Download PDF
By his General Form of Complaint dated and filed on the 11th May, 2012 the claimant seek the following reliefs: 1. A declaration that the summary dismissal of the claimant by the defendant was a breach of contract of employment between the claimant and defendant. 2. A declaration that the continued retention of the claimant by the defendant after the expiration of the probationary period of six months, without any written confirmation, amounted to an implied confirmation of the claimant by the defendant. 3. A declaration that apart from being a breach of contract the defendant’s conduct was ultra vires, repulsive, oppressive, irresponsible, malicious and injurious. 4. An order directing the defendant to pay the claimant the sum of N41,113.20 (Forty One Thousand, One Hundred and Thirteen Naira, Twenty Kobo) being one month salary in lieu of notice with interest at the rate of 10% per month from the 30th of December, 2011 till date of judgment and thereafter at the rate of 21% per annum until the judgment debt is fully and finally liquidated. 5. An order directing the defendant to pay to the claimant the sum of N3,000,000.00 (Three Million Naira) as damages for breach of contract, unjust stigmatization, loss of dignity and inconvenience occasioned to the claimant. 6. The sum of N30,000.00 (Thirty Thousand Naira) being the amount due to the claimant for extra work hours rendered to the defendant from October to December, 2011 with interest at the rate of 10% per month from the 30th of December, 2011 till the date of judgment and thereafter at the rate of 21% per annum until the judgment debt is fully and finally liquidated. 7. Legal costs and expenses as may be assessed by the court in prosecuting this Suit. Filed with the Complaint are Statement of Claim, List of Witnesses, Written Statement on Oath and Copies of Documents to be relied upon at trial. In its reaction, the defendant filed a Memorandum of Appearance, Statement of Defence and Counter-claim, List of Witnesses, Witness Statement on Oath and List of Documents all dated and filed on 23rd August, 2012. The claimant thereafter filed a Reply to Statement of Defence and Defence to Counter-claim, Written Statement on Oath dated 26th September, 2012 and 9th October, 2012 respectively both filed on 9th October, 2012. The claimant’s claim is that by a letter of employment dated 9th May, 2011 he was employed by the defendant as a Status Driver attached to the Divisional Head, Banking Services of the defendant. That he accepted the offer of employment along with the terms and conditions and upon resumption submitted to the defendant, among other items, duly completed Guarantor’s Form. He pleaded that his appointment was probationary for a period of six (6) months but the defendant neither issued a confirmation letter immediately before nor after the expiration of the probationary period. That after the expiration of the probationary period the defendant continued to retain his services without express confirmation for nearly two months until December, 2011 when the defendant summarily dismissed him from service contrary to paragraphs 7 and 10 of the defendant’s letter of employment issued to him. That paragraph 7 of the letter of employment states unequivocally that the appointment of any Driver attached to any Manager or Director shall terminate automatically at the disengagement of that Manager or Director from the services of the defendant. That paragraph 10 of the letter of employment states that the claimant’s appointment shall terminate automatically in the event of misconduct by the claimant. That the two grounds that would have warranted summary dismissal from the defendant’s service never occurred at all. The claimant further pleaded that prior to his summary dismissal by the defendant he was entitled to monthly risk allowance for extra working hours done from Monday to Friday and Saturdays in the sum of N10,000.00 (Ten Thousand Naira) plus his basic salary of N30,455.23 (Thirty Thousand, Four Hundred and Fifty Five Naira, Twenty Three Kobo) which amounted to a total monthly sum of N40,454.23 (Forty Thousand, Four Hundred and Fifty Four Naira, Twenty Three Kobo). That in August, 2011 the defendant increased his basic salary from N30,455.23 thereby making his total monthly emolument plus the aforesaid monthly risk allowance sum of N10,000.00 to amount to N51,113.20 (Fifty One Thousand, One Hundred and Thirteen Naira, Twenty Kobo). That sometime in September, 2011 the defendant informed him in writing that the monthly risk allowance has been incorporated into the new salary increment of N41,113.20 meaning that he shall no longer receive both salary and the monthly risk allowance at different dates of each month but as a lump sum in each month. That to his surprise from October to December, 2011 the defendant only paid him basic salary of N41,113.20 but failed to include the monthly risk allowance of N10,000.00 even though he still put in extra hours as usual. Claimant states that his dismissal from the defendant’s service was wrongful, oppressive, unjustifiable, ignominious and repulsive as well as a clear breach of contract and was not in accord with the principle of legitimate expectations envisaged in employment contracts. That his summary dismissal without any misconduct carries a stigma which has jeopardized his chances of securing a meaningful employment elsewhere. That on the 31st January, 2012 his Solicitor wrote the defendant demanding that he be compensated as far as money could go to remedy the wrong done to him. That in response to the said letter the defendant denied any wrong doing via its letter dated 7th February, 2012. That the defendant has no defence to this Suit. The claimant repeated his claim as in complaint. In its defence, the defendant admitted paragraph 1 to 4, 16 and 17 of the Statement of Claim. It states that the claimant was employed on a probationary period of 6 months and after the probationary period his performance was evaluated by the defendant and was found to be below average and not up to the requirement contained in his letter of employment and his appointment was terminated thereafter. The defendant pleaded that the claimant is not entitled to N10,000.00 monthly risk allowances for the months of October to December, 2011 nor any sum thereof and that it will rely on the internal memo given to the claimant dated 21st September, 2011 upon which the allegation contained in paragraph 12 of the Statement of Claim is based. That by virtue of the said memo the claimant’s salary and risk allowance were merged as one into the sum of N41,113.20. The defendant pleaded further that the claimant was never dismissed from his employment but rather his appointment was terminated as contained in the said letter of termination dated 30th December, 2011. That the claimant is not entitled to the reliefs in paragraph 18 of the Statement of Facts as they are vexations, gold digging and unknown to law and prayed the court to dismiss this Suit. By his counter claim the defendant counter claimant adopted its averment as contained in the statement of defence. It states that it is a banking institution with depositor’s funds in its possession and with a good standing in the polity and the claimant’s action is capable of jeopardizing all of the above. That the claimant’s action is malicious and unnecessary as all his entitlements have been paid. That its Solicitors have demanded the sum of N500,000.00 as its fees for their defence in this action. That the processes filed by the claimant have become public documents which the public has access to. That the claims as well as depositions in it are untrue, malicious and defamatory as the claimant’s action has incited labour issues within and outside the defendant’s organization. The defendant therefore seeks the following reliefs: (a) The sum of N500,000.00 (Five Hundred Thousand Naira) being the professional fees incurred by the defendant in respect of this Suit. (b) 10% (Ten percent) monthly interest on the above sum from the date of judgment till the sum is liquidated. (c) N1,000,000.00 (One Million Naira) damages for the false depositions made by the claimant and defamation. (d) Cost of this action. In his Reply to Statement of Defence, the claimant pleaded that nowhere was it stated in the letter of employment that his employment would be terminated with immediate effect if his performance was below average. That his salary and risk allowance were not merged into the sum of N41,113.20 but by virtue of a memo dated 21st September, 2011 his monthly risk allowance was added to the already existing salary increment of N41,113.20 to become a lump sum of N51,113.20. That he was dismissed by the defendant as termination without notice nor salary in lieu of notice is the same thing as summary dismissal. That his wrongful dismissal is still making it impossible for him to secure any meaningful employment elsewhere or at all. In his defence to the counter claim, the claimant states that his action and depositions represent the true position of what the defendant did to him and that the defendant has no reputation to protect. That the claims against the defendant are justified. That the way and manner the defendant disengaged him from its services has brought untold hardship to him and continuously making it impossible for him to secure meaningful employment elsewhere. That employees are often in doubt of his credibility and have wondered why he could have been treated in such manner save for serious misconduct on his part. That this Suit has not been brought to the attention of the general public as the purpose of this Suit is to seek redress for the wrong occasioned against him by the defendant. That this court lacks the jurisdiction to entertain claims founded on the tort of defamation and actions for recovery of professional fees. He therefore urged the court to dismiss the counter claim with substantial cost. Trial in this Suit commenced on 23rd October, 2012 with the claimant testifying himself as PW1. He adopted his two witness statement on oath deposed to in furtherance of this Suit. During cross-examination the PW1 stated that he is a Driver but he is not working at the moment and that he diligently performed his duties during his employment with the defendant herein. That he has no idea as to why his employment was terminated. That when he was being owed salary at a point in time. That before his employment he was not interviewed and that two companies called him for job interview. That as at now five companies have called him for interview but none offered him employment. That there was no fraud allegation against him by the defendant and was never harassed by security agencies. That the defendant has between five and seven Drivers in its employment and that he was the only one terminated. That he was given an appraisal form to fill but he never saw the result. That his relationship with other staff of the defendant is cordial. During re-examination the PW1 stated that what he is being owed is risk allowance and not salary which is part of his entitlement. Thereafter the claimant closed his case. The defendant opened its case by calling Mr. Babatunde Ayodeji as DW1. He adopted his witness statement on oath sworn to on 23/8/2012 as his evidence-in-chief and urged the court to dismiss the claimant’s claim. During cross-examination DW1 stated that he works as a legal officer with the defendant but cannot say with precision when the claimant was employed. He stated that the claimant was attached to the Divisional Head of the Banking Services as a Driver but that he is not in a position to determine the claimant’s duties. That by his terms of contract the claimant is expected to put in extra working hours but the claimant did not put in extra hours. That the claimant did not work under his suspension throughout his stay with the defendant. He stated that the claimant’s appointment was terminated without notice because he did not meet the above average performance expected of him and that is why the claimant was not paid salary in lieu of notice when his employment was terminated. That it is in the letter of employment that if the claimant’s performance is below average, he is not entitled to notice before termination. The DW1 stated that he is not the one that evaluated the claimant for the six months but he is aware that the claimant performed below average via the information he received from somebody. That he is not the one who prepared the evaluation report but there were reports of evaluation of the claimant’s performance within those six months though the evaluation reputs are not before the court. That the probationary period ended six months after his employment and the claimant’s employment was terminated after he worked for more than six months. That the defendant did inform the claimant orally of his performance before and after the expiration of 6 months. The DW1 states that somebody to him and the same person who to him told the claimant. He stated that the reason for the termination of the claimant’s employment was not stated in the letter. That the defendant wrote to incorporate the risk allowance into the salary increase in a letter dated 22/9/2011 but does not know the figure of the claimant’s salary before 21st September, 2011. That the claimant’s salary for August, 2011 was N41,000.00 while the risk allowance was N10,000.00 for the previous month. That in September the claimant’s salary N41,000.00 and N10,000.00 but there was a merger of salary and risk allowance to make it N41,000.00. DW1 stated that he did not recall participating in any meeting on 30/12/2011 and would not know the outcome of the meeting between the supervisor of the claimant and the head of the Human Capital Management and Corporate Services. The defendant thereafter closed its case. The parties were ordered to file their Final Written Addresses. The defendant Final Written Address is dated 27/5/2013. The defendant later filed a Reply on Points of Law dated 7/6/2013. The defendant’s counsel formulated three issues for determination as follows: 1. Whether the claimant has proved his case on the balance of probability and or preponderance of evidence as to entitle him to all the reliefs sought. 2. Whether from the totality of evidence both oral and documentary the defendant is in breach of the contract between it and the claimant. 3. Whether the claimant is entitled to damages breach of contract. Learned Counsel submitted that the claimant is expected to prove its case on the balance of probability and has the onus of proving his case rest on him. He referred to the case of Purification Tech Nig Ltd v. Jubril [2012] 6 – 7 MJSC (pt. 1) 73 at p. 112, Jolayemi v. Alaye [2004] 9 MJSC 93. He submitted that taking all the evidence of the claimant before this court, it is clear the claimant have proved nothing to entitle him to the reliefs. He submitted that parties are bound by their agreement freely entered into and no party will be allowed to go outside it for a relief referring to the case of Osun State Government v. Dalami Nig. Ltd [2007] 6 MJSC 187. Learned Counsel submitted that the offer for employment letter dated 9th May, 2011 contains a clause which gives the defendant a discretion to or not to confirm the appointment of the claimant subject to an average performance appraisal and that if the defendant terminates the employment of the contract after the 6 months probationary period based on his failure to perform that will not amount to breach of contract since parties are bound by terms of their contract, citing the case of Kaydee Ventures Ltd v. Hon. Minister of FCT [2010] 1 – 2 MJSC 129. He submitted that the parties’ freedom of contract carries with it an implication of sanctity of contract and if any question arises in respect of the contract the terms in any document are the guide to its interpretation. He referred the court to the case of Ifeta v. Shell Petroleum Dev. Co Ltd [2006] 7 MJSC p. 121. Learned Counsel further submitted that there cannot be any vested right when an exercise is made subject to the fulfillment of certain conditions and acceptance of those conditions is at the discretion of the affirming body. That the law will not allow any party to approbate and reprobate. He submitted that one of the ways a contract of employment can be terminated is by expiry of the period for which it was made. He referred the court to Section 9 (7) of Labour Act, LFN, 2004. He stressed that in the instant case, the parties agreed that the contract of employment is for 6 months probationary period which can be confirmed subject to average performance appraisal and parties are bound by the clear provisions of their contract and the court is also bout to give effect to it. He cited the case of A.G Ferrero & Co. Ltd v. Henkel Chemical Nig. Ltd. [2011] 5 – 7 MJSC (pt. 1) p. 55. He argued that assuming the defendant did not intimate the claimant with the grounds for determination of his employment, the employer is not bound to give any reason or motive for terminating the appointment of a servant unless such an employment is with statutory flavour referring to the case of Ativie v. Kabel Metal Nig. Ltd. [2008] 8 MJSC p. 82, Olarewaju v. Afribank Plc [2001] 13 NWLR (pt. 371) p. 691. Learned Counsel submitted further that termination of employment cannot be challenged on the basis of inadequate explanation of the nature of the offences mentioned in the letter of termination as reasons for the termination. That the real issue is whether having regard to the terms of the contract of employment, the employer has the right to terminate the appointment or not, citing the case of Ziideeh v. RSCSC [2004] 4 MJSC 150. He submitted that it is settled law that when there is a legal right to do a thing; the motive for which it was done is generally immaterial to its validity, citing the case of NNPC v. Idoniboye-Obu [1996] 1 NWLR (pt. 427) p. 655. Learned Counsel submitted concerning the claim for damages that in a case of ordinary contract of employment where the terms provide for a specific period of notice before termination or salary in lieu of notice, the only remedy available to an employee who is terminated without notice is the award of salary for the period of notice and nothing more as award of general damages is inappropriate in such cases. He referred the court to the case of Ativie v. KML (supra), Kato v. CBN [1999] 6 NWLR (pt. 607) p. 890. He further submitted that the claimant has not suffered any injury or loss of reputation by the action of the defendant as so entitle him to the damages he is seeking because there is no breach of contract at all. On the issue of increment in salary, Learned Counsel argued that it is not in evidence that the defendant has paid the alleged increased salary of N41,111.20 to other Drivers on probation like the claimant herein. That assuming but not conceding that there was a subsequent increase in the salary of the claimant pursuant to an internal memorandum dated 21st September, 2011 which became effective on the 1st October, 2011 paragraphs 13, 14 and 15 of the claimant’s statement on oath dated 11th May, 2012 did not state the specific amount of increase in the salary and no evidence was led to the fact that the claimant was paid the sum of N51,113.20 as allowance and risk allowance in August, 2011 or anytime at all. He submitted that the claimant wants this court to speculate and urged this court to do so citing the case of NNPC v. Idoniboye-Obu (supra). He argued that a careful perusal of the claimant’s pleading reveals an attempt to benefit from what he considers an irregular procedure adopted by the defendant in carrying out the spirit and the letters of paragraph 3 of the offer for employment dated 9th May, 2011. That an employer can terminate the employment of his employee with or without notice. He referred to the case of Ifeta v. Shell Petroleum Dev. Co. Ltd (supra) and Section 11 (9) of Labour Act. He urged the court to dismiss the case of the claimant as being unmeritorious, frivolous, gold-digging and malafide. The claimant’s counsel raised three issues for determination by this court as follows: 1. Whether the defendant was in breach of the contract of employment between the defendant and the claimant. 2. Whether the claimant is entitled to the reliefs set out in his Statement of Facts. 3. Whether the defendant has proved its counter claim and whether this court has jurisdiction to entertain claims bordering on the tort of defamation. Arguing issue one, Learned Counsel for the claimant submitted that he who asserts must prove under Section 131 of Evidence Act, 2011 and the initial burden is on the claimant to prove that he is the defendant’s employee, the terms and conditions of the employment contract and that he has been dismissed in a manner inconsistent with the terms of the employment. That to prove this the claimant has to rely on the contract of employment. He referred to the case of Angel Spinning & Dyeing Ltd v. Ajah [2000] All FWLR (pt. 23) p. 1332. He submitted that in the instant case, the claimant has discharged the onus of proof by placing before this court the offer letter dated 9th May, 2011 and a careful reading of paragraph 7 and 10 of the offer letter and their literal interpretations clearly indicate that the occurrence of either paragraphs would suffice as a ground for automatic termination otherwise known as summary dismissal from the defendant’s services. He stressed that it is in evidence that by a letter dated 30th December, 2011 the defendant automatically brought the claimant’s employment to a sudden end and that the claimant’s summary termination was wrongful in that it was not in accordance with paragraphs 7 and 10 of his offer letter because the Divisional Head he was attached was not disengaged from the defendant’s services nor was he guilty of any misconduct whatsoever. On the sanctity of contract of employment and duty of court to restrict itself to it while interpreting, counsel referred to the case of Oceanic Intn’l Ltd v. Udumebraye [2008] All FWLR (pt. 430) p. 769. He submitted that paragraph 3 is not one of the grounds to justify summary dismissal of the claimant’s employment as there is no mention of automatic termination therein. He submitted further that the only interpretation of paragraph 3 of offer letter is that the confirmation of the claimant’s appointment is subject to average performance such that if at the end of the period of probation the defendant is not satisfied with the claimant’s input, the claimant would be terminated with reasonable notice or salary in lieu thereof without move. That by law, where an employee gets over the initial hurdle of proving that his termination is not in accord with employment contract, the onus shifts on the employer to justify the termination. That the burden is on the defendant to prove that the claimant’s performance was indeed below average by virtue of Section 131 of Evidence Act, 2011. He referred the court to the case of Angel Spinning & Dying Ltd v. Ajah (supra) at p. 1352. He argued that assuming but not coveting that the defendant is entitled to terminate the claimant’s appointment the way it did, the defendant has not proved that the fact that the claimant performed below average justified the termination. That the defendant’s witness is not the one that evaluated the claimant, therefore, somebody informed the said witness that the claimant performed below average. He submitted that this piece of evidence is hearsay which is inadmissible under Section 38 of the Evidence Act except under certain exceptions. He cited the case of Baba-Ahmed v. Adamu [2009] All FWLR (pt. 473) p. 1257, Adenuga v. Okelola [2008] All FWLR (pt. 398) p. 292, U.B.N v. Ayodare & Sons (Nig) Ltd [2007] All FWLR (pt. 383) p. 1. Learned Counsel submitted that the valuation report which would have assisted the court was withheld by the defendant who wants the court to believe that the claimant’s performance was below average. He therefore urged the court to presume that the appraisal or evaluation report in the custody of the defendant would if produced be unfavourable to the defendant pursuant to Section 167 (d) of the Evidence Act. He also cited the case of Chemiron Intn’l Ltd v. Egbujuomma [2007] All FWLR (pt. 395) p. 444. Learned Counsel submitted that in law parties are bound by the terms of their contract and where there is a written contract of employment the court is under a duty to determine the rights of the parties under the contract, citing the case of W.A.E.C v. Oshionebo [2007] All FWLR (pt. 370) p. 1501. That it is settled law that when a contract has been reduced to the form of a document, no evidence may be given of the terms of such contract except the document itself nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence. He referred the court to Section 128 (1) of Evidence Act, Skye Bank Plc v. Akinpelu [2010] All FWLR (pt. 526), Essien v. Etukudo [2009] All FWLR (pt. 496) p. 1886. He therefore submitted that the appointment of the claimant was terminated contrary to terms of the contract of employment dated 9th May, 2011. Arguing issue two, Learned Counsel submitted regarding relief one of the claimant’s claim that the summary dismissal of the claimant by the defendant was a breach of the employment contract between the parties. That the law is that save in the case of misconduct, an employee is entitled to notice of termination irrespective of what the employment contract provided. On distinction between termination and dismissal, Learned Counsel referred the court to Nigerian Commercial Law and Practice Vol. 1 (London) 1983 at pp. 525 to 526 by Olakunle Orojo and the case of National Bank of Nigeria Ltd v. A.A. Solagbade (Suit No. FCA/1/16/77 (unreported). He argued that because the claimant’s termination was with immediate effect without notice his employment was summarily dismissed. On relief two of the claimant’s claim, the Learned Counsel submitted that there is a difference between an employment for a fixed term and probationary employment. That Section 9 (7) of Labour Act is in respect of an employment that terminates by afflux ion of time because such employment is for a term certain citing the book Nigerian Commercial Law and Practice Vol. 1 by Olakunle Orojo p. 509. Learned Counsel argued that by virtue of the claimant’s offer letter of 9th May, 2011 the claimant’s appointment took effect on 9th May, 2011 and being on probation for six months the period of probation started from 10th May, 2011 and ended on 9th November, 2011. He cited the case of Iwuji v. Federal Commissioner for Establishment [1985] 1 NSCC p. 580 which held that once an employee has passed the requisite qualifying Civil Service examinations for confirmation and has spent the period required for confirmation without any adverse report, the issue of confirmation of the employee should be fiat accompli. He also cited the case of Buble v. Nigerian Maritime Services Ltd [1997] UILR 231, Aigoro v. University of Lagos [1979] 10 – 12 CCHCJ 9, Obafemi Awolowo University v. Onabanjo [1991] 5 NWLR (pt. 193) p. 549. Learned Counsel submitted that the confirmed retention of the claimant by the defendant for almost two full months without any written confirmation amounted to an implied confirmation of the claimant by the defendant. On the claimant’s relief three, Learned Counsel submitted that the law is that save in the case of misconduct, an employee is entitled to notice of termination irrespective of what the employment contract provides citing the book, “Employment Law” by Emeka Chiasa p. 293. He argued that where grounds for dismissal are specified the court would construe such grounds as exhaustive citing the case of McClelland v. Northern Ireland General Services Board [1975] 2 All ER 129. He submitted that summary dismissal on the ground of below average performance is alien to the offer letter thereby making the conduct of the defendant ultra vires the terms of the contract. He urged the court to take judicial notice of the fact that in employment circles, summary dismissal carries a stigma which makes it impossible for one to secure alternative employment. He further argued that the defendant did not challenge the evidence of the claimant that he has not been able to …. alternative employment after leaving the employment of the defendant and that unchallenged evidence ought to be accepted by the court citing the case of INEC v. Ray [2005] All FWLR (pt. 265) p. 1047. He also urged the court to take judicial notice of the fact that prospective employers are wary of dismissed employees and that is the reason why employees in Nigeria prefer resignation or notice of termination or salary in lieu of notice to summary dismissal. He enjoined this court to look beyond Labour Law and principles and consider application of treaties and conventions that Nigeria has ratified. That this court has jurisdiction over matters connected with application of international labour standards referring to International Labour Organisation (ILO) Termination of Employment at the Initiative of the Employee Convention [1982] otherwise called Convention 158 of 1982. He argued that applying Article 4 of the ILO Convention to the instant case, it is clear that the defendant has put forward inadmissible hearsay evidence to establish the below average performance of the claimant. That there is no valid reason why the defendant summarily dismissed the claimant, citing the case of Steyer (Nigeria) Ltd v. Gazama [1995] 7 NWLR (pt. 407) p. 305. Arguing relief four, Learned Counsel referred the court to the case of Co-operative & Commercial Bank v. Okonkwo [2002] FWLR (pt. 97) p. 637 on measure of damages in cases of wrongful dismissal. He submitted that in the instant case reasonable notice would apply to terminate the claimant’s employment and urged the court to award the claimant the sum of N41,113.20 as one month salary in lieu of notice of termination which was not paid to him. Concerning the claimant’s relief five, Learned Counsel in assessing the award of damages in a case of wrongful dismissal, the Nigerian Courts have held that the only remedy available to the employee is the award of salary and other benefits that he would have earned if the breach had not occurred citing the case of Co-operative & Commercial Bank v. Owonikoko [2002] FWLR (pt. 97) p. 637. He cited foreign authorities Addis v. Gramophone Co. [1909] AC p. 488, Malik v. Bank of Credit & Commerce Int’l SA (in liq) [1997] 3 All ER, Jarkins v. Swan Tour [1993] QB p. 233, Cox v. Philips Industries Ltd [1976] 3 All ER 161, United Bank v. Akhtar [1989] IRLR 507 and Imperial Group Pension Trust v. Imperial Tobacco [1991] 1 CR p. 524 to buttress his argument that employee is entitled to general damages if they can establish that their employer’s wrong doing is so publicized that their prospects of obtaining fresh employment are blighted and the damages can be given for the disappointment, the distress, the upset and frustration caused by the breach of contract. He submitted that the claimant is entitled to the sum of N3,000,000.00 as general damages for the damage done to his reputation. He submitted that the combined effect of Sections 19 (d) of National Industrial Court Act of 2006 and Section 254 C (1) (F) and (h) of the Constitution mandates this court to award compensation or damages in circumstances contemplated in Section 254 C (1) (f) and (h) of the Third Alteration which is the jurisdiction to apply international labour standards. Arguing relief six, Learned Counsel contended that the defendant’s letter dated 21st September, 2011 that the claimant’s risk allowance has been incorporated into the new salary increment means that the risk allowance in the sum of N10,000.00 has been added to the increased salary of N41,113.20. He further contended that it means that the risk allowance and the salary will no longer be paid at different dates but as one