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REPRESENTATION U. UDOGADI for the claimant VICTORIA ESSIEN for the defendant JUDGEMENT The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 3rd May, 2016 against the defendants for the following reliefs: A Declaration that the termination of the claimant’s employment with the 2nd defendant is contrary to the terms stipulated in the 2nd defendant’s Condition of Service. A Declaration that the victimization, sexual harassment and subsequent termination of the claimant’s employment because she turned down the sexual advances and overtures of the 1st defendant is malicious, unlawful and unconstitutional. Exemplary of aggravated damages of #700,000,000.00 (Seven Hundred Million Naira only) against the defendants. Special damages of #16,862,511.00 (Sixteen Million, Eight Hundred and Sixty-Two Thousand, Five Hundred and Eleven Naira only) representing emoluments due to her under the contract of employment. The claimant’s case is that Claimant was formally engaged by the 2nd defendant as Project Manager Entrepreneurship and Gender Equality on 15th January, 2015 of which they executed the Fixed-term Employment Agreement on 5th February, 2015. The terms and condition of service regulating the claimant’s employment is as contained in the Fixed-term Agreement letter dated 19th December, 2014 and the 2nd defendant’s Overseas Staff Hand Book: Cuso International Overseas Staff Hand Book. Claimant averred that at all material times, she carried out her job diligently and the 2nd defendant had no reason whatsoever to complain about her performance on the job, never at any point queried, warned or complained of her performance. And that it was because of her pedigree and experience working in several international non-governmental organizations, that the 2nd defendant merged two positions with different job descriptions into one, viz: Project Manager Entrepreneurship and Project Manager Gender Equality which she held diligently. She stated that as at the time she joined the 2nd defendant’s organization, she was a widow with 4 children and unmarried, and at every single opportunity, the 1st defendant made several sexual advances towards her, she turned him down despite his persistent overtures. That she respectfully and emphatically told the 1st defendant that she was not interested in him as she was engaged and plans were in top gear for her wedding which was slated for 25th July, 2015. Claimant averred that to her surprise, four (4) days after she handed her wedding invitation to the 1st defendant, she was called into his office and asked to resign. That the 1st defendant asked her to write that she is getting married and relocating to Abuja which she refused to do. However, that on 10th July, 2015, precisely 14 days before her scheduled wedding, the 1st defendant terminated her appointment and that on 12th August, 2015, she sent a letter to the Senior Director of the 2nd defendant requesting that she be formally informed of the reason for her termination. The Claimant stated that her termination from the 2nd defendant’s employ was malicious, mal-fide, and contrary to the terms stipulated in the condition of service. Furthermore, that her appointment being for a fixed-term of four (4) years, the action of the defendants had caused her to loose what she would have earned. 1ST AND 2ND DEFENDANTS’ STATEMENT OF DEFENCE was dated and filed on 12th February, 2016. The defendants averred that claimant was offered appointment as Project Manager, Entrepreneurship and Gender Equality on 15th January, 2015, however, that her appointment was yet to be confirmed. That claimant’s appointment was terminated on 10th July, 2015, and she signed and collected her terminal benefits in the sum of #699,709.54K (Six Hundred and Ninety Nine Thousand, Seven Hundred and Nine Naira, Fifty Forty Kobo only). Furthermore, that the position of Project Manager, Entrepreneurship and Gender Equality has been scrapped in the 2nd defendant’s organization. Again, that the Gender Equality Component of the said position has been outsourced to a consultant while the Entrepreneurship component has been merged with Valve Chain component of the project. Denying paragraph 2 of the Statement of Facts, defendants stated that the claimant was failed to carry out her duties diligently .And that the claimant is not entitled to any of the reliefs sought for, the same being speculative and an abuse of process of court and should be dismissed with substantial cost against the claimant. At the trial the claimant testified as CW, adopted her written statement on oath, which was marked Exhibit C1, and proceeded to tender 10 other exhibits. Under cross examination CW, testified that she was engaged in January2015 and terminated on the 10th July 2015. And that a week after the she started work the 1st defendant started making advances, saying her voice arrests him, slapping her buttocks and embracing her against her will and consent. She also testified that she told him she could not date him, that she was a widow with four children hoping to remarry. He, she also stated would point out other staff who were having affairs saying that was what he wanted. In response to the question, whether she reported the incident She further testified that she did not report to any one as the person she was answerable to was the one harassing her and the other Senior Director (2nd signatory) was also a subordinate person on the 1st defendant’s team and that the 1st defendant was the team leader. She went on to testify that when she presented her wedding invitation, the 1st defendant asked her why she was getting married and four days later he told her to resign to resign and state it was because she was getting married and relocating to Abuja. The claimant testified that because she refused she was given a letter of termination. A demanding to know why she was terminated she wrote Exhibit C11, The defendants called one witness, O. J. Olowosusi, the Finance and Administration Manager of the 2nd defendant, who testified as DW adopted his written statement on oath which and went on to tender 5 other exhibits. Under cross examination he testified that when the matter was instituted the 1st defendant was still in the employ of the 2nd defendant but he replied that he did not know to the question as to whether the 1st defendant was still in their employ when they briefed their counsel, then later modified his reply to “I believe soâ€. DW further identified Exhibit D2 the claimants termination letter and testified that the 1st signature therein was the 1st defendant while the 2nd signature was that of the Senior Director Kevin Brown. He went on to testify that whereas the 1st defendant signed D2, the signature of the 2nd signatory was scanned on from their head office; electronically generated. In response to the question whether the 2nd defendant ever investigated the claimants allegations against the 1st defendant DW replied “It was handled by the Senior Director West Africaâ€. The cross examination continued thus SANI : So there was actually an investigation by the Senior Director West Africa DW : I think so DW also testified that the 1st defendant was no longer in their employ thathe had been effctedd by restructuring, that he had not heard the result of the investigation into the claimants allegation against the 1st defendants. And that they had in fact advertised for the claimants position. At the close of trial parties were directed to file their final written addresses in line with the rules of this court. The FINAL WRITTEN ADDRESS OF THE DEFENANT was dated and filed on 30th June, 2016. Wherein the defendant raised the following six (6) issues ISSUES Whether the name of the 1st defendant being an agent of a known and disclosed principal is liable to be struck out. Whether the 2nd defendant was entitled to terminate the employment of the claimant within the provisions of the contract of employment. Whether the termination of the claimant’s employment by the 2nd defendant in this case was unlawful and contrary to the terms of the contract of employment. Whether the claimant having received and collected her terminal benefits is deemed to have acquiesced to the termination of her employment. Whether the claimant is entitled to the reliefs claimed in this case having received her terminal benefits. ON ISSUE 1 Whether the name of the 1st defendant being an agent of a known and disclosed principal is liable to be struck out. Learned Counsel Victor Essien Esq. submitted that the claimant was not an employee of the 1st defendant rather the claimant and the 1st defendant were both agents of the 2nd defendant, therefore, the proper person to be sued is the principal. UBN LTD. v. EDET (1993) 4 NWLR (PT. 287) 288 RATIO 6; FIRST BANK OF NIGERIA PLC v. EXCEL PLASTICE INDUSTRY LIMITED (2003) 13 NWLR (PT. 837) 412 @ 459, PARAS. E-F (2003) FWLR (PT. 160) 1624. ON ISSUES 2 and 3 Whether the 2nd defendant was entitled to terminate the employment of the claimant within the provisions of the contract of employment. Whether the termination of the claimant’s employment by the 2nd defendant in this case was unlawful and contrary to the terms of the contract of employment. Defendants Counsel submitted that the law is settled as held in NITEL PLC v. AKWA (2006) 2 NWLR (PT. 964) 391 RATIO 1, that an “employee who complains of wrongful termination of employment by his employer has the onus to prove the wrongful termination of the said employment…..†ANGEL SPINNING & DYEING LTD. v. AJAH (2000) 13 NWLR (PT. 685) 532.He argued that the position of the law on contracts of employment outside employments with statutory flavour is well settled and that the claimant’s employment is not one with statutory flavour. AFRIBANK (NIG.) PLC v. OSISANYA (2000) 1 NWLR (PT. 642) 596 @ 616, PARA. G; MR. SULE OGBAJE v. NIGERIA AIRSPACE MANAGEMENT AGENCY (2013) LPELR-19958 (CA), per Iyizoba, JCA (P. 24, PARAS. C-G) Counsel to the Defendant submitted that the defendant exercised its rights under the terms of the contract to terminate the employment during the 6 months probationary period of the claimant’s contract as provided by the terms of the contract. SHENA SECURITY v. AFROPAK (NIG.) LTD. & ORS. (2008) 1 NSCR (VOL. 2) 184 RATIO 5. It is defence counsel’s contention that at the time the claimant’s employment was terminated, the claimant had not completed her probationary period and the claimant was not a confirmed staff of the 2nd defendant. IHEZUKWU v. UNIVERSITY OF JOS (1990) 4 NWLR (PT. 146) 598 RATIOS 3 & 6. Defendant Counsel submitted that an employee who chooses not to avail herself of her rights under the regulations, policy and terms of employment is deemed to have acquiesced, waived or neglected her rights, as Equity aids the vigilant and not the indolent. MR. SULE OGBAJE v. NIGERIA AIRSPACE MANAGEMENT AGENCY (2013) LPELR-19958 (CA). He submitted that the position of the law as to the damages recoverable by an employee whose employment was wrongfully terminated under an ordinary contract of employment as in the instant case, has been established in the case of CHUKWUMAH v. SPDC (1993) 4 NWLR (PT. 289) 524 RATIO 10; GABRIEL ATIVIE v. KABEL METAL NIG. LTD. (2008) 10 NWLR (PT. 1095) 399; (2008) 9 NSCQR (VOL. 1) 42 RATIO 1 @ P. 55, PARA. C. Defence Counsel submitted that the law is that in an action for breach of contract of employment, the claimant, where he succeeds, is not entitled to any award for general or specific damages. All that he is entitled to are his salary in lieu of notice over the period of notice or salary in lieu thereof and no more. GABRIEL ATIVIE v. KABEL METAL NIG. LTD. (supra), per Onnoghen, JSC @ ratio 5, P. 66, PARAS. A-B. He stated that the law as to the remedy for wrongful termination of employment in ordinary contract of employment has been established in AFRIBANK (NIG.) PLC. V. OSISANYA (supra) 616 – 617, PARAS. G-D. ON ISSUES 4 and 5 Whether the claimant having received and collected her terminal benefits is deemed to have acquiesced to the termination of her employment. Whether the claimant is entitled to the reliefs claimed in this case having received her terminal benefits. Counsel to the defendants argued that the evidence in this case particularly Exhibits D31-10 clearly show that the claimant duly received her terminal benefits upon the termination of her contract the act of employment. GUINESS (NIG.) LTD. v. AGOMA (1992) 7 NWLR (PT. 256) 728 RATIO 5; MOBIL PRODUCING NIG. UNLTD. V. ASUAH (2002) FWLR (PT. 107) 1196 @ 1215, 1224; (2001) 16 NWLR (PT. 787) 264 @ 290-291, PARAS. H-D. He submitted that the attitude of the court where severance benefits have been paid, is to terminate the action and dismiss the case as there is nothing to dilate further. ABE UNILORIN (2013) 16 NWLR (PT. 1379) 183 @ Pp. 203-204, PARAS. G-A. Defendant Counsel argued that assuming but not conceding that the contract of employment was wrongfully terminated, submitted that the remedy or damages due and payable to an employee whose employment was “unlawfully terminated†in ordinary contract of employment is the salary he would have earned over the period of notice