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JUDGMENT This action was commenced by a general form of complaint dated 1st August 2013. The Claimant seeks the following against the Defendant: 1. A Declaration that the Claimant’s termination of appointment based on the query of 14th May, 2012 is null, void and of no effect whatsoever. 2. A Declaration that the Claimant’s employment is subsisting and he is therefore entitled to all his monthly salaries from the date of his purported termination and all benefits arising from his employment till the date of judgment and beyond. 3. An Order directing the Defendant to reinstate the Claimant to his position and pay him all his monthly salary and benefits from 25th September 2012 till date. Alternatively 4. An Order directing the defendant to pay the Claimant his total entitlement and terminal benefit as at the date of termination in the sum of N15,075,065.84 5. An Order directing the Defendant to pay the Claimant the sum of N200,000.00 (Two Hundred Million) as general damages for truncating his career, psychological trauma, shame and distorting of his record and plans. The complaint was accompanied by a Statement of Claim, a Witness Statements to be relied upon at the trial. The Defendant entered appearance and filed its processes and issues were joined and the case proceeded to hearing. The following documents were admitted as exhibits: Exhibit DA is a letter dated 6th May 2013 – Re Appeal Against the Disciplinary Action: Termination of Appointment. Exhibit DA1 to DA2; Termination of Appointment dated 25th September 2013 in two pages. Exhibit DB to DB4: 5 page document headed Nigerian Bottling Company Plc hearing process form; management staff. Exhibit DC and DC1 is a two page document headed memorandum of agreement made on 13th of November 2007. Exhibit DD is a document headed acknowledgment. Exhibit DE to DE 5 is a 6 page document dated 7th January, 2013 headed transfer of funds- NBC staff final entitlement Exhibit DF is a UBA United Bank for Africa letter dated March 24 2014 headed confirmation of transfer in favour of Ibrahim Muslim. Exhibit DF1 is a UBA document headed transaction inquiry Transaction date being 10th January 2013 These were the documents tendered by the Defendant. Exhibit A is the Claimants staff identification ID card Exhibit A1 is the letter of Appointment dated 9th August, 1999. Exhibit A2 is a letter dated 20th June 1999 headed Bottling Operative Trainee Exhibit A3 is a letter dated 13th November, 2007 headed Re: Promotion Exhibit A5 is a letter dated 12th August, 2008 headed Re-Confirmation of Appointment. Exhibit A6 is a letter dated 11th April 2011 headed Re-Confirmation of Appointment. Exhibit is B to B4 is a letter dated 10th December 2012 headed Re-Comminique issued at etc etc for is 5 pages. Exhibit C to C8 is a food beverage and tobacco Senior Staff Association letter headed collective agreement on salaries and wage benefits for its 9 pages dated 21st January, 2013. Exhibit D is a pay slip for August, 2012 Exhibit E & E1 is a copy of an NBC Plc memorandum to the Claimant, dated 14th May, 2012 with the subject as query for its 2 pages. Exhibit F and F1 is the letter headed termination of Appointment of September 25th 2012 for its 2 pages. Exhibit F2 and F3 is a letter headed letter of Appeal in two pages dated 5th October 2012. Exhibit F4 to F7 represent four pages of computer printout dated 23rd June 2013 for F4, 22nd April 2013 4.48pm for F5, 23rd June, 2013 for both F6 and F7 Exhibit F8 and F9 is a letter from Morris Odeh & Co Legal Practitioners dated 20th May 2013 headed Re: Termination of Appointment of Ibrahim Muslim Ayoade. Exhibit G to G18 is the NBC Plc Senior Staff Handbook. Exhibit H to H 53 is the NBC Plc code of conduct and grievance procedure. Exhibit J and J1 2 pages NBC Plc memorandum of agreement between the Claimant and Defendant dated 13th November 2007. (NB this is part of the Defendant exhibits). It was his case that he was employed as a Junior Staff (Technician) by the Nigeria Bottling Company the (Defendant) Ikeja Plant on the 9th of August 1999 and further underwent basic induction programme successfully and was issued a letter to that effect. He was confirmed on the 24th of February 2000. He avers that as a result of his loyalty and dedication he never received a query for the period of 8 years he worked as a junior staff with the defendant. The Claimant avers that he was promoted to a senior cadre as a senior staff position as Assistant Manager II (AM2) grade on 1st November 2007 and later to Assistant Manager (AM I) in 2008, based on his commitment to duty. He avers also that he was promoted to the position of a line manager at the grade of middle manager (MM3) in 2011 due to his consistent performance leading to improvement in the plant. The Claimant avers that on the 2nd day of December 2011, the appointments of plant and production managers were terminated. Consequently the supervision of the day to day activities of the plant rested on the shoulder of the regional supply chain Director by name Ayo Ajomale through the Regional Engineering Manager. He avers that he was surprised to receive a query on the basis of production bothering on what he had no