Download PDF
By a complaint dated and filed on 27th March 2012, the claimant is claiming against the defendant the following reliefs – 1. An order compelling the defendant to pay to the claimant the sum of N6,088,333.00 (Six Million, Eighty-Eight Thousand, Three Hundred and Thirty-Three Thousand Naira) being the claimant’s outstanding entitlements from the defendant. 2. Interest rate of 25% of the accumulated benefits from now to the tune of the judgment and 15% thereafter till the total sum of money is liquidated. 3. Cost of this action. By paragraph 38 of the statement of facts, the claimant pleaded that she is entitled to the sum of N7,468,333.00 “(Seven Million, Four and Sixty Eight Thousand, Three Hundred and Thirty Three Naira)” being her total entitlements from the defendant, the breakdown of which is as follows – BASIC SALARY N400,000.00 (monthly) N400,000.00 x 3 months N1,200,000.00 TELEPHONE ALLOWANCE 30,000.00 x 3 months N90,000.00 PAY FOR ACCRUED LEAVE OF 13 DAYS i.e. N13,333.33 x 13 days N173,333.00 SALES COMMISSION i.e. 5% of Five Elevators sold at total profit of N31,000,000.00 i.e. 5% of 31,000,000.00 N1,550,000.00 CLAIMANT’S TRANSPORT EXPENDITURE N75,000.00 x 18 Months N1,350,000.00 REFUND OF SHARE CAPITAL PLUS DIVIDEND AT 20% OF SHARE VALUE i.e. N1,750,000.00 + N350,000.00 N2,100,000.00 SALARY IN LIEU OF NOTICE i.e. N400,000.00 x 6 Months N2,400,000.00 BREAKDOWN N1,200,000.00 N90,000.00 N173,333.00 N1,550,000.00 N1,350,000.00 N2,100,000.00 N2,400,000.00 …………….. TOTAL N7,468,333.00 - N1,380,000.00 (Money paid by the defendant) ……………... N7,088,333.00 But in paragraph 39 of the statement of facts, the claimant pleaded that the total amount outstanding to her from the defendant is N6,088,333.00 (Six Million, Eighty-Eight Thousand, Three Hundred and Thirty-Three Thousand Naira). In paragraphs 36 and 37, the claimant acknowledged that the defendant paid to her by cheque the sum of N1,380,000.00 in response to her counsel’s letter of demand for her entitlements. In paragraph 2.7 of the claimant’s written address, however, the claimant said she is entitled to the sum of N8,863,333.00 (Eight Million, Eight Hundred and Sixty-Three Thousand, Three Hundred and Thirty-Three Naira) but was paid N1,380,000.00 (One Million, Three Hundred and Eighty Thousand Naira) leaving a balance of N7,483,333.00 (Seven Million, Four Hundred and Eight-Three Thousand, Three Hundred and Thirty-Three Naira). In consequence of this, the claimant in paragraph 1.1 of her final written address indicated that her relief 1 is for – An order compelling the defendant to pay to the claimant the sum of N7,483,333.00 (Seven Million, Four Hundred and Eighty-Three Thousand, Three Hundred and Thirty-Three Naira). Being the balance of her entitlement owed her by the defendant. See also paragraph 4.10 of the claimant’s final written address. Accompanying the complaint are the statement of facts, the list of witnesses, list and copies of the documents to be relied upon at the trial. The claimant’s testimony on oath was later filed on 11th May 2012. The defendant entered appearance by filing its memorandum of appearance together with its statement of defence, list of documents, list of witness(es) and copies of the documents to be relied upon at the trial. The claimant reacted by filing a reply to the statement of defence, claimant’s further testimony on oath, claimant’s additional list of documents and copies of the additional documents. The defendant later applied to substitute its witness and witness deposition on oath. The Court by order on 8th May 2013 granted this prayer. The parties called witnesses at the trial. The claimant testified on her own behalf as CW; while Miss Lynda Awodi, who works as a Manager in Admin and also does secretarial work in the defendant company, testified on behalf of the defendant as DW. At the close of trial, parties filed and served their written addresses starting with the defendant in accordance with Order 19 Rule 13 of the National Industrial Court (NIC) Rules 2007. The defendant’s written address is dated 22nd October 2013 but filed on 24th October 2013, while that of the claimant is dated 11th November 2013 but filed on 14th November 2013. The defendant’s reply on points of law is dated and filed on 22nd January 2014. The case of the claimant is that she was employed by the defendant via a letter dated 1st June 2010 and she worked for the defendant from that date to 13th December as Executive Director for marketing. While in employment, she was offered 10% of the equity shares of the company via a letter dated 9th June 2010, which was less than the 15% that was orally promised to her before her employment. That she paid the sum of N1,750,000.00 (One Million, Seven Hundred and Fifty Thousand Naira) being the payment for the claimant’s call-up share allotment in the defendant. It is also the case of the claimant that at the time of her employment, and during the several discussions leading to her employment, it was agreed that she would be entitled to a 5% commission on every elevator she sold. That without any justification, the defendant reneged on this agreed 5%. Also that her shares were arbitrarily reduced from 15% to 10% without her consent. She went on that she received a personal loan of N2,000,000.00 (Two Million Naira) from the defendant to be used towards her housing, half of which has been repaid. The claimant continued that prior to this, the defendant’s Managing Director, Benjamin Wilcox, sent her an “Internal memo” dated 5th August 2011 which pointed out that she had only paid N1,000,000.00 (One Million Naira) of the N2,000,000.00 (Two Million Naira) loan referred to. It was also by this letter that the defendant purported to renege from the agreement to pay commission to the claimant. The claimant went on that within the duration of her employment, she sold 5 (Five) Elevators and was in the process of perfecting other sales before the termination of her employment. That she was issued a letter of suspension dated 25th October 2011 and signed by Mr. Benjamin Wilcox in which she was purportedly suspended from work. She was then subsequently issued with a letter titled “Termination of Appointment” dated 13th December 2011 and signed by Mr. Wilcox which purportedly terminated her appointment. That the purported termination of her employment with the defendant did not follow due process and was spearheaded by the defendant’s Managing Director, Mr. Benjamin Wilcox. It is further the case of the claimant that without any prior information or any justification, the defendant withheld and refused to pay her salary for 3 (three) months from October to December 2011; and this was done upon the instructions of Mr. Benjamin Wilcox to the defendant’s Accountant. To the claimant, in response to her solicitor’s letter of 17th January 2012 (Exhibit T), the defendant issued a cheque of N1,380,000.00 (One Million Three Hundred and Eighty Thousand Naira) dated 24th February 2012 via a letter of the same date (Exhibit U) where the defendant purported to settle the claimant’s demands. On the other hand, the case of the defendant is that it employed the claimant but not including the period of the suspension of the claimant for 3 months from 25th October 2010 – 25th January 2011. That during her suspension, the claimant was not entitled to any payment of sales, phone allowance or any other payment or allowance as she was deemed not to be working for the defendant. That when the claimant began work she knew what her scope of duties was as it was communicated to her in the several meetings and in correspondence between the defendant and the claimant and yet the claimant failed to perform her duties as Executive Director of Marketing. This ultimately led to the claimant’s suspension and her subsequent dismissal on the 13th of December 2011. The defendant went on that the claimant was offered only 10% equity shares of the defendant contrary to the claimant’s claim of 15%. That the claimant paid for the 10% equity called up share capital in the defendant. To the defendant, it was agreed by all at the defendant’s staff meeting at which the claimant was present that Directors are not and would not be entitled to a