and not future or anticipated salary after the contract has been terminated or salary for period of services not rendered. OGBAJI v. AREWA TEXTILES PLC (2000) 11 NWLR (PT. 678) 322 RATIO 5; INTERNATIONAL DRILLING CO. NIG. LTD. v. AJIJALA (1976) 2 SC 115; WNDC v> ABIMBOLA (1966) 1 ALL NLR 159; NIGERIA PRODUCE MARKETING BOARD v. ADEWUNMI (1972) 1 ALL NLR 870 PT. 2. And on that note Learned Counsel for the defendant continued assuming but not conceding that the claimant was wrongfully terminated submitted that the position of the Court of Appeal in the case of SPRING BANK PLC v. BABATUNDE is that a servant who has been unlawfully dismissed cannot claim wages for services not rendered. OLATUNBOSUN v. NIGER COUNCIL (1988) 3 NWLR (PT. 80) 25 referred to]; UBN PLC v. TOYINBO (2008) LPELR-5056 (CA), per Agbaje, JCA (P. 66, PARAS. A-F). The Claimant’s Final Written Address was dated 12th July and filed on the 13th July 2016 wherein the claimant framed three issues for determination: ON ISSUE 1 Whether from the facts and circumstances of this case, and the evidence on record, the claimant’s fundamental right as enshrined in the Constitution of the Federal republic of Nigeria, 1999 (as altered) was infringed upon. ON ISSUE 2 Whether the claimant’s employment was wrongfully terminated ON ISSUE 3 Whether the claimant proved her case to entitle her to the grant of the reliefs sought by this Honorable Court and whether the principle of vicarious liability is applicable in the circumstance of this case. The defendants REPLY ON POINTS OF LAW dated and filed on 20th July, 2016. ON ISSUE 1 Whether from the facts and circumstances of this case, and the evidence on record, the claimant’s fundamental right as enshrined in the Constitution of the Federal republic of Nigeria, 1999 (as altered) was infringed upon. Regarding claimant’s counsel argument for enforcement of fundamental right by way of address, the defendants contended that the instant case is not an action for enforcement of fundamental rights and cannot be converted at this stage to a fundamental rights action. Arguing that a party and his counsel must be consistent in the presentation of this case. ALHAJI IBRAHIM SHEKA v. ALHAJI UMARU BASHARI (2013) LPELR-21403 (CA), per Abiru, JCA (P. 36, PARAS. C-G); per Mbaba, JCA (P. 48, PARAS. D-F). He submitted that if the claimant alleged that her fundamental right has been contravened, the proper approach is for her to proceed in accordance with the provisions of the Fundamental Right Civil Procedure Rules. SEC. 46 of the CONSTITUTITON OF THE FEDERAL REPUBLIC OF NIGERIA, 1999; ATAKPA v. EBETOR (2015) 3 NWLR (PT. 1447) 549 @ 568-569, PARAS. F-A; CHIEF FRNACIS IGWE & ORS. V. MR. GOODY EZEANOCHIE & ORS. (2009) LPELR-11885 (CA); (2010) 7 NWLR (PT. 1192) P. 6. Defendant’s Counsel argued that the claimant did not file any reply to deny or rebute paragraph 5 of the Statement of Defence setting out the reason for the 2nd defendant’s termination of the contract of employment, thus, such failure to file a reply to new facts in the pleadings of a defendant amounts to an admission. A.G. ABIA STATE v. A.G. FEDERATION & ORS. (2005) LPELR-3151 (SC); 12 NWLR (PT. 940) P. 452 RATIO 9; BALOGUN v. E.O.C.B. (NIG.) LTD. (2007) 5 NWLR (PT. 1028) 584 @ 600, PARAS. E-F (CA). ON ISSUE 2 Whether the claimant’s employment was wrongfully terminated. Learned Defence Counsel submitted that the claimant must understand that a juristic person is distinct and different from its directors or officers and that acts through its designated officers. VASSILE v. PAAS INDUSTRIES LTD. (2000) 12 NWLR (PT. 681) 357; (2000) FWLR (PT. 19) 130, per Agube, JCA (Pp. 61-63, PARAS. G-C). He argued that the claimant must distinguish between the applicable principles under contracts with statutory flavour and master/servant relationship. OLAREWAJU v. AFRIBANK (NIG.) PLC (2001) 13 NWLR (PT. 731) 691; MR. KUNLE OSISANYA v. AFRIBANK NIGERIA PLC (2007) 6 NWLR (PT. 1031) 565 RATIO 1. As it is counsel’s submission that the claimant, having received her terminal benefit cannot be heard to complain that her employment was unlawfully terminated. GUINESS (NIG.0 LTD. v. AGOMA (1992) 7 NWLR (PT. 256) 728 RATIO 5; ILOABACHIE v. PROF. PHILIPS & ANOR. (2002) FWLR (PT. 115) 72; (2002) 14 NWLR (PT. 787) 264 @ 290. ON ISSUE 3 Whether the claimant proved her case to entitle her to the grant of the reliefs sought by this Honorable Court and whether the principle of vicarious liability is applicable in the circumstance of this case. Counsel to the defendant submitted that for the 1st defendant to be liable in tort such as to invoke the principle of vicarious liability, the tort itself has to be clearly pleaded and established and it must be shown that the tort was not done by the servant on his own personal frolic. SANDERSON v. COLLINS (1904) 1 KB 628; Coram: Collins MR. Defence Counsel submitted that it is trite law that parties are bound by their contract and the court is only bound to give effect to the contract of the parties especially where the terms are clear and unambiguous. ISHENO v. JULIUS BERGER NIG. PLC (2008) 2-3 SC II P. 78; DELTA STATE AGRICULTURAL DEVELOPMENT v. MR. MIKE ILOUKWU OFONYE (2007) LPELR-8342 (CA). He argued that there is no place in the contract of employment where the claimant upon termination of employment is entitled to salaries that not due, or unearned salaries or any salaries after termination of employment, as a servant cannot claim wages for services never rendered. OLATUNBOSUN v. NISER COUNCIL (1988) 3 NWLR (PT. 80); SPRING BANK PLC v. BABATUNDE (2012) 5 NWLR (PT. 1292) 87 The parties adopted their written addresses on the 13th October 2016 and the matter was reserved for this ruling. The Court’s Decision I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submissions are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the claimant is entitled to the reliefs sought, and in resolving this main issue the issues formulated by the claimant most aptly suit the issues in this case as shall be adopted by this court as the issues for determination of this suit. ISSUE 1 Whether from the facts and circumstances of this case, and the evidence on record, the claimant’s fundamental right as enshrined in the Constitution of the Federal republic of Nigeria, 1999 (as altered) was infringed upon. ON ISSUE 2 Whether the claimant’s employment was wrongfully terminated ON ISSUE 3 Whether the claimant proved her case to entitle her to the grant of the reliefs sought by this Honorable Court and whether the principle of vicarious liability is applicable in the circumstance