IN THE NATIONAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HON. JUSTICE O.O. OYEWUMI
Date: 21ST JULY, 2022 SUIT NO NICN/LKJ/ 16/2019
MOSES IBRAHIM CLAIMANT
1. DANGOTE CEMENT PLC DEFENDANTS
2. DANGOTE PROJECTS LIMITED
M.O. Ogedengbe Esq with Austin Oboni Esq for Claimant
B.M. Musa Esq with M.O. Opara Esq for the Defendants
1. A perusal of the Originating process evinces that this action is declaratory. The law is of common that a party who seeks a declaratory relief must rely on the strength of his own case to prove that he is entitled to the reliefs sought. Thus, a Claimant who seeks a declaratory relief needs to satisfy the Court on the balance of probabilities to be entitle to same. As such, declaratory reliefs cannot be granted in the absence of credible defence or on admission of the defence but on satisfactory and credible evidence by the Claimant. See the following cases; Ofongo v. A.P.C. 4NWLR (Pt 1821)543@573-574, Paras G-C (SC); Adamu v. Nigerian Airforce  5NWLR (Pt 1822)159@177, Paras F-G; 178, Paras E-G (SC); Adesina v. Airfrance 8 NWLR (Pt 1833)523@555-556, Paras H-B (SC); PDP v. I.N.E.C 7 NWLR (Pt 1300)538@561, Paras F-H. However, the law does not preclude such a Claimant from relying on aspects of the defendant’s case which supports his own. See the case of Hanatu v. Amadi  9 NWLR (Pt 1728) 128, Paras A-C.
2. Claimant in this case filed his General Form of Complaint on 17th May, 2019 but same was subsequently amended and filed on the 2nd day of July 2019 wherein Claimant seeks the following reliefs against the defendants;
1. A declaration that the termination of the Claimant employment with the 1st defendant is unlawful, illegal, void and of no effect same having been carried out in flagrant disregard to the 1st defendant’s conditions of service as provided for in her organizational handbook.
2. A declaration that the claimant is still in the employment of the defendants and as such entitled to all his salaries and allowances from the 1st defendant until they resort to 1st defendant’s conditions of service in disengaging the claimant
3. General damages of N5,000,000.00 (Five Million Naira) only against the defendants for the emotional torture arising from the period the claimant was left hanging without work and the unlawful disengagement of the claimant.
4. Cost of filing and prosecuting this suit.
3. It is Claimant’s case that he was an employee of the 1st defendant as a junior HEMV Operator but was detailed to the 2nd defendant to work with Dangote Coal Mining Ankpa, Kogi State but he was sometimes arrested and detained for 9 days by the Police following an allegation of criminal breach of trust. He was subsequently arraigned before a Court and was discharged after being exonerated of the allegation but despite his exoneration and discharge he was asked to stop work which persisted for over 9 months, he therefore, retained the services of a law firm to write the defendants but yielded no results. He subsequently, caused his lawyer to write the defendants a detailed correspondence dated 21st day of January, 2019, he was later called upon to resume work on the 25th day of February, 2019 with a promise to pay all his arrears of salaries. Pursuant to this he resumed work, worked for a month in March and was paid salary for the said month but was later served with a letter of disengagement. He stated that he was not given any period of notice or salary in lieu of notice in flagrant disregard of the conditions of his employment as provided in the organizational handbook of the 1st defendant. However, after the termination of his employment the defendants paid him the sum of N573,156.04 without description of what it was actually meant for, which amount is short of his outstanding salaries for 10 months. He also averred that he was never queried nor suspended throughout the period of his employment.
4. The defendants on their part filed their joint statement of defence in response to the action on the 26th day of October, 2020 wherein they admitted Claimant’s averment in his amended statement of facts as regard his employment relationship with the defendants. They averred further that Dangote Coal Mine Ltd where Claimant works and the 2nd defendant are subsidiaries of the 1st defendant. They continued that Claimant was employed by the 1st defendant and worked at its Obajana Plant until he was transferred to work at the 2nd defendant’s coal mine at Ankpa and that once an employee is being transferred to the Coal mine, he is deemed to be under Dangote Project Ltd, the 2nd defendant as it is the same Company as the Dangote Coal Mine Ltd. They equally averred that they are unaware of all what transpired between Claimant and the Police as well as the Court. It is equally part of their averments that Claimant was never asked to stop work but the Claimant’s salary was only put on hold pending the determination of the case against him. They admitted that a letter was received from Claimant’s lawyer on payment of 7 months arrears which letter was honoured as the Claimant was subsequently reinstated on the 22nd day of February, 2019 and all his arrears paid. Claimant’s employment was terminated for services no longer required on the 4th day of April, 2019 and one month’s salary in lieu of notice was paid to him and his arrears of salaries were paid in full and not in any way short of his entitlements. Finally, they stated that Claimant’s March salary was equally paid including the four days he served in the month of April.
5. On the 26th day of January, 2022, parties in this case consented to adopt the Argument on Record Procedure pursuant to Order 38 Rule 33 of the National Industrial Court (Civil Procedure) Rules to argue their case on record and dispensing with the need for oral evidence. As it is customary to do in line with the procedure adopted by parties, this Court ordered parties to file their final written address. Claimant in this case filed his final written address on the 8th day of March, 2022 and same was adopted vide a letter filed on the same date wherein learned counsel on behalf Claimant formulated the following issues for determination;
1. Whether the contract of employment (appointment) of the Claimant is the one with statutory flavor such that he cannot be disengaged unilaterally without recourse to the terms and conditions of employment.
2. Whether having regard to the circumstances of this case, the claimant’s disengagement was in flagrant disregard of the defendant’s organizational handbook/Regulations.
3. Whether the claimant is entitled to all the reliefs claimed in this suit.
6. With regards to issue one, it is learned counsel’s submission that an employment with statutory flavor is one in which the terms and conditