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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: November 27, 2014 SUIT NO. NICN/LA/516/2012 BETWEEN ABISOLA AKINSETE - CLAIMANT AND WESTERNGECO SEISMIC NIGERIA LIMITED - DEFENDANT REPRESENTATION K.O. Olutomilayo, with F.C. Olayide (Mrs), A. Anusi (Miss) for claimant. Richard Chukwuocha, with Ekundayo Onajobi for defendant. JUDGMENT The claimant filed this complaint against the defendant on October 10, 2012 seeking the following reliefs: a. A declaration that the purported oral termination of 9th October, 2008 as executed by the agents of the defendant in its offices and on behalf of the defendant is contrary to the contract of employment dated 27th April, 2007. b. A declaration that the purported oral termination as executed by the defendant through its agents is in breach of the contract of employment and therefore void. c. A declaration that the purported letter of termination dated 5th December, 2008 is arbitrary and a pretext to justify the oral termination of 9th October, 2008 and the deliberate campaign of bullying and therefore null and void. d. A declaration that the employment of the claimant in the services of the defendant is extant and subsisting, same having not been terminated in accordance with the contract of employment. e. A declaration that the various actions and commissions of the defendant including the various invitations and/or summons to the claimant to unscheduled meetings amounts to undue harassment and infringement on the right of dignity of person of the claimant and serious threat to the claimant’s employment and/or appointment in the defendant company. f. An order directing the defendant to pay the salary and entitlements of the claimant from 5th December 2008 until the appointment is validly terminated in accordance with the contract of employment as contained in the letter of employment dated 27th April, 2007. g. N20.0 Million as special damages against the defendant for deliberate and concerted campaign of bullying and breach of contract against the claimant by the defendant and costs of this law suit. N5.0 Million as general damages. h. An order of perpetual injunction restraining the defendant whether acting jointly or individually or by their servants, agents or privies from further harassing, molesting or assaulting the person of the claimant or in any way molesting, bullying or infringing on the claimant’s right to the dignity of his person. i. In the alternative to a, b, c, d, e and f above, the sum of N100,000,000.00 (One Hundred Million Naira) being damages for the disgrace, abuses, loss of face and integrity, deprivation, mental physical and psychological suffering and losses including financial expenses and inconvenience suffered and incurred by the claimant as a result of the wrongful termination of the claimant’s appointment in the defendants company. Accompanying the complaint is the statement of facts, witness statement on oath and copies of documents to be relied upon. The defendant entered appearance and filed its statement of defence, list of witnesses, witness statement on oath and copies of documents to be relied upon on February 25, 2013. The claimant filed a reply on March 6, 2014. The parties joined issues and the matter went to trial. The claimant’s case on the pleadings is that she was employed by the defendant as Marketing/Admin. Administrator by letter of offer of appointment dated 27th April, 2007 and she accepted the offer and assumed duty in the defendant’s Lagos offices. The claimant pleaded that immediately she assumed duty she brought to bear on her job her over 10 years of experience in a similar role with Chevron Nigeria Limited which resulted in a significant and tremendous improvement of the defendant’s business processes. That suddenly and without any prior incident, on 9th October, 2008, three expatriate employees of the defendant namely Miles Mayne, Mike Earney and Wesam Aboutawakia summoned her and surreptitiously and strangely made an oral declaration that her contract of employment has been terminated. The claimant pleaded that the three who are expatriate employees and agents of the defendant used racial epithets on her and harassed her during discussions with her. That they kick-started an unlawful crackdown during which she was exposed to a stream of abuses and statements such as “you are a rogue and fraud”, “fucking nigger”, “you are fired” amongst other statements, all in a bid to threaten and frustrate her to resign her employment with the defendant company as part of an ongoing ethnic and racial cleansing in the defendant company. The Claimant pleaded that after this oral termination she was prevented from entering the premises as an employee as the agents forcefully confiscated all the tools given to her by the defendant for the smooth functioning of her work including her identity card amongst others. That out of frustration she sent an email to the defendant’s Personnel Manager, Iyaye Iworima to protest the oral termination as she could no longer access any of the facilities of the defendant. That upon a receipt of an auto response from Miss Iworima's email directing her to forward all official emails to Valerie Nwogbe, a Human Resources Personnel in the defendant company, the said email came to the attention of Miss Iyaye Iworima. She pleaded that following the receipt of the email, the Personnel Manager responded with two words “call me” and during the conversation on the phone she orally invited her to defendant’s office during which she was subjected to a second round of bullying and a stream of abuses and served two documents showing dismissal and redundancy dated 6th October, 2008 with the clear intent of bullying and frustrating her to resign her employment. That during the meeting she wept bitterly as a result of various words of indignity hurled against her by the Personnel Manager. She averred that the defendant is in breach of the covenant to provide her with work by its collection of her tools and instrument of access to the defendant’s premises. That after all the hostile acts she suffered serious stress related illnesses and mental breakdown and had to visit a medical clinic around her residence where she was placed on drugs to prevent absolute mental breakdown. She pleaded that before her oral dismissal, she performed her duties with utmost diligence and was unblemished in the performance of her duties. That she was a “high-flying” employee of Chevron Nigeria Limited prior to her employment with the defendant and only accepted the employment with the defendant upon a representation of a fair and lasting employment. She pleaded that the defendant ended her contract of employment contrary to the terms and conditions and that her annual base salary is N1,904,400.00. The claimant pleaded that she instructed her Solicitors to write the defendant two letters and that upon receipt the defendant issued a query which was backdated to 23rd October and delivered to her residence using armed Policemen and guards who subjected her to intimidation by blocking the entrance to her residence. That the defendant resorted to all kinds of subterfuge upon the receipt of the notice from her Solicitors by recalling her back to work with a pre-determined objective of further humiliating and harassing her by sending a letter dated November 5, 2008 making false allegations and alluding to audit queries to which her Solicitors responded to. The claimant pleaded that in an attempt to cover up the oral termination and harassment the defendant wrote a letter dated 5th December terminating her employment. She averred that she was orally dismissed and harassed out of the employment of the defendant in an unfair way and wrongful manner contrary to labour laws, the contract of employment and international standards of employment practices. The claimant pleaded that she did not receive any salary from the defendant after her oral termination and that the defendant unilaterally resorted to paying to the bank after breaching the employment contract. She averred that the defendant has no respect for Nigerian laws and is reckless in the extreme as to the effects of its illegal acts on employees which fact was confirmed in proceedings in courts of record in this country. The claimant testified as the only witness in support of her case. Her evidence in chief was by witness statement on oath which she adopted and was in the exact terms of the pleadings. Under cross-examination the claimant told the court that her email was sent to Valerie Nwogbe. She told the court she was not paid for the months of September, October and November 2008 and that the defendant pays her salary into her designated UBA account. She admitted that she had not confirmed from her bank that the payments were made because she had an overdraft and could not access her account. The claimant told the court that she stopped work in September 2008 and was asked by the defendant to return to work on November 10, 2008 as her employment was still subsisting. She informed the court that in the letter written by her Solicitors, she gave conditions for returning to work. The claimant told the court that she did not respond to the query issued to her. She told the court that the defendant gave her a letter of termination on December 5, 2008 after her employment had been orally terminated. She stated that it is the practice for Management Expatriates only to be escorted by armed guards. She told the court that the basis of her claim is oral termination, verbal abuse and harassment. The claimant then closed her case. The case of the defendant on the pleadings is that the claimant was employed by letter of offer of employment dated 27th April 2007. The defendant pleaded that it already had robust and well-organised processes in place which were not improved in any way by the claimant's employment. That only Mike Earney and Wesam Aboutorika had discussions with the claimant on 9th October 2008 in its offices with regard to an on going inquiry and that contrary to the claimant's allegation, she was neither subjected to any form of racial abuse or exposed to any other kind of abusive language by it or any of its agents, servants or privies as that would be contrary to its policy. The defendant pleaded that it did not, neither did any of its officers or employees orally terminate the claimant's employment nor was she subjected to any threats or attempts to frustrate her in any manner during the said discussions. That all discussions with the claimant, including the discussion on the 9th day of October, 2008, were conducted in a polite, professional and respectful manner, and at no point was verbal or any other form of harassment directed at her. The defendant pleaded that it is not its policy or practice to enter into, or terminate contracts of employment orally as it has well established processes for such issues and that the claimant was advised of this fact by the Personal Manager. The defendant pleaded that notwithstanding that the claimant refused to return to work as directed, it continued to pay her full salary and entitlements for the months of October and November 2008, until her employment was validly terminated in writing by a letter dated 5th December, 2008. The defendant pleaded that the claimant was not prevented from entering its premises at any time during the pendency of her employment; that the ID card and laptop, which were its assets were withdrawn without force from the claimant as part of an ongoing investigation being conducted. It averred that the claimant was neither bullied nor mentally tortured by it or any of its servants, agents or privies nor did the claimant send any email to its Personnel Manager, Iyaye Iworima on the 12th day of October 2008 in protest of the alleged oral termination. That at no time was the claimant insulted or subjected to any form of abuse with intent to frustrate or cajole her to resign her position and that at all times she was treated with the highest level of courtesy, dignity and decorum in accordance with the defendant's code of ethics which is observed by all employees. The defendant pleaded that the claimant's employment was terminated because her services were no longer required and that the termination was in accordance with the terms of the contract between the parties and in line with the provisions of the relevant laws and the defendant's internal processes. That at no time was the claimant subjected to intimidation at her residence as alleged; that in spite of its assurances and the continued payment of the claimant's salary, she failed to return to work and it was left with no other option but to serve the claimant a query in respect of a separate on-going issue at her residence. The defendant averred that the claimant was served the query at her home by one of its employees who was accompanied by police escorts in line with Defendant's Quality, Health, Safety and Environmental (QHSE) Policy due to the fact that the claimant's residence was outside the defendant's designated safe area in Lagos, a practice common and well known to be used by multinational corporate organisations in Nigeria. That the claimant's employment was terminated by a letter dated 5th December 2008 in line with the terms of the contract of employment and paid the sum of N177,000.00 (One Hundred and Seventy¬ Seven Thousand Naira), being one (1) month's salary in lieu of notice into her UBA account. The defendant pleaded that it is a law abiding and responsible corporate citizen and would never adopt extra-legal measures to terminate the contract of any of its employees; that it carries out its activities in accordance with all the laws of Nigeria. The defendant called the following witnesses in support of their case: Iyaye Iworima (DW1), Edu Inyang (DW2) and Mike Earney (DW3). Their evidence in chief was by witness statement on oath which was in terms of the pleadings and which they each adopted. Under cross-examination, DW1 told the court that she was the Human Resource Manager of Schlumberger which includes Westerngeco the defendant. She told the court she was not present at the meeting held on October 9, 2008. She informed the court that DW3 is not a Nigerian and was the Acting Operations Manager at the material time. DW1 told the court that the recipient of the email (Exhibit A2) was an employee of Schlumberger and the Personnel Manager of the defendant. She informed the court that staff identity card is not the only access card into the office premises; that the employee’s name would also give access. She said the defendant could not provide work for the claimant from October because she refused to come back to work and that the claimant was paid for the period she did not work. DW1 told the court that two documents exhibits A4A & A4B one a dismissal and the other a redundancy document were prepared for the claimant to enable her make a choice because if she went through the disciplinary process she may be dismissed and if she decided to leave voluntarily that would be redundancy. DW1 informed the court that the allegation of fraud was not reported. DW2 under cross-examination told the court that he is the defendant’s Industrial Relations Representative. He said he was not present at the meeting held on October 9, 2008 with the claimant. DW2 told the court that the sum of N177,000 was paid to the claimant but that other sums have not been paid because they are deferred benefits and the claimant is yet to sign off. He said it was not to his knowledge that the allegation of fraud in the query issued to the claimant was reported to a law enforcement agency; that the Identity card doubles as access card into the company premises and staff known to the security officers will be allowed access into the premises. Under cross-examination, DW3 told the court that at the material time he was acting Country Manager for two weeks only and was in charge of the operations of the defendant; that in this role the claimant reports to him. He told the court that he signed his witness deposition in his Counsel’s office. DW3 told the court that he and Wesam Aboutorika are expatriate staff and discussed with the claimant on October 9, 2008 about an on going investigation. He said no human resource personnel was present during the meeting and that he did not know what the investigation was about and was not privy to it. He admitted that they told the claimant to leave behind her identity card and laptop. DW3 told the court that the claimant and himself had written contracts of employment and a termination would be in writing as the defendant has a policy on termination. He admitted that they told the claimant to leave behind her identity card and laptop; and that none of them works in the Human Resource Department. He said that recruitment and termination is a function of the Human Resource Department. The defendant then closed its case. The parties were ordered to file their final addresses. The defendant’s address is dated 2nd May 2014 and filed the same day. The claimant’s address is dated 15th May 2014 and filed the same day. The claimant’s reply on point of law is dated 5th June 2014 and filed the same day. After the parties had adopted their final addresses, the court in the process of writing this judgement noted that the issue of the right to dignity of the person contained in relief h had not been addressed and directed counsel to file additional addresses in that regard. The claimant’s additional address is dated 31st October 2014, the defendant’s additional address is dated 21st November 2014. Learned counsel to the defendant submitted the following issues for determination: 1. Whether the termination of the claimant’s employment is null and void in the circumstances and if not so, whether the claimant’s contract of employment ceased to exist as at 5th December 2008 when her employment was terminated. 2. Whether the claimant is entitled to the various heads of damages claimed in this suit. He submitted that the relationship that existed between the claimant and the defendant being an ordinary master and servant relationship without statutory flavour, the termination of the claimant’s appointment cannot be declared null and void citing W.R. & P.C. Ltd v. Onwo [1999] 12 NWLR (Part 630) Page 312 at 328, Ekpeogu v. Ashaka Cement Co. Plc [1997] 6 NWLR (Part 508) 280, Osisanya v. Afribank (Nig) Plc [2007] 6 NWLR (pt. 1031) 565 at pages 581, Osakwe v. Nigeria Paper Mill Limited [1998] 10 NWLR (Part 568) 1. He submitted that assuming the termination of the Claimant's employment is wrongful, the Court at best would compensate the claimant in damages, where it finds that the contract was not properly terminated referring to Afribank (Nig.) Plc v. Osisanya [2000] 1 NWLR (Part 642) Page 598 at 619, Texaco (Nig.) Plc v. Kehinde [2001] 6 NWLR (Part 708) 224 at 242. Counsel submitted that the court cannot grant to the claimant a remedy which has not been claimed and established by the pleading and evidence respectively citing I.M.N.L. v. Nwachukwu [2004] 13 NWLR (Pt. 891) 543 at 564 – 565, Ekpeyong v. Nyong [1975] 2 SC 71, Kalio v. Daniel Kalio [1975] 2 SC 15, It was his contention that the claimant has not prayed the court to declare as wrongful the termination of her employment and as such the court cannot grant a relief which has not been specifically prayed for citing Ibrahim-Ohida v. Military Administrator of Kogi State [2000] 12 NWLR (Pt. 680) 24, Izedonwen v. Union Bank Plc [2011] LPELR-4020 at pgs. 62-63, Luna v. Commissioner of Police Rivers State Police Command (2010) LPELR-8642. He submitted that the onus to prove wrongful termination of employment is on the claimant and she failed to do this citing Ziideeh v. R.S.C.S.C. [2007] 3 NWLR (Pt. 1022) 554. Counsel submitted that on the evidence adduced the claimant was paid her salary for the months of September, October and November as admitted by the claimant and her employment was not orally terminated as alleged. He submitted that a contract cannot at one and the same time be terminated and dismissed citing Calabar Cement Co. Ltd v. Daniel [1991] 4 NWLR (Pt. 188) 750 at 759, U.B.N. Plc v. Soares [2012] 11 NWLR (pt. 1312) 550 at 572 and urged the court to hold that the claimant failed to state and prove the mode by which her employment was allegedly breached on 9th October 2008 by the Defendant. On the issue of infringing on the claimant’s right to dignity, learned counsel submitted that it is not every action or utterance that amounts to torture or inhuman or degrading treatment referring to Uzoukwu V. Ezeonu 11 [1991] 6 NWLR (Part 200) 708 at 764 -765, Alhaji A. Mogaji & Ors. v. Board of Customs and Excise and Anor [1982] 2 NCLR 552 at 560. He further submitted that in determining whether the claimant's fundamental right has been violated by the defendant, the Court has no jurisdiction to go outside the clearly enumerated acts outlined in section 34 (1) of the 1999 Constitution, in search for more violatory acts citing Uzoukwu V. Ezeonu II supra. He argued that the act of inviting the claimant to a meeting in relation to an on going enquiry did not amount to a violation of her right to dignity. Learned counsel submitted that having terminated the claimant's employment in accordance with the contract of employment, she is not entitled to an award by this court of any of the damages as claimed in this suit. He submitted that special damages must not only be specifically pleaded with relevant particulars but must also be strictly proved which the claimant failed to do citing Osuji v. Isiocha [1989] 3 NWLR (Pt. 111) 623; (1989) LPELR- 2815 (SC), X. S. (Nig.) Ltd v. Taisei (W.A.) Ltd [2006] 15 NWLR (Pt. 1003) 533, Nwanji v Coastal Serv (Nig) Ltd [2004] 11 NWLR (Pt 885) 552, Aminetu Salami v Union Bank Plc [2010] LPELR- 8975. He then urged the court to dismiss the claimant’s suit in its entirety. Learned counsel to the claimant submitted the following issues for determination: 1. Whether the claimant has proved her case, and therefore entitled to judgement. 2. Whether the statement on oath of Mr Mike Earney-DW3 before the court is competent. He referred to Sections 131, 132, 133 and 134 of the evidence Act and submitted that on the evidence adduced the claimant has discharged the burden of proof that the defendant orally terminated her employment in a manner contrary to law and best practices in employment law citing Isiaka Yusuf v The University Of Lagos [2009] 3 Clrn; Bemil Nigeria Limited v Marcus Emeribe & 20 Ors [2009] 3 CLRN, Patrick Ziideeh v Rivers State Civil Service Commission [2007] 3 NWLR (Pt. 1022) 554 At 570 A - B, Lateef A. Adams v Lagos State Development And Property Corporation [2000] 5 NWLR (Pt. 656) 291 At 316 D - E, Chief O. Akinfe & 5 Ors v United Bank For Africa (Uba) Plc [2007] 10 NWLR (Pt. 1041) 185 At 199 - 200, Mr. G. Emokpae v University Of Benin, Benin City & 2 Ors [2002] 17 NWLR (Pt. 795) 139 at 152, Wilfred Igbinovia V. University Of Benin Teaching Hospital & Anor [2000] 8 NWLR (Pt. 667) 53 at 68. He submitted that a fact or allegation not denied is deemed to have been admitted citing Oyeniyi V Adeke [2009] All FWLR (Pt 467) 1922, Obeya Memorial Hospital v A.G. Federation [1987] 3 NWLR (Pt 60) 325 and that the defendant does not have any defence as seen from paragraphs 1, 3 & 4 of the statement of defence. It was his further submission that the claimant's employment has not been validly terminated due to the failure of the defendant to comply with the mode of termination provided by law and referring to Section 11 of the Labour Act CAP L1 LFN 2004, Jubril Ladipo v Chevron (Nig) Ltd (2005) 1 NWLR (Pt. 907) 227 at 289, Geidam v Nepa [2001] 2 NWLR (Pt. 696) 45 at 55, Peugeot Automobile Nig. Ltd v Salihu Oje [1997] 11 NWLR (Pt. 530) 625 at 632 and University Of Benin v Andrew Erinmwionren [2001] 17 NWLR (Pt. 743) 548 at 563. That on the authority of Isiaka A. Yusuf v The University Of Lagos [2009] 3 CLRN, the wrongful termination of the claimant's employment by the defendant occurred as a matter of fact on the 9th day of October 2008. It was his contention that the claimant is indeed entitled to be paid consequential damages by the defendant as a result of wrongful termination and breach of contract. Learned counsel argued that statutory provisions cannot be waived under any circumstances citing Raji v Unilorin [2007] 5 NWLR (pt. 1057) 259, Menakaya v Menakaya [2001] 16 NWLR (pt. 738) 203 at 236, Olaniyan v University Of Lagos [1985] 2 NWLR (Pt. 9) 599. He submitted that the subsequent act of an alleged termination by the defendant vide its letter of 5th December, 2008 (Exhibit A9) is caught by the Doctrine Of Estoppel referring to Section 169 Evidence Act 2011, Isiaka A. Yusuf V The University Of Lagos supra, Governor Ekiti State V. Ojo [2007] 16 WRN 56 at 78. He submitted that from the evidence of DW 3, he is not a witness of truth as he contradicted himself in material respects. He submitted that it is the law that where there are contradictions in the testimony of a witness such evidence should not be acted upon but be totally discountenanced as unreliable referring to Osadim V Taiwo [2010] 6 NWLR (Pt. 1189) P. 155; The Queen V Joshua [1964] 1 All NLR 1. It was his submission that on the evidence adduced the case put forward by the defendant through DW 3 is most improbable. He referred to Ogbenta V. Nzeribe [1999] 4 NWLR (PT 599) 348 at 357, Fawehinmi v Akilu [1987] 4 NWLR (Pt 67) 797 at 843, Magit V. Univ. Of Agriculture, Makurdi [2006] All FWLR (PT 298) 1313 at 1345 He submitted that Section 13 of the NIC Act 2006 mandates this court to administer law and equity concurrently whilst Section 15 provides that where there is conflict between the two, the rules of equity shall prevail. He argued that on the strength of Section 7(6) of the NIC Act, an employer cannot resort to unfair labour practice and must terminate in accordance with the relevant laws. That on the evidence adduced there have been breaches/infractions of the Labour Act and workplace rights of the claimant. He urged the court to award substantial damages for the unjust, exploitative and an unfair labour practice of the defendant as clearly demonstrated by oral and documentary evidence before this court in this case. On the competency of the statement on oath of DW3, learned counsel submitted that by virtue of Section 109 of the 2011 Evidence Act and Section 10 (1) of the Oaths Act the affidavit of DW3 having not been made before "person duly authorized to take affidavits in Nigeria", is bereft of any legal weight and should be discountenanced. He submitted that DW3’s witness's statement on oath is not a valid statement on oath without strict compliance with the clear provisions of the Oaths Act and should be discountenanced in its entirety citing Obumeke V Sylvester [2010] ALL FWLR (pt. 506) 1945, New Nigeria Bank Plc V Lbw Enterprises Nig Ltd [1998] 6 NWLR (Pt. 554) 454, Lawal-Osula V Uba Plc [2003] 5 NWLR (Pt. 813) 388. He further submitted that the court lacks jurisdiction to entertain the defendant’s defence predicate on inadmissible evidence citing Oseni v Dawodu [1994] 4 NWLR (Pt 339) 404, Gwabro v Gwabro [1984] 4 NWLR (Pt 544) 60. Learned counsel submitted that where an allegation of misconduct is made against an employee, the employer is entitled to set up a panel to investigate the allegation or in this case to refer the allegation to a committee established for that purpose citing Edet V Chief Of Air Staff [1994] 2 NWLR (Pt. 324) 41 @ 59; Baba V. NCATC ZARIA [1991] 5 NWLR (Pt. 192) 388 at 418. He submitted that DW1 and DW2 having admitted that they were not at the meeting held with the claimant on the 9th day of October, 2008, their evidence as to the event culminating in the oral termination and lock-out of the claimant is hearsay which is inadmissible citing Yusuf V. Obasanjo [2005] 18 NWLR (Pt. 956) 96 at 166 - 16, (2006) All FWLR (Pt. 294) 387, Buhari V. Obasanjo [2005] G All FWLR (Pt. 273) I, [2005] 2 NWLR (Pt. 910) 241; Ezeazodosiako V. Okeke, [2005] 16 NWLR (Pt. 952) 612. He submitted that the claimant is entitled to one month salary in lieu of termination, salaries from October, 2008 till the employment is lawfully terminated and consequential damages for breach of contract referring to Angel Spinning & Dyeing Ltd V. Ajah [2002] FWLR (Pt. 23) 1332, Cooperative & Commerce Bank V. Okonkwo [2002] FWLR (Pt. 97) at 639. He submitted that the dismissal of the claimant was hinged on an alleged unproven and unsubstantiated gross misconduct for which she was not given any opportunity to defend herself. He contended that the claimant's employment has not been validly terminated due to the failure of the defendant to comply with the mode of termination provided by law and she is entitled to be paid consequential damages by the defendant as a result of wrongful termination and breach of contract citing NITEL Plc v Ocholi [2001] 10 NWLR (Pt. 720)188 at 216. On the issue of the right to dignity of the person, learned counsel submitted that this is secured by section 34 (1) (a) of the 1999 Constitution as amended. He submitted that the right to dignity has been defined in Uzoukwu v Ezeonu [1991] 6 NWLR (Pt 200) 708 to include mental harassment, physical brutalisation without feeling for the suffering of the other which has the characteristics of lowering the societal status, character, value or position of a person. He submitted that this court has been vested with jurisdiction in Section 7 (1) of the National Industrial Court Act 2006 to protect the welfare of workers against apparent inhuman treatment. He referred to Onagoruwa v IGP [1991] 5 NWLR (Pt 195) 593, Liversidge v Anderson (1942) AC 288 at 244. He finally urged the court to enter judgement in favour of the claimant. Replying on point of law, learned counsel to the defendant submitted that evidence to be tendered in court in proof of averments in a pleading is either by viva voce or documentary evidence. He submitted that a court is entitled to look at a document in its file while writing its judgment or ruling despite the fact that the document was not tendered in evidence citing Famudoh v. Aboro [1991] 9 NWLR (Pt. 214) 210 at 229, Okeke v. A.G. Anambra State ([997] 9 NWLR (Pt. 519) 123 at 142. It was his contention that the statement on oath of DW3 is admissible submitting that there is the presumption that, where there is no evidence to the contrary, things are presumed to be rightly and properly done expressed in the common law maxim latin phrase - Omnia praesumuntur rite esse acta commonly resorted to and applied especially with respect to official acts referring to Ogbuanyiya v. Okudo (No. 2) (1990) 4 NWLR (Pt. 146) 551 at 570. He then urged the court to dismiss the instant suit with substantial costs. I have carefully considered the processes filed, the evidence led, written submissions and authorities. The issues for determination are: (i) whether or not the claimant’s employment was orally terminated; (ii) whether on the pleadings and evidence, the claimant ought to be entitled to the reliefs sought; (iii) whether there has been an infringement of the claimant’s right to dignity. I will begin this judgement by dealing with the preliminary issue of the statement on oath of DW3 sworn to on 27th June 2013 that he adopted as his evidence in chief. Under cross-examination, DW3 admitted that he signed his deposition in the chambers of his counsel. However, there is no evidence before me that DW3 did not present himself before the Commissioner for Oaths to be sworn. The name and signature of the Commissioner for Oaths is on the deposition together with the date it was sworn. There is therefore a presumption of regularity in the statement on oath by virtue of Section 168 of the Evidence Act 2011. See Auta v Olaniyi [2004] 4 NWLR (Pt 863) 394. Furthermore, the Court of Appeal in Lambert v Chief Okujagu & Ors Appeal No CA/PH/659/2013, judgement delivered on 29 April 2014 held that a sworn deposition or statement under civil procedure rules does not have to accord with the form of an affidavit as the purport of the deposition is not to clone an affidavit. I hold that the statement on oath of DW3 is admissible. There is no dispute between the parties that the claimant was an employee of the defendant. However, the burden of proof of establishing the terms of the contract of service and how it was breached is on the claimant. See Idoniboye-Obe v NNPC [2003] 2 NWLR (Pt 805) 589 and section 131 (1) & (2) of the Evidence Act 2011. In this regard, the claimant has placed before the court her letter of appointment admitted by the defendant. The claimant has testified that she was harassed and exposed to verbal abuse such as “you are a rogue and fraud”, “fucking nigger”, “you are fired” by DW3 and Wesam Aboutorika who are both expatriate employees of the defendant at a meeting held in the office of DW3 situated in the defendant’s premises on the 9th October 2008; told to leave behind her laptop and identity card and her appointment orally terminated. The evidence elicited under cross-examination from DW3 corroborates the claimant’s evidence that on the 9th October 2008, he and Wesam Aboutorika had discussions with her in respect of an on going investigation with no other staff present at the meeting; and they told her to leave behind her laptop and identity card which she did. The evidence adduced shows the claimant sent an email on the 12th October 2008 to Valerie Edozien whose designation is Segment Personnel Manager, notifying her of her absence and inability to render her services as she had been verbally dismissed and her identity card, laptop and petty cash withdrawn. The salient questions that arise are as follows: which investigation would an employer embark on that would warrant the withdrawal of an identity card and still not suggest that the employee is really not wanted as a staff? If the name of the claimant could give her access into the premises of the defendant, of what use is the identity card to the investigation in question and for which its withdrawal is critical? Is the statement on oath of DW3 that the claimant was not exposed to abusive language, threats and racial abuse to be believed? At this juncture, it is pertinent to reproduce a portion of the cross-examination of DW3: The meeting was about an on going investigation. I was there as an observer. I knew nothing about it. Yes I saw that at the end of the meeting the laptop and identity card were left on the desk. I cannot recollect at whose request the claimant left the laptop and identity card on the table. (Witness is shown exhibit A9). There is a mistake in the letter. I was not doing the job in Nigeria as I was employed in a new job. As acting Country Manager, I was in charge of the operation of the defendant. I only did the job for two weeks. In this role, the claimant reports to me. It is normal part of investigations to review people’s laptops. I was not privy to the investigation. I did not know what the investigation was. I am not even now privy to the investigation. Now, civil suits are decided on the balance of probabilities, on the preponderance of evidence. The burden of proof is not static but shifts and the onus of adducing further evidence is on the person who will fail if such evidence is not adduced. See Osuji v Eke [2009] 16 NWLR (Pt 1166) 81. From the evidence reproduced, DW3 expects this court to believe that he as acting Country Manager had a meeting with the claimant in respect of an on going investigation that he knew nothing about and was not privy to, but was simply an observer at the meeting. He also expects this court to believe that he cannot recollect at whose request the claimant left the laptop and identity card. I find that DW3 is not a witness of truth. His evidence reproduced above is most improbable. I therefore reject his evidence that he knew nothing about the on going investigation and that the claimant was not harassed and exposed to abusive language and racial epithets; that the claimant’s appointment was not orally terminated. See Marcus Ukaegbu & Ors v Mark Nwololo [2009] 3 NWLR (Pt 1127) 194, Ayanwale v Atanda [1988] 1 NWLR (Pt 68) 22, Chinwedu v Mbamali [1980] 3-4 SC 31. The evidence of DW1 and DW2 that the claimant was not harassed, verbally abused and her appointment verbally terminated on October 9, 2008 is hearsay and so is hereby rejected as inadmissible as they were not present at the meeting. There is no evidence that the defendant gave the claimant back her identity card which would give her access to its premises to perform her duties. Applying the legal test of the reasonable man, two expatriate male officers of the defendant in a position of authority over the claimant invited her to a meeting in which the female personnel manager is not present neither is any other officer present. They discussed with her and then ordered her to leave her laptop and the identity card that gives her access to her place of work when she was not facing any disciplinary process. She is not paid any salary and is denied access to work. The only probable conclusion to be reached in the circumstances is that the claimant has been intimidated, harassed, verbally abused and orally dismissed. I believe that the claimant was harassed, verbally and racially abused, her identity card was withdrawn simply because the defendant and its agents never wanted the claimant to parade herself as its employee – a case of termination, actual and/or constructive. There is no evidence that before October 9, 2008 through to October 20, 2008 when DW1 invited the claimant for a meeting she was issued a query accusing her of wrong doing. I find that the harassment, intimidation and oral termination was reinforced in the action of the defendant and its agents when DW1 gave the claimant exhibits A4A & A4B which are two statements of accounts of terminal benefits from the acting Operations Manager; one indicating dismissal and the other redundancy payments and asked her to make a choice which left her in tears. Now, dismissal is the punishment meted to an employee found guilty of misconduct while redundancy is an involuntary and permanent loss of employment caused by an excess of manpower. There is no evidence of misconduct by the claimant or the defendant company declaring a redundancy. This action of the defendant and its agents DW1 and DW3 is deplorable. I hold that this is an unfair labour practice applied with the sole aim of harassing and pressurizing the claimant into taking a decision capable of being detrimental to her interests. Exhibits A4A & A4B dated 6th October 2008 were prepared before the meeting of October 9, 2008 and is an indication that the harassment of the claimant and her oral dismissal was thought out. If the claimant had not been orally dismissed, there would have been no need for her to be given exhibits A4A and A4B and told to make a choice of terminal benefits. The defendant’s conduct in presenting the claimant with both a dismissal and a redundancy document to choose from is a clear case of constructive dismissal. On the balance of probabilities and preponderance of evidence, the only proper conclusion to arrive at is that the claimant was harassed, verbally and racially abused, and orally terminated by the defendant and its agents on October 9, 2008 in breach of the contract of employment and I so hold. At this juncture, I must state that there is no room for harassment and personal insult of any employee in the workplace. The claimant is a Black African woman. The defendant’s agents have insulted the claimant and used ethically derogatory words “fucking nigger”. Globally, this is a racial epithet that is offensive to the Black race in general. It is degrading treatment for a Black person to be called “a fucking nigger”. Both words are abusive and are uttered in total disrespect of the dignity of a person. These words fall squarely within the provisions of Section 34 (1) (a) of the 1999 Constitution. See Uzoukwu v Ezeonu II [1991] 6 NWLR (Pt 200) 708 at 778. These words have no place in any workplace especially in a company such as the defendant. It has been used in the defendant’s premises. I find this to be reprehensible and an abuse of power by the defendant’s agents. The claimant was a subordinate officer unable to defend herself against these hierarchical superiors. I find that these offensive words are an affront to the dignity (especially workplace dignity) of the claimant and I so hold. The defendant and its agents are accordingly in breach of the provisions of Section 34 (1) (a) of the 1999 Constitution. The next issue is whether the defendant’s letter of termination dated December 5, 2008 is valid. After the oral termination of the claimant’s employment, her Solicitors wrote two letters exhibits A3 and A6 to the defendant dated October 27, 2008 and October 31 2008 respectively. The defendant then began to take some actions. The most probable explanation for the defendant’s belated actions is that upon receipt of the claimant’s Solicitors letters, it saw the need to act within the confines of the law and the employment contract with the aim of avoiding liability. It then took the step of issuing the claimant a query I believe was back dated and used one of its employees who was accompanied by armed Police escorts to deliver the query. The defendant expects this court to believe that it needed to serve a query on the claimant in her home in Lekki using armed Police escorts because of its Quality, Health, Safety and Environmental (QHSE) policy. What did it expect her neighbor’s to think about her character? Surely, there were other ways of delivering a query to an employee without resorting to the use of armed Policemen. Why didn’t the defendant send the query to the claimants email address? I find the method of delivery to be a further act of harassment of the claimant by the defendant and I so hold. The defendant then proceeded to pay the claimant’s salary for the months of September, October and November 2008 when it knew she had stopped work. Finally it sent a letter dated December 5, 2008 terminating her appointment and paying one month’s salary in lieu of notice in accordance with the employee manual. Certainly, these belated actions were an exercise in futility as the wrongful act of oral termination by the defendant and its agents brought the employment contract to an end on October 9, 2008. The claimant ceased to be an employee of the defendant from that date. This is evidenced by the fact that she had stopped work. I find that all the belated actions of the defendant are a pretext to justify the intimidation, harassment and oral termination of the claimant’s employment. I hold that the letter of termination dated December 5, 2008 is null and void. On the issue of damages, there is no evidence in support of an award for special damages. This is a relief that must be strictly proved. It is therefore refused. There is no doubt that the claimant has been injured by the verbal and racial abuse and harassment she had to undergo at the hands of the defendant and its agents. Her integrity, pride, dignity and sense of self worth have been affected by the wrongful actions of the defendant. She is entitled to an award of general damages pursuant to the provisions of section 19 (d) of the National Industrial Court Act 2006. Consequently, I award the claimant the sum of N2,856,600.00 (Two Million, Eight Hundred and Fifty Six Thousand, Six Hundred Naira) being the equivalent of eighteen month’s base salary for violation of her right to dignity of person guaranteed under Section 34 (1) (a) of the 1999 Constitution and for harassment. I make no award for the wrongful termination because I find that the defendant paid the claimant one month’s salary in lieu of notice as part of its belated actions. The defendant is to pay the claimant her outstanding terminal benefits. For all the reasons given above, I make the following declarations and orders: 1. The oral termination of the claimant’s employment on 9th October 2008 as executed by agents of the defendant in its offices and on behalf of the defendant is contrary to the contract of employment dated 27th April, 2007. 2. The oral termination executed by the defendant through its agents is in breach of the contract of employment and is wrongful. 3. The letter of termination dated 5th December 2008 is a pretext to justify the harassment and oral termination of 9th October 2008 and is therefore null and void. 4. Harassing and pressurizing the claimant into taking a decision capable of being detrimental to her interest is an unfair labour practice. 5. The defendant and its agents have breached the provisions of Section 34 (1) (a) of the 1999 Constitution and infringed on the claimant’s right to dignity of her person. 6. The defendant is to pay the claimant the sum of N2,856,600.00 (Two Million, Eight Hundred and Fifty Six Thousand, Six Hundred Naira) as damages for infringement to her right to dignity and harassment. 7. The defendant is to pay the claimant her terminal benefits. 8. All sums to be paid within 30 days from the date of this judgement. 9. Costs of N50,000.00 is to be paid by the defendant to the claimant. Judgement is entered accordingly. _________________________________ Hon Justice O. A. Obaseki-Osaghae