of this case. Before addressing the merits of this case, I wish to address the concept of workplace sexual harassment. The defendants counsel during the trial, particularly made several submissions to the effect that it is expected among adults that a man would naturally chase a woman, make romantic overtures, the editorializing notwithstanding if the learned defence counsel sought to or was attempting to probably trivialize the whole sexual harassment argument with the view that it is part of the societal fabric that men would approach a good looking girl and tell her of his interest. That would be the learned defendants, counsel’s personal opinion but not the position of the law. Especially as it is a proponent of law that “a person shall…..be taken to sexually harass another person if the first mentioned person makes an unwelcome sexual advance or an unwelcome request for sexual favours, to the other, or engages in other unwelcome conduct of a sexual nature in relation to that other person See Section 28(3) of the Federal Sex Discrimination Act (SDA) 1984 of Australia, and closer to home; The framers of the 1999 constitution thought the issue serious enough to protect against it under Section 42 of the 1999 Constitution as altered. The right of a worker against discrimination in the workplace is therefore subsumed under the fundamental rights provision in Chapter IV of the 1999 Constitution. This makes the right of action by a worker against discrimination a constitutional issue rather than a workplace issue. “…..discrimination as a workplace issue is more peculiar (and takes account of more issues such as HIV/AIDS, equality of pay and treatment, gender mainstreaming, sexual harassment, etc.) than discrimination (just) as a constitutional issue†My learned brother, in the paper he presented on “Labour Rights, the Democratic Process and the Nigerian Emerging Market†by Hon Justice B.B. Kanyip on 28th August 2012 at the Section on Legal Practice Session of the 52nd Nigeria Bar Association (NBA) Conference. Abuja, August 26 – 31, 2012. Bearing in mind that labour law is meant to be protective of workers given the imbalance in power relations between employers and workers, KURT SEVERINSEN V. EMERGING MARKETS TELECOMMUNICATION SERVICES LTD [2012] 27 NLLR (PT. 78) 374 AT 460 acknowledged the unequal bargaining power between employees and employers. Learned Authour Alok Bhasin in his book Sexual Harassment at Work 2nd Edition East Book Company 2015 dealt in details with this concept. It would be beneficial to look at this body of work at this time . To the question What is sexual Harassment? The Leaned authour posited the followings. “Sexual harassment†may take diverse and varied forms. It is not limited to demands for sexual favours made under threats of adverse job consequences should the recipient refuse to comply with such demands. Victims of sexual harassment need not establish that they were not hired, were denied a promotion or were dismissed from service as a result of their refusal to participate in sexual activity. Sexual harassment may be subtle and may even involve what would otherwise constitute normal sexual or social activity. Conduct constituting sexual harassment encompasses both the physical and the psychological. Milder forms of sexual harassment include verbal innuendos and affectionate gestures that are inappropriate in the circumstance, repeated social invitations for dinner or drinks, or unwelcome flirting where the implicit message is that sexual favours are anticipated or expected. Normal sexual or social activity may become sexual harassment where a power differential exists between the parties. In most cases of sexual harassment the perpetrator is a person in a position of authority who abuses that power, both economically and sexually. †Taken from Dutton V British Columbia Human Rights Tribunal 2001 etc. Also the learned authour continued… “Speaking generally, sexual harassment is “behavior with a sexual connotation that is abusive, injurious and unwelcome.†For the victim, sexual harassment has direct consequences for the maintenance or improvement of his or her living conditions and/or places him or her in an atmosphere of intimidation, humiliation or hostility.†Quebec (Commission des droits de la personae) v Habachi, 1992 RJQ (Human Rights Tribunal Canada). Also that “ “Sexual harassment is both sexual and unwelcome†it may be constituted by many or a single act and broadly speaking, the intention of the harasser is not relevant. â€__Jones V. Armas Nominiees (P) Ltd. 59.IR Judicial Register Millane. “Quid Pro Quo†and “Hostile Environment†Sexual Harassment -The development of jurisprudence in the area of “sexual harassment at work†has made it possible to identify two main forms of sexual harassment: sexual blackmail (quid pro quo harassment) and hostile environment harassment. Quid pro quo harassment is characterized by the denial of an economic benefit to punish the victim for rejecting a sexual overture or demand. Among other things, “[t]he consequence of rejecting a vexatious sexual advance may be refusal to hire, increase in workload, denial of promotion, or dismissal or forced resignation.â€__ Quebec (Commission des droits de la personae) v Habachi, 1992 RJQ (Human Rights Tribunal Canada). Hostile environment harassment “is a more subtle and insidious phenomenon.†Such as An employee, because of such individual’s race, colour, Religion, sex, or national origin. And includes Harassment that is sever or pervasive. The main point in allegations of sexual harassment is that unwelcome sexual conduct has invaded the workplace, irrespective of whether the consequences of the harassment included a denial of concrete employment rewards for refusing to participate in sexual activity. Sexual annoyance itself may be of two forms. In one form, the perpetrator pesters the recipient with demands for sexual favours, but the recipient persistently refuses. “Although that refusal does not cause any loss in job benefits, the very persistence of the demands creates an offensive work environment, which the employee should not be compelled to endure.†The other form “encompasses all other conduct of a sexual nature that demeans or humiliates the person addressed and in that way also creates an offensive work environment.