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REPRSENTATION SEUN AJOBIEWE with C. O. OKAFOR for the claimant C. O. BASSEY of the defendant. JUDGEMENT The claimant, by a General Form of Complaint filed on 19th April, 2012 along with the frontloaded documents, approached the Court for the following reliefs: 1. A DECLARATION that the purported termination of the claimant’s employment with the defendant was done without compliance with the defendant’s conditions of service and as such invalid, null and void and of no effect. 2. A DECLARATION that the claimant remaining in the defendant’s employ is entitled to all his salaries, allowances and entitlements from 31st day of May, 2011 (when the claimant’s employment was purportedly terminated) till the determination of this suit and continuously so, until the claimant’s employment is lawfully determined. 3. AN ORDER compelling the defendant to pay to the claimant all his salaries allowances and entitlements from 31st day of May, 2011 till date of determination of this suit and continuously so, until the claimant’s employment is lawfully determined. Or in the alternative i. A DECLARATION that the purported termination of the claimant’s employment by the defendant without compliance with the conditions of service of the defendant is wrongful. ii. A DECLARATION that by the purported termination of employment, the claimant is entitled to all the benefits stipulated in paragraphs 15.4 of the defendant’s Conditions of Service of Senior Staff. iii. AN ORDER compelling the defendant to pay to the claimant the sum of #281,358.58 (Two Hundred and Eighty-One Thousand, Three Hundred and Fifty Eight Naira) being the claimant’s redundancy benefits in line with paragraph 15.4 and appendix II of the defendant’s conditions of service for senior staff. iv. THE SUM of #2 Million as general damages for wrongful termination of the claimant’s employment by the defendant. In reaction, the defendant filed its memorandum of appearance dated and filed on 8th February, 2013., statement of defence, written statement on oath, list of documents, copies of the documents and list of witnesses dated and filed on 25th March, 2013.. In the defendant company, testified for the defendant as DW. At the close of trial, parties were At trial, the claimant testified on his own behalf as CW, tendered 4 exhibits and on 25th February 2015 was cross examined by the defendants. Thereafter the matter was adjourned for defence. After over 5 adjournments and on application of the claimant the court while evoking the provisions of Or 19 rule 10(3) the case of the defendants on the 13th October 2015. CLAIMANT’S LIST OF DOCUMENTS TO BE RELIED UPON AT TRIAL 1. Written deposition on oath of Emmanuel Nwokeocha. - C1 2. A copy of handbook titled “terms and conditions of Service for Senior Staff/Staff of Mr. Biggs. - C3 3. Claimant’s solicitor’s letter dated 1st September, 2011. - C4 4. A letter dated 12th September, 2011 from the defendant being a reply to the claimant’s solicitors’ letter. - C5-C51 5. Photocopies of stock taking sheet of the defendant’s Uyo 2 office dated 28th May, 2011. - C6-C6 6. Copies of the tellers given to the Regional Accountant of the Company by the claimant to show that cash advances were duly retired. - C7 7. A copy of the claimant’s letter of appointment dated 28th September, 2005 is hereby pleaded and shall be relied upon at the trial of this Suit. - C8 Dated this 9th day of March, 2012. Sign Fidelis A. Iteshi, Esq. Solicitor to the claimant Golden-Bridge Attorneys & Arbitrators 43 Gibbs Street, Uyo The matter was then adjourned for filing of written addresses. The claimant final written address is dated the 2nd of November and filed on the 4th of November 2015. The defendant’s final written address is dated and was filed on the 24th November 2015. There was no reply on points of law. The case of the claimant is that he was employed by the defendant as Supervisor JC II, with an employment letter dated 30th September, 2005 stating all his salaries and allowances, with claimant resuming work with a copy of a handbook titled “Terms and Conditions of Service for senior staff” of the defendant company. Having served in several capacities from 2005 the claimant was made the Shop Manager of the defendant on 31st May, 2011. And he had been the defendant’s employee for (5 years and 8 months) of meritorious service, without receiving any query, warning or any disciplinary measure during the course of discharging his duties. The claimant’s employment was terminated via a letter dated 31st May, 2011, which was shown to the claimant and collected by the defendant that same day, with a promise to return same to the claimant which never was returned to him. To the Claimant it is instructive to note that in determining his employment, the defendant did not take into consideration the Terms and Conditions of Service issued to the claimant on the day of employment, which remained binding on them. The defendants case is that the defendant has the right to terminate claimant’s employment without reason provided claimant is given one month notice in writing or by payment of one month salary in lieu of notice as contained in defendant’s letter of 12th September, 2011. To the defendant, the claimant was already indebted to the defendant in excess of his one month salary and to that extent was to refund the excess to the defendant company. And that the claimant is not entitled to service gratuity having worked for less than 6 years, however, even after the said calculations in error, the claimant was still indebted to the defendant to the tune of #54, 525.58, which claim defendant has decided to abandon. To the defendant, the claimant’s termination of employment was as a result of management decision to downsize its manpower, which right is their exclusive reserve and that defendant’s action was in accordance with the terms of their contract. Maintaining that the claimant is not entitled to any of the claims or reliefs set out in the Statement of Facts, Arguing that the claims are baseless, frivolous and an attempt at gold digging which the Court should refuse. The Claimants submissions Raising the under-listed 4 issues;- 1. Whether the defendant terminated the claimant’s employment in accordance with the terms of and conditions of the claimant’s employment? 2. Whether the claimant was indebted to the claimant? 3. Whether from the facts and evidence before this Honorable Court, the claimant is entitled in law to his claim (the alternative relief sought)? 4. Whether the Honorable Court was right in foreclosing the defendant from defending this suit after several adjournments as its instance and whether the foreclosure will amount to breach of the defendant’s Fundamental Rights of Fair Hearing? Learned Counsel to the claimant submitted with regard to their issue 1;- that the law is trite that in a contract of employment which is purely a master-servant relationship, the employer can terminate the service of the employee at any time by giving the appropriate length of notice stipulated in the contract, or by giving such length of notice deemed by the Court to be reasonable where the contract does not expressly provide for length of notice. IDUFUEKO v. PFIZER PRODUCTS LTD. (2014) 12 NWLR (PT. 1420) 101 RATIO 6. Arguing further that in any action for wrongful termination of employment, the burden is always on the claimant to prove the terms and conditions of his contract of employment and in what manner the said terms were breached by the employer. ANGEL SHIPPING & DYEING LTD. v. AJAH (2000) 13 NWLR (PT. 685) 532 ref. to (P. 21, PARA. C). Learned Claimant’s Counsel submitted that the law is clear and settled that a party is bound by the terms of his contract. IDUFUEKO v. PFIZER PRODUCTS LTD. (2014) 12 NWLR (PT. 1420) 96 @ 100 R. With regard to claimants issue 2;- Whether the claimant was indebted to the claimant? Claimants Counsel submitted that the claimant is not indebted to the defendant and that the burden of proof is always on the party who asserts the affirmative of a fact or issue and that it is trite that a party who asserts a state of fact must prove the existence of such facts. OLADIPO v. MOBA L.G.A. (2010) 5 NWLR (PT. 1186) 117 @ 125 R. 5. Submitting further that the law is settled that where an averment is not supported by evidence, the averment is deemed abandoned. Thus, since, the defendant’s averment that the claimant is indebted to it is not supported by any evidence, the said averment is deemed abandoned. AKANDE v. ADISA (supra) 548 R. 2 (P. 574), PARA. D). With regard to claimants issue 3;- Whether from the facts and evidence before this Honorable Court, the claimant is entitled in law to his claim (the alternative relief sought)? It is the claimant counsel’s contention that terminal benefits or entitlements of the employee must also be actually paid to the employee on the date the employee is served with the letter of termination of appointment. NIGERIAN SOCIETY OF ENGINEERS v. OZAH (2015) 6 NWLR (PT. 1454) 81 R. 6. Submitting that Page 38 Article 15.4 of the defendant’s terms and conditions booklet (Exhibit C3) expressly states that redundancy benefits must be paid to those affected where Management is compelled to reduce staff and that the claimant has shown that no such benefits have been received by him. UBA PLC v. ORANUBA (2014) 2 NWLR (PT. 1390) 5 R. 2. The claimant then posed the question: whether the claimant is entitled to damages in the sum of #2,000,000.00? Arguing that general damages which are called punitive, exemplary damages are meant to assuage a party for the wrong done to him. That general damages are exemplary, vindictive or aggravated and are granted and awarded when the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, insolence in its actions. UNIVERSITY OF CALABAR v. OJI (2012) 