responsibility to direct or engineer as he only had control over and only on production on line 3. He avers that production planning and daily programs were being dictated, directed and approved by Ayo Ajomale through the Regional Engineering Manager. Engr. Ibrahim Lawal. And the volume and quantity of production was only on the basis of a clear declaration by Ayo based on which the quality Assurance Manager Mrs. Kemi Amole made provision for the casual analyst who in turn sent the figures of production to the Head Office in Lagos. He avers that he is neither the manufacturing Analyst, nor the production manager charged with the responsibilities of the production nor the plant manager. He further avers that the query issued to him was improper and contrary to the settled procedure and practice of the Defendant as query was issued by a director of human resource in the head office in Lagos instead of his immediate boss or head of department who were in the know of what transpired in Kaduna Plant. He further avers that he was not the manager of production line 2 which query issued to him to answer bothers on. And he says it was not his duty to forward figures on the production to the head office but that of the manufacturing Analyst. He avers that other managers lines 1 & 2 of production and director who passed the instruction for production and the manufacturing Analyst whose responsibility is to send the correct figures of production to Lagos were all not queried therefore he says query was issued out of malice intended to deny and deprive him of his next promotion. However he avers to have replied the query issued and explained that he was only a manager in charge of line 3 and was neither a production nor line manager in charge of line 2. However he averred that a panel committee to hear and decide on accusation initiated by the query was set up by the Defendant and the membership included Mr. Tunde who issued him with the query. He avers that the decision reached by the panel was unfair and they were against him since his responsibility does not extend to line 2 of the plant. Despite evidences adduced by him during the hearing session to prove his innocence and information given by his witnesses that the query and the accusations were misdirected as he is only in charge of line 3. The Claimant also avers that he was handed a letter of termination dated 25th September, 2012 based on the query and the biased and unfair decision of the panel. He also averred to have forwarded a letter of Appeal to the supply chain director on the 5th day of October 2012 which ought to have been replied within seven days as mandatorily provided by the code of conduct grievance procedure which has not been replied till date. He further avers that the Food Beverages & Tobacco Senior Staff Association unanimously demanded an immediate reinstatement of his appointment by way of communiqué on the 13th October 2012 when the baseless termination of his appointment got to their knowledge. The Defendant did not oblige the demand of their association up till date. He avers that he was called by the Managing Director on the 2nd May 2013 to explain the circumstances that led to his termination. After explanation the Managing Director promised to get back to him soonest but never did until he sent an sms to him which he replied that he was still consulting with the other parties and later he sent the mail declining the appeal. The Claimant further avers that Mr. Ayo sent him an sms pleading for forgiveness after his purported termination. He further avers that his relationship with the Defendant is regulated in the defendants condition of service (staff handbook) code of conduct and grievance procedure and the collective agreement, which he be relied upon at the trial. The Claimant avers that the defendant has violated the express provisions and jettisoned the settled principles contained in the condition of service and grievance procedure by issuing the Claimant query that led to his termination. He furthermore avers that Defendant failed to honour its condition of service by refusing to pay his terminal benefits as at the date of purported termination. He gave the following particulars: 1. Unpaid gratuity plus earned interest N2,247,098.29- N3,428,889.09 = N5,675,987.09 for 13 years 2. Unpaid Junior Staff Provident Scheme plus earned interest = N281,000 =N521,000=N800,000.78 for 8 years 3. Unpaid Senior Staff provident Scheme plus earned interest = N(1,500,000.00= N2, 342,965.98)= N3,847,768.98 for 13 years 4. Unpaid entitlement in lieu of annual leave = N1,000,000.00 5. Unpaid annual leave allowance for the year 2012 at the rate of 10% of annual basic salary = N777,750.00 6. Unpaid 13th month pay for 2012 = N593,563.99 total unpaid terminal benefit = N15,075,065.84. It is the case of the defendant that the Claimant was the acting production manager of Kaduna Plant and was part of management staff and knew what to do but failed to do it as he was in charge of production. The Defendant denied the fact that the day to day of management of the plant rested on the shoulder of the Claimant. The Defendant avers that there was no mail from any quarter thereby denying paragraph 11 of the claim. Furthermore