†This would include sexual taunts, lewd or provocative comments and gestures, and sexually-offensive physical conduct. Sexual harassment is any sexually-oriented conduct that may endanger the victim’s job, negatively affect the victim’s job performance or undermine the victim’s personal dignity. It may manifest itself physically or psychologically. Its milder and subtle forms may imply verbal innuendo, inappropriate affectionate gesture or propositions for dates and sexual favours. However, it may also assume blatant and ugly forms like leering, physical grabbing and sexual assault or sexual molestation. As noted by Dickson CJ of the Supreme Court of Canada in Janzen v. Platy Enterprise Ltd. (1989) I SCR 1252: (1989) 59 DLR (4th)352 10 CHER6205 (Can SC)., in most cases of sexual harassment, the perpetrator (mis) uses “ a position of power to import sexual requirements into the workplace thereby negatively altering the working conditions of employees who are forced to contend with sexual demands.†Sexual harassment involves “the unwanted imposition of sexual requirements in the context of a relationship of unequal powerâ€.it is important to bear in mind that the perpetrator of sexual harassing behavior may not be motivated only by sexual desire or lust. The perpetrator may simply be demonstrating his or her power to the victim. In many cases, such behavior may be a by-product of the prevailing stereotypes in the system. Thus, male perpetrators may indulge in sexually-harassing behaviour to simply show the female victim “her place†or to convey to her that she is good only for gratifying their sexual desires. While case involving sexual harassment of subordinates by superior officers may be characterized by the perpetrator’s desire to assert power over the recipients, those involving sexual harassment by co-employees (including subordinates) and outsiders (like the employer’s customers) Because of the characteristics and effects of such behaviour, sexual harassment necessarily interferes with the right to the safeguard of one’s dignity. “Hence, in the event of (sexual) harassment, interference with the right to the safeguard of one’s dignity also has a discriminatory character inasmuch as this behaviour automatically deprives a person, on the basis of an unlawful criterion, of enjoyment of the right (to dignity).†Any definition of sexual harassment should be broad enough to encompass both “sexual†conduct or behaviour as well as “sex-based†behaviour. “Disparaging comments on the role of women, their place in the labour market, or their skills and capabilities,†“inaccurate criticisms of job performance, obstruction, etc.,†could all constitute sex-based harassment. In contrast, sexual conduct refers to forms of behavior that are explicitly sexual, as for example, inappropriate touching, sexual comments or jokes, as also sexual violence.†As observed by the ILO, some acts are “readily identifiable†as sexual harassment because they are “inherently offensiveâ€, such as those involving physical violence or verbal aggression. However, many acts, depending on the circumstances, may be entirely harmless. “For example, in some cultures, physical touching upon greeting will be normal behaviour, whereas in other cultures it might be interpreted as insulting or a sexual advance. Behaviour which is acceptable between friends at work may be offensive if displayed by newcomers or outsiders.†Thus, the degree of physical contact tolerated between colleagues, as also the range of topics considered appropriate to discuss in the workplace, may differ amongst different cultures. It is, therefore, neither possible nor desirable to make a comprehensive list of the acts constituting sexual harassment. In the instant case the claimant complained of being the subject of unwanted advances from the 1st defendant, the team leader, authorizing and and reporting officer, act such as; improper comments e.g. saying that her voice arrests him, as well as overtures such as slapping her buttocks and embracing her against her will, this she complained went on from the 1st week of her employment. The testimony of DW under cross examination confirmed that the allegations against the 1st defendant were investigated by the Senior Director West Africa, but this court was not told of the outcome of that investigation. I find that the complaints of the claimant fall within the recognized categories of act that constitute sexual harassment. With regard to the first issue whether from the facts and circumstances of this case, and the evidence on record, the claimant’s fundamental right as enshrined in the Constitution of the Federal republic of Nigeria, 1999 (as altered) was infringed upon. In order to properly evaluate the issues in this suit, it is necessary to determine the nature of the employment relationship between the parties. In LONGE Vs. FBN LTD [2010] LPELR 1793 SC the Supreme Court held that “….there are three categories of employment Purely Master and Servant relationship Servants who hold their office at the pleasure of the employer Employment with statutory flavour….†And in CHUKWUDINMA v. ACCESS BANK PLC (2015) 52 NLLR (PT. 176) 513 @ 519 NIC This court held that “when an employee complains that his employment has been wrongfully terminated, the employee has the onus to place before the Court the terms and conditions of the contract and also to prove the manner the said terms were breached by the employerâ€. AFRIBANK (NIG.) PLC v. OSINSANYA (2000) 1 NWLR (PT. 642. The claimant has put before the court Exhibit C2- C2(5) the claimant Fixed term employment Agreement and the 2nd defendant Overseas staff handbook Exhibit C2. From the content of these documents I find that the relationship between the claimant and the defendant is one of Employer/ Employee commonly referred to as Master and Servant employment relationship. Back to issue 1 As mentioned above Section 42 of the 1999 constitution guarantee Nigerians a freedom from discrimination and goes on to list, race, religion and sex(gender) as indices from discrimination, Section 42: A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person – Be subjected either expressly by, or in the practical application of any law in force in Nigeria or any executive or administrative action of the government to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions are not made subject to; Bearing in mind the way this court is structurally set up; Section 254C-(1) (f), (g), (h), of the 1999 Constitution Third Alteration Act 2010 has conferred this court with jurisdiction to entertain the following matters: Notwithstanding the provisions of section 251, 257,272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters- (f) relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters; (g) relating to or connected with any dispute arising from discrimination or sexual