sales commission. The defendant denied that the claimant brought in any sales; instead that the sales were due to the efforts and network of the defendant’s Board of Directors. The defendant continued that it issued a loan to the claimant for N2,000,000.00 (Two Million Naira). That for the 18 months the claimant worked with the defendant she never made any claim or request for transport expenditure because she had access to the defendant’s vehicle which was fuelled and maintained with the defendant’s funds. On the contrary, that it was the claimant as the head of marketing who drew the rooster on how the defendant company vehicles should be used. The defendant went on that even after being suspended, the claimant disregarded the suspension order. The defendant denied that neither it nor its agents ever threatened or intimidated the claimant. That contrary to the claims of the claimant as to harassment and intimidation, it is the defendant’s Managing Director, Benjamin Wilcox, who has been harassed using the apparatus of state agency. Regarding the claimant’s performance on her job, the defendant contended that it was: (a) poor and below the standard expected by the defendant’s Board of Directors and (b) below that of any professional standard. That this led to the claimant being reprimanded and cautioned several times because of her behaviour and performance. To the defendant, the claimant was never a confirmed employee of the defendant and, therefore, was not entitled to any paid leave as is normal practice and as contained in the defendant’s offer letter to the claimant dated 21st May 2010. The defendant continued that the amount outstanding to the claimant is N1,380,000.00 (One million Three Hundred and Eighty Thousand Naira) which breaks down as described in the claimant’s termination letter dated 24th February 2012. That the said amount has already been paid and accepted by the claimant by bank draft dated 24th February 2012. Lastly, that the defendant is controlled by its Board of Directors and shareholders and not by the unilateral action or decision of its Managing Director, Chairman or any other individual Board member(s) acting without the backing of the Board. The defendant then framed one issue for the determination of the Court, namely – Whether having regard to the terms of the claimant’s contract of employment with the defendant, the status and conduct of the claimant during her employment and to all the circumstances of her employment and remuneration, the claimant is entitled to the reliefs set out in her statement of claim. The defendant contended that regarding this suit, in the evaluation of the rights and liabilities of the parties, the Court must confine itself to the employment contract, citing Shell Petroleum Development Co. v. Lawson-Jack [1998] 4 NWLR 249 of 271 F – G and College of Medicine of University of Lagos v. Adegbite [1973] NSCC 323. On the issue of the claimant’s claim that he suspension was unwarranted and did not follow due process because she was not invited to the meeting held by the defendant’s Directors after which she was suspended, the defendant contended that it is clear that the claimant’s behaviour and job performance was below par and clearly warranted a suspension, referring to the letter of caution dated 19th October 2011. To the defendant, the Managing Director has the authority to discipline and suspend employees such as the claimant for poor and improper conduct. That the claimant began work but knew what her scope of duties were as they were communicated to her in the several meetings and correspondences between the defendant and the claimant and yet the claimant failed to perform her duties as the Executive Director of Marketing. This ultimately led to the claimant’s suspension and subsequent dismissal, referring to Exhibits D1, D2 and Exhibit D3 i.e. the minutes of its meeting held on 19th August 2011 and the defendant’s letters to the claimant dated 25th October 2011 and 4th November 2011. To the defendant, statutory prescriptions and practice grant the Managing Director broad powers to regulate and manage the day to day affairs of the company. The power is well established in Nigerian company law, citing Longe v. First Bank of Nigeria Plc [2010] 6 NWLR (Pt. 1189) 1 SC. Particularly, that there is a power to suspend and dismiss employees when there are grounds such as insubordination and negligent handling of responsibility necessitating such action, referring to the defendant’s letter to the claimant dated 19th October 2011 (Exhibit N) and the defendant’s Internal Memo dated 10th October 2011 (Exhibit M). Given the reliefs sought by the claimant, the defendant referred the Court to Shell Petroleum Development Co. v. Lawson-Jack [1989] 4 NWLR (Pt. 545) 249 at 270 and University of Calabar v. Esiogu [1997] 4 NWLR (Pt. 502) 719 at 723 regarding the meaning of the word “suspension” as an administrative act in master-servant contracts. Shell Petroleum Development Co. v. Lawson-Jack defined it as follows – A suspension of an employee is not an unusual procedure taken in order to facilitate on investigation. Thus an employee affected by suspension can hardly complain of not having been given a hearing; nor can he demand that the rules of natural justice should apply. The interest of the business of the employer becomes paramount and the employee is made to keep off the premises thereof until later. In terms of the consequences of suspension of an employee, that University of Calabar v. Esiogu reasoned as follows – The word ‘suspension’ means a temporary privation or deprivation, cassation or stoppage of or from the privileges and rights of person. The word carries or conveys a temporary or transient disciplinary procedure which keeps away the victims or person disciplined from his regular occupation or calling either for a fixed or terminal period or indefinitely. The disciplinary procedure gives the initiator of the discipline a period to make up his mind as to what should be done to the person facing the discipline. Although in most cases suspension results in a disciplinary action, it is not invariably so. There are instances when the authority decides not to continue with the matter. This could be because the investigations did not result in any disciplinary conduct. To the defendant, the most important thing relative to the claimant’s reliefs is the consequence of suspension on the remuneration and benefits accruing during a suspension. That the Supreme Court in Longe v. FBN [2010] 6 NWLR (Pt. 1189) made specific pronouncements on the nature and import of a suspension of an employee to the effect that “suspension is usually a prelude to dismissal from on employment. It is a state of affairs which exists while there is a contract in force between the employer and the employee, but while there is neither work being done in pursuance of it nor remuneration being paid....” That it was however held in Amadiume v. Ibok [2006] 6 NWLR (Pt. 975) 152, that “the suspension of a servant or an employee when necessary cannot amount to breach of the servant or employee’s fundamental or common law rights”. The defendant continued that the authors and contributors to Halsbury's Laws of England, Third Edition, Volume 25 at pages 518 – 519 stated as follows regarding suspension – But the law is clear that during a suspension, as far as there is no contrary provision in the employment contract, wages and benefits are frozen for the period of the suspension, and the intention of the parties is taken to have been that for the period of suspension mutual duties and rights, including the right of wages, would be suspended. That this principle applies to the suspension of the claimant and to freeze her salary, allowances and other benefits and allotments for the duration of her suspension. To further buttress the above point, that in Michelin (Nig.) Ltd v. Alaribe [2010] All FWLR (Pt. 543) 1998 CA, it was held that – Suspension without pay means all remunerations are put on hold, rusticated, debarred and discontinued. A servant is not entitled to claim wages he did not earn. In the instant case, where the Plaintiff was suspended without pay, the trial court wrongly held that he was