the defendant denies paragraph 12 and 14, the defendant states that the claimant was the production manager with full responsibility to oversee the production processes in Kaduna Plant as the claimant controls all production lines. Defendant also denies paragraphs 15 16 and 17 of the claim and put the claimant to strict proof of same, even though admits paragraph 18 19 and 20. They avers that though claimant was queried but the panel was fair all the way. The Defendant denies paragraph 27 and 29 claiming not to have violated any disciplinary process saying termination was done with recommendation of all involved parties. Defendant also avers that it replied the letter of appeal by claimant on 6th may 2013. Defendant further denies paragraph 30 of claim and required strict proof of same. They avers that the termination was done in accordance with the condition of service as claimant signed additional memorandum of Agreement between him and the defendant on the 13th of November 2007 with a clause that either party is at liberty to terminate the relationship with a month notice. Defendant avers that claimant is not entitled to the money calculated in the said paragraph as the claimants terminal benefit was calculated and paid to him. The Defendant denies paragraph 31, 32 33 and 34 and shall require strict proof. The Defendants also denies paragraph 36. In all the defendants called one witness who was cross examined, at the close of hearing by both parties, both parties adopted their written addresses. In the written address of the defendants they formulated the following issues for determination 1. Whether or not the termination of the claimant was lawful 2. Whether or not the Claimant is entitled to the reliefs sought or ALTERNATIVELY 3. Whether or not the claimant has proved his case on the balance of probability to be entitled to the reliefs sought in this Honourable Court. On the part of the claimant, he formulated the following issues for determination: (1) Whether the defendant has properly terminated the appointment of the claimant in accordance with the applicable rules of procedure of the defendant? (2) Whether the claimant is not entitled to succeed on the balance of probabilities for the payment of all entitlements as due and provided for in the condition of service? In the argument in support of the 1st issue formulated by the defendant for determination. The defendant in their paragraph 4.01 the argument in support of this issue is that the claimants’ termination was proper based on the memorandum of agreement dated 13th of November 2007 which was signed by the claimant. He cited the case of Kwara State polytechnic v. Adetica (2008) ALL FWLR. Furthermore in paragraph 4.03 defendant states that a master can terminate the contract of employment with his servant at any time for any reason and for no reason at all provided the terms of contract of service between them were complied with. He cited the case of Taiwo v. Kingsway Stores Ltd (1950) NLR 122 Olarewaju v. Afribank Plc (2001) FWLR (pt. 72) 2008 ratio 5. On issue 2, in paragraph 5.02 the defendant states that claimant collected all his entitlements carefully calculated and worked out by the Finance and Human Resources Department which claimant did not sue on how such huge sum was paid but rather choose to sue defendants 7 months after collecting his entitlement. Defendant previously emphasized in Exhibit I which is the statement of Account of the claimant from UBA Plc, Exhibits DE-DE5 transfer of funds NBC Plc staff final entitlement Exhibit DF1 confirming the payment of transfer of N1,866,838,009 to the account of the claimant which he admitted to have collected. Furthermore defendants in paragraph 5.04 stated that is trite law that an unwilling employer will not be compelled to keep an employee he no longer wants. They cited cases of OYEDEZE V. IFE U.T.H (1990) 6 NWLR (pt. 155) 194 C.A IBADAN; WUCHUKWU V. NWOSE (1994) 7 NWLR pt. (357) p. 379, SAVANNAH BANK PLC V. FAKOKUN (2002) 1 NWLR ( PT. 749) 544 RATIO 9 W1. A Court cannot foist on an employer an employee in whom he has lost confidence. Defendants urged that the claimant claim of general damages of N200,000,000.00 for truncating his career, physiological trauma, shame and distorting of his record is none in termination case and must be dismissed. In the address of the claimant two issues were raised for determination: 1. Whether the defendant has properly terminated the appointment of the claimant in accordance with the applicable rules of procedure of the defendant. 