harassment in the workplace; (h) relating to, connected with or pertaining to the application or interpretation of international labour standards; Section 254C-(2) also empowers the court as follows: Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith. Having been so empowered, I shall have recourse to international conventions particularly the United Nations Convention on The Elimination of All Forms of Discrimination against Women (CEDAW) and ILO Discrimination ( Employment and Occupation) Convention 1958 No 111 which have been ratified by Nigeria and are in force for construing the fundamental rights of the applicant expressly guaranteed in the 1999 Constitution as amended which embodies the concept of freedom from discrimination and the right to dignity. CEDAW defines discrimination as: any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural civil or any other field. CEDAW General Recommendation Number 19 of 1992 defines sexual harassment to include: such unwelcome sexually determined behavior as physical contact and advances, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment. This court in Unreported NICN/LA/492/2012 EJIEKE MADUKA Vs. MICROSOFT NIGERIA LIMITED & 3ORS delivered on the 19th December 2013 held that the interpretation and meaning of CEDAW General Recommendation 19, ILO Convention No111, …….is that sexual harassment is a form of discrimination based on gender. It has the effect of cancelling equality of opportunity and treatment at the work place. In the leading Canadian case of Janzen v Platy Enterprises Ltd [1989] 1 SCR 1252 the court held that sexual harassment was a form of sexual discrimination banned by the human rights statutes in all jurisdictions in Canada. The Supreme Court of India in VISHAKA AND OTHERS V STATE OF RAJASTHAN AND OTHERS 13 AUGUST 1997, [1997] 6 SCC 241 stated thus: “Gender equality includes protection from sexual harassment and the right to work with dignity, which is a universally recognized basic human rightâ€. The defendants have argued that the claimant only recourse in matters of fundamental human rights infringement or breech would be to seek enforcement procedure. I find that the dictum of Muhammed Bello, CJN Supreme court in OGUDU Vs STATE [1994] 9 NWLR (Pt.366) 1 is most apposite at this juncture, I find. ‘It appears to me that upon careful examination of the fundamental rights in chapter IV of the Constitution, they may be classified into two categories for the purpose of their observance and their enforcement. Firstly they are the rights that must be observed whenever the occasion of their observation has arisen. Endorsing the submission of Mr. Agbakoba, they are intrinsic to the occasion and cannot be divorced from the occasion. They are generally procedural rights and are embodiment of fair trial in courts and tribunals of a democratic society, thus the right to fair trial and the right of an accused to defend himself under section 33 of the constitution are intrinsic to the trial and failure to observe such rights is a valid ground of appeal. The second category of fundamental rights comprises those rights that are enforceable by the High Court under Section 42 of the Constitution. Because the Constitution expressly confers original jurisdiction for their enforcement on the High Courts, this court (referring to the Supreme Court) has no jurisdiction as a court of first instance over them.’ Section 254C(1)(d) CFRN as amended provides that the National Industrial Court shall have jurisdiction……. d) relating to or connected with any dispute over the interpretation and application of the provisions of chapter IV of this constitution as it relates to any employment, labour, industrial relation, trade unionism, employer association or any other matter which the court has jurisdiction to hear and determine; As far as the claimant’s claim relates to a labour dispute and the alleged breach of fundamental right occurred is related or connected to an employment matter or is procedural and an intrinsic part of a substantive claim this court can hear it as an ingredient of a labour issue and as long as the suit clothes the court with jurisdiction See Unreported ruling NIC/ ABJ/296/2012 GEOFERY Vs SETRACO NIGERIA LTS. & ORS delivered on 4th March 2013. Unreported ruling NIC/ABJ/32/2012 ANICHA Vs. NIGERIAN ARMY 7 ORS delivered on 2nd July 2012. I find that the claimant’s claim is not one of enforcement of fundamental right but a situation where she is complaining that in the course of her employment her fundamental rights to be free from discrimination was breached and this court is entitled to hear her; Section254(1)g. relief 2 therefore succeeds. From the evidence before the court, I find that the claimant was sexually harassed by the 1st defendant because she was a woman, if not for her sex/ gender I find her participation in sexual activities would not have been solicited, her fundamental right against discrimination as enshrined by Section 42 1999 CFRN (as amended) I find has been breached, in fact, violated. I resolve this issue for the claimant. With regard to issue 2, Whether the claimant’s employment was wrongfully terminated, the claimant has presented the circumstance of her dismissal, mainly she was to resign citing her impending marriage when she presented exhibit C7, when she refused she was issued with Exhibit C11 Terminating her employment. the defendants have argued that the 2nd defendant was entitled to terminate the employment of the claimant within the provisions of the contract of employment and that the termination of the claimant’s employment by the 2nd defendant in this case was lawful and based on the terms of the contract of employment. With regard to the question of confirmation considering labour law requires an employee to inform an employer that his services during probation are unsatisfactory See TOTAL (NIG.) PLC V. ONUOHA [2001] 11 NWLR (PT. 725) 634 and there is nothing before the court indicating thts the defendant ever found that the claimants services wanting, In NICN/LA/492/2012 EJIEKE MADUKA Vs. MICROSOFT NIGERIA LIMITED & 3ORS this court held “in the process of terminating the applicant’s employment, it was the duty of the 1st and 2nd respondents to take utmost care to ensure that her fundamental right to freedom from discrimination and degrading treatment was not violated. It is the duty of the Court to prevent a breach of the fundamental rights of citizens as guaranteed in the 1999 Constitution as amended and this is heightened by Nigeria’s Obligation to abide by and apply International Conventions which it has ratified and International Labour Standardsâ€. In the circumstances of this instant case where the claimant was sexually harassed and threatened by the 1st defendant, coerced by him (unsuccessfully) to sign a resign and cite her impending wedding as the reason the four days letter her employment suddenly terminated, the letter of termination signed by 1st defendant and the signature of the 2nd defendant electronically scanned on to the letter, I find that the claimant is correct in believing that her refusal to succumb to the sexual advances of the 1st defendant led to her termination. The fact that the defendants in their statement of defence stated that “, that the position of Project Manager, Entrepreneurship and Gender Equality has been scrapped in the 2nd defendant’s organization. Again, that the Gender Equality Component of the said position has been outsourced to a consultant while the Entrepreneurship component has been merged with Valve Chain component of the project.†While DW under cross examination testified that they had advertised for the claimant’s position. In addition, claimant had submitted that she had performed her duties diligently and the defendants in their statement of defence had refuted that her work was less than satisfactory, but this rebuttal was not backed up with evidence neither was the there any indication that the defendants had communicated to the claimant that she her services would not be confirmed due to under performance. All in all and from the above I find the defendants evidence less credible than that of the claimant. The prevalence of the effect of sexual harassment/ discrimination is such to negate any constructive provisions of the agreement so as to render what would ordinarily be a proper termination, I find and hold wrongful and oppressive. . What this means is that the defendants having breached their duty to provide a safe and secure work environment and having exposed the defendant to undignified and discriminatory treatment are no longer entitled to terminate the claimant by perfunctorily ‘observing’ the provisions of the contract. I will address the issue of the terms of the contract later on in this judgement The defendants have raised the issue as to whether the claimant was correct in pursuing the 1st defendant, as he was an agent of a known principal. The issue at this stage is beyond mere agency and vicarious liability as in the instant case, specific wrongs have been traced to the 1st defendants and others to the 2nd defendant. I find there is nothing wrong in the action of the claimant suing both the agent and the principal considering the direct and personal nature of her complaints. I shall address the question of vicarious liability later in this judgment. With regard to issue 3; whether the claimant proved her case to entitle her to the grant of the reliefs sought by this Honorable Court and whether the principle of vicarious liability is applicable in the circumstance of this case. The claims of the claimant are as follows; A Declaration that the termination of the claimant’s employment with the 2nd defendant is contrary to the terms stipulated in the 2nd defendant’s Condition of Service. A Declaration that the victimization, sexual harassment and subsequent termination of the claimant’s employment because she turned down the sexual advances and overtures of the 1st defendant is malicious, unlawful and unconstitutional. Exemplary of aggravated damages of #700,000,000.00 (Seven Hundred Million Naira only) against the defendants. Special damages of #16,862,511.00 (Sixteen Million, Eight Hundred and Sixty-Two Thousand, Five Hundred and Eleven Naira only) representing emoluments due to her under the contract of employment Relief 1 is for a declaration that the claimants termination was contrary to Exhibit C2-C2(5), Exhibit C2-C2(5) is a fixed term employment agreement, the position of the law as regards fixed term employment is as was stated in the case of SHEENA SECURITY LTD V. AFROPACK NIG LTD (2008) LPELR-3052(SC) Where the contract of an employee is determined before the expiration of the term agreed, the employer shall be made to pay the employee the full salary he would have earned for the unexpired period of his fixed contractual term. See: SWISS NIGERIA WOOD INDUSTRIES LTD. V. BOGO (1970) NCLR 423.'' Per MUHAMMAD, JSC. (P.26, Paras.C-D) The case also held that ''… where the term of service is pre-determined at the commencement of the contract, notice may or may not be in the contemplation of the parties. The proposition here is that in such a contract the employee cannot be removed during the period of the term contracted except for misconduct or where the employer dies.'' Per MUHAMMAD, JSC. (P.26, Paras.A-C) The defendants have also argued that the claimant having collected her terminal benefits cannot complain about wrongful termination, the defendants’ position is no longer the position of the law in FEDERAL AIRPORTS AUTHORITY v. NWOYE (2015) 53 NLLR (PT. 180) 446 CA @ 455 Held that “an acceptance by the claimant/employee of salary in lieu of notice of retirement does not amount to acceptance of the invalid and void retirement and cannot stop the claimant from challenging the purported retirement. Also in FAAN V SYLVESTER G. NWOYE (2012) LPELR-8377(CA), the law was well stated by his Lordship, Karibi-Whyte, J.S.C. in ADENIYI VS. GOVERNING COUNCIL OF YABA COLLEGE OF TEGHNOLOGY (2003) 6 NWLR (Pt.300) 426 at p.426 thus: "The consequence or acceding to this (learned counsel's) arguments is to convert an ultra vires act committed in breach of an enabling statutory provision into a valid act. The compulsory retirement of Appellant on grounds of misconduct under section 12(1) is void. MILITARTY ADMINISTRATOR OF BENUE STATE v. O.P. ULEGEDE & ANOR. (2001) 17 NWLR (PT. 741) 194 @ 222 – 223. the Supreme Court reiterated the same principle of the law that: the acceptance by the Respondent of payment of three month's salary in lieu of notice of retirement did not amount to acceptance of the invalid and void retirement nor did it stop the Respondent from challenging the purported retirement. "PER YAKUBU, J.C.A. (Pp.30-31, Paras. F-C) The acceptance by the claimant of the one month salary in lieu of notice and pro rata salary for July 2015 as shown in Exhibit C11, cannot and do not in anyway validate the defendants wrongful termination and neither can it preclude or prevent her from challenging same. As for the doctrine of vicarious liability, see the case of THE M.V. CAROLINE MAERSK & ORS Vs> NOKOY INVESTMENT LIMITED [2002] LPELR 3182 SC where it was held that “a person who acts as an agent of the owner, charter, manager or operator of a ship may be personally liable irrespective if the liability of his principal for the act, default, commission, ommission of the ship in respect of anything done in Nigeria, Per Ayoola JSC (P13 para CD). Also in R. O. IYERE V. BENDEL FEED AND FLOUR MILL LTD. (2008) LPELR-1578(SC). (2008) 7-12 SC 151"The general disposition of the law is that an employer is liable for the wrongful acts of his employee authorized by him or for wrongful modes of doing authorized acts if the act is one which, if lawful, would have fallen within the scope of the employee's employment, as being reasonably necessary for the discharge of his duties or the preservation of the employer's interests or property, or otherwise incidental to the purposes of his employment, the employer must accept responsibility in as much as he has authorised the employee to do that particular class of act and is therefore precluded from denying the employee's authority to do the act complained of. This, infact, is what this court said is JAMES V. MID-MOTORS (NIG.) CO. LTD. (1978) 11 - 12 31 AT PAGE 68. "Where a company is said to have done an act by the very act of a company not being a human being, it can only do the act through its human agents or servants. Where the said agent or servant has committed an act, the company may rightly be said to have committed an act since in law, the principle of vicarious responsibility, the act of the agent or servant is the act of the company. The evidence by which the act is to be proved against the company will be the conduct of the agent or servant." Per Muhammad, J.S.C. (P. 31, Paras. A-G). I find in the circumstance the 2nd defendant is responsible for the action and consequence of the 1st defendants action especially as the allegations were reported to the 2nd defendant. On the whole I find that the termination was not in conformity with Exhibit C2-C2(5)’, thus Relief 1 succeeds. Relief 2, I have already stated succeeds. Relief 3 is for Exemplary of aggravated damages of #700,000,000.00 (Seven Hundred Million Naira only) against the defendants. The claimant did not satisfactorily show this court how she came about the sum of 700m as exemplary damage, the position of the law as regards exemplary damage has been well stated in the case of the case of ODIBA V. AZEGE (1998) LPELR-2215(SC), (1998) 9 NWLR (PT.566) 370 “It is trite law that in order to justify an award of exemplary or aggravated damages, it is not sufficient to show simply that the defendant has committed the wrongful act complained of. His conduct must be high handed, outrageous, insolent, vindictive, oppressive or malicious and showing contempt of the plaintiff's rights, or disregarding every principle which actuates the conduct of civilised men." PER IGUH J.S.C. (P. 25, paras. B-D). Also in ALLIED BANK NIG LTD V. AKUBUEZE.  1997) LPELR-429(SC), (1997) 6 NWLR (PT.509) the Supreme Court held that "Perhaps it ought to be stressed that exemplary damages, properly so called, may only be awarded in actions in tort but only in three categories of cases, namely:- (i) "Oppressive, arbitrary or unconstitutional action by the servants of the Government." (ii) Where "the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff," (iii) Where exemplary damages are expressly authorised by statute." Per Iguh,J.S.C.(Pp.48-49, paras. F-B) It is not in doubt that the claimant had suffered some damage, and that a reasonable man on the street would hold that the claimant is entitled to some sort of damage and compensation for her ordeal in the hands of the defendant not only in subjecting her to harrowing unwanted sexual harassment but also to be unceremoniously terminated for no justifiable reason truncating her four year contract without more. I find that the claimant has made a case for the award of a lump sum under Section 19 NICA 2016. Relief 4 is for Special damages of #16,862,511.00 (Sixteen Million, Eight Hundred and Sixty-Two Thousand, Five Hundred and Eleven Naira only) representing emoluments due to her under the contract of employment. The claimant is asking for her full salary for the 4 years she was to work under the fixed term contract. By the SHEENA SECURITY LTD V. AFROPACK NIG LTD (Supra) and Exhibit C10, I find she is so entitled. Relief 4 therefor succeeds. The suit of the claimant succeeds but only thus far; It is hereby declared that the termination of the claimant’s employment with the 2nd defendant is contrary to the terms stipulated in the 2nd defendant’s Condition of Service. It is hereby declared that the victimization, sexual harassment and subsequent termination of the claimant’s employment because she turned down the sexual advances and overtures of the 1st defendant is malicious, unlawful and unconstitutional. The 2nd defendants shall pay to the claimant the sum of #7, 000, ,000.00 (Seven Million Naira only) against the defendants as a lump sum in compensation under Section 19d of the NIc Act 2006.. Special damages of #16,862,511.00 (Sixteen Million, Eight Hundred and Sixty-Two Thousand, Five Hundred and Eleven Naira only) representing emoluments due to her under the contract of employment. All sums to be paid within 60 days thereafter the sum of 10% will accrue as interest until liquidation. Cost of N500, 000.00 is hereby awarded against the defendant payable to the claimant. This is the court’s judgment and it is hereby entered. ……………………………… Hon. Justice E. N. Agbakoba Judge RESEARCHED AUTHORITIES SOGBESAN v. UNIVERSITY OF LAGOS & ORS. (2014) 47 NLLR (PT. 153) 346 NIC @ 351 On Whether action can lie against agent of a disclosed principal The law is trite that no action lies against the agent of a disclosed principal where the principal is disclosed…Accordingly, the 3rd, 4th 5th and 6th defendants are not necessary parties for the effectual determination of this suit. QUA STEEL PRODUCTS LTD v. AKPAN BASSEY (1992) 5 NWLR (PT. 239) 67 @ 69; NIGER PROGRESS LTD v. NORTH EAST LINE CORPORATON (1989) 3 NWLR (PT. 107) 68 referred to.] FEDERAL AIRPORTS AUTHORITY v. NWOYE (2015) 53 NLLR (PT. 180) 446 CA @ 455 On Whether acceptance of salary in lieu of notice amounts to acceptance of invalid or void retirement An acceptance by the claimant/employee of salary in lieu of notice of retirement does not amount to acceptance of the invalid and void retirement and cannot stop the claimant from challenging the purported retirement. MILITARTY ADMINISTRATOR OF BENUE STATE v. O.P. ULEGEDE & ANOR. (2001) 17 NWLR (PT. 741) 194 @ 222 – 223 referred to.]