entitled to payment for the period he was on suspension. The defendant then submitted that in the instant case, the defendant was not only entitled to suspend the claimant, but was entitled to do so without pay as the claimant is not entitled to receive “wages that she did not earn” as provided for in the above mentioned case. On the issue of the claimant’s claim for salary in lieu of notice upon dismissal/termination, the defendant contended that the first issue to take note of is the status of the claimant/employee during her employment as an unconfirmed employee on probation. That the terms of the employment contract as contained in the defendant’s letter to the claimant dated 21st May 2010 (Exhibit A) state that the claimant shall be on probation until she is formally confirmed. That the claimant was never confirmed; and judging from her misconduct and poor behaviour on the job, it is easy to understand why. On the contrary, that the correspondence between the defendant and the claimant does not point towards confirmation, not even implicitly. Rather the claimant was warned and cautioned by the defendant on different occasions and ultimately suspended and then dismissed. That this is not a meaningless distinction – unconfirmed employees are owed a great deal less by way of duties by their employers. That in Ihezakwu v. University of Jos [1990] 4 NWLR (Pt. 146) 598, it was held per Obaseki, JSC at 612 that – An unconfirmed employee does not enjoy the permanence of employment which a confirmed employee enjoys. To the defendant, the status of an unconfirmed employee is much more tenuous than for confirmed staff. The probationary period is one where the law permits an employer to examine an employee to determine if he or she has the skills and behavioural traits to succeed in the job or organization before being cloaked with the security and tenure of permanent employment. That the claimant in the present case was still being examined when she began exhibiting behavioural and character deficiencies and lack of skills necessary to succeed in the job of marketing of elevators. This is evidenced by the series of letters written by the defendant to the claimant expressing concern about her performance. The question then according to the defendant is how the Court can be sure that the claimant was up until the time of her suspension and dismissal an “unconfirmed employee”. That in University of Calabar v. Inyang [1993] 5 NWLR 100 at pp. 116, the learned Akintan, JSC noted that the way to determine if an employee has been confirmed is by looking at the documents: “It is clear from the documents tendered at the trial (some of which are reproduced hereof) that the respondent was a confirmed permanent staff of the appellant”. That the employee was determined to be confirmed in that case, but the procedure and avenue for this determination was by examination of the documents tendered in Court, citing Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9) 599. The defendant also referred to Exhibit A wherein the terms of the employment contract between the claimant and the defendant clearly state that the claimant would be on probation until confirmed by the defendant. That the claimant had not yet been confirmed by the defendant at the time of her dismissal from the employment of the defendant. The defendant went on that when the confirmation of an employee’s appointment is made subject to certain conditions, there cannot be any vested right when an exercise is made subject to the fulfilment of some conditions and acceptance of those conditions at the discretion of the affirming body. That “in the instant case, in view of the right vested on the Board to confirm or withhold confirmation of the appellant’s appointment, it cannot be deemed that the confirmation of their appointment is automatic once they served for two years”. In addition, that since it has been established by the evidence in the series of letters written to the claimant as well as by the testimony of the defendant’s witness that the claimant’s behavioural defects and inexperience was an unresolvable issue, the legal avenue open to the defendant, after several warnings was to dismiss the claimant/employee. That the law grants the employer the power to dismiss an unconfirmed employee, citing Baba v. Nigerian Civil Aviation Training Centre (NCATC) [1991] 5 NWLR (Pt. 192) 388 SC. The defendant continued that in the termination of an officer on probation, no particular procedure needs be followed once the master/employer is satisfied that there is good cause for the termination, citing Nitel v. Akwa [2006] 2 NWLR (Pt. 964) 391 at 416 – 417 and Baba v. NCATC [1991] 5 NWLR (Pt. 192) 388. That it is clear, therefore, that the defendant was well within its rights and powers to suspend the claimant. The defendant went on that in law it can dismiss the claimant for good cause, citing Maja v. Stocco [1968] 5 NSCC 112 at 119, LCRI v. Ndafoh [1997] NWLR (Pt. 491) 72 at 79 – 80 and lsierwore v. NEPA [2002] 13 NWLR (Pt.784) 417 at 434. Regarding the grounds for dismissal, the defendant cited Chitty’s The Law of Contracts, Volume 11 (specific contracts) 23rd edition, at page 671 where it is provided that the express terms of the contract of employment will govern any aspect of the relationship between the parties which falls within those terms. But in practice many aspects of the relationship will be left to implied terms or to the usages and customs which prevail in any particular trade or occupation and which the parties must have intended to be incorporated into the contract. Thus under common law absence from work by any employee is gross misconduct which entitles the employer to dismiss (British American Ins. Co. v. Omolayo [1991] 2 NWLR (Pt. 176) 721 at 727). To the defendant, an employee may be summarily dismissed if he wilfully disobeys any lawful and reasonable order of his employer. That if an employee was engaged on the basis that he possessed a particular skill, he may be dismissed summarily without notice if he fails to display a reasonable degree of competence in that skill, And any employee whether he professes a particular skill or not is liable to be dismissed summarily if he performs his work so negligently that his employer’s business is likely to be seriously injured. To the defendant, there is no fixed rule of law defining the degree of misconduct which would justify a dismissal. It is enough that the conduct of the servant is of grave and weighty character as to undermine the confidence which should exist between him and the master, citing Ajayi v. Texaco (Nig.) Ltd [1987] 3 NWLR (Pt. 62) 577 at 579, Ekunola v. CBN [2006] 14 NWLR (Pt. 1000) 292 and Abomeli v, NRC [1995] 1 NWLR (Pt. 372) 451 at 456 and 457. That there are various degrees of misconduct which can give an employer liberty to dismiss an employee e.g. dishonesty or fraud of the employee in his employment, grave and weighty misconduct, dissatisfaction with the employee’s misconduct or case of infidelity, referring to Savannah Bank (Nig.) Plc v. Fakokun [2002] 1 NWLR (Pt. 749) 544 at 560. That in Sule v. Nigerian Cotton Board [1985] 2 NWLR (Pt. 5) 17 it was held that the real issue in the appeal was whether the plaintiff who was compulsorily retired at the age of 53 years because of his disobedience and insubordination can complain that such retirement was unlawful and wrongful. That the Court held the plaintiff to be grateful to the Board for not dismissing him summarily. In the instant case, that even though the claimant was duly suspended by the defendant, she continued to disobey the defendant and stay in the defendant’s premises and refused to vacate the defendant’s premises even though she had been cautioned about this by the defendant on several occasions, referring to the defendant’s letter dated 4th November 2011 (Exhibit D3). On the consequences of dismissal and the claimant’s claim for salary in lieu of notice, the defendant contended that in Aborneli v. NRC [1995] 1 NWLR (Pt. 372) 451 at 456 and Irem v. Obudra District Council and another Vol. 1 (1960) NSCC 16, it was held that dismissal carries infamy and deprives one of benefits while termination does not. That it is also