two Hundred and Ninety Million, Sixty Six Thousand, Four Hundred Naira Only) being 100% permanent disability compensation from the Defendant to the claimant for the permanent incapacitation of the claimant arising from injuries he sustained in an accident dated 28/11/08 while in the course and employment of the Defendant. This head of claim is for a sum certain which is akin to a claim in special damages. A claim of this nature must necessarily be specially pleaded and strictly proved. See Agunwa v. Onukwe (1962)1 All N.L.R 537. It is not clear from the 23 paragraph statement of facts how the Claimant arrived at the sum =N=290,066,400.00 as compensation for his permanent disability. This head of claim is liable to be refused. I so do. In any event, even for the Claimant to be entitled to an award of compensation by the Court, it is imperative for him to prove the fact of his accident and permanent disability. Claimant alleged involvement in an accident which led to his permanent disability. What is the evidence of his alleged permanent disability before the Court? I find none. Indeed none was tendered. At trial and under cross examination, Claimant informed the Court that he was not issued any medical report by any hospital attesting to his claim of permanent disability. Again, it was the evidence of DW2 that he had known Claimant for about 4 years; that at the time he started working with his firm, Claimant was examined and was found to be medically fit to work; that he was not found with any permanent disability although he limped. Besides, a claim for compensation for permanent disability meant inter alia that Claimant would not be able to work and earn a living as a result of the permanent disability. See Ighosewe v. Delta Steel Company Limited (2007) LPELR-8577(CA). 19. The evidence of the DW2 created a big hole in the case of the Claimant. I refuse this head of claim there being no sufficient evidence to support a grant of same. 20. The third head of claim is for =N=5,000,000.00 (Five Million Naira Only) being damages for wrongly(sic) termination of employment of the claimant employment with the Defendant vide Defendant letter 7/1/10. In the resolution of issue 1 set for determination, this Court has found and held that the termination of the employment of the Claimant was not wrongful. I have no reason to depart from that position. That being the case, there is no basis for this Court to award any damages as damages will only lie against a wrongful act. In much the same vein, the prayer for cost of action is also refused and dismissed. 20. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, the case of the Claimant is dismissed in its entirety. I make no order as to cost. 21. Judgment is entered accordingly. __________________ Hon. Justice J. D. Peters Presiding Judge