lump sum of N51,113.20 per month. That the defendant was in further breach of contract when it paid the claimant his N41,113.20 salary from October to December only without adding his risk allowance of N10,000.00. He argued that documentary evidence shows clearly that there was an intention on the part of the defendant to be paying the claimant the sum of N51,113.20 comprising risk allowance and salary which was reneged by the defendant for no reason whatsoever. He therefore submitted that the claimant has discharged the onus which the law places on his having successfully proved that the defendant is indebted to him in the sum of N30,000.00 for extra work rendered from October to December, 2011. Arguing issue three, Learned Counsel pointed out that the defendant has failed to argue his counter-claim in its Final Written Address and having failed to argue its counterclaim, same is deemed abandoned. However, he submitted that the defendant’s counsel only succeeded in proving he charged the defendant the cost of N500,000.00 but has failed to prove by any documentary evidence that this sum was actually deposited in his account. He submitted that having failed to discharge the burden placed on it by Section 131 of Evidence Act the defendant wants this court to delve into the realm of speculation citing the case of Isah v. State [2007] 12 NWLR (pt. 1049) p. 582 and AGIP (Nig) Ltd v. AGIP Petroli Intn’l [2010] All FWLR (pt. 520) p. 1198. He urged this court to dismiss to counter claim as there is no evidence the court can rely upon in awarding it. In his reply on points of law, Learned Counsel for the claimant submitted that the argument of the claimant relating to the application of the principle of estoppels against the defendant is totally misconceived as same should be jettisoned. That in this case, the defendant never made any representation to the claimant directly or indirectly and it is not possible at law for estoppel to be used against a party who has not made a representation to the party who is seeking to rely on the fact of estoppel. He referred to the case of Oyerogba v. Olaopa [1998] 13 NWLR (pt. 583) p. 509. Learned Counsel submitted that the contention of the claimant that the court should look beyond our law and apply international labour standards which has not been adopted into our law is call on this court to dispense with the established law relating to the subject matter of this Suit. He submitted that the cases cited by the claimant’s counsel, to wit, Steyer (Nigeria) Ltd v. Gadara (supra), Co-operative & Commercial Bank v. Owonikoko, Addis v. Gramophone & Co and Jarkin v. Swan Tour are at distinct polarity with the facts of the present case cannot avail the claimant and that the said cases relate to dismissal of employees on the ground of gross misconduct. Learned Counsel submitted that assuming but not conceding that the claimant’s employment was terminated without notice, the claimant will only be entitled to salary in lieu of notice. I have carefully considered the processes filed, the submissions of counsel for both parties and the authorities relied upon. In my view, the issues for determination by this court is whether the claimant’s employment was lawfully terminated and whether the defendant is entitled to its counter-claim. The claimant’s employment with the defendant was regulated by a letter of employment dated 9th May, 2011. By the said contract, the claimant became a staff of the defendant but on probation for six months and to be confirmed subject to above-average performance appraisal and receipt of three satisfactory references one of which should be the claimant’s last employer. However, the claimant’s employment as a status driver was not confirmed by the defendant within six months rather by its letter dated 30th December, 2011 the defendant terminated the claimant’s appointment with immediate effect more than one month after the period slated for confirmation of the claimant’s employment. The defendant’s contention is that the claimant’s employment was terminated because the claimant did not meet the above-average performance. That the claimant’s appointment was terminated and not dismissed. The contract envisaged between the claimant and the defendant is that of master servant relationship. Therefore, the defendant can terminate the employment of the claimant but the said termination must comply with the terms of contract. See Daodu v. UBA Plc [2004] 9 NWLR (pt. 878) p. 276 at pp. 293 – 297 where the court held that “an employer can bring the appointment of his employee to an end for any reason or for no reason at all; so long as he acts within the terms of the employment …” By the contract of employment earlier mentioned the claimant’s appointment was on probation but after six months the defendant did not confirm the employment of the claimant but on his seventh month in the defendant’s employment his employment was terminated without notice. The letter of employment did not provide for a period of notice to be given in the event of termination during or after the time of probation. The only provision on notice is the one contained in paragraph five of the letter of employment which states, “As junior staff, you are required to give minimum of (2) weeks’ notice of intention to resign from the bank or pay (2) weeks basic salary in lieu of notice”. As I have stated earlier, it is trite law that the employer has the right to terminate the employment of his employee. See Daodu v. UBA (supra). While the above cited provision on length of notice for termination applies to the claimant the defendant did not make corresponding provision in the event that it intends terminate the employment of the claimant which provision if so made would have been handy in determining the length of notice to be given by the defendant. Be that as it may, the claimant being designated as a Junior staff and having worked for seven months and twenty one (21) days ought to have been entitled to two (2) weeks’ notice or two (2) weeks basic salary in lieu of notice. On the contrary the evidence before the court reveals that the claimant’s employment was terminated without due regard to issue of notice or salary in lieu thereof. Even if there was no mention of notice in the letter of employment, the claimant is nevertheless entitled to notice before his employment will be terminated and in that case, reasonable notice is required. See the case of Maiduguri Flour Mills Ltd v. Abba [1996] 9 NWLR (pt. 473) p. 506 at p. 511. I therefore, hold that the termination of the claimant’s appointment in the manner it was done is wrongful. The claimant is entitled to two weeks’ notice or two weeks’ basic salary in lieu of notice before his employment can be lawfully terminated. Having failed to issue two weeks notice or two weeks basic salary in lieu of notice to the claimant before his employment was terminated, the claimant’s termination of the claimant’s employment is wrongful. In any circumstance where the termination of a contract is declared to be wrongful, the appropriate remedy to be given is the amount of money that is payable during the period of notice to be given by the employer as stipulated in the contract of employment. This is the position of the law and in agreement with submission of the defendant’s counsel. See the cases of Evans Bros (Nig) Pub. Ltd v. Falaiye [2003] 13 NWLR (pt. 838) p. 564 at p. 591, Maiduguri Flour Mills Ltd v. Abba (Supra) at p. 511 paras. C – G. According to the claimant’s letter of employment, his annual basic salary is the sum of N75,000.00 (Seventy Five Thousand Naira only) while his monthly basic salary is N6,250.00. Therefore, the claimant’s two weeks basic salary is the sum of N3,125.00 (Three Thousand, One Hundred and Twenty Five Naira only). The claimant claimed the sum of N30,000.00 as amount due to him being extra work performed for the defendant from October to December, 2011. To this end, the claimant contended that his monthly salary was initially the sum of N30,455.23 plus monthly risk allowance of the sum of N10,000.00 totalling the sum of N41,113.20 per month. That in September, the defendant informed him that the monthly risk allowance has been incorporated into the new salary increment. From the evidence before the court informed by the defendant’s internal memo dated 21st September, 2011 and the claimant’s Statement of Account the defendant incorporated the claimant’s monthly risk allowance sum of N10,000.00 into the claimant’s monthly salary sum of N30,455.23 to pay a monthly lump sum of N41,113.20 as claimant’s salary instead of paying the two amounts as different times. It has not been shown by evidence that the defendant increased the claimant’s salary to the sum of N51,113.20 and same did not reflect in the claimant’s Statement of Account. Consequently, this head of claim for outstanding sum of N30,000.00 from October to December, 2011 is not substantiated. Concerning the defendant’s counter-claim, the defendant contended that it is entitled to the sum of N500,000.00 (Five Hundred Thousand Naira) being the professional fees incurred in respect of this Suit. I have held above, that the termination of the claimant’s employment by the defendant is wrongful and that it ought to have given him two weeks’ notice or two weeks basic salary in lieu of notice before his contract could be lawfully terminated. It therefore means that it is the wrongful act of the defendant that necessitated the institution of this Suit before this court. Consequently, the claim for the sum of N500,000.00 is frivolous, unsubstantiated and incapable of being granted by this court. The counter claimant’s claim for the sum of N1,000,000.00 (One Million Naira) damages for the alleged false depositions made by the claimant and defamation falls outside the jurisdiction of this court. The combined effect of Section 7 of National Industrial Court Act, 2006 and Section 254 C of the Constitution of the Federal Republic of Nigeria, 1999 as amended kept the tort of defamation outside the jurisdiction of this court. Consequently, the counter claimant’s claim for the sum of N1,000,000.00 as damages for defamation is hereby dismissed. In view of the above, I hereby order as follows: 1. The termination of the claimant’s employment is wrongful. 2. The defendant shall pay to the claimant the sum of N3,125.00 (Three Thousand, One Hundred and Twenty Five Naira) being his two weeks basic salary in lieu of notice. 3. The counter claim is hereby dismissed. 4. The defendant shall pay N100,000.00 (One Hundred Thousand Naira) cost to the claimant. Judgment is entered accordingly. …………………………………… Hon. Justice J. T. Agbadu Fishim Judge