settled that no employer has any obligation whatsoever to award any financial compensation to a dismissed employee. This is, however, without prejudice to the refunding of whatever financial contributions the dismissed employee might have made into any financial scheme set up by the employer for the benefit of the employee, citing NNB Plc v. Imonike [2002] 5 NWLR (Pt. 760) 294 at 322 – 323. That in the instant case, the defendant does not owe the claimant any money and has duly paid her off for her services by way of bank draft dated 24th February 2012 (Exhibit D). However, that it is the claimant who owes the defendant the sum of N1,000,000.00 (One Million Naira) from the undischarged loan granted to the claimant by the defendant. On the question of the accrued leave, the defendant contended that it has defrayed the accrued leave via payment by way of a bank draft dated 24th February 2012 (Exhibit D4) of N1,380,000.00 (One Million, Three Hundred and Eighty Thousand Naira). On the issue of sales commission, the defendant submitted that the claimant was not entitled to any sales commission for two reasons – a) The claimant has never sold an elevator for or on behalf of the defendant and, therefore, even if it is assumed without conceding that the claimant was entitled to commission by the terms of her employment contract, she still would not have earned a commission. The claimant did not bring in any sales, as the sales were due to the efforts and influence of the defendant’s Managing Director and Board of Directors. b) The claimant was never entitled to a commission for sales. The employment contract does not stipulate this and there is no agreement expressly or impliedly between the claimant and defendant for paid commission upon sale. In fact, that there was a meeting of the Directors wherein it was resolved inter alia that the company Directors as the claimant was, shall not be entitled to any sales commission. Referring to the extract of minutes of the said meeting held on 19th August 2011 (Exhibit D2). To the defendant, the master-servant relationship is governed by the terms of the contract and so no new terms should be read into the agreement of the parties, certainly not new terms as to sales commission. Regarding the refund of share capital, the defendant contended that the claimant’s shares in the defendant i.e. 10% are subject to the same rights, liabilities and duties as any other shareholder. That the correct avenue for the claimant to seek value for her shares is in the open market and not by way of litigation, referring to section 115 of the Companies and Allied Matters Act Cap. C20 LFN 2004, which states that – The shares or other interests of a member in a company shall be properly transferable in the manner provided in the articles of association of the Company. In conclusion, the defendant submitted that that the claimant’s case is frivolous and a malicious attempt to further victimise the defendant for terminating her employment, urging the Court to dismiss the claimant’s claim and grant the defendant substantial costs. The claimant framed four issues for the determination of the Court, namely – 1. Whether the claimant is entitled to the claims as per her statement of claim. 2. Whether the defendant has the power to reduce the claimant’s share from “15% 10% to 5%” without her consent. 3. Whether or not the claimant is a member of the defendant company and entitled to all benefits accruing to members. 4. Whether the claimant is entitled to damages. On issue 1, the claimant contended that she was in employment of the defendant for 18 months before the dispute arose between her and the Managing Director of the defendant. She referred to Exhibit G, an unsigned letter dated 17th September 2010 under the name of the claimant and meant for ‘Sir Wilcox’ and the summarized report to the Board at the emergency meeting in April as illustrating the challenges she faced during her employment with the defendant and her call for change to ensure that she carried out her duties well. She further referred to Exhibit F, a letter from the claimant to an addressee that is not disclosed and which letter appears undated (except for some superimposed handwritten figures i.e. 20-7-10). Exhibit F is titled “Re: Acknowledgment Letter of Indebtedness for the sum of N2,000,000.00 [Housing Loan]”. To the claimant Exhibit F shows that the N2,000,000 loan was given to her as a personal loan from the Managing Director of the defendant. That DW under cross-examination admitted that the cheque was issued in the Managing Director’s personal company, referring to Ogaji v. Igonikon-Digbani [2010] 10 NWLR (Pt. 1202) 289 at 249, Kwentoh v. Kwentoh [2010] 5 NWLR (Pt. 1188) 543 CA and Jolasun v. Bangboye [2010] 9 NWLR (Pt. 1199) 285 CA as establishing that facts not disputed or challenged require no further proof. In any case, that Exhibit F in paragraph 6 shows that the claimant promised to pay back some part of the loan with her sales commission. The claimant continued that in her examination in chief, she relied on Exhibit P and contradicted all the averments in paragraph 18 of the defendant’s statement of defence. That reading Exhibit M (letter dated 10th October 2011) with Exhibits N, O and P will show that the actions of the defendant were acts of malice intended to frustrate the claimant. The claimant then submitted that contrary to the assertion of the defendant, she was a confirmed staff and entitled to all the benefits thereto. That her letter of employment (Exhibit A) clearly states that subject to satisfactory performance, the company will confirm her appointment at the end of six months probationary period. It is, therefore, the contention of the claimant that having worked 18 months without a letter of extension of the probationary period at the expiration of six months is indeed confirmed as staff. It is further the case of the claimant that issuance of extension of probationary period was not pleaded by the defendant as there was no such document and that the defendant’s letter of appraisal was issued at the heat of caries between the claimant and the Managing Director of the defendant. That the claimant is indeed a confirmed staff of the defendant “given by the circumstances of their appointment”. To the claimant, the submission of the defendant that the employment of the claimant was not confirmed remains an oral evidence which the Court will not allow to contradict a written document, relying on Agbakoba v INEC [2008] 18 NWLR (Pt. 1119) 489 at 506, Nnubia v. AG, Rivers State [1999] 12 NWLR (Pt. 593) 82 and B. O In Ltd v. Akintoye [1999] 12 NWLR (Pt. 631) 392. The claimant went on that it is her case that she sold 5 elevators for the defendant of which she is entitled to 5% of each sale. That Exhibit K (the defendant’s letter dated 19th October 2011) especially in paragraph 2 is contrary to the averments of the defendant that the claimant never sold any elevator for the defendant. That even by Exhibit H, the defendant never denied making promises to the claimant to pay 5% of every elevator sold but only stated that the company is young and growing and has not paid to any staff for previous sales. That in UBA Plc v. Edamkue [2005] 7 NWLR (Pt. 925) 527, the Court of Appeal held that it is good for a company to honour its undertakings as when due. The claimant continued that she is entitled to a balance of N7,088,00.00 (Seven Million, Eighty-Eight Thousand, Three Hundred and Thirty-Three Naira) being the balance of her entitlement with the defendant. That her solicitor wrote to the defendant and demanded for the balance of her entitlement without response or payment from the defendant. To the claimant, the loan balance of N1,000,000.00 (One Million Naira) is a personal loan from the Managing director of the defendant and that is no privity of contract between her and the defendant as it relates to loan. That all her withheld salaries and shares in the defendant and other unpaid allowances are an act of malice, praying the Court to so hold. Regarding issue 2 i.e. whether the defendant has the power to reduce the claimant’s shares without the claimant’s consent, the claimant contended that the defendant has no such powers under CAMA, referring to sections 126 and 128(2) of CAMA. That the defendant infringed on the rights of the claimant by reducing her shares without her written or oral consent, urging the Court to so hold. On issue 3 i.e. whether or not the claimant is a member of the defendant’s company, the claimant submitted that she is, following which she is entitled to notices of meetings, bonuses and other benefits accruing to members of the company, referring to section 79(3) of CAMA, Contract Resources Nig. Ltd v Dominic Wend [1988] 5 NWLR (Pt. 549) 243 at 247 and Oilfield Supply Centre v. Johnson [1987] 2 NWLR (Pt. 58) 492. Regarding issue 4 i.e. whether or not the claimant is entitled to damages, the claimant submitted that the way and manner she was removed as a Director and shareholder of the defendant’s company is in total conflict with section 262 of CAMA, which provides that a company may by ordinary resolution remove a Director before the expiration of his period of office, notwithstanding anything to the contrary in its articles or in any agreement between it and him. That “no such notice was served on the defendant before she was forcefully removed from the company”, relying on Longe v. First Bank of Nig. Plc [2010] 6 NWLR (Pt. 1189) 1 at 5. Furthermore, that she was not notified or invited for company meeting even when she was agitating for a meeting of the Directors to be called to allow her vent her grievances. To the claimant, the defendant went ahead and issued her with a termination letter. The claimant then referred to Exhibit R, which to her is a letter dated 30th November 2011 addressed to the defendant’s Managing Director. The letter (although coming from the claimant) is actually for the attention of the Chairman, not Managing Director, and prays for an emergency Board meeting. The claimant went on that assuming without conceding that notice of removal was served on her, the failure to invite or notify her to the meeting wherein this decision was reached felts the value of such notice, relying on Longe v. First Bank of Nig. Plc (supra). The claimant also referred to the Court of Appeal decision in Longe v. First Bank Nig. Plc [2006] 3 NWLR (Pt. 167) 228 at 240 where it was held that there is no provision in CAMA for suspension or disciplining of an Executive Director. To the claimant, she is entitled to damages for the ill-treatment meted out t her by the defendant, praying the Court to so hold and resolve all the issues in her favour. The claimant then went on incoherently I must say to state that “contrary to the argument canvassed by the defendant confirmation of employment. There was no extension of probationer period and the letter of employment stated 6 months probation”. Continuing incoherently, the claimant went on that “letter of the defendant through which some of the termination benefits were paid – listed among others……Termination benefits unspent leave allowance and in the defendant’s statement of defence they claimed she is not entitled to leave”. The claimant then referred to Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9) 599 at 602. The claimant continued that the position of the defendant that the correct avenue for the claimant to seek value for her shares through the open market is unknown to law and was not supported with authorities. That the defendant is a limited liability company and not listed in the Nigerian Stock Exchange. In conclusion, the claimant urged the Court to grant the reliefs she claims as that will meet the justice of the case. The defendant reacted to the written address of the claimant by filing a reply on points of law. On whether confirmation can be implied, the defendant contended that in Oluseye v. LAWMA [2003] 17 NWLR 307, the appellant was offered a 12 months probationary appointment to the post of Director of Finance. This appointment was subject to the attainment of certain targets set by the respondent and attached to the letter. At the end of the probationary period, the appointment of the appellant was not confirmed, “yet the appellant continued to work after the expiry of that period”. That the Court of Appeal held at page 230 (G – H) that – In the instant case, it cannot be said that a confirmation of the appellant’s appointment could be implied for reason of the fact that he had completed the probationary period. By Exhibit D, the letter of termination, the respondent did not acquiesce in the appellant’s inadequacies and the confirmation of the appellant’s employment was conditional upon the fulfilment of the conditions set out by the respondent. Although the respondent would ordinarily have been held to have impliedly confirmed the appellant’s employment having allowed him to continue in office, this is limited by the targets set for the appellant. That in the above case, the appellant’s failure to achieve his targets were further grounds other than that there was no actual confirmation to reach the conclusion that he was still on probation. The claimant herein was given several warning and suspension letters, all of which are pleaded, prior to termination and no confirmation of her employment was ever given to the claimant by the defendant. On whether the quantum of claim can be amended in the final address, the defendant referred the Court to Stowe v. Benstowe [2012] LPELR – SC 11/2003 and Oyeneyin v. Akinkugbe [2000] LPELR – CA/B/253/96; [2001] 1 NWLR (Pt. 693) 40 where it was held that no Court has the right to grant a relief not sought and a trial court should confine itself to the reliefs raised by the parties in their pleadings and not venture into reliefs not pleaded. On whether shares can be allotted, the defendant again referred to section 115 of the Companies and Allied Matters Act. That section 83 of the Company and Allied Matters Act also provides that every company shall keep a register of its members and the entry required under paragraphs (a) or (b) of subsection (1) of this section shall be made within twenty-eight days of the conclusion of the agreement with the company to become a member. Also referred to the Court is African Continental Seaways v. Nig. Dredging Road & Gen. Works Ltd [1997] 5 SC 235 at 244. Furthermore, that section 151 of CAMA provides the procedure for the transfer of shares in a company. That it states that the transfer of shares in a company shall be done by an instrument of transfer. Notwithstanding anything in the articles of a company it shall not be lawful of the company to register a transfer of shares in the company unless a proper instrument of transfer has been delivered to the company. The said instrument of transfer of any shares shall be executed by or on behalf of the transferee and the transferor of the share shall be deemed to remain the owner of the share until the name of the transferee is entered in the register of members in respect of the shares. Also referred to the Court is Inyang v. Ebeng [2002] 2 NWLR (Pt. 751) 284 at 329 – 330. To the defendant, concerning a private company, under section 22(2) of CAMA, the articles of private companies shall restrict the transfer of shares in such companies. Furthermore a private company is not allowed unless authorized by law to invite the public to subscribe for any shares or debentures of the company or deposit money for fixed or payable call, referring to Moodie & anor v. WJ Shepard (Book Binders) Limited & ors [1994] 2 All ER 1044. On the need for notice prior to suspension or termination, the defendant referred to Longe v. FBN Plc [2010] 6 NWLR (Pt. 1189) 1 SC where it was held that the word ‘suspension’ means “a temporary deprivation, cessation or stoppage of or form the privileges and rights of a person”. That the disciplinary procedure gives the initiator of the discipline a period to make up his mind as to what should be done to the person facing the discipline and suspension is usually a prelude to dismissal from an employment. Finally, that suspension can be summarized as a state of affairs which exists while the contract is still in force between the employer/employee but while there is neither work being done in pursuance of it nor remuneration being paid and this does not amount to determination or dismissal. Furthermore, that it was also held that: “...in the master and master relationship, the master has unfettered right to terminate the employment. However, in doing so he must comply with the procedure stipulated in the contract”. In this particular case, that the said contract of employment between the “master and servant” i.e. the defendant and the claimant is silent as per the grounds that give right to termination of employment. Therefore, and as provided above, the master (the defendant) had the “unfettered right” to terminate the claimant’s employment. That the claimant acquiesced to this position by signing the said contract of employment. To the defendant, it is noteworthy to state that the above position does not affect the claimant’s status as a Director in the defendant and this is indeed supported by the provisions of CAMA, which clearly spells out the detailed procedure of removing a Director in section 262. That the above provision merely deals with her termination from the position of employee in the defendant. I heard learned counsel in the matter and considered all the processes filed by parties. I must remark on the inelegance of counsel to the claimant. Despite orally applying at the Court’s sitting of 25th July 2012 to correct the typographical errors in the sums claimed from this Court (see for instance paragraph 38 of the statement of facts where the figure ‘N155,000.00’ was altered to read ‘N1,550,000.00’ in items d and g, and the total sum of ‘N6,088,333.00’ was changed to ‘N7,088,333.00’, the claim as per relief 1 still remained for “an order compelling the defendant to pay to the claimant the sum of N6,088,333.00 (Six Million, Eighty-Eight Thousand, Three Hundred and Thirty-Three Thousand Naira) being the claimant’s outstanding entitlements from the defendant”. This remained the case in paragraph 39 of the statement of facts, where the claimant pleaded that the total amount outstanding to her from the defendant is N6,088,333.00 (Six Million, Eighty-Eight Thousand, Three Hundred and Thirty-Three Thousand Naira). It was in paragraph 2.7 of the claimant’s written address, that the claimant said she is entitled to the sum of N8,863,333.00 (Eight Million, Eight Hundred and Sixty-Three Thousand, Three Hundred and Thirty-Three Naira) but was paid N1,380,000.00 (One Million, Three Hundred and Eighty Thousand Naira) leaving a balance of N7,483,333.00 (Seven Million, Four Hundred and Eight-Three Thousand, Three Hundred and Thirty-Three Naira). In consequence of this, the claimant in paragraph 1.1 of her final written address then indicated that her relief 1 is for – An order compelling the defendant to pay to the claimant the sum of N7,483,333.00 (Seven Million, Four Hundred and Eighty-Three Thousand, Three Hundred and Thirty-Three Naira). Being the balance of her entitlement owed her by the defendant. See also paragraph 4.10 of the claimant’s final written address, which reiterates this. A closer look at paragraph 38 of the statement of facts will reveal that in the breakdown of the total claims of the claimant, she indicated that the total is N7,468,333.00 which sum if N1,380,000.00 is subtracted from will come to N6,088,333.00. It is this sum of N6,088,333.00 that I indicated earlier that the counsel to the claimant orally applied to be changed to N7,088,333.00. What all this mess adds up to is that I do not know what the claimant is actually claiming for. The defendant rightly asked whether the quantum of claim can be amended in the final address. I agree with the defendant that the claimant cannot, and that no Court has the right to grant a relief not sought and a trial court should confine itself to the reliefs raised by the parties in their pleadings and not venture into reliefs not pleaded. Added to this inelegance of counsel is having to rely on Exhibits G, F, S and Y. Exhibit G is an unsigned document, Exhibit F is a letter from the claimant to an addressee that is not disclosed and which letter appears undated (except for some superimposed handwritten figures i.e. 20-7-10). Exhibit S is an unsigned minutes of a meeting. And Exhibit Y is an unsigned document detailing the challenges to marketing and sales regarding the defendant company. It has the figures 19-4-11 written in hand as date; and it does not disclose who it is meant for. In law an unsigned (and even if certified true copy of a) document has no evidential value (Edilco (Nig.) Ltd v. UBA Plc [2000] FWLR (Pt. 21) 792); and an undated letter is invalid (Oghahon v. Reg. Trustee CCGG [2001] FWLR (Pt. 80) 1496; [2002] NWLR (Pt. 749) 675). In consequence, I will discountenance Exhibits G, F, S and Y for purposes of this judgment. By Exhibit A, the claimant was offered appointment as “Executive Director – Marketing” on a gross monthly salary of N400,000.00. The offer also stated that subject to satisfactory performance, the company will confirm her appointment at the end of six months probationary period. Also that the claimant will be entitled to four weeks annual leave. The claimant accepted the offer of appointment vide Exhibit B. By Exhibit C, she was given a shareholding offer of 10% equity of the company; and by Exhibit D, she was to forward her cheque for the 15% call-up capital, which she paid N1,750,000.00 vide a bank draft vide Exhibit E. Exhibit K is a letter dated 19th October 2011 and titled, “Performance Appraisal”. In it, the company stated that it cannot confirm the claimant given her low productivity and insubordination to management as well as the queries and warning issued to her. By Exhibit L a letter dated 21-10-11 addressed to the MD and copied to the Chairman, the claimant applied for leave from 25th October – 2nd November 2011 being the balance of her leave for the year 2010. Exhibit M is an internal memo dated 10th October 2011 from the Managing Director to the ED-Marketing and titled “Insubordination”. In it, the Managing Director complained to the ED-Marketing (the claimant) that her performance was below expectation and urged for positive results and improvement in her duties or she should put in her resignation. Exhibit N is a letter dated 25th October 2011 suspending the claimant for three months without pay on grounds of gross indiscipline, negligence of duties and nonchalant attitude to work. And by Exhibit O dated 13th December 2011, the claimant’s appointment with the defendant was terminated with immediate effect. Now the claim of the claimant is for an order compelling the defendant to pay to her the sum of N6,088,333.00 being her outstanding entitlements from the defendant. It is this sum in paragraph 38(g) of the statement of facts that the counsel to the claimant orally applied on 25th July 2012 to correct to N7,088,333.00. But in paragraph 40 of the statement of facts, the paragraph wherein the claimant formally prays for the reliefs she seeks from the Court, counsel to the claimant did not apply to alter the sum of N6,088,333.00. So as I indicated earlier, the Court is left with the inelegance of counsel to fashion out what the exact claim of the claimant is. Since Courts are restricted to giving only that which a claimant asks for, and since there are, therefore, two varying sums claimed for, sums that are not even claimed for in the alternative as to permit the trial court a choice (Governor of Ekiti State v. Ojo [2006] 17 NWLR (Pt. 1007) 95), I cannot accede to the submissions of the claimant in that regard. I must point here that in her sworn deposition of 11th May 2012, the claimant in paragraph 39 deposed that she is entitled to N7,468,333.00 being her total entitlements from the defendant. She proceeded to give the breakdown of this sum the total of which according to her is N7,468,333.00 minus N1,380,000.00 which comes to N6,088,333.00. In paragraph 40 of her sworn deposition, the claimant was categorical in stating that “the total amount outstanding to me from the defendant is N6,088,333.00 (Six Million, Eighty Eight thousand, Three Hundred and Thirty Three Thousand Naira)”. The case of the claimant is that the overall sum she is claiming for is made of claims as to basic salary for three months at N400,000.00 per month i.e. N1,200,000.00, telephone allowance for three months at N30,000.00 per month i.e. N90,000.00, pay for accrued leave for 13 days at N13,333.33 per day i.e. N173,333.00, 5% sales commission for sale of five elevators at total profit of N31,000,000.00 i.e. N1,550,000.00, transport expenditure at N75,000.00 per month for 18 Months i.e. N1,350,000.00, refund of share capital plus dividend at 20% of share value i.e. N1,750,000.00 plus N350,000.00 which totals N2,100,000.00 and salary in lieu of notice i.e. N400,000.00 for 6 Months which totals N2,400,000.00. All of this, to the claimant in paragraph 38 of the statement of facts, totals N7,468,333.00 out of which if N1,380,000.00 (the money paid by the defendant) is deducted, we will (still) have a balance of N7,088,333.00. The question that arises is whether the claimant has proved i.e. made out a case for the award of all these sums of money. To be able to resolve this issue, it may be worthwhile to take each item one after the other. In doing this, a good deal depends on the legal effect of the suspension meted out on the claimant. I shall according proceed to consider the legal consequences of the suspension of the claimant. Suspension is an aspect of the discipline of a staff by an employer; and by Imonikhe v. Unity Bank Plc [2011] 12 NWLR (Pt. 1262) 624 SC at 649 C, an employer has the right to discipline any erring employee in the interest of the organization or institution, although NEPA v. Olagunju [2005] 3 NWLR (Pt. 913) 602 held that it may be otherwise if the contract of employment either expressly or impliedly rules out recourse to discipline by the employer. Indeed, as held in Shell Pet. Dev. Co. (Nig.) Ltd v. Omu [1998] 9 NWLR (Pt. 567) 672, it is a disruption of an ordinary employer’s business to fetter him with an injunction not to discipline his servant. The employer accordingly has the right to suspend an employee when necessary, with or without pay or at half pay. However, the English cases of Hanley v. Pease & Partners Ltd [1915] 1 KB 698 and Marshall v. Midland Electric [1945] 1 All ER 653, held that employers cannot suspend without pay where there is no express or contractual right to do so. The rationale is that in suspending an employee without pay, the employer has taken it up upon itself (outside of the Court) to assess its own damages for the employee’s misconduct at the sum which would be represented by the wages of the days the employee remains suspended. It is the self-evident nature of this rationale that explains why it has to take a statutory provision in section 43(1) of the Trade Disputes Act (TDA) Cap. T8 LFN 2004 to permit an employer the right to deduct wages in the event of strike action under the “no work, no pay” rule. See also Abdulraheem v. Olufeagba [2006] 17 NWLR (Pt. 1008) 280, which affirmed the “no work, no pay” rule. Where a suspension is vindictive or mala fide, Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt. 103) 40 NIC held that that may amount to an unfair labour practice and so is actionable under the dispensation of the Third Alteration to the 1999 Constitution. By Yussuf v. VON Ltd [1996] 7 NWLR (Pt. 463) 746 CA, Shell Pet. Dev. Co. v. Lawson Tack [1998] 4 NWLR (Pt. 545) 249, Ayewa v. University of Jos [2000] 6 NWLR (Pt. 659) 142, Akinyanju v. University of Ilorin [2005] 7 NWLR (Pt. 923) 87 and Longe v. FBN Plc [2010] 6 NWLR (Pt. 1189) 1 SC, suspension cannot amount to breach of the employee’s fundamental rights as it has no bearing with issues of fundamental right under the Constitution. In fact, the law permits a person unlawfully suspended from work to seek redress in the Court and claim his full salary (ACB Ltd v. Ufondu [1997] 10 NWLR (Pt. 523) 169 CA), which is what the claimant in the instant case has done. Further still, by Yussuf v. VON Ltd [1996] 7 NWLR (Pt. 463) 746 CA, suspension cannot be questioned on the ground that it could not be done unless the employee is given notice of the charge and the opportunity to defend himself i.e. the rules of natural justice do not even apply in cases of suspension. The argument of the claimant in the instant case is that her suspension is unwarranted (see paragraph 24 of her sworn deposition and Exhibit P). Exhibit P is a letter dated 1-11-11 from the claimant to the Chairman of the defendant wherein she complained of the strained working relationship between her and the Managing Director of the defendant company. Beyond this, there is no other proof as to how her suspension is unwarranted. Meanwhile in Exhibits K, M, N and Q the defendant variously complained of her working conduct. Her answer was that this was done deliberately to tarnish her and in paragraphs 16, 27 29 and 32 of her sworn deposition, she complained (without any other proof) of the Managing Director victimizing, harassing and threatening her life. In fact, in paragraph 2.9 of the claimant’s final written address, the charge of sexual harassment for the first time is made against the Managing Director by the claimant even when that charge was not pleaded. In all of this, other than the sworn deposition of the claimant, there is no other proof of the commission of these acts by the Managing Director. The legal consequence of suspension is determinable from the terms of employment in question. However, a cardinal consequence is that the suspended employee remains an employee of the employer even in suspension. In the instant case, other than Exhibit A, there is no ‘conditions of service’ frontloaded by the claimant. Under cross-examination, the claimant testified that the offer of employment only contained to an extent the terms and conditions of her employment but that certain things were omitted which she drew her employer’s attention to in her letter of acceptance. But she never got a reply. She acknowledged however that there was no other document given to her that contains the terms and conditions of her employment. For this reason, a good deal of what she claimed are what she said was promised her orally by the defendant. To show that her suspension was wrongful, the claimant also referred this Court to the Court of Appeal decision in Longe v. First Bank Nig. Plc [2006] 3 NWLR (Pt. 167) 228 at 240 where it was held that there is no provision in CAMA for suspension or disciplining of an Executive Director. The claimant seems to forget that this Court of Appeal decision was overturned at the Supreme Court. Since there is no ‘conditions of service’ providing for suspension (Exhibit A did not provide for it either) it means that there is no express or contractual right of the defendant to suspend without pay. The defendant was accordingly wrong to have suspended the claimant without pay. See Hanley v. Pease & Partners Ltd [1915] 1 KB 698 and Marshall v. Midland Electric [1945] 1 All ER 653. Even when the defendant argued that on the authority of the Halsbury’s Laws of England, Third Edition, Volume 25 at pages 518 – 519 and Michelin (Nig.) Ltd v. Alaribe [2010] All FWLR (Pt. 543) 1998 CA an employer can suspend an employee without pay, the defendant did not address its mind to the fact that this is possible only when the conditions of service so provide. Specifically, ACB Ltd v. Ufondu [1997] 10 NWLR (Pt. 523) 169 held that where there is no justification for putting an employee on suspension in the first place, the employee ought to be paid his salary or the other half of his salary if he is put on half salary; and Yussuf v. VON Ltd (supra) held that it is not improper for the employer to suspend on full pay an employee pending inquiries on a suspension that may rest on the employee. It is not in doubt that an employer has an unfettered right to suspend, but the scope of that right is contingent on the contract of service and/or conditions of service making the necessary provisions in that regard. In the instant case, therefore, since the defendant did not make any express provision as to suspension without pay, while it can suspend the claimant, it certainly cannot suspend her without pay as it did in the circumstances of this case; and I so find and hold. The claimant was suspended vide Exhibit N dated 25th October 2011 for three months without pay.. The claimant had applied for the balance of her leave from 25th October to 2nd November 2011. Invariably, she