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<p class="MsoNormal" style="text-align:justify"><u>REPRESENTATION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Adekunle Odujirin, with Rotimi Oyeniyi, for the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Gbeminiyi Holloway, for the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>JUDGMENT<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">On 7<sup>th</sup> June 2013, the claimant took up a complaint against the defendant praying for the following reliefs –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo1"><!--[if !supportLists]-->1)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The sum of N1,289,704.38 being the total of various sums of money due to the claimant upon wrongful determination of the claimant’s appointment.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo1"><!--[if !supportLists]-->2)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Damages or compensation in the sum of N3.00 million.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l3 level1 lfo1"><!--[if !supportLists]-->3)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Interest on sums claimed or awarded by court at the prevailing court’s rate from date of judgment, and for costs. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The complaint is accompanied by a statement of facts, list of witnesses, written statement on oath of the witness, list of documents and copies of the documents (Exhibits C1 to C16).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant entered appearance and then filed its statement of defence, list of witnesses, depositions of the witnesses, list of documents and a copy of the one document to be relied upon at the trial (Exhibit DW). To these, the claimant filed a reply and an additional written statement on oath of the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">At the trial, the claimant testified on his own behalf as CW, while Olujimi Fayose, a Security man with the defendant, and Francis Ademokoya, an Accountant with the defendant, both respectively testified as DW1 and DW2 for the defendant. At the close of trial, parties were directed to file and serve their respective written addresses starting with the defendant as per Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. The defendant did not file any written address; as such the claimant filed his in default of the defendant’s. The claimant’s written address is dated and filed on 11<sup>th</sup> February 2016. <o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The case of the claimant is that he was employed as a Waste Sourcing Clerk from 2<sup>nd</sup> February 1994 on terms which include that termination of appointment could be by either party giving two weeks’ notice or payment in lieu of notice after confirmation of appointment (Exhibit C1). That his appointment was confirmed by 2<sup>nd</sup> August 1994 (Exhibit C2); and all through he was diligent, faithful, loyal and honest, and was never queried (except on 12<sup>th</sup> June 2009), warned or otherwise disciplined. Instead, that he was commended several times for being a diligent employee (Exhibits C5 and C9) and twice promoted to Stores Supervisor (JMS III) and to Assistant Manager (Stores) – Exhibits C6 and C8. That by 12<sup>th</sup> June 2009, he had served the defendant for more than 15 years and so qualified for certain gratuity; and by Exhibit C11 he was entitled to 8 weeks of his total emoluments for each year of service as gratuity. That as Assistant Manager (Stores), the sum of N1,169,010.84 was due as gratuity, referring to Exhibits C10 and C11. That with other benefits payable, a total sum of N1,289,704.38 was due to him as of 12<sup>th</sup> June 2009. For details, the claimant referred to paragraphs 1 – 12 and 40 of his witness statement; and that all of this is not denied by the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant went on that what the defendant contends is that the claimant had lost his entitlements by reason (allegedly) of his involvement in theft and that a term of the employment contract provided that an employee caught stealing must lose accrued benefits, respectively referring to paragraph 10 of the statement of defence and paragraph 11 of DW1’s witness statement. The claimant denies this, referring to paragraph 5 of his reply and paragraph 3 of his additional written statement on oath. That the defendant did not tender any document to prove the existence of the alleged term, or whether, when or how it was made known to the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant, he was for the first time queried on 12<sup>th</sup> June 2009, and before he could even answer the query, the defendant summarily dismissed him “on the same day” i.e. without the agreed two weeks’ notice or an opportunity to hear the him. That he had been asked to load a vehicle with 90 bags of robust double packet of toilet rolls (the goods) from the store under the claimant’s charge. That the goods were to be delivered to a customer under a Waybill/Delivery note. That at that time, there were less than 40 bags of the goods in the store; therefore, he requested for supply of the shortfall from Production Department and sent a subordinate (Dupe Alayande, a Stores Clerk) to get it. That Dupe Alayande and Lukeman Balogun (loader) brought the goods, and they were loaded on a pick-up van No. XJ 189 KRD. That the loading was supervised by Mr. Friday Eselebor, who was the security officer in charge of loading. That while the goods were being loaded, Mr. Ademokoya (DW2) came on and stood by the vehicle until the loaded ended.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant continued that a little while after that DW2 told him that the defendant’s MD instructed DW2 to offload the goods and to count them again in order to ascertain that the goods were in tandem with the quantity required by the Waybill/Delivery note. Accordingly, DW2 asked Mr. Jimi Fayose (DW1), “Mr. Segun Osinuga” and Mr. Friday Eselebor to do so. That after the goods were offloaded and re-counted, DW1 and “Mr. Segun Ashinuga” told DW2 and others present that the goods loaded were one bag more than expected; at which DW2 asked DW1 to write a report of what happened and so submit the report to DW2. That shortly afterwards, the claimant was given a query when the time was “well past 4 o’clock”, which before he could answer he was served with a letter of summary dismissal. That he inadvertently left both the letters of query and of the dismissal on the defendant’s premises; and so Exhibits C12 and C13 are given as secondary evidence, the defendant having failed to produce copies of the letters.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant, the defendant does not dispute any of these facts but alleges that when the goods were recounted, there were 17 bundles more than expected. That DW1 tendered Exhibit DW dated 16<sup>th</sup> June 2009 to prove this fact. Exhibit DW states, <i>inter alia</i>, that both Friday Eselebor and DW1 said at first that the goods loaded was one bundle more than expected. But later, DW1 came back and confided in the Chief Security Officer (CSO) that were “actually 16 bundles extra”. That under cross-examination each of the two defence witnesses admitted that Mr. Timothy “Ohelen” was the CSO at the time and that he was writer of Exhibit DW. Interestingly though, that the two witnesses also admitted whilst being cross-examined that the CSO was not at work when the facts took place on 12 June 2009. That Exhibit DW is purportedly made on its face by the CSO (Mr. “Ohenlen”) on 16<sup>th</sup> June 2009, who was however not called as a witness throughout the proceedings.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant continued that the defendant alleged that it first terminated the claimant’s appointment before later converting it to a dismissal “on the same day”. That both defence witnesses also admitted this fact whilst under cross-examination; yet neither the letter of termination nor of dismissal is tendered by the defendant. Additionally, that on 5<sup>th</sup> December 2009, two of the defendant’s employees (Mr. Segun Oshinuga and Mr. Segun Aribisala) went to the claimant’s house in the Defendant’s <i>Quest</i> bus together with two women police, who arrested the claimant and his two subordinates and detained the three at Alausa Police Station. That the police kept them in police custody. That they were released on bail on 6<sup>th</sup> December 2009 after having been subjected to all sorts of privation and suffering. That the defendant did not turn up at all after that; and no charge was preferred against the claimant. That the defendant is not disputing these facts.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant then framed three issues for the determination of the Court, namely –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo2"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Is the defendant liable for wrongful termination/dismissal, and if so to what remedy is the claimant entitled in the circumstance?<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo2"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Can the claimant recover final entitlements due to him as of the date of termination/dismissal?<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l2 level1 lfo2"><!--[if !supportLists]-->3.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Did the defendant instigate the police to detain the claimant and thereby breached his human/constitutional rights as to entitle the claimant to damages or compensation in respect thereof? The claimant, however, indicated that this issue will not be separately addressed given the limited jurisdiction of the Court.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In addressing issue 1, the claimant asked 4 questions. They are –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo3"><!--[if !supportLists]-->a)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->When is a termination/dismissal wrongful and what is the effect?<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo3"><!--[if !supportLists]-->b)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Is wrongful termination/dismissal proved on the claimant’s evidence?<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo3"><!--[if !supportLists]-->c)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Is wrongful termination/dismissal justified on the defendant’s evidence?<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l1 level1 lfo3"><!--[if !supportLists]-->d)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->What remedy is available to the claimant?<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Regarding issue 1(a), the claimant answered that a termination/dismissal is wrongful if made in a manner that is inconsistent with the employment contract e.g. as to notice of termination or as to procedure intended to ensure fairness or in breach of the rules of natural justice. That this effectively ends the contract and the employee’s remedy is in damages, citing <i>Oshisanya v. Afribank Nigeria Plc</i> [2007] 1 – 2 SC 317.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As to issue 1(b), the claimant contended that to establish wrongful termination/dismissal, the claimant must first prove on the balance of probabilities the facts that he has been an employee of the defendant and the terms of employment. That it must also be proved that the facts and circumstances of his termination/dismissal are inconsistent with the terms of employment, referring to <i>Ziideeh v. Rivers State Civil Service Commission</i> [2012] 4 NILR 112 at 127 and 128; [2007] 1 – 2 SC 1. That in the case at hand, the claimant adduced <i>undisputed</i> evidence that he was a confirmed employee of the defendant for upwards of 15 years without blemish as well as the terms of employment. That Exhibit C1 provides <i>inter alia</i> that the claimant’s appointment may be terminated by either party giving two weeks’ notice to the other or a payment in lieu of such a notice. That it is common ground that on 12<sup>th</sup> June 2009 the defendant queried the claimant and imputed dishonesty to the claimant. That the defendant did not even give the claimant the opportunity to answer the query; instead, “within minutes” after the claimant received the query the defendant summarily dismissed the claimant “on the same day” on ground of the alleged dishonesty. That the defendant disregarded the terms of employment as to two weeks’ notice or payment in lieu of thereof as provided in Exhibit C1. Also, that despite alleging dishonesty, the defendant failed to hear the claimant at all, thus also disregarding an implied term at common law that before an employee may be dismissed on ground of misconduct the employer must give the employee an opportunity to be heard in accordance with the rules of natural justice. The claimant then submitted that he has proved that his termination/dismissal was wrongful on both scores.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In respect of issue 1(c), the claimant contended that on conclusion of his evidence, the initial burden of proof shifts on to the defendant to justify the termination/dismissal, referring to section 133(2) of the Evidence Act. That where an employee is guilty of misconduct, he may be summarily dismissed without notice; but before such a summary dismissal, the employer must first give the employee an opportunity of being heard, citing <i>Adekolu-John v. University of Ilorin</i> [2013] 1 ACELR 119 CA and <i>Jirgbagh v. Union Bank of Nigeria</i> [2001] 2 NWLR (Pt. 696) 11 CA; [2000] 17 WRN 18. That if the misconduct alleged does not involve commission of a crime the defendant must prove the alleged misconduct to the court’s satisfaction, referring to <i>Shell Petroleum Development Company Ltd v. Olarewaju</i> [2008] 12 SC (Pt. III) at 43. That where the misconduct alleged involves the commission of a crime, then it must be particularized and proved beyond reasonable doubt, referring to section 135 of the Evidence Act.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant went on that in the instant case, the defendant alleged that the claimant was dismissed for committing theft. To the claimant, this is a weighty allegation of gross misconduct, a crime, which requires a high standard of proof or proof beyond reasonable doubt for which the claimant must be given time and opportunity of being heard prior to termination/dismissal. That the defendant did not dispute the claimant’s evidence that he was not given such an opportunity. That the evidence of the defence witnesses is that the dismissal was instant; as such without a hearing. In any event, that Exhibit DW used to justify the dismissal of the claimant is not admissible in evidence as it is hearsay, it is not direct and not made on oath contrary to sections 37, 38, 126 and 205 of the Evidence Act.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant continued that even if Exhibit DW is admissible, it is not sufficient to justify the dismissal of the claimant in that it was not made contemporaneously with the facts. Rather, that it was made in circumstances that tend to show an incentive to conceal or misrepresent facts contrary to section 34(1)(a) of the Evidence Act. Also that the defendant failed to particularize or to strictly prove the allegation of theft. That it is insufficient to accuse the claimant and 4 others of theft of toilet rolls without showing the particular involvement of the claimant. The claimant then submitted that the defendant has failed to justify wrongful termination/dismissal by the appropriate standard of proof required.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On issue 1(d), the claimant contended that the old law was that in termination/dismissal cases an employee was not entitled to damages for his feelings, distress, social discredit, loss of reputation or stigma associated with the manner of dismissal, citing <i>Addis v. Gramophone Co. Ltd</i> [1909] AC 488 and <i>Oshisanya v. Afribank Nigeria Plc</i> [2007] 1 – 2 SC 317 among other cases. To the claimant, this more than 100 years old proposition is out of tune with current employment and labour practice and has been greatly restricted in England. The claimant then referred to <i>Malik v. Bank of Credit and Commerce SA (in liq.)</i> [1997] 3 All ER 1 where the House of Lords refused to follow <i>Addis</i>, holding instead that an employee might prove in the employer’s liquidation for “stigma damages” where the employer is breach of an implied obligation of mutual trust and confidence i.e. an obligation to act fairly. That courts in other jurisdictions have from time to time circumvented or even ignored <i>Addis</i>, referring to the Canadian cases of <i>Brown v. Waterloo Regional Board of Commissioners of Police</i> [1982] 136 DLR (3d) 49 and <i>Pilon v. Peugeot Canada Ltd</i> [1980] 114 DLR (3d) 378 as well as the New Zealand case of <i>Ogilvy and Mather (New Zealand) v. Turner</i> [1996] 1 NZLR 641.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant proceeded to discuss the Ghanaian case of <i>Nartey-Tokoli v. Volta Aluminium Co,</i> [1990] LRC 579 where the Supreme Court of Ghana upheld the award of damages of a sum equivalent to 12 months’ salary beyond the amount equivalent to the worker’s wages to reflect the court’s disapproval of a wrongful dismissal. That the Ghanaian Supreme Court cited with approval <i>Agbettoh v. Ghana Cocoa Marketing Board</i> [1984 – 1986) GLRD 16 and <i>Hemans v. GNTC</i> [1978] 1 GLR 4 at 10. <i>Agbettoh</i> ordered the payment to each plaintiff of an amount equal to 2 years’ salary in addition to receiving their entitlements under the contract of employment; while <i>Hemans</i> held that if compensation for lawful termination is one month’s pay after the employee had been forewarned, then it should appear preposterous to award the same one month’s salary where the termination has been held to be unlawful. To the claimant, though these authorities are not binding on Nigerian Courts, they are persuasive of the current and trendy views in employment law in several jurisdictions.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In any event, that there is a progressive Nigerian precedent set by the Court of Appeal in <i>British Airways v. Makanjuola</i> [1993] 8 NWLR (Pt. 311) 276, which held that where a wrongful termination/dismissal carries with it some stigma on an employee’s character, the employee shall be entitled to substantial damages far beyond the amount the employee would have earned for the period of notice required by the terms of employment. In the instant case, that it is not in doubt that the claimant served the defendant for more than 15 years without blemish; and that the defendant accused the claimant of involvement in theft without affording him an opportunity to be heard in defence of himself. Furthermore, that the defendant did not dispute the evidence that the defendant oppressively caused police to arrest and detain him at a time when the defendant had no serious or reasonable belief that the claimant committed any wrong. To the claimant, therefore, 2 weeks’ salary in lieu of notice is not adequate damages to compensate the claimant in the circumstances of this case. That the defendant harshly and oppressively sought to make the claimant lose his gratuity for 15 years’ service. The claimant then submitted that it would be retributive if a sum equal to the amount of gratuity the claimant would have lost is awarded as damages to mark the Court’s disapproval of the defendant’s harsh and oppressive manner of terminating/dismissing the claimant’s employment.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Regarding issue 2 i.e. whether the claimant can recover final entitlements due to him as of the date of termination/dismissal, the claimant submitted that apart from damages for wrongful dismissal, an employee may also recover as debt salaries and emoluments which are due or payable as of the date of termination/dismissal; and that it appears such a claim is independent of wrongfulness or correctness of the termination/dismissal, citing <i>Abdallah v. Achou</i> [1969] ANLR 433; [1975] NCLR 226, <i>Springbank v. Babatunde</i> [2013] 1 ACELR 173 CA at 184 – 185, <i>Ulegede v. The Military Administrator, Benue State</i> [2001] 2 NWLR (Pt. 696) 73 at 91 – 92, <i>FAAN v. Nwoye</i> [2013] 2 ACELR 162 and <i>Onalaja v. African Petroleum Ltd</i> [1991] 7 NWLR (Pt. 206) 691 at 694. That in the instant case, the defendant alleged, without proof, the existence of an agreement by which the claimant has lost all entitlements that became due as of the date of termination/dismissal. Also that the defendant failed to prove that the claimant was involved in theft. Meanwhile, that he the claimant has shown vide Exhibits C1, C2, C8, C10 and C11 the terms of employment showing his entitlement to the payments claimed. The claimant concluded by urging the Court to grant his reliefs.