2. Whether the claimant is not entitled to succeed on the balance of probabilities for the payment of all entitlements as due and provided for in the condition of service on the 1st issue for determination. In paragraph 4.1.1 Claimant challenged the membership of Mr. Tunde Orukotan of the trial panel since he was the one who issued query to the claimant. Claimant further submitted in paragraph 4.1.12 that the trial of the claimant was not fair since it is trite law that a man cannot be a judge in his cause as it is against the rules of natural justice stating it is not fair for the man who issued the query to also be a prosecutor in the same case. The contention of the claimant in paragraph 4.1.11 is that the panel was set up to condemn the claimant for the allegations against him in that he had no choice of refusal to sign the proceedings of the panel even if same is not true as in the instant case. Claimant also raised in paragraph 4.1.13 the issue that the statement of the Claimant where he purportedly made admissions as produced in the hearing process/panel report was not presented to the Court to compare with the report of the panel. In paragraph 4.1.15 claimant submits that it is trite law that you cannot build something on nothing and expect it to stand therefore the entire proceedings of the panel built there on is consequently a nullity and of no legal consequence since the query that formed the basis for the constitution of the trial panel and the subsequent proceeding is void and a nullity. The claimant in paragraphs 4. 1.18 – 4.1.32 disagreed strongly with the termination and urged the court to do same insisting it to be wrongful with submissions that the court can look beyond the content of Exhibit F& F1 which is and the provision of article 16 of Exhibit G – G18 which is to determine whether the termination of the claimant’s employment was just for the offence committed by another person and further cited the case of JIR GBAGH VS U.B.N PLC (2002) FWLR (pt. 26) page 1790 at p. 1811 paragraph A where the court held that “ where an employment was made subject to an employee’s carrying out his duties to the satisfaction of the directors, the court can enquire into the question whether a reasonable Board of Directors could hastily have come to the conclusion that they were not satisfied with the performance of the employee in order to determine whether his employment is validly terminated for unsatisfactory performance.” Claimant states that from the aforesaid the termination of his employment was not based on article 10 of the Senior Staff handbook but on the trial and recommendation of the panel that tried the claimant. A perusal of the purported component of the total emolument paid to the claimant in exhibit DE1 and 2 is ….?? Shows that shows that only basic salary is paid not three full month salary as stipulated in the agreement as a senior staff thereby making the termination of the claimant premature, highly defective and wrongful for failure to comply with the condition precedent in article 16 of the staff handbook which states that the defendant failed to issue three month notice to the claimant or paid to the claimant three month salary in lieu of notice. Claimant relied on the case of N.D.C. V. A.S.W.B (2008) ALL FWLR (pt. 422) pg. 1052 at p. 1075 par E where the Supreme Court held that: “A condition precedent is defined as one which delays the resting of a right until the happening of an event.” Counsel for the Claimant stated that the claimant’s appeal to the Managing Director of the Defendant was dated 5th October, 2012 but was not decided within seven (7) days of receipt as stipulated in the CCGP until 6th May 2013 after he sent a reminder mail on the 2nd May, 2013 so claimant insists the entire process that brought about the termination did not follow due process and should be set aside by the court. Going by the admission of DW1 in evidence the claimant counsel refer the court to exhibit F&F1 (termination letter) particularly F1 which reads thus. “Kindly ensure that you hand over property of the company that may be in your possession, including the identity card issued to you, and submit a completed end of service clearance from the Kaduna Plant or his appointed representative”. Counsel to the claimant cross examined DW1 and holds that admission of witness is on the contrary Defendant witness was asked amongst other questions the following: Question: You said the claimant did not sign the end of service exit clearance form Ans: There is no provision to sign Q: Who ought to fill this form? Ans: The manager of the employee and the Human Resources Manager Q: Tell the Court the importance of this exit form Ans: it is to clear the employee of any company properties in his care while in employment staff ID card, uniform as the case may be safety book, code of business conduct booklet, staff handbook and others depending on his job, if he is a technician he has his tools that must be rendered including a laptop if given one. Q: You maintain your position that the form was signed by management and Human Resource Ans: Yes Q: Did you see the exit form yourself Ans: No I did not see it Q: If you did not see it, how are you sure it was signed Ans: Some people act for me because I get to travel. Claimant counsel submits that claimant is expected to fill & submit the exit form to the head of department and human resources department for endorsement before he can be said to have been cleared from the employment of the defendant. Claimant counsel further stressed that possession of the defendant’s items and ID card by the claimant and admission by DW1 of not seeing the exit form and same not being before the court notwithstanding the letter of termination, claimant is still a staff of the defendant. Insisting his employment was not properly terminated counsel to claimant referred to paragraph 32 of his statement of claim and also the case of OLUYEMO V TITILAYO (2009) ALL FWLR (pt.485) pg. 1674 at p 1699 Para C where the Court of Appeal held that: ‘Justice is often depicted as a blind folded woman with a sword in one hand and a scale on the other. Those who are called to mete out justice are not blindfolded; they see with their eyes and reason with their heads. On the second issue for determination, which is whether the claimant is not entitled to succes on the balance of probabilities for the payment of all entitlements as due and provided for in the condition of service? The claimants counsel submits that the claimants reliefs in this court is anchored on his legitimate entitlements provided for in: a) The conditions of service Exhibit G b) Code of conduct and grievance procedure Exhibit H a memorandum of agreement Exhibit J. Counsel emphasized further in paragraph 30 of the claimants Statement of Claim which contained the particulars of claimant’s entitlements calculated as follows: a. Gratuity 7 weeks basic salary for 13 years N5,675,987.09 b. Junior staff provident scheme for 8 years N800,000.78 c. Senior staff provident schemes N3,847,768.98 d. Entitlement in lieu of annual leave = N1,000,000 representing 100 working days per annum. e. Annual leave allowance for 2012 at the rate of 10% of annual basic salary = N797,750 f. The 13th month pay 2012 = N593,563.99 Counsel further states that the denial in paragraph 7 of the amended statement of Defence does not suffice in law and referred to the case of DUNIYAN V. IYANGIN (2002) FWLR pt. 120 pg. 1805 at pg. 1825 Para c where the court held as follows: “It is the duty of courts to aim at doing substantial justice between parties and not let their aims be defeated by technicalities. A denial in a statement of Defence that “that Defendants deny paragraph of the statement of claim and put the plaintiff to the strictest proof thereof “amounts to insufficient denial or insufficient traverse to put the matter thus denied in issue”. Counsel in paragraph 4.2.5 further states that defendant did not specifically deny Para. 30 of the statement of claim but only evasively alleged that his entitlement was calculated and paid in accordance with the condition of service and consequently Exhibits DE to 5 especially DE1 & 2. Furthermore that in 4.2.6 those defendants purported claim of the calculation and payment of the claimant’s entitlement landed on faulty grounds considering the following facts; 1) Exhibit D the last pays lip of the claimant with Exhibit DE 1 & 2 while the figure in Exhibit D as basic salary last paid to the claimant is N184,907.51 the defendant put it at N78,942.76 in its purported calculation 2) The Defendants purported calculation does not take into consideration the claimants entitlement on the subject which is N800,000 and N3847.768 respectively while exhibit F1 & 2 (termination letter) acknowledge entitlement of staff to payment of both junior and senior staff scheme although there is no specific denial on the contrary. 3) In the purported calculation in exhibit DE the Defendant only put a paltry sum of N17,751.12 as against N797,750 which was not specifically denied in the statement of Defence even while exhibit F1 & 2 acknowledge payment in lieu of annual leave. 4) The Defendant unilaterally put the sum of N71,007 instead of calculating interest on gratuity as provided in the condition of service. Having gone through the submission of both counsel it is necessary to go through the vitals of one pleading where the following can be taken as established: 1. The Claimant’s appointment was terminated with letter dated 25th September, 2012 vide Exhibit F. He was queried on 14th May 2012 vide Exhibit E. A panel was set up for hearing and reported back vide Exhibit DB-DB4. He appealed against his termination vide Exhibit F2 & F3. His appeal was responded to further refusing him pardon vide Exhibit DA. 2. The Defendant tendered Exhibit DA1 to DA2 dated 25th September, 2013 Termination of Appointment, Exhibit DB to DB4 Nigerian Bottling Company Plc hearing process form management staff. 3. In cross examination DW1 admitted that repatriation is not included in the calculation of Claimant’s entitlement which he is entitled to as he was employed in Ikeja but transferred to Kaduna. He also admitted short payment of Claimant and wrong computation of salary. 4. DW1 also admitted under cross examination that he did not see exit form signed by the Claimant. Terminal benefits stipulated in clause (F) Exhibit F1 were not given to them. Counsel finally states that the Claimant on the balance of probability has discharged the initial burden expected of him as an employee entitled to his service entitlements. He further says if evidential record exist to rebut any of the claims of the Claimant the Defendant withheld same, knowing that if released would have been against the Defendants. Counsel urges the Court to therefore apply the presumption of law enshrined in Section 167(d) of the Evidence Act 2011 against the Defendant. The Court will only be on point to ask whether the termination was material and also whether the hearing of the panel met all due process. That it is in the interest of justice that the issuance of query is thoroughly dug into like any other issue at hand. Indeed and by a large extent from the submissions of the final written address of the Claimant allude to figure II page 34 of the code of conduct Grievance procedure which provide that: “When a report is made to the head of department he investigates and issues a query where necessary…” In this vein course maintains that the query issued to him contravenes with the CCGP is provision and this was averred in paragraph 15 of Claimants claim which says query was not issued by his immediate boss or the head of department but was issued by one Tunde Orukotan a director of human resource in the head office in Lagos who also never knew what transpired in Kaduna Plant. In paragraph 16 Claimant stated: “…. That the query was also issued out of malice to deny and deprive him of his next promotion in the plant. The other managers of lines 1 & 2 were not queried and the director who passed the instruction for production on all the lines not queried as well and the manufacturing analyst whose responsibility is to send the correct figure of production to Lagos was not queried. At the hearing Claimant was cross examination thus: Q Your termination of employment was based on the recommendation of a panel of enquiry not a query. Ans: it is both because there was a query before the panel. In line with page 34 clause (ii) headed- Disciplinary process of the code of conduct and Grievance Procedure Exhibit H1-H53 particularly Exhibit H38 thus: “When a report is made to the head of department, he investigates and issues a query; where necessary which must be replied to within 48 hours of receipt by the offender. Upon the issuance of the query the matter is taken before the disciplinary Panel which will be headed by the personal manager. The duty of the Head of Department is to present the allegation against the offender before the panel (He is not a member of the panel) the staff will be entitled to call a witness to give evidence in his support during the hearing session, the decision of the panel will be communicated to the affected staff by the personnel manager at the conclusion of the hearing. After much scrutiny into the necessary documents and exhibits it is clear that the query was not issued in accordance with the code of conduct and grievance procedure especially page 34 clauses (ii). Furthermore the hearing process also violated the provision of the code of conduct and grievance procedure in that the issuer of the query was a member of the panel and even a head of such panel I make reference to Exhibit DB3 which carries his name as Tunde Orukotan (presenter) and his signature. The defendant relied on exhibits J & J1 (item 7) thus, from its final written address at paragraph 4.01 “The Agreement can be terminated by either party at any time giving to the other ONE month’s notice in writing or ONE month’s salary in lieu of notice” And also in defendants final written address in paragraph 5.04 states thus: “It is trite law that an unwilling employer will not be compelled to keep an employee he no longer wants. A Court cannot foist on an employee an employer in whom he has lost confidence. OYEDELE V. IFE U.T.H (1990) 6 NWLR pt. 155) 194 C.A IBADAN IWUCHUKWU V. NWOSE (1994) 7 NWLR PT (357) P. 379. SAVANNAH BANK PLC V. FAKOKUM (2002) 1 NWLR (pt. 749) 554 RATIO 9. Now at the hearing, during cross examination of DW1 the following question elicited these answers: Q: Did the Claimant sign the exit sheet as required by protocol. Ans: There is exit form in place for the employee to sign. The signatories are the immediate and human resource department. Q: Were those documents signed Ans: We did not present it there was nothing on that point. Q: Are you aware that the Claimant is still in possession of his ID card Ans: After the hearing he did not show up again at the office premises Q: But is he supposed to be in possession of the ID card Ans: He is not supposed to be Q: Apart from the ID card the Claimant is still in possession of certain paraphernalia of the company Ans: He has not handed over anything to the company Q: We will be correct to say that since he has not handed over this ID card and other to the company he is still in the services of the company Ans: The ID card has expired. No he is not a staff of the company any more. Q: You claimed to have paid the Claimants entitlement Ans: Yes Q: By exhibit F & F1 you were supposed to forward a document showing the Claimant all his entitlements. Ans: It is not the practice of the defendant company Q: Read the second page P or F Ans: Witness reads Q: Are you still maintaining your position Ans: I still maintain the position. From the mix of the foregoing details gleaned from the hearing. It is quite clear and I find so, that the processes leading to sack of the Claimant were not thoroughly followed. Having found that the process of the query and the panel hearings that led to the sack of the Claimant did not follow due proper process. And having found the purported sacking of the Claimant was not properly done, it is never the less, the law that in a master servant relationship, in an employment contract not regulated by statue, not being one laced with statutory flavour is that which still flows from the common law, where an employer can terminate his employee’s contract of service at any time and is not obliged to give any reasons for doing so. Equally so, there is no rule requiring an employer to follow a proper procedure in dismissing his servant (worker). However, as a general rule, if he does in a manner not in accordance with the terms of the contract of employment, he is liable in damages for breach of contract. But it has also been shown through numerous authorities that the Courts are averse to compel a willing employee on an unwilling employer unless special circumstances to justify such action are shown to exist in the contract. See THE REGISTERED TRUSTEES OF PLANNED PARENTHOOD FEDERATION OF NIGERIA & ANOR V. DR. JIMMY SHOGBOLA (2004) 11NWLR (pt. 883) 1. CA. In this vein it will suffice for the Court to state that the termination of the Claimant’s appointment did not follow due process laid for it to be proper. As to whether the Claimant’s employment is still subsisting and his being entitled to all his monthly salaries from the date of his purported termination and all benefits attendant till judgment and beyond, as well as an order for reinstatement and as to whether a declaration that the contract of employment subsists will be made, it should be noted as settled law that, when there has been a purported termination of a contract of employment, a declaration to that effect that the contract still subsists will be rarely made because of the principle of law that the Courts are averse to grant specific performance of contract of service except where circumstances exist to make a Court exercise its discretion in that regard. See THE REGISTERED TRUSTEES OF PLANNED PARENTHOOD. V. DR SHOGBOLA (SUPRA) The Claimant in this case has claimed in the alternative the sum of N15,000,000 and the sum of N200,000,000 in damages. The obvious fact from the case at hand is the Claimant having commenced this action had taken his contract of employment as effectively ended and repudiated and so his remedy-as the law stipulates on the facts of this matter should speak only in damages having found that the processes leading up to the termination were not complied with, and being a case of master (Employer) servant (employee) contract relationship to be re-instated his remedy will speak only in damages for wrongful dismissal/termination. In the present case, I do not see or find any special circumstances in the contract of employment, the exhibit G, H and ‘J’ do not provide such. Here, the Defendants have shown through exhibit I and by the admission of the Claimant that the sum of N1,866,8333.31k was paid in to his account as terminal benefits. Though he claims the sum of N15,075,065.84 and 200,000 the Defendant deny this. At issue 2 of the Claimant written address on whether the Claimant is not entitled to succeed on a balance of probabilities for the payment of all entitlements due and provided for in the condition of service. Counsel submits for the Claimant that Claimant’s relief is anchored on his legitimate entitlements provided for in the conditions of service Exhibit G code of conduct and grievance procedure exhibit H and memorandum of agreement, exhibit J. He referred to paragraph 30 of the claimant’s Statement of Claim as follows: a. Gratuity 7 weeks basic salary for 13 years i.e.N5,675,987.09 see Gratuity Scheme – Condition of Service exhibit G. b. Junior staff provident scheme for 8 years N800,000.78 referred to exhibit ‘C’ the letter of termination c. Senior Staff Provident Scheme total = N3,847,768.98 see memorandum of agreement Exhibit J and letter of Termination, Exhibit F1 & 2. d. Entitlement in lieu of annual leave = N1,000,000 representing 100 working days from 2007 – 2012, using August 2012 Basic Salary calculated at 25 working days per annum per clause 3 Exhibit J. e. Annual leave allowance for 2012 at the rate of 10% of annual basic salary = N797,750, of Exhibit G and the company policy. f. The 13th month pay for 2012= N593,563.99. See Collective Agreement on salary and fringe benefits. Counsel maintains at 4.2.4 that the Defendant failed to specifically deny and controvert any of the items raised above, that the general denial in paragraph 7 of the amended Statement of Defence does not suffice in law and referred to DUNIYAN VS IYANGIN (2002) FWLR part 120 page 1805 at page 1825 Para C which states that a denial in a statement of Defence “that the Defendant deny paragraph of the statement of claim and put the plaintiff to the strictest proof thereof” amounts to insufficient denial or insufficient traverse to put the matter thus denied in issue. Under cross examination DW1 answered and following questions: Q: (Applies for exhibit DE & DE1) look at exhibit D tell the Court whether there is any provision for repatriation there Ans: No it is not included Q: Look at DE and DE1 you computed the Claimant’s entitlement based on Claimant’s basic Salary in De Ans: 178,942.176 Q: it was on that basis Claimants entitlement was computed. Ans: Yes Q: Look at exhibit D, what is the basic salary there. Ans: N184,907.51 Q: The Claimants salary dates back to August 2012 Ans: Yes Q: If it is so the Claimant’s entitlement was wrongfully computed by you, agreed? Ans: Yes Q: The Claimant has not been paid. Ans: He has been paid you can only talk of short payment of his gratuity and other entitlements. This sequence of question answer lead me to believe that though the Claimant was paid the sum of N1,867,838,15k this was a payment short of what he ought to have been entitled to. I refer now to paragraphs 7 and 8 of the Defendants’ amended Statement of Defence which provides: 7. The Defendant denies paragraph 30 of the claim and shall require strict proof of same from the Claimant at the hearing of the suit. 8. Further to paragraph 7 supra, the Defendant avers that the Claimant is not entitled the money calculated in the said paragraph as the Claimants terminal benefits was calculated and paid him. The documents evidencing payment of the terminal benefit to the Claimant to wit. Letter of advice from the Defendant to the UBA manager, Marina Branch, Lagos instructing him to credit the Claimant’s account Exhibit I; confirmation of transfer in favour of Ibrahim Muslim Ayoade and a statement of account from UBA. These were indeed tendered as exhibits without more. In the cross examination of the Claimant on the issue of terminal benefits he was made to answer the following questions: Q: Who computes final benefits of an employee in coca cola NBC? Ans: There is meant to be a reconciliation between employer and employee it was written on the termination letter (exhibit F) that spreadsheets would be presented to one and before payments can be made on reconciliation Q: Look at exhibit F show the Court where was it stated that there is to be a reconciliation Ans: It is not there witness reads out from F1 Q: Where was it stated in F1 that both have to sit down and reconcile? Ans: There is none Q: Now looking at Exhibit F1 where the witness read from on: (F) Payment details: A separate sheet stating the exact details of your terminal benefits will be given to you. The next paragraph on a staff indebtedness to the Defendant Company from its tenor would certainly require a reconciliation meeting between employer and employee to settle such a balance, but that is not the case here. I find that the case at this point is the amount of terminal benefit paid the Claimant by the Defendant. The Claimant is claiming at paragraph 30 of his statement of fact what he claims is the exact amount with a breakdown of each head of payment, such as unpaid gratuity plus interest earned to which exhibit F & F1 states in item B as gratuity will be paid according to the rules guiding the scheme. Item C Junior Staff Provident Scheme, Item D Senior Staff provident Scheme, payment in lieu of annual leave, apart from denying the claims in paragraph 30 in paragraph 7 and 8 of the amended statement of Defence and the tending of exhibit I the UBA statement of account of the Claimant in the payment of N1,867,838.15. The Defendant did not specifically breakdown how this amount had come about. DW1 had admitted in cross examination that there was no provision for the payment of repatriation and that the basic salary of the Claimant in DE and DE1 was N178,942,176 less than N184,907 as stated in exhibit D and he agreed that the Claimants entitlement was wrong computed. That the Claimant had been paid his entitlement but could only talk of short payment. The Claimant had claimed specific sums in paragraph 30 of his pleadings what the Defendant ought to have done was to give a breakdown in its Defence of the aggregates amounting to the sum of 1.8 Million as terminal benefits. They did not do so in their statement of Defence but tendered exhibit DE to DE5, on the face of DE1 and DE2 it is clear that the benefits so listed in exhibit F are not all mentioned those pages of As a consequence I find and hold that there was underpayment of the terminal benefits as expressed for payment in the letter of termination of appointment exhibit F. The answers elicited from DW1 under cross examination merely confirms this holding. Besides the exhibit DE to DE5, does not diminish the value of exhibit F & F1 it further enhances it. On these bases I am in agreement with the Claimant’s submissions at paragraphs 4.2.1 to 4.2.6 of his written address. The reply on points of law of the Defendant did not attempt to address the submissions made in support of issue 2 formulated by the Claimant in his written address except to dwell on the issue of hand over of company property in exhibit F & F1 and repatriation fee leaving or avoiding the figures raised in the particulars of paragraph 30 of the Claimant’s claim. This denial by the Defendant I find, is very insufficient see paragraph 7. 3 to 8.3 of the reply. Having said all this, judgment is entered for the Claimant in the sum of N15,075,065.84 his terminal benefits following 13 years of service with the Defendants less the amount of N1,266,838.099. The claim for N200,000,000 (Two Hundred Million Naira) damages is denied. The Defendants are ordered to make payment to the Claimant within 30 days of this judgment. The Claimant is also ordered to return any of the Defendant property in his possession to the Defendant within the same period. Judgment is entered accordingly. There are no awards as to cost. ___________________________________ HON. JUSTICE E. D. E. ISELE JUDGE