3 NWLR (PT. 1288) 418 @ 421 R. 3. Submitting further that the measure of damages for wrongful termination of employment, the law in the case of I.H.A.B.U.H.M.B. Vs. ANYIP (2011) 12 NWLR (PT. 1269) 7 R. 6, states that in an action for wrongful termination, the normal measure of damages is the amount the employee could have earned under the contract for the period until the employer could lawfully have terminated it less the amount the employee could reasonably be expected to earn in other suitable employment because the dismissed employee like any innocent person following a breach of contract by the other party must take reasonable steps to minimize the loss. OSEMWENGIE Vs. J.S.C., EDO STATE (2015) 5 NWLR (PT. 1453) 514 R. 9. With regard to the claimants issue 4;- Whether the Honorable Court was right in foreclosing the defendant from defending this suit after several adjournments as its instance and whether the foreclosure will amount to breach of the defendant’s Fundamental Rights of Fair Hearing? The claimant counsel submitted that the Court has no business pursuing a recalcitrant party in order to hear him. As the scope and operation of the constitutional right to fair hearing does not allow a party who refuses to proceed with his case to later complain of denial of fair hearing. To the claimant all the Court is required to do is to create an enabling environment for the party to present his case and be heard, and that a party who refuses or fails to take advantage of the fair hearing environment created by the court cannot accuse the court of denying him fair trial. MFA v. INONGHA (2014) 4 NWLR (PT. 1397) 350 R. 9; SEC. 36 (1) 1999 CONSTITUTION of the FEDERAL REPUBLIC OF NIGERIA. Furthermore, that the defendant refused and waived its constitutional right and that it is trite that once a party has been afforded the opportunity to present his case and he fails to take advantage of it, he cannot be heard to complain that his right to fair hearing has been breached. PAM & ANOR. v. NASAIRU MOHAMMED & ANOR. (2008) 16 NWLR (PT. 1112) 1 @ 48, E-G, per Oguntade, JSC. The Defendants Submissions The defendants in their final address formulated two issues;- 1. Whether the claimant is entitled to any sum more than #33,000 which he admitted to be his one month’s salary in lieu of notice? 2. Whether damages in a contract of employment without statutory flavour as in this case is not only limited to a party’s entitlement to what he would have earned over a period required to lawfully terminate his employment which is a month salary in lieu of notice? Defendant Counsel contended that the claimant is not entitled to more than one month salary in lieu as damages are applicable in contract of employment without statutory flavour as in this case only to what claimant would have earned over a period required to lawfully terminate his employment being #33, 000.00 only. Submitting that damages in contract of employment is determined only by what the party would have earned over a period required to lawfully terminate his employment which is a month salary in lieu of notice. JIMOH IKHILE v. FEDERAL AIRPOIRT AUTHORITY OF NIGERIA (2014) 44 NLLR (PT. 139) 164 HELD 14; AGU v. GENERAL OIL LTD. (2015) 4 MJSC 128. Defendant Counsel concluded by urging the Court to dismiss the claimant’s claims and/or at worst award the claimant only #33,000.00 being the claimant’s one month salary. The Court’s Decision I have heard all the arguments, submissions, contention and have considered all the authorities cited together by both counsel, all of which have been duly incorporated in this decision and reference shall only be made thereto where necessary. But before I go into the merits of this case it is necessary to address some pertinent concerns, this matter started de novo before this court on the 3rd October 2014 , defendant entered appearance on the 8th February and trial commenced with the claimant giving evidence and being cross examined on 25th February 2015. The case was adjourned to the 19th March 2015 for defence. After two adjournments (19/3/2015, 21/4/2015) the defendants informed the court of their wish to explore out of court settlement. On the 8th July the court was informed by the claimant counsel, as the defendant counsel was absent, that settlement had failed and this matter was adjourned to the 13th October 2015 and the matter was adjourned on 13th October for report of settlement or defence. On the next adjourn date the defendant was once again absent and the claimant applied and were granted their application to proceed with the matter and the defendants be foreclosed. The matter was adjourned to 4th November 2015, hearing notices were ordered to be served on the defendant accordingly. The matter was further adjourned to 1st December 2015 and *9th December 2015 for adoption of final addresses. The claimants filed their final address on the 4th November while the defendants filed their address on the 24th November. In filling their final written address the defendants in their opening paragraph attempted to introduce details of the outcome/proceedings and resolutions arrived at during the parties attempt at settlement. The law is clear that all discussion and submissions raised during mediation processes have no bearing or relevance and are infact precluded from being used or brought up in the litigation process, except where there is an agreement and the parties are seeking adoption of same as consent judgement. Considering the foregoing the defendants reference to details and incidental raised during the settlement discussion are for the purpose of this judgment hereby discountenanced and dis regarded of as being of no effect whatsoever. The claimant formulated an issue as to whether the action of the court in foreclosing the defendant could be amount to a breach of Fundamental Right to fair hearing, I suppose the claimant is playing some perverse game of devil’s advocate in raising this matter, the history of the proceeding has just been stated. Courts guard their jurisdiction and integrity jealously, the defendant had persistently truncated the proceeding of the court with requests for adjournment and the court have indulged the defendant from the 19t March 2015 to the 13th October the evoked the provisions of its rules particularly Or 19 rule 10 (3) “Notwithstanding the provisions of the sub rules (1) or (2) of this rule, the Court may suo moto where it considers that either party fails to conclude his or her case within a reasonable time, close the case for the party”. It would be apropos to bear in mind that the notion of fair hearing is akin to opportunity in labour matters. And the defendants had been given ample opportunity. See the case of BILL CONSTRUCTION CO. LTD V. IMANI & SONS LTD/SHELL TRUSTEES LTD [2006] 19 NWLR (PT. 1013) 1 AT 14 where it was held that where a party is given an ample opportunity to conduct his case within the ambit of the law and failed to avail himself of the opportunity, he cannot later be heard to complain. Now to the merit of this suit, I find that the only issue for determination is whether the claimant has, to the satisfaction of this court, proved his claim so as to obtain the reliefs sought. The claimant reliefs are as follows;- 1. A DECLARATION that the purported termination of the claimant’s employment with the defendant was done without compliance with the defendant’s conditions of service and as such invalid, null and void and of no effect. 2. A DECLARATION that the claimant remaining in the defendant’s employ is entitled to all his salaries, allowances and entitlements from 31st day of May, 2011 (when the claimant’s employment was purportedly terminated) till the determination of this suit and continuously so, until the claimant’s employment is lawfully determined. 3. AN ORDER compelling the defendant to pay to the claimant all his salaries allowances and entitlements from 31st day of May, 2011 till date of determination of this suit and continuously so, until the claimant’s employment is lawfully determined. Or in the alternative:- i. A DECLARATION that the purported termination of the claimant’s employment by the defendant without compliance with the conditions of service of the defendant is wrongful. ii. A DECLARATION that by the purported termination of employment, the claimant is entitled to all the benefits stipulated in paragraphs 15.4 of the defendant’s Conditions of Service of Senior Staff. iii. AN ORDER compelling the defendant to pay to the claimant the sum of #281,358.58 (Two Hundred and Eighty-One Thousand, Three Hundred and Fifty Eight Naira) being the claimant’s redundancy benefits in line with paragraph 15.4 and appendix II of the defendant’s conditions of service for senior staff. iv. THE SUM of #2 Million as general damages for wrongful termination of the claimant’s employment by the defendant. Relief 1 is for a declaration that the claimant’s employment was terminated without compliance with the defendant’s conditions of service and as such invalid, null and void and of no effect. The claimant in making his claim provided his letter of appointment and Exhibit C 3 the contract terms and conditions. From the contents of these documents I find that the claimant was employed under an Employee/ Employer Relationship commonly referred to as Master Servant Relationship. The position of the law is well settled that “in cases governed only by, agreement of the parties and not by statute………….., removal by way of termination of appointment or dismissal will be in the form agreed to between the parties in the agreement binding on them. Any other form of removal not in accordance with the terms of the agreement connotes only wrongful termination or wrongful dismissal, which cannot be declared null and void. See PARAGRAPH 233- DETERMINATION OF MASTER AND SERVANT RELATIONSHIP - SASEGBON’S LAWS OF NIGERIA, AN ENCYCLOPAEDIA OF NIGERIAN LAW AND PRACTICE, FIRST EDITION, VOLUME 16. See the case of KUNLE OSISANYA v. AFRIBANK PLC supra, GODFREY ISIEVWORE v. NATIONAL ELECTRIC POWER AUTHORITY (supra) P. 486, BANKOLE v. N.B.C. supra, OSISANYA v. AFRIBANK NIG. PLC supra and UNION BANK v. OGBOH supra. In consideration thereof I find that the claimants relief 1 cannot be granted as the employment relationship that existed between the claimant and the defendant was one of master servant and the issues of null and void, in valid and of no effect cannot be applied to a master servant relationship. As in the case of UNION BECERAGES LRD Vs OWOLABI [1988] 1NWLR (Pt. 68. NNB VS OBEVUDIRI [1986]3NWLR (Pt. 29) 387 and NNB Vs OSUNDE [1998] 9Nwlr (Pt. 566) 511@521E-F. Where it was held that “when a non-statutory appointment e.g. Master and Servant is found to be wrongfully determined the remedy lies in damages”, (The aggrieved party is only entitled to damages). Relief 2 and 3 are for a declaration that the claimant is still in the employ of the defendant and is hence entitled to all his salaries, allowances and entitlements from 31st day of May, 2011 (when the claimant’s employment was purportedly terminated) until the claimant’s employment is lawfully determined. And an order of the payment of the said salaries and allowances. These reliefs in the present context also run contrary to the position of the law which has been well settled in CCB (NIG.) LTD V. NWANKWO [1993] 4 NWLR (Pt. 286) 159 CA AND ADO V. COMM., WORKS, BENUE STATE [2007] 15 NWLR (Pt. 1058) 429 CA, where it was held that an employee dismissed in breach of his contract of employment cannot choose to treat his contract as subsisting and sue for an account of profits which he should have earned to the end of the contractual period; rather he must sue for damages for wrongful dismissal and must mitigate those damages as far as he reasonably can. It is only in the case of a statutory employment that has been found to have been wrongfully terminated can the remedy of a finding that the termination never took place can be found due to the particular relationship of statutory employment. Which is not the case in this suit, the case before this court is one governed by contract, Exhibit C 3, for this reason relief 2 and 3 cannot be granted. Having been unable to grant reliefs 1-3 it is incumbent that this court considered the alternative reliefs. Alternative Relief I, is it for a declaration that the purported termination of the claimant’s employment by the defendant is wrongful due to non-compliance with the conditions of service. Exhibit C3, the terms and conditions for service for senior staff of the defendants in Article 15.1 provide that;- “An employee may have his employment terminated by one month’s notice in writing or alternatively by payment if one month’s salary in lieu of notice by either side…… (and goes on to state situations for termination and entitlements)….. On termination of employment an employee will be entitled to the following -Salary up to the date of termination subject to above explanation -Payment in lieu of earned annual leave(s) plus leave allowance -Service gratuity (if qualified). -Benefits subject to UNIC Pension Fund The claimant case is that he was served a letter of termination dated 30th May 2011 stating that his employment was terminated with effect from 31st May 2011. The defendants maintain that the claimant was indebted to the defendants and the his one month salary was calculated and reconciled implying that the claimant indebtedness subsumed the one month salary in lieu of notice. The Supreme Court have stated in the case of IBAMA S.P.D.C. NIG. LTD. It is the law that when an employee complains that his employment has been wrongfully terminated, he has the onus of placing before the court, the terms of the contract of employment before proceeding to prove the manner the said terms were breached by the employer…as laid down by this court in many cases particularly AMODU Vs. AMODE [1990] 356 at 370. Also see the case of WAEC Vs. MRS. NKOYO EDET IKANG [2011] LPELR 5098 CA. The claimant has by his evidence in court and the tendering of Exhibit C3 proved to the court that he is entitled to One Month notice or payment in lieu. I find. The defendant’s maintain that the claimant was indebted to them and this indebtedness subsumed the one month’s salary in lieu. To this end the defendant argue that the claimant had collected and was to refund the excess of his Annual Medical and Housing allowance of 2011 and 2012. Notwithstanding the lack of a counterclaim, or the inability of the defendants to present their defence, the law requires a party seeking to rely on a law or provision of a policy is required to specifically plead and present the law or policy to the court. See LANA Vs. UNIIVERSITY OF IBADAN [1987]4 NWLR (Pt. 64) 245, N.I.P.C. LTD Vs. THOMPSON 1972 5 SC 111. Nowhere in the defendants pleading did they present the authority for the stipulation that an employee after being terminated by the employer is bound to refund all unexpired annual allowances hitherto paid to him before the said termination. Sec. 136 (1) of the Evidence Act, he who alleges the existence of a fact must prove such fact. AMAECHI v. INEC & ORS. (2008) LPELR-446 (SC); ARGUNGU & ANOR. v. ARGUNGU & ANOR. (2008) LPELR-4275 (CA). This contention is not only spurious and unfounded considering Exhibit C3 is flies against the principle of frustration and enabling a person benefit from his own wrongdoing. I find there is no substance in the claim of the defendant that the claimant is indebted to the defendant. Another area of contention was whether the claimant was entitled to or qualified for service gratuity, the defendants position is that the claimant was required to have served for 6 six years to qualify for service gratuity while the claimant insist that the qualifying period is 5years arguing that having served for 5 years and 8 months he, the claimant is entitled/qualified to receive a service gratuity. From Exhibit C3 Article 7:4 a Service Gratuity cover all employees who put in a minimum of 5 Years continuous service with the company. SERVICE GRATUITY a. Service gratuity covers all employees who put in a minimum of 5 years continuous service with the company. b. Service gratuity is separated from pension but retirement gratuity will be payable only to those eligible for pension. Employees who opt on retirement, for a lump sum without a pension will get service gratuity in lieu of retirement gratuity. c. A retiring employee has the option of his service gratuity without supplementary pension or retirement gratuity at current rates with supplementary pension. d. The rate of gratuity will be shown in appendix (ii) e. Service gratuity, redundancy benefits and retirement gratuity will be mutually exclusive i.e, no one employee will get more than one of these three. f. Those who abandon their employment or are dismissed will not benefit from service gratuity. g. Those who resign their appointment to forestall dismissal will not benefit from service gratuity. h. Provided 10 years of continuous service is attained, service below 12 months will attract gratuity on Pro-rata basis. I find the wordings of this Article in Exhibit C3 clear and unambiguous and should be given their ordinary, natural and grammatical construction. UWAZURIKE v. AGF (2007) 2 SCNJ 369 @ 378; ISHOLA-WILLIAMS v. T.A. HAMMOND PROJECT LTD. (1988) 2 SCNJ 318. Furthermore, that the onus is on the defendants to adduce evidence to the existence of any such 6 year qualification. OLAIDE IBRAHIM v. S.A. OJOMO (2004) 1 SCNJ 309 @ 323. And this they have not done. Appendix ii Sub appendix 3 provides for Service Gratuity. 5-9 years 3 weeks for every year of service, 10-15 years 5 weeks for every year of service e.t.c. I find that the claimant is therefore entitled to Service gratuity as provided by Article 7:4 and Appendix II (3) I shall come back to this later. From the foregoing I resolve this issue in favour of the claimant. The claimant’s appointment is wrongful by construction;- non compliance with the provisions of Exhibit C3 as to notice and payment in lieu of notice. Alternative Relief ii and iii are for a declaration that the claimant is entitled to all the benefits stipulated in paragraphs 15.4 of the defendant’s Conditions of Service of Senior Staff, and an order compelling the defendant to pay to the claimant the sum of #281,358.58 (Two Hundred and Eighty-One Thousand, Three Hundred and Fifty Eight Naira) being the claimant’s redundancy benefits in line with paragraph 15.4 and appendix II of the defendant’s conditions of service for senior staff. Article 15:4 provides;- REDUNDANCY The company makes every effort to absorb employees surplus to the requirements of one department in an alternative section of the business. No employee’s post is declared redundant until a full investigation has been made by the Divisional Human Resources Manager and the accredited representative of the Union informed of the circumstance. When management is compelled to reduce staff, the following factors are taken into consideration when deciding who must go. Efficiency, length of service, diligence, loyalty and health. As long a notice as possible, is given to all employee whom it is intended to declare redundant. Redundancy benefit is paid to those affected as shown in appendix (11). Appendix II (1) provides in respect of redundancy (a) 1 month Notice or basic salary in lieu (b) (b) Service under 1 year –Nil 1-5 years’ service -4 weeks Basic Pay per week Over 5 years’ service -5 weeks Basic pay for every completed year of service. The word of this article are clear and unambiguous the use of the phrase for every completed year brooks no reference to pro rata payment I find It is worthy of note to point out that by virtue of Article 7:4 h; only persons who have served for 10 years continuous service would be entitled to pro rata for any service below 12 months. The defendants have maintained that it had terminated the claimant’s appointment as a result of managements’ decision to downsize its man power. The Supreme Court has settled the law that redundancy is at the discretion of the employer provided same is done within the contract, relying on SAMUEL ISHENO V. JULIUS BERGER PLC [2008] 2 – 3 SC (PART II) 78. And redundancy has been defined in labour circles; - See Labour and Employment Law in Perspective” © 2004 By Oladosu Ogunniyi 2nd Edition Folio Publishers Limited Ikeja at page 62;- as an involuntary and permanent loss of employment caused by an excess of manpower. The defendants in this suit had incorporated terms and conditions for redundancy, and having decided to terminate the claimant due to it’s decision to downsize in the circumstance I see no reason the claimant should not benefit from the Article 15.4 Apendix 11. The claimant has worked for five (5) years and eight(8) months, the claimant however did not tender any pay slip or document of his last promotion to enable the court determine what his salary was He had pleaded and testified under cross examination that his salary was N32, 200.00 the defendants on their part had admitted that the claimant’s salary was around N33, 000.00 and in their final address had argued that the claimant was only entitled to one months’ salary in lieu of notice which the stated was N33, 000.00. However from the front loaded defence processes particularly their computation of Terminal Benefits the claimant’s basic salary was stated asN32, 725.00. The court is however bound by the claimant’s figures having no independent facts from which to draw I find that the claimant basic salary was N32, 200.00 accordingly. Alternative Relief iv is for the sum of #2 Million as general damages for wrongful termination of the claimant’s employment by the defendant. The last claim of the claimant is for the sum of N2,000, 000.00 (Two Million Naira) only as general damages for the wrongful termination. “It is settled law that the measure of damage recoverable for wrongful, dismissal or termination of appointment is only limited to what the person affected would have earned over the period of notice. WESTERN NIGERIA DEVELOPMENT CORPORATION v. ABIGTBALA 496014 ALL NLR 9; AKINFOSILE v. MOBIL (1969) N.C.L.R.253.’ – Per Mohammed, J.C.A. in OLANIFIMIHAN v. NOVA LAY-TECH LTD. SUIT NO. CA/B/120/97; (1998) 4 NWLR (PT. 547) 608 @ 623 As the claim itself states, the claim for general damages is for wrongful termination this court cannot consider the claim for N2000 000.00. In his written address, the counsel to the claimant argued that the defendants acted maliciously and biasedly in withholding the entitlements of the claimant for over 4 years and raised the need to compensate the claimant for the injury suffered him. The reference to ODENWENGIE Vs. JSC EDO STATE Supra not being a labour matter is of limited appeal and relevance, the claimant counsel went on to argue the need to consider the secondary object of damages to wit; providing punishment to the defendants actions citing IFUEKO Vs. PZIFER supra. In the case of unreported SUIT NO: NICN/LA/472/2012 MR. OJUTALAYO JOHN FOLAYAN VS. MORLAP SHIPPING COMPANY LTD delivered on 4th December 2015 this court considered a claim of general damages for the unlawful withholding of the arrears of the claimant’s salary and his leave pay. In that suit the learned claimants counsel argued that the claim was to discourage the abuse of discretion by employers who wield high power against their employees. The court considered the Court of Appeal pronouncement in UMTHMB V. DAWA [2001] 16 NWLR (PT. 739) 424 CA “that every employer, including every public body, must be careful not to abdicate or abuse its powers. That employers and public bodies are required by law, at all times, to act in good faith, reasonably and fairly towards people and matters under their charge in all circumstances. That in the determination of the employment of employees, they must at all times allow themselves to be guided by the rule of natural justice; and that the law does not permit employers to act arbitrarily.” Although in that case a specific claim was made to address the defendant perceived high handed ness in this suit the claimant has been deprived his entitlement for over four years. The defendants did not even bother to defend or substantiate their position of indebtedness with a counter claim or any supporting authority. I find that this is a proper situation in which this court given the power of this Court to do so under section 19(d) of the NIC Act 2006. Can award compensation/ damages to the claimant. Accordingly I award the sum of Seven Hundred and Fifty Thousand Naira (N750, 000.00) as general damages/compensation to the claimant. On the whole, and for the avoidance of doubt, the claimant’s case succeeds in the following terms and orders i.e. the defendant shall pay to the claimant within 30 days of this judgment the total sum of Three Million, Four Hundred and Fifty-Nine Thousand, Six Hundred and Seventy-Seven Naira, Forty-Two Kobo (N3,459,677.42) only broken down as follows: – 1. It is hereby declared that the claimants determination from the employ of the defendant vide a letter of termination dated 30th May 2011 was wrongful. 2. The claimant is hereby entitled to all the benefits stipulated in para 15, 4 of the defendants Terms and Conditions of Service. 3. The defendant shall pay to the claimant the sum on N1, 136, 400.00 (One Million One Hundred and Thirty Six Thousand, Four Hundred Naira) Only, broken down as follows;- a. N32,200.00 being one month’s salary in lieu of notice, b. N120, 750.00 as 5 years’ Service Gratuity (32, 200.00/4 (weekly pay= N8, 050.00) x 3= N 24, 150x 5. c. N201,250 being 5 weeks basic pay for over 5 years’ service as redundancy benefits (N8,050.00 x 5 weeks = N40, 250.00 x 5 years = N201, 250.00) d. N32, 200.00 as damages for wrongful termination and e. N750, 000.00 being general damages/compensation to the claimant. Failure to pay any or all of these sums as ordered shall attract interest at 10% per annum until fully paid. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice E. N. Agbakoba Presiding Judge Calabar Division 1. Written deposition on oath of Emmanuel Nwokeocha. - C1 2. A copy of handbook titled “terms and conditions of Service for Senior Staff/Staff of Mr. Biggs. - C3 3. Claimant’s solicitor’s letter dated 1st September, 2011. - C4 4. A letter dated 12th September, 2011 from the defendant being a reply to the claimant’s solicitors’ letter. - C5-C51 5. Photocopies of stock taking sheet of the defendant’s Uyo 2 office dated 28th May, 2011. - C6-C6 6. Copies of the tellers given to the Regional Accountant of the Company by the claimant to show that cash advances were duly retired. - C7 7. A copy of the claimant’s letter of appointment dated 28th September, 2005 is hereby pleaded and shall be relied upon at the trial of this Suit. - C8 Dated this 9th day of March, 2012. Sign Fidelis A. Iteshi, Esq. Solicitor to the claimant Golden-Bridge Attorneys & Arbitrators 43 Gibbs Street, Uyo S/N TENDER BY NICN/CA/109/2014 DOCUMENTS DATED DATE TENDER MARK 1. Claimant Counsel Witness on oath 5/5/2015 5/5/2015 CW 2. Written statement on oath 8/12/2004 C1 3. Additional statement 29/4/2 C2 4. Letter of appointment 14/1/2005 C3 5. Appointment to post of new community 1/9/2007 C4 6. Re: confirmation of employment 24/2/2009 C5 7. Dismissal letter C6 8. Letter from Iko Esai Council C7 9. Iko Esai Council of Chief 10/6/2014 C8 10. Mischief on Iko Esai 10/1/2013 C9-1 11. Letter from commissioner of police 2/9/2014 C10-1 12. Serious misconduct 13/10/2014 C11-1 13. Terms & condition of service C12-3 14. Minutes of meeting 26/9/2013 C13-7 1. Witness on oath 16/7/2015 DW 2. Written statement 16/7/2015 D1 3. Additional statement on oath “ D2 SERVICE GRATUITY a. Service gratuity covers all employees who put in a minimum of 5 years continuous service with the company. b. Service gratuity is separated from pension but retirement gratuity will be payable only to those eligible for pension. Employees who opt on retirement, for a lump sum without a pension will get service gratuity in lieu of retirement gratuity. c. A retiring employee has the option of his service gratuity without supplementary pension or retirement gratuity at current rates with supplementary pension. d. The rate of gratuity will be shown in appendix (ii) e. Service gratuity, redundancy benefits and retirement gratuity will be mutually exclusive i.e, no one employee will get more than one of these three. f. Those who abandon their employment or are dismissed will not benefit from service gratuity. g. Those who resign their appointment to forestall dismissal will not benefit from service gratuity. h. Provided 10 years of continuous service is attained, service below 12 months will attract gratuity on Pro-rata basis. Redundancy The company makes every effort to absorb employees surplus to the requirements of Redundancy The company makes every effort to absorb employees surplus to the requirements of one department in an alternative section of the business. No employee’s post is declared redundant until a full investigation has been made by the Divisional Human Resources Manager and the accredited representative of the Union informed of the circumstance. When management is compelled to reduce staff, the following factors are taken into consideration when deciding who must go. Efficiency, length of service, diligence, loyalty and health. As long a notice as possible, is given to all employee whom it is intended to declare redundant. Redundancy benefit is paid to those affected as shown in appendix (11).