did not wait for approval and so proceeded on the leave, hence the issuance on her of the suspension letter, Exhibit N. This alone could have earned her a greater disciplinary act than mere suspension. But an employer has the discretion to condone erring employees or mete out a lesser punishment than that deserved. See Udegbunam v. FCDA [2003] 10 NWLR (Pt. 829) 487. This is what the employer did in the instant case by suspending the claimant for three months. But in suspending without pay without any express or contractual provision to that effect, the defendant thereby went beyond the pale. This means that the claimant is entitled to be paid her salary for the period she served in suspension i.e. 25th October to 13th December 2011 when her appointment was then formally terminated with immediate effect. Exhibit U indicates that the claimant was paid her salary for the month of October. This means that she had an outstanding salary for the month of November to 13th December 2011. Exhibit A indicates her monthly salary to be N400,000. If this sum is divided by 31 days of December, what we get is N12,903.23 per day, which if multiplied by 13 days will give us N167,741.94 as salary for December 2011. Cumulatively, therefore, what the claimant is entitled to as salary for the months of November and December 2011 is N567,741.94; and I so find, hold and award. The termination of the appointment of the claimant was with immediate effect. There is no document frontloaded evidencing the notice period that the claimant is entitled to. The claimant, however, in her calculation claimed 6 months as the notice period in lieu of notice. There is no proof of this before the Court. The case of Imoloame v. WAEC [1992] 9 NWLR (Pt. 265) 303 held that where there is a contract of service, there is an implied term that the contract can only be terminated by reasonable notice; and that what is reasonable is always dependant on the nature of the contract and status of the employee in the establishment. Hence, that the higher the position held by the servant and the larger the salary the longer will be the notice required to put his contract at an end. In the instant case, the claimant was employed as an Executive Director on a monthly gross salary of N400,000. This should ordinarily mean that in status she was a high ranking officer. But Exhibit A says that her appointment is on probation and subject to satisfactory performance the company will confirm her appointment after six months. Do Executive Directors of companies get appointed on probation? I really cannot say; but what all of this adds up to is that the company did not regard the Executive Directorship of the claimant as being of any much status. The claimant was no other than an ordinary staff. In this wise, I do not think it appropriate to agree with the claimant that her notice period should be 6 months. One month to my mind accords more with her status in the company as the reasonable notice period; and I so find and hold. This means what the claimant is entitled to is one month’s salary in lieu of notice. This comes to N400,000. I, therefore, rule that the claimant is entitled to N400,000 as salary in lieu of notice from the defendant. The claimant made a claim for telephone allowance. There is no evidence before the Court that the claimant is entitled to any telephone allowance; and so that claim fails and is hereby dismissed. The claimant claimed for transport expenditure. To succeed, the claimant needs to prove that there was authorization for the expenditure, how the expenditure was then incurred and the amount of the expenditure in terms of the receipts for it. All of this are not evident in the processes of the claimant. That claim accordingly fails and so is dismissed. The claimant claimed for accrued leave. Once again, there is no proof before the Court indicating how the claimant arrived at N13,333.33 as the value of the accrued leave per day. In any event, there is no proof before the Court that the conditions of service or even the common law approves of monetization of accrued leave. The claimant has therefore not been able to prove that claim. The claim is accordingly dismissed. The claimant claimed for sales commission. In paragraph 8 of her sworn deposition, the claimant averred that at the time of her employment and during the several discussions leading to her employment, it was agreed that she would be entitled to 5% of every elevator she sells as was offered to her predecessor. Under cross-examination, she testified that the sales commission was offered to her orally when she was being interviewed for the job on 7th May 2010. Not only is there no documentary proof of the claimant’s entitlement to sales commission, Exhibit is quite explicit in stating that the company is not paying sales commission to any staff – indeed that the company has not paid to anyone for all the previous sales made. In any event, there is no proof before the Court of the claimant’s sale of five elevators, the price at which they were sold and how the profit made was arrived at. There is consequently no proof of any entitlement to sales commission by the claimant. The claim for sales commission fails and so is dismissed. Lastly, the claimant claimed for share capital refund and dividend. The claimant in paragraph 7 of her sworn deposition averred that she was offered 10% of the equity shares of the company, which is less than the 15% that was promised to her orally before her employment. Once again, there is no documentary evidence in proof of this. In fact Exhibit C is explicit in offering the claimant only 10% equity of the company. I acknowledge that by section 384 of CAMA dealing with employees’ shares and profit sharing, “if under his contract of service, an employee is entitled to share in the profits of the company as an incentive, he shall be entitled to share in the profits of the company, whether or not dividends have been declared”. This position of the law was affirmed in BAT (Nig.) Ltd v. Ogunseye [2010] 4 NWLR (Pt. 1184) 343 CA. In the instant case, how the claimant arrived at her entitlement to refund of share capital and dividend at 20% of share value was not shown to the Court. I, therefore, find and hold that this claim fails and so is equally dismissed. All other complaints of the claimant especially as to victimization, threats, complaints as to non-confirmation and that the termination of her employment not following due process (see paragraph 34 of her sworn deposition) apart from the fact that the claimant did not prove to the Court what the due process to be followed is (by Nigerian Airways v. Gbajumo [1992] 5 NWLR (Pt. 244) 735 it is the duty of an employee who alleges wrongful termination to prove that he was wrongfully removed from office and by Kabelmetal Nig. Ltd v. Ativie [2002] 10 NWLR (Pt. 775) 250 CA, an employee who complains of wrongful termination has the onus – not the employer – first to place before the Court the manner in which the terms of the employment were breached by the employer), the complaints are not covered by the actual reliefs claimed by the claimant. It is academic to, therefore, consider the complaints. Even when the claimant in her final written address raised the issue, whether the claimant is not entitled to damages, it must be noted that there is actually no claim for damages in the reliefs claimed by the claimant. It is, therefore, idle to waste the time of the Court considering these issues. They are accordingly discountenanced in this judgment. On the whole, the claims of the claimant succeeds only in part and only in terms of salary for the month of November to 13th December 2011 and salary for one month in lieu of notice. In consequence, and for the avoidance of doubt, it is hereby ordered that the defendant shall pay to the claimant within 30 days of this judgment – 1. The sum of Five Hundred and Sixty-Seven Thousand, Seven Hundred and Forty-One Naira, Ninety-Four Kobo (N567,741.94) only being unpaid salary for the month November to 13th December 2011. 2. The sum of Four Hundred Thousand Naira (N400,000) only being one month’s salary in lieu of notice. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip