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JUDGMENT 1. Introduction & Claims By his General Form of Complaint & Statement of Facts dated and filed on 18/5/16, the Claimant approached this Court and sought the following reliefs - 1. An Order of this Honorable Court compelling the Defendant to pay the sum of =N=2,365,550.00 (Two Million, Three Hundred and Sixty Five Thousand , Five Hundred and Fifty Naira) only being the Claimant's outstanding seventeen months variable entitlement for between 2013 and 2015, before being relieved of his employment on 30th of April, 2015. 2. An award of general damages in the sum of =N=2,000,000.00 (Two Million Naira) for the unlawful termination of the Claimant's employment by the Defendant on the 30th of April, 2015 during the pendency of his contract with the Defendant. 3. The sum of =N=1,500.00(sic) (One Million, Five Hundred Thousand Naira) being the Claimant's Solicitor's fees and cost. The Claimant filed along all requisite frontloaded processes. On 17/6/16, the Defendant entered and appearance and file a statement of defence on21/3/17 accompanying same with witness deposition; list of witnesses as well as list and copies of documents to be relied on at trial. 2. Case of the Claimant The Claimant opened his case on 15/11/16. He testified in chief, adopted his written deposition dated 18/5/16 as his evidence in chief and tendered 5 documents as exhibits. The documents were admitted in evidence and marked as Exh. C1-Exh. C5. The case of the Claimant, in brief, as revealed by his pleadings is that by his contract of employment, he was entitled to a monthly salary as well as monthly variable pay; that for a period of 17 months he was not paid his variable pay; that his demand for the payment led to the termination of his employment by the Defendant; that the termination was wrongful for not being in consonant with his contract of employment and that the wrongful termination of his employment and non-payment of his outstanding monthly variable entitlement by the Defendant had caused him whole lots of damages to his person, reputation and well being. Although the Claimant was available for cross examination, he was not cross examined by the Defendant. 3. Case of the Defendant On 4/12/17, the Defendant opened its case and called one Olajumoke Adeola Head of Human Resources Department as its lone witness. The witness adopted her written deposition of 20/6/17 as her evidence in chief and tendered 13 documents as exhibits.The documents were admitted in evidence and marked as Exh. OA1-Exh. OA13 respectively. The case of the Defendant is that the Claimant is not entitled to any variable payment not having fulfilled the condition precedent to be so entitled under the terms of his engagement and that the termination of Claimant's employment was in tandem with the contract of his employment. Under cross examination, the witness stated that she was employed by Defendant on 1/6/17; that she holds a Bachelor of Science in Physiology and an Associate Member of Chartered Institute of Personnel Management; that by the record of claimant with Defendant, Claimant did not meet the expectation of Defendant in terms of performance; that the overall performance of Defendant did not measure up to the target set for the year; that she does not know the claimant personally; that she is not aware of any staff of Defendant who is more qualified than the Claimant; that the performance of the Claimant is not being compared with other staff; that she would not be surprised that Defendant got patronage resulting the certification of the Claimant; that the Defendant employed staff due to their certification in the 1st place which formed basis for bidding for jobs; that payment was made to every staff on the team including the Claimant; that the variable element of payment to staff is subject to the overall performance of the Defendant; that variable demand is paid quarterly; that Defendant was paying this based on its overall performance; that when its fortune dwindled that was when it was unable to pay. I am aware that the claimant did not receive any query while with Defendant. Defendant’s contract with Lagos State Government is for a set time; that Claimant was not the Lead person on the project and that the project with the Lagos State Government is on-going. 4. Submissions of learned Counsel At the close of trial and pursuant to the direction of the court, learned counsel to the Defendant filed a final written address on 12/3/2018. In it, counsel set down the following three (3) issues for the just determination of this case- a) Whether the Claimant is entitled to the cumulative monthly variable allowance claimed in this suit when he has not discharged the onus of proof on him in line with his contract of engagement; b) Whether the engagement of the Claimant was wrongfully terminated; c) Whether the Claimant is entitled to other incidental reliefs sought in this suit. Arguing these issues, the learned Counsel submitted that the relationship that exists between the Claimant and the Defendant was founded on the Contract of Service between the parties and that one of the general laws of contract is that parties are bound by the express terms of their agreement; that the court will restrict itself to the express terms agreed by the parties where such are clear and unambiguous; that no expectations or a rule of common sense can override the express terms of the contracting parties agreement citing Nwobosi V. A.C.B Ltd (1995) 6 NWLR (Pt 404)658; Momoh v. C.B.N (2007) 14 NWLR (Pt 1055)504;Ojomo v. Incar (Nig.) Ltd (1993) NWLR (Pt 307); that the Claimant has failed to prove his claim to the monthly variable entitlement alleged in this suit. Respecting issue 2, Counsel submitted that in an action where the Claimant complains that his employment has been wrongfully determined, the onus of proof is on him to first place before the Court the terms of the Contract of employment and second to prove in what manner the said terms were breached by the employer citing Francis Katto v. C.B.N. (1996) 6 NWLR (Pt. 607) 390; that the essential obligation of the Defendant was to pay the Claimant the required one month salary in lieu of notice citing Oforishe v. Nigerian Gas Company Ltd (2017) LPELR-42766 (SC); that the Claimant’s engagement cannot be said to be wrongful having complied with the requirement of the law in line with the contract of engagement between the parties. On issue 3, Counsel submitted that the court does not award incidental reliefs where the principal relief of a party fails citing African Petroleum Plc v. David Aborishade (2013) LPELR-20362 (CA); that the Claimant is not entitled to any general damages and/or cost of action citing Shodipo & Company Ltd v. Daily Times Ltd. (1972) All N.L.R. 842. Learned Counsel submitted that the Claimant has failed to prove his case and prayed the court to dismiss this suit. Learned Counsel to the Claimant filed a final written address on 6/6/18. In it Counsel set down the following issues for determination 1) Whether the Claimant is entitled to his seventeen (17) months variable entitlement as sought herein. 2) Whether the Claimant employment was unlawfully terminated. Arguing these issues, learned counsel submitted that the elementary rule of construction of a written agreement is that the court is bound to give the operative words used by the parties their simple and ordinary meaning so as to be able to discover the intention of the parties; that the court deals with a document according to the clear intention of the parties appearing in the four corners of the document itself citing Silas Osigwe v. UNIPETROL & Anor. (2005) 5 NWLR (Pt.918) 261 C.A; Dantata v. Dantata (2000) 4 NWLR (Pt756) 144; Olanlege v. AFRO Continental (NIG) Ltd (1996) 7 NWLR (Pt. 458) 29; that the Claimant throughout the period of his employment with the Defendant was not issued any notice of meeting his Key Performance Indicator (KPI) as prescribed in the Contract of employment and that where a document or evidence known to a party is not produced in court to prove his/her case, the presumption in law is that the information contained therein will not be beneficial to the case of the party which withholds such document citing the case of Koku v. Koku (1999) 8 NWLR (Pt 616) 672 C.A. With respect to issue 2, the Learned Counsel submitted that the termination of the Claimant’s employment by the Defendant is illegal and that the Claimant is entitled to the award of damages and prayed the Court to so hold. The Defendant’s reply on points of law was filed on 23/7/2018. I also read same with understanding. 5. Decision I have carefully read all the processes filed by learned Counsel on either side with understanding. I listened to the testimony of the witnesses called at trial, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I notice that both learned Counsel are agreed on the main issues for the just determination of this case. To the Defendant the issue for the determination of this case is - Whether the claimant is entitled to the monthly variable allowance claimed in this suit when he has not discharged the onus of proof on him in line with his contract of engagement. On the other hand learned Counsel to the Claimant set down these 2 issues for determination - Whether the engagement of the claimant was wrongfully terminated and Whether the claimant is entitled to other incidental reliefs sought in this suit. For the just determination of this case therefore, I set down the following 2 issues - 1. Whether the engagement of the Claimant was wrongfully terminated and 2. Whether the Claimant is entitled to other incidental reliefs sought in this suit. The first issue is whether the engagement of the Claimant was wrongfully terminated. It is trite that in an action alleging wrongful termination of employment, it is imperative for the Claimant to exhibit his contract of engagement containing the applicable terms and conditions. Claimant is there after expected to prove to the Court the portions or provisions of the contract which the Defendant failed or neglected to comply with in terminating his contract of engagement. The Claimant tendered Exh. C1 as his contract of employment. This exhibit consists of series of ''Limited Period Contract of Engagement'' between the Claimant and the Defendant with varying dates the first being dated 21/7/06 and the last dated 21/10/14. On the latter contract of 21/10/14 at page 46 of Exh. C1 is a clause on Termination. The clause states that - ''It is a requirement that one month's notice is to be given by either employee or employer on termination of employment''. Now, did the Defendant comply with this provision on Termination? Claimant tendered Exh. C2 dated 1/4/15. That exhibit is the letter terminating the services of the Claimant. In the first two paragraphs the Defendant had written thus - ''This is to inform you that the company no longer requires your services as a Project Manager with effect from May 1, 2015. You are entitled to one month salary in lieu-of notice. The company will provide an additional one month package. ''All final settlements will be given to you on your last day of work''. Claimant did not argue before me that he was not given a month notice of termination of the contract of engagement. Claimant also did not contend that indeed, the Defendant did not pay to him the one month package it undertook to pay in Exh. C2. I find and hold that the contract of engagement of the Claimant was properly terminated in accordance with the applicable terms and conditions. Claimant's contract was thus not wrongfully terminated. I resolve the first issue in favor of the Defendant and against the Claimant. The second issue is whether the Claimant is entitled to other incidental reliefs sought in this suit. The reliefs sought in this case are essentially three. The first is for an Order of this Honorable Court compelling the Defendant to pay the sum of =N=2,365,550.00 (Two Million, Three Hundred and Sixty Five Thousand, Five Hundred and Fifty Naira) only being the Claimant's outstanding seventeen months variable entitlement for between 2013 and 2015, before being relieved of his employment on 30th of April, 2015. The Defendant indeed conceded that there was a variable component of the remuneration of the Claimant. Learned Counsel however submitted that the payment of the variable component was subject to the fulfillment of the attached condition precedent within the context of the terms and conditions of engagement. Exh. C1 is the applicable contract between the parties. I had indicated that it consisted of series of Limited Period Contract of Engagement. Each of the contracts has date different from the other. Each contract has identical provision respecting remuneration. The contract document of 21/10/14 would seem to be the last in the series. The Clause on Remuneration states thus - ''The fixed gross monthly package shall be =N=556,600.00 (Five Hundred and Fifty Six Thousand Six Hundred Naira Only) and a monthly entitlement of =N=139,150.00 (One Hundred and Thirty-Nine Thousand One Hundred and Fifty Naira Only). This is however subject to the achievement of quarterly financial targets as well as meeting set KPIs that will be agreed upon between you and your Line Manager''. It is apparent from the above clause that the payment of the variable component of the Claimant's remuneration is tied to fulfillment of at least 2 main conditions. The first is the achievement of quarterly financial targets while the second is meeting set KPIs that will be agreed upon between you and your Line Manager. For the Court to grant the prayer sought by the Claimant it is imperative for the Claimant to satisfy the Court that he indeed met the quarterly financial targets and that he also met the set KPIs which both he and his Line Manager agreed on. I have no evidence to the effect that the Claimant met these two pre-conditions to be entitled to his variable entitlement. I refuse to grant the prayer sought. I dismiss same for lack of proof as required by law. The third relief is for an award of general damages in the sum of =N=2,000,000.00 (Two Million Naira) for the unlawful termination of the Claimant's employment by the Defendant on the 30th of April, 2015 during the pendency of his contract with the Defendant. I have found and held in this Judgment that the employment of the Claimant was not wrongfully terminated. A claim for damages is ordinarily founded on the violation or breach of a legal right. Thus, the violation or breach of the right must first be established before the Court will consider award of damages. The Claimant having failed to prove that his employment was wrongfully terminated is therefore not entitled to a grant or award of damages. Accordingly I refuse and dismiss same as well. Finally, the Claimant sought payment of the sum of One Million, Five Hundred Thousand Naira as his Solicitor's fees and cost. Claimant has failed to prove any of his head of claims before this Court. There is therefore no basis upon which the Court will make an order as sought by the Claimant. This relief is also refused and dismissed for lack of proof. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, the entire case of the Claimant is dismissed for lack of proof. I make no order as to cost. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge