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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: FEBRUARY, 12 2015 SUIT NO: NICN/LA/245/2012 BETWEEN Victor Browne - Claimant AND Dana Airlines Limited - Defendant REPRESENTATION E. Egbuna for the Claimant. Kola Olapoju with Ihedinma Uduogie Mrs. for the Defendant. JUDGMENT On 7/6/12, the Claimant approached this Court via a General Form of Complaint for the following claims - 1. The sum of Twenty one thousand and sixty US Dollars being the amount due as three months' salary to the Claimant by the Defendant, since the required three months' notice was not given to him upon the termination of his service. 2. Interest on the said sum of Twenty one thousand and sixty US Dollars at the rate of 21% per annum from 29th day of March 2009 until judgment and thereafter at the rate of 10% per annum until the judgment and/or the sum is fully liquidated. 3. The cost of this action. The writ was accompanied by all requisite processes in accordance with the Rules of this Court. The Defendant entered an appearance on 15/5/13 and filed a statement of defence, list of witness, witness deposition on oath and list and copies of documents to be relied on at trial all dated 24/6/13. The trial of this case commenced on 29/1/14 when Claimant testified as CW1. Witness adopted his two statements on oath dated 20/7/12 and 15/2/13 as his evidence in chief and tendered 5 documents. The documents were admitted as exhibits and marked as Exh. C1 - Exh. C5. Under cross examination, witness testified that he produced a certificate in respect of his e-mails of 30/6/08. The certificate was tendered, admitted and marked as Exh. C6. Witness testified that he has a Pilot License from both the United States and Nigeria; that he was employed as a Planning Manager; that he worked for a period of 9months and that before Dana Air, he had worked elsewhere for 10 years. Witness affirmed that Exh. C3 was his contract of employment with the Defendant; that it was mailed to him; that he signed it; that for the period he worked with the Defendant he did not receive any commendation or query; that he was never confirmed since he was not on probation; that his employment was terminated via e-mail and that he was not offered anything in form of entitlement. The defence opened its case on 9/4/14 and called one Alh. Salau Najim Inaolaji as its witness. DW1 adopted his written deposition dated 24/6/13 as his evidence in chief, tendered two documents which were admitted as exhibits and marked as Exh. D1 and Exh. D2. Witness urged the Court to dismiss the suit. Under cross examination, DW1 stated that he was the Corporate Affairs Manager of the Defendant; that he had been in that position since January 2014; that the indication that he was a Christian in his witness deposition was a mistake; that he has been a Muslim all his life and that the employment of the Claimant was governed by contract. At the close of trial, learned Counsel on either side were directed to file their final written addresses in accordance with the Rules of Court. The Defendant's final written address was filed on1/7/14. In it learned Counsel set down a lone issue for determination as follows - Whether the Claimant has proven by the preponderance of evidence facts/or indeed any extrinsic factor that entitles him to a claim filed against the Defendants in view of the undisputed written contract governing the relationship between parties in the present circumstances. Arguing this lone issue, learned Counsel submitted that when an employee alleges any wrong against the employer pertaining to the manner, terms, rights or obligations in his contract of employment that employee has the onus to prove the wrong by placing before the Court the terms and conditions of the contract of employment and in what manner the said terms were breached by the employer and that contract of service is the bedrock of any case where wrongful termination calls for determination. Counsel cited Angel Spinning and Dyeing Limited v. Ajah (2000)13 NWLR (Pt. 686) 532. Learned Counsel further submitted that where a contract of service is tendered, the Court must concern itself to the plain terms and conditions of the contract document and not read anything extraneous into it, citing Fetuga v. University of Ibadan (2000)13 NWLR (Pt. 683) 118, Amodu v. Amode (1990)5 NWLR (Pt. 150) 356 and UBA v. Ozigi (1994)4 NWLR (Pt. 333) 385. Learned Counsel referred to Clauses 1 and 7 of Exh. D1- the Service Agreement and submitted that those provisions necessarily subject the Claimant to a period of probation in view of the sensitive nature of his job description in order to prove his ability to meet the required standard. According to Counsel, citing Ihezukwu v. University of Jos (1990)4 NWLR (Pt. 146) 598, the essence of a probationary period is that the employer reserves the right not to confirm the appointment until after a specific period. On the Claimant's averment that if he was employed on probation, '' ... by allowing him to continue working beyond the probationary period and earning a salary, the Defendants have by conduct confirmed his employment'', learned Counsel submitted that nothing can be further from the truth as the condition for confirmation is not subject to any party's imagination citing SDPC v. Lawson Jack (1998)4 NWLR (Pt. 545) 249. Learned Counsel urged the Court to dismiss the claims of the Claimant. The final written address of the Claimant was filed on11/8/14. In it, learned Counsel raised a lone issue as follows - Whether the Defendant was entitled to terminate the Claimant's appointment on the basis that the Claimant was on probation. Arguing this lone issue, learned Counsel stated that it is not in dispute that Claimant was employed on 23/6/08 and that his appointment was terminated on 29/3/09. He submitted that the Court is to determine the effect of an employer allowing an employee to work and draw salary beyond the set probationary period. Counsel submitted that having so allowed the Claimant, the Defendants have by conduct confirmed his employment. Contending that confirmation in the instant case has been effected by operation of law, learned Counsel cited OAU v. Onabanjo (1991)5 NWLR (Pt. 193) 549 and submitted that allowing the Claimant to continue to work and earn his salary gave the impression that he has satisfactorily completed his period of probation. Counsel argued further that the Defendant has by its conduct represented to the Claimant that his appointment had been confirmed and the Defendant is prevented from denying that representation, citing Joe Iga & Ors. v. Ezekiel Amakiri & Ors. (1976) NSCC 610 at 616. Counsel urged the Court to discountenance the argument of the Defendant and grant the reliefs sought by the Claimant. On 23/10/14, the Defendant filed an 8-page Reply on Points of Law. In it learned Counsel argued that Claimant's appointment was not confirmed by operation of law; that the Court of Appeal had decided in Taduoogronno v. Gotom (2002)4 NWLR 480 that there cannot be any vested rights when an exercise is made subject to the fulfillment of some conditions and acceptance of those conditions at the discretion of the affirming body and that from the contract of service confirmation of Claimant's appointment was not automatic but rather subject to satisfactory performance which could only be determined by his employer. Counsel urged the Court to confine itself to the construction of the contract of service between the parties and not look into anything extraneous to it in determining the rights of the parties under it, relying on Katto v. CBN (1999)6 NWLR (Pt. 607) 390, Rector, Kwara Ply v. Adefila (2007)15 NWLR (Pt. 42) 114 & Daodu v. UBA Plc (2004)9 NWLR (Pt. 878) 276 at 293. Learned Counsel urged the Court to dismiss the suit filed by the Claimant. I have perused, read and understood all the processes filed by the parties in this case. I followed the evidence led at trial and watched the demeanour of the witnesses in course of giving their testimonies. In addition I reviewed all the exhibits tendered and admitted on either of the divide. Having done so, I have come to narrow the issue for determination in this case to be - 1. Whether Claimant was on probation as at 29/3/09 when his employment was terminated Exh. D2. 2. Whether the Claimant is entitled to the reliefs sought or any of them. The relationship between the parties in this case is one of Master/Servant. The law is trite that in such a relationship, either party is entitled to bring same to an end by simply complying with the terms and conditions as agreed upon where there is a written contract. Where there exist a contract of service, that contract is the foundation of the relationship between the Master and Servant. See Angel Spinning and Dyeing Limited v. Ajah (2000)13 NWLR (Pt. 686) 532. It is therefore the tripod upon which a Servant must prove any claim he may have against the Master relating to his employment. In the instant case, Exh. C3 (Exh. D1) is the Service Agreement between the parties. By that exhibit, the Claimant was employed on 23/6/08. The Claimant's employment commenced on that date '' ... subject to earlier termination pursuant to Clause 7 shall expire after one year from the date of joining in Nigeria. This Agreement may also be renewed as needed by a written amendment as mentioned in Clause 8''. Clause 1 of Exh. C3 contained a provision on Probation in the following words - ''The Executive shall be on probation for the period of six months and subject to satisfactory performance, the appointment shall be confirmed after the probationary period. Unless renewed as per Clause 8 or terminated as per clause 7 hereunder; the Agreement shall remain valid for a period of 1 year from the date of joining service in Nigeria''. Clause 7 of the Agreement deals with '' ... the right of the Company to terminate this Agreement and the Executive's employment with the Company for cause''; and Clause 7.8 specifically provides that - ''While on probation, the appointment can be terminated by either side with 15 days notice or salary in lieu thereof. After probation period of 6 months, once confirmed, the appointment can be terminated by either party by giving three months' notice or salary in lieu thereof, which will be decided by the Company''. Claimant's appointment was not confirmed at the expiration of 6 months and by an e-mail dated 28/3/09, Exh. D2, Claimant's services were declared no longer required. The termination was to be effective the following day 29/3/09. That was about 9 months into the contract of service. There is no doubt that the Claimant was under probation for the first 6 months of his employment. The provision of Exh. C. 3 (Exh. D1) was explicit on that. There is also no dispute the fact that the Defendant could terminate the employment during the period of probation as well as after expiration of probation period. See Clause 7.8 of Exh. C3. It is trite that a major rationale for placing an employee on probation is to ensure that an employee is fit, proper and competent to discharge the responsibilities for which he is employed. Thus once the employer finds out that indeed the employee does not fit as expected he would easily be discharged from the contract of service. That course of action can only be taken during the probationary period and certainly not after the expiration of that period. See Olatawura JSC in Kusamotu v Wemabod Estates (1976)11 SC 279 and Simeon O. Ihezukwu v. University of Jos & Ors. (1990)LPELR-1461. The probationary employment of the Claimant was to lapse after 6 months of commencement. The Defendant was at liberty to either confirm or terminate the appointment within that period or at best shortly after the expiration of that period. Claimant's appointment could have been terminated within a week or two or even a month after the expiration of the period of probation. If that had been done he certainly would have left the employment of the Defendant perhaps without grudges or animosity. Rather the Defendant kept him on for the first, second and third month after the period of probation. Claimant kept working for the Defendant during this period as a staff of the Defendant and was paid salaries as usual for the services he rendered. By this conduct of the Defendant, the Claimant was given an impression that all was well; that he was a full and confirmed staff of the Defendant. I dare say that this Court will not close its eyes to the conduct of the Defendant which gave the Claimant the impression that though he has not received a letter of confirmation of employment, his employment was however as good as having been confirmed. On examination of the facts and circumstances of this case I find that grounds exist for holding that by its conduct, the Defendant must be deemed to have confirmed the appointment of the Claimant and that as at 28/3/09 when Claimant's employment was terminated Claimant was a confirmed staff of the Defendant. The principle of ''deemed confirmation of appointment'' as espoused by His lordship Akanbi, JCA (as he then was) in OAU v. Onabanjo (supra) was, not too long ago, followed by the Court of Appeal in Raji v. OAU (2014)LPELR-22088 when Owoade, JCA emphatically stated that '' ... the principle of 'deemed confirmation of appointment' which was applied by the Court of Appeal in the OAU v. Onabanjo's case (Supra) is as good now as it was then''. I thus find and hold that the appointment of the Claimant is deemed confirmed by the Defendant and that as at the time of making Exh. D2 the Claimant was a confirmed staff of the Defendant. The second issue is whether the Claimant is entitled to the reliefs sought or any of them. The first relief is for the sum of Twenty One Thousand and Sixty US Dollars being the amount due as three months' salary to the Claimant by the Defendant since the required three months' notice was not given to him upon the termination of his service. Exh. D2 was the letter of services no longer required. It was dated 28/3/09 and to be effective on 29/3/09. Having held that as at the date of Exh. D2, Claimant was a confirmed employee of the Defendant, he was by Clause 7.8 of Exh.C3 entitled to be given 3 months notice or payment of three months' salary in lieu of same. Claimant was neither given 3 months' salary in lieu of notice nor 3 months notice as stated in his contract of service. I hold that the Claimant is entitled to three months salary in lieu of notice as stipulated in Clause 7.8 of Exh. D1. By Clause 4 of Exh. C3, the Claimant was entitled to Seven Thousand and Twenty US Dollars per month. This translates to Twenty One Thousand and Sixty US Dollars for the three months' notice he was entitled under the contract of service. The second relief sought is for 'Interest on the said sum of S21,060.00 at the rate of 21% per annum from 29th day of March 2009 until judgment and thereafter at the rate of 10% per annum until the judgment debt and/or the sum is fully liquidated''. A party to a suit is at liberty to ask the Court for a grant of any relief. In much the same vein a party may also make any averment in his pleadings. However, every claim must be supported by credible and admissible evidence to be entitled to a favourable disposition by the Court. This also is applicable to all averments in pleadings which must be proved. I find no proof of the claim for interest as put forward by the Claimant. However in relation to pre-judgment interest, N.M.B. Ltd v. Aiyedun In. Ltd (1998)2 NWLR (Pt. 537) 221 is a good authority for the proposition that the law treats the holder of such funds as a borrower of it on which interest must be paid. With regard to post-judgment interest monetary judgment attracts interest even where none is claimed, see Diamond Bank Ltd v. P.I.C. Ltd (2009)18 NWLR (Pt. 1172) 67. In any event award of post-judgment interest is sanctioned by the Rules of this Court, see Order 21 Rule 4, National Industrial Court Rules, 2007. I hold that the sum due under this Judgment shall be paid with interest at the rate of 15% per annum from 29th March 2009 until it is fully liquidated. The third relief is for cost of the action. Again respecting this I find no proof of this relief in the entire proceedings. I thus dismiss same not having been proved. Finally and for the avoidance of doubt, I hold that the employment of the Claimant is deemed confirmed by the Defendant and that the Defendant shall pay to the Claimant - 1. The sum of Twenty One Thousand and Sixty US Dollars being the amount due as three months' salary in lieu of notice of termination of the Claimant's employment; 2. Interest at the rate of 15% on the said Twenty One Thousand and Sixty US Dollars from 29th March 2009 until it is fully liquidated; 3. One Hundred Thousand Naira only as cost. Judgment is entered accordingly. ____________________ Hon. Justice J.D. Peters Presiding Judge