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>COURT’S DECISION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">Despite that the defendant joined issues with the claimant, filed its defence processes, called two witnesses (DW1 and DW2) who testified and were cross-examined by the claimant, the defendant did not file any written address in support of its case. The Court shall accordingly proceed with the judgment by considering all the processes filed, the evidence elicited by all the witnesses (CW, DW1 and DW2) and the available submission of counsel. In doing this, I need to resolve the issue of the admissibility of Exhibits C12 and C13, which the claimant himself subtly raised and answered in paragraph 2.7 of his written address. Exhibit C12 is a query dated 12<sup>th</sup> June 2009 addressed to Mr. Adefare Samson from the Personnel Admin. Office of the defendant. It is copied to Managing Director, Snr. Operations Manager and Chief Accountant. Exhibit C13 is equally dated 12<sup>th</sup> June 2009, and is a letter of dismissal addressed to Mr. Samson Adefare. It is signed by S. Osinuga, the Asst. Administration Manager of the defendant. To the claimant, he had inadvertently left on the defendant’s premises the query and dismissal letters issued to him by the defendant; as such he tendered Exhibits C12 and C13 as secondary evidence, the defendant having failed to produce copies of the letters.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">There is something inappropriate here. To start with, when a party asks the opposing party to produce a document which is not so produced, the law is that the party can file secondary evidence of the document sought to be produced. See<span style="font-family:"Verdana","sans-serif"; color:#CC0000;mso-bidi-font-weight:bold"> </span><i>UBA Plc v. Ogochukwu</i> [2014] LPELR-24267(CA). This secondary evidence is that of the exact document sought to be produced, not some other person’s. In the instant case, Exhibits C12 and C13 were not addressed to the claimant; they were addressed to someone who is not a party in this suit. The claimant cannot use them as evidencing the query and dismissal letter issued to him by the defendant. The argument of the claimant in that regard is unsustainable and so is hereby rejected. Exhibits C12 and C13 accordingly have no evidential of probative value as far as this case is concerned; and I so find and hold. However, regarding the fact of a query and dismissal letter issued to the claimant, the defendant in paragraph 8 of its statement of defence (as well as paragraph 7 of DW1’s deposition on oath of 16<sup>th</sup> July 2014) averred that it issued queries to the claimant and 4 others, terminated their appointments before converting the terminations to dismissals, all on same day. This is an admission on the part of the defendant that the claimant was issued a query, his appointment was terminated but which was converted to dismissal, all on same day; and I so find and hold. The law is that parties are bound by their pleadings; as such what is admitted needs no further proof. See <i>Chief T. F. Oruwari v. Mrs. Ine Osler</i> [2012] LPELR-19764(SC).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant also challenged the admissibility of Exhibit DW relied on by the defendant as justifying the dismissal of the claimant. Exhibit DW is dated 16<sup>th</sup> June 2009 and is from the CSO to Managing Director of the defendant. It is titled “Interim Report on the Recovered Extra Bundles of Toilet Roll”. The contention of the claimant is that Exhibit DW is hearsay, it is not direct and it is not made on oath contrary to sections 37, 38, 126 and 205 of the Evidence Act. I am not aware of any requirement of law that a report needs to be made on oath. The argument of the claimant in this regard accordingly fails. This leaves out only the argument as to Exhibit DW being hearsay and not direct. Both DW1 (under cross-examination) and DW2 (under re-examination) testified that Mr. Ohelen wrote Exhibit DW. DW2 was even emphatic that Mr. Ohelen, the CSO, was not involved in checking the goods and indeed was not even there at all when the goods were checked. Yet, Mr. Ohelen it was who filed the report (Exhibit DW) based on the report of Mr. Fayose who was his subordinate. To my mind, all of this makes Exhibit DW documentary hearsay. The law is that hearsay evidence, whether oral or documentary, is inadmissible and lacks probative value. See section 37 of the Evidence Act 2011 particularly Sub-Section (b), <i>Buhari v. Obasanjo</i> [2005] 13 NWLR (Pt. 941) 1 at 317, <i>Doma v. INEC</i> [2012] All FWLR (Pt. 628) 813 at 829 and <i>Adewale & anor v. Adeola & ors</i> [2015] LPELR-25972(CA). This means that Exhibit DW is inadmissible and lacks probative value; and I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimant’s case is that because his appointment was wrongfully determined, he is entitled to the sum of N1,289,704.38 being the total of various sums of money due to him; as well as damages in the sum of N3 million, interest on all the sums claimed at the prevailing Court’s rate from the date of judgment and cost. This means that this Court must decide the following issues:<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo4"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the determination of the claimant’s appointment was actually wrongful.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo4"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the claimant is entitled to the said sum of N1,289,704.38, the total of sums of money due to him; and if the answer is in the affirmative, whether the claimant has proved the entitlement to the said sum.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo4"><!--[if !supportLists]-->3.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the claimant is entitled to and so made out a case for damages beyond the usual payment in lieu of notice.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l7 level1 lfo4"><!--[if !supportLists]-->4.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the claimant is entitled to interest and cost as claimed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In employment cases, the Supreme Court in<i> Ekeagwu v. The Nigerian Army</i> [2010] LPELR-1076(SC); [2010] 16 NWLR 419 per His Lordship Onnoghen, JSC reminded us that in an action for wrongful termination/dismissal/retirement only two primary issues call for determination. These are: whether the termination/dismissal/retirement of the plaintiff is wrongful; and the measure of damages recoverable where the termination/dismissal/retirement is found to be wrongful. Even at this, the rule is that he who asserts must prove; and in employment law, the onus is on the claimant who asserts that his termination is wrongful to show how wrongful it actually is. And to do this, the claimant must place before the Court the terms of the contract of employment and then prove in what manner the said terms were breached. See also <i>Aji v. Chad Basin Development Authority & anor</i> [2015] LPELR-24562(SC) and <i>Ademola Bolarinde v. APM Terminals Apapa Ltd</i> unreported Suit No. NICN/LA/268/2012 the judgment of which was delivered on February 25, 2016. It is not for the defendant employer to prove any of this. See further <i>Akinfe v. UBA Plc</i> [2007] 10 NWLR (Pt. 1041) 185 CA and <i>UTC Nigeria Ltd v. Peters</i> [2009] LPELR-8426(CA).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The basis of the claimant’s argument is that most of the facts alleged by the claimant were not disputed by the defendant, except for two facts that are in dispute i.e. whether there was any term of the contract of employment known to the claimant which provides that an employee caught stealing loses all benefits that have become due to him; and whether the claimant involved in theft had thereby lost the terminal benefits due as of the date of dismissal. In other words, since the defendant did not dispute all other facts, the dismissal of the claimant must necessarily be wrongful. To the claimant, Exhibit C2 confirmed his appointment for which by Exhibit C1, either party is to give two weeks’ notice or payment in lieu of notice before his appointment can be terminated. That in the instant case, the claimant was dismissed the same day he was queried i.e. 12<sup>th</sup> June 2009 without even allowing him the luxury of answering the query. I find this state of facts to be true. I indicated earlier that the defendant in paragraph 8 of its statement of defence (as well as paragraph 7 of DW1’s deposition on oath of 16<sup>th</sup> July 2014) averred that it issued queries to the claimant and 4 others, terminated their appointments before converting the terminations to dismissals, all on same day. This as I found is an admission on the part of the defendant that the claimant was issued a query, his appointment was terminated but which was converted to dismissal, all on same day. This being the case, the dismissal of the claimant by the defendant without allowing him answer the query issued to him is accordingly wrongful in that fair hearing was not thereby accorded the claimant; and I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The dismissal of the claimant by the defendant is wrongful for another reason. In stating that the defendant first terminated the claimant’s appointment before converting same to dismissal, the defendant thereby acted wrongly. This is because, having terminated the claimant’s appointment, the claimant’s appointment thereby came to an end; as such there was no longer an appointment for which the act of dismissal related to. See <i>Jombo v. PEFMB</i> [2005] 14 NWLR (Pt. 945) 443 SC, which held that it is elementary that an employee cannot be dismissed from an employment that had ceased to exist; therefore, a dismissal coming after the termination of appointment would be futile exercise. The dismissal of the claimant by the defendant is accordingly wrongful for this additional reason; and I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">What then is the measure of damages recoverable by the claimant given this wrongful dismissal of his appointment? I need to first point out that this Court has consistently held that the new dispensation is that whether it is termination or dismissal, the employee is not thereby disentitled from claiming all sums earned and due to him as at the date of termination or dismissal. See <i>Udegbunam v. FCDA</i> [2003] 10 NWLR (Pt. 829) 487 SC (which held that in a claim for wrongful termination of appointment, an employee can also claim for salaries, leave allowances, etc, earned by the employee but not paid by the employer at the time of the termination; and that an employer has the discretion to give a lesser punishment to an employee but he has no discretion to give a higher punishment than that prescribed) and <i>Underwater Eng. Co. Ltd v. Dubefon</i> [1995] 6 NWLR (Pt. 400) 156 SC. The defendant’s position is that based on an agreement between it and the labour union representing the workers it is company policy that a member of staff caught stealing loses all benefits normally accruable to the staff; and that this policy is known to all members of staff including the claimant. See paragraph 10 of the statement of defence as well as paragraph 11 of the deposition of DW1 of 16<sup>th</sup> July 2014. The claimant denied this as per paragraph 5 of his reply to the statement of defence and paragraph 3 of his additional written statement on oath. The defendant did not support its assertion with any documentary evidence. The statement of company policy cannot be oral as the defendant seems to have done in the instant case. The defendant did not even disclose to the Court the name of the trade union it entered into an agreement with; neither did the claimant tender the said agreement. This means that the defendant’s position here is baseless and so is rejected. The claimant accordingly is entitled to all sums earned and due to him as at the date of the wrongful dismissal i.e. 12<sup>th</sup> June 2009. The question is whether the claimant has proved the said sum of N1,289,704.38.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In paragraph 13 of the statement of facts, the claimant gave the particulars of how he arrived at the sum of N1,289,704.38 as follows –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l5 level1 lfo5"><!--[if !supportLists]-->1)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Payment in lieu of notice N32,000.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l5 level1 lfo5"><!--[if !supportLists]-->2)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Payment due in respect of Negotiated Collective Agreement 8,500.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l5 level1 lfo5"><!--[if !supportLists]-->3)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Pay for annual leave due but not used 19,815.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l5 level1 lfo5"><!--[if !supportLists]-->4)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Leave allowance due for 2009 19,815.56<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l5 level1 lfo5"><!--[if !supportLists]-->5)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Salary due for June 2009 40,562.98<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l5 level1 lfo5"><!--[if !supportLists]-->6)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Gratuity due for 15 years service 1,169,010.84<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"> Amount Due <b>1,289,704.38</b><o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In paragraph 10 of his sworn deposition, the claimant put his yearly remuneration as at 12<sup>th</sup> June 2009 to be as follows –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo6"><!--[if !supportLists]-->1)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Basic salary N198,155.69<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo6"><!--[if !supportLists]-->2)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Transport allowance N148,200<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo6"><!--[if !supportLists]-->3)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Housing allowance N137,400.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo6"><!--[if !supportLists]-->4)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Medical subsidy allowance N15,840.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo6"><!--[if !supportLists]-->5)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Annual leave allowance N19,815.67<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l6 level1 lfo6"><!--[if !supportLists]-->6)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Entertainment allowance N3,000.00<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant did not really deny the averment in paragraph 13 of the statement of facts. All the defendant stated, as I indicated earlier, is that it is company policy that a staff caught stealing loses all benefits normally accruable to the staff. I have already discountenanced this position of the defendant on the ground of lack of proof. This effectively means that the claimant’s claim for N1,289,704.38 remains unchallenged. The law is that an evasive, vague, bogus or general denial, a mere denial of a detailed, factual situation without attacking the veracity of the details, all do not amount to a denial for the purpose of raising an issue for trial. If anything, they all amount to an admission. See <i>El-Tijani v. Saidu</i> [1993] 1 NWLR (Pt. 268) 246; <i>Jacobson Engineering Ltd v. UBA Ltd</i> [1993] 3 NWLR (Pt. 183) 586; <i>Lewis & Peat (NRI) Ltd v. Akhimien</i> [1976] 1 ALL NLR (Pt. 1) 460; <i>UBA Ltd v. Edet</i> [1993] 4 NWLR (Pt. 287) 288; <i>Ohiari v. Akabeze</i> [1992] 2 NWLR (Pt. 221) 1; <i>LSDPC v. Banire</i> [1992] 5 NWLR (Pt. 243) 620; <i>Dikwa v. Modu</i> [1993] 3 NWLR (Pt. 280) 170; <i>Sanusi v. Makinde</i> [1994] 5 NWLR (Pt. 343) 214; <i>Ekwealor v. Obasi</i> [1990] 2 NWLR (Pt. 131) 231 and <i>Idaayor v. Tigidam</i> [1995] 7 NWLR (Pt. 377) 359.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">However, because the claim for N1,289,704.38 as per relief 1) by the claimant approximates to a claim for special damages, the law according to His Lordship Rhodes-Vivour, JSC at page 32 in <i>NNPC v. Clifco Nig. Ltd</i><span style="font-family:"Verdana","sans-serif"; color:#009933;mso-bidi-font-weight:bold"> </span>[2011] LPELR-2022(SC) is that –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Evidence ought to be led before an award for special damages is granted. To succeed in a claim for special damages it must be claimed specially and proved strictly. The fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">This means that to be entitled to the said sum of N1,289,704.38, the claimant must prove by compelling evidence how he came by the sum.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimant, he is entitled to N32,000.00 as payment in lieu of notice. How did the claimant arrive at the sum of N32,000.00? The Court is not told. By Exhibit C1, the claimant is entitled as a confirmed staff to two weeks’ notice or payment in lieu of notice before appointment can be terminated by the defendant. Exhibit C1 does not state whether in computing payment in lieu of notice the yardstick is the basic salary or gross salary. The law is that in interpreting conditions of service, where there is ambiguity, such must be resolved in favour of the employee. I shall accordingly take gross salary as the yardstick for computing the two weeks’ pay in lieu of notice. Even here, it is not clear how the claimant arrived at N32,000.00 as the value of the payment in lieu of notice.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Exhibit C8 dated 23<sup>rd</sup> December 2006 which promoted the claimant to the post of Assistant Manager (the position the claimant was at point of dismissal) puts his yearly remuneration as follows –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l0 level1 lfo7"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Basic salary N162,155.69<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l0 level1 lfo7"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Transport allowance N104,400.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l0 level1 lfo7"><!--[if !supportLists]-->3.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Housing allowance N155,200.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l0 level1 lfo7"><!--[if !supportLists]-->4.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Meal subsidy N15,840.00<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l0 level1 lfo7"><!--[if !supportLists]-->5.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Leave period Five (5) weeks<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l0 level1 lfo7"><!--[if !supportLists]-->6.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Entertainment allowance N3,000.00<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Exhibit C10 dated 29<sup>th</sup> April 2009 later indicated an increase in the yearly remuneration of the claimant with effect from February 2009 in terms of the basic salary (N198,155.69), transport allowance (N148,200.00) and housing allowance (N137,400.00). If we, however, add up basic salary (N198,155.69), transport allowance (N148,200.00), housing allowance (N137,400.00), meal subsidy (N15,840.00) and entertainment allowance (N3,000), what we have is N505,595.69, which if divided by 52 weeks of the year gives us N9,665.30 per week; if this sum is multiplied by 2 what we have is N19,330.60 as the gross pay of the claimant for 2 weeks. This is the sum that the claimant is entitled to as payment in lieu of notice; and I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The next head of claim by the claimant is N8,500.00 being payment due in respect of negotiated collective agreement. By Exhibit C10, the defendant acknowledged that the claimant is to be paid N8,500.00 being one month arrears of his increased remuneration. This has not been paid by the defendant. The claimant has accordingly proved, and so is entitled to, the said sum; and I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The next claim is for N19,815.00 being pay for annual leave due but not used. Exhibit C9 dated 20<sup>th</sup> November 2006 is a letter approving the claimant’s application for his 2006 annual leave but disallowing him from taking it due to exigencies of work, and commuting it to cash. There is no documentary proof before the Court showing the year in which the claimant did not use or take up his annual leave for which he is now claiming N19,815.00. All the claimant stated in paragraph 9 of his sworn deposition is that he was not allowed to go on his annual leave and gave the example of Exhibit C9 which did not allow him to take up his 2006 annual leave and instead commuted same to cash. This is not proof enough for the claim of N19,815.00 for annual leave due but not used. That claim accordingly fails and is hereby dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The next claim is for N19,815.56 being leave allowance due for 2009. By Exhibit C1, the claimant is entitled to his first leave after serving for 12 calendar months from the date of appointment which is 2<sup>nd</sup> February 1994. The claimant was wrongly dismissed on 12<sup>th</sup> June 2009. How then can he be asking for leave allowance for the year 2009 when he did not serve for the entire year of 2009? The claimant accordingly has not shown any entitlement to the sum of N19,815.56 being leave allowance for 2009. The claim, therefore, fails and is hereby dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The next claim is for N40,562.98 being salary due for June 2009. The claimant was wrongly dismissed on 12<sup>th</sup> June 2009. He did not work for the whole of the month of June 2009. How then can he be entitled to the salary for the whole of June 2009? Aside from this, the claimant did not indicate to the Court how he came about N40,562.98 as his salary for the month of June 2009. In paragraph 10 of the claimant’s sworn deposition, the claimant indicated what his yearly salary as at 12<sup>th</sup> June 2009 was. I reproduced this earlier in this judgment. The thing is, except for Exhibit C1 which shows the claimant to be entitled to medical allowance of N500.00 per annum, there is no other document tendered by the claimant that shows his medical subsidy allowance to be N15,840.00 per annum as indicated in paragraph 10 of the claimant’s sworn deposition. Meanwhile, I had already discountenanced the claim for N19,815.67 as annual leave allowance. Exhibit C8 shows the claimant to be entitled to meal subsidy of N15,840.00 per annum; however, for purposes of the claim for salary of June 2009, the claimant did not indicate meal subsidy to be a claim. So to compute the claimant’s salary for June what we have in evidence as per Exhibits C8 and C10 are the basic salary (N198,155.69), transport allowance (N148,200.00), housing allowance (N137,400.00) and entertainment allowance (N3,000). If these sums are added up what we have will be N486,755.69, which if divided by 12 months in the year gives us N40,562.97. If this sum is divided by 30 days (June has 30 days) what we will have is N1,352.10, which if multiplied by 12 days (the claimant’s appointed ceased on 12<sup>th</sup> June 2009), what we have is N16,225.19 as the entitlement of the claimant as salary for the month of June 2009, not the N40,562.98 he claims; and I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The last head of claim in terms of the claim for N1,289,704.38 is the claim for N1,169,010.84 being gratuity due for the 15 years the claimant served the defendant. Here, the case of the claimant is that based on Exhibit C11 (the defendant’s gratuity benefit payment schedule), the formula for calculating gratuity is service year x 8 x annual total emolument i.e. 8 weeks’ total emoluments for every year of service, which is 15 years for the claimant. See paragraphs 11 and 12 of the statement of facts, and paragraph 11 of the sworn deposition of the claimant. The claimant was an Assistant Manager and so came under category C as per Exhibit C11; and he worked for 15 years. For category C staff, it is the basic salary, transport allowance, housing allowance, leave allowance and entertainment allowance (all per annum) that is to be used in calculating gratuity; and the formula for calculation is as already stated. I indicated earlier that the claimant did not show proof of what his actual and current annual leave allowance is. So I can only factor the basic salary, transport allowance, housing allowance and entertainment allowance in determining the gratuity of the claimant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">As indicated all through this judgment, the claimant’s annual basic salary is N198,155.69, annual transport allowance is N148,200.00, annual housing allowance is N137,400.00 and annual entertainment allowance is N3,000. These sums added up come to N486,755.69. This sum divided by 52 weeks gives us N9,360.69, which if multiplied by 8 weeks will give us N74,885.49; and if this sum is multiplied by the 15 years the claimant served the defendant, what we have will be N1,123,282.36. This is the sum that the claimant is entitled to as gratuity from the defendant; and I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Relief 2) is for damages or compensation in the sum of N3 million. The argument of the claimant here is that he is entitled to substantial damages in consequence of the harsh and oppressive manner the defendant terminated/dismissed him. The manner of the dismissal has been recounted by the claimant himself. It is here that the claimant cited authorities from England, Canada, New Zealand and Ghana to show that elsewhere, courts have moved away from merely awarding payment in lieu of notice as damages; they are instead awarding substantial damages to reflect the unlawfulness of a termination or dismissal. The claimant then called on this Court to rethink its position on the matter, relying on the progressive precedent of <i>British Airways v. Makanjuola</i> [1993] 8 NWLR (Pt. 311) 276.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">I find the argument of the claimant particularly interesting. There are, however, case law authorities the claimant did not refer to. For instance, by <i>Baba v. Nigerian Civil Aviation Training Centre</i> [1986] 5 NWLR (Pt. 42) 514, no compensation can be claimed in respect of injury done to the employee’s feelings by his dismissal nor in respect of difficulty in finding an alternative work. <i>Nig. Arab Bank Ltd v. Shuaibu</i> [1991] 4 NWLR (Pt. 186) 450 CA held that where an employee is wrongfully dismissed from his employment, the damages awardable cannot include compensation for the manner of the dismissal. The case of <i>UTC v. Mokoruku</i> [1993] 3 NWLR (Pt. 281) 295 CA held that it is inappropriate to award general damages in a breach of contract of employment, as award of general damages is known only in the law of tort. By <i>Agbo v. CBN</i> [1996] 10 NWLR (Pt. 478) 379 CA, an employee cannot rely on wrongful termination of appointment as cause of action to clear his name for the future, among other purposes; his recourse in an appropriate case may be in an action for defamation. By <i>Katto v. CBN</i> [1999] 6 NWLR (Pt. 607) 390 SC, where employment is determined in circumstances which may bring the employee into hatred, contempt or ridicule, but the employer had not used and published any defamatory words against the employee in terminating his employment, the employer cannot be held liable in defamation.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In all of these cases, the rule appears to be that damages cannot be awarded for the manner of the dismissal of an employee. Yet, <i>Onwuneme v. ACB Plc</i> [1997] 12 NWLR (Pt. 513) 150 CA held that damages for injury to reputation arising from wrongful dismissal are irrecoverable unless the injury results in a pecuniary loss. In other words, if pecuniary loss can be proved then damages may be recoverable. The point to note, however, is that all these cases predate the National Industrial Court (NIC) Act 2006 and the Third Alteration to the 1999 Constitution, as amended. Section 19(d) of the NIC Act 2006, for instance, provides that this “Court may…where necessary make any appropriate order, including…an award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear”. By this provision, the power of this Court to award compensation or damages in a matter it has jurisdiction over is no longer in doubt. And under section 254C(1)(f) of the 1999 Constitution, as amended, this Court has jurisdiction over international best practices in labour, employment and industrial relation matters; and by section 7(6) of the NIC Act 2006, this Court shall, in exercising its jurisdiction or any of the powers conferred upon it by this Act or any other enactment or law, have due regard to good or international best practice in labour or industrial relations.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">There is also another thing to note. The cases which insist on the measure of damages in termination/dismissal being restricted to only payment in lieu of notice typify the stance of common law on the matter, a position that is not only rigid but harsh as well. Legal policy teaches that the rigidity and harshness of the common law is always ameliorated by the rules or principles of equity. In this regard, section 13 of the NIC Act permits this Court to administer law and equity concurrently; but where there is any conflict or variance between the rules of equity and the rules of common law, the rules of equity shall prevail. See section 15 of the NIC Act 2006. In any event, this Court has the power in the exercise of the jurisdiction vested in it to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided. See section 14 of the NIC Act 2006.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The last thing to note here is that, as argued by the claimant, <i>British Airways v. Makanjuola</i> (<i>supra</i>) at page 288 itself provides a leeway to approaching the issue presently before the Court; and this is that the quantum of damages recoverable by an employee depends on whether the wrongful termination of employment was as a result of the failure to give the required notice or as a result of an alleged malpractice. If the former, the quantum of damages may be the employee’s salary in lieu of notice; but if the latter then since such a termination carries with it some stigma on the character of the employee, he shall be entitled to substantial damages far beyond the payment of salary in lieu of notice.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">I am accordingly persuaded by the argument of the claimant that a case has been made for the award to him of damages way beyond the payment of salary in lieu of notice. I am satisfied that the claimant’s dismissal was as a result of theft. See paragraph 8 of the defendant’s statement of defence and paragraph 7 of DW1’s sworn deposition. This allegation of theft has just not been proved or satisfactorily proved by the defendant. Going by <i>British Airways v. Makanjuola</i>, therefore, the claimant is entitled to substantial damages way above the payment of salary in lieu of notice. In this regard, the Court of Appeal in <i>British Airways v. Makanjuola</i> affirmed both the trial court’s holding that two months’ salary in lieu of notice was not adequate compensation to the employee for the wrongful termination of his appointment, and the award of two years’ salary. In particular, and as noted by the claimant in the foreign cases he cited, is it not preposterous that if compensation for lawful termination is one month’s pay after the employee has been forewarned that the same is the case for wrongful termination? I think so too. In any event, <i>UMTHMB v. Dawa</i> [2001] 16 NWLR (Pt. 739) 424 CA cautioned every employer to be careful not to abdicate or abuse its powers; but to act at all times in good faith, reasonably and fairly towards people and matters under their charge in all circumstances. The foreign authorities cited by the claimant showed that as much as two years’ salary was awarded as damages or compensation in addition to the entitlements due to the employee. See also<i> British Airways v. Makanjuola</i>, which confirmed the trial court’s award of two years’ salary to the employee. Since this Court has the power under especially section 19(d) of the NIC 2006 to award compensation or damages in matters it has jurisdiction over, I am convinced that the claimant has made out a case for such in this case. It is the order of this Court, therefore, that the claimant is entitled to 2 years’ salary as damages/compensation for his wrongful dismissal. Throughout this judgment, I used N486,755.69 as the proved yearly salary of the claimant. This means that the damages/compensation just awarded adds up to the sum of N973,511.38.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">For the avoidance of doubt, the claimant’s case accordingly succeeds but only in terms of the following orders –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo8"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The defendant shall pay to the claimant the sum of N19,330.60 being payment in lieu of notice.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo8"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The defendant shall pay to the claimant the sum of N8,500.00 being one month arrears of the claimant’s increased remuneration not paid.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo8"><!--[if !supportLists]-->3.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The defendant shall pay to the claimant the sum of N16,225.19 being the claimant’s salary for the month of June 2009.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo8"><!--[if !supportLists]-->4.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The defendant shall pay to the claimant the sum of N1,123,282.36 being the claimant’s gratuity from the defendant.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo8"><!--[if !supportLists]-->5.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->The defendant shall pay to the claimant the sum of N973,511.38 being damages/compensation for wrongful dismissal.<o:p></o:p></p> <p class="MsoListParagraphCxSpMiddle" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo8"><!--[if !supportLists]-->6.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Cost of this action is put at N50,000 only payable by the defendant to the claimant.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l4 level1 lfo8"><!--[if !supportLists]-->7.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->All these sums are payable within 30 days of this judgment, failing which they shall attract interest at 10% per annum until they are fully paid.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Judgment is entered accordingly.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center">……………………………………<o:p></o:p></p> <p class="MsoNormal" align="center" style="text-align:center">Hon. Justice B. B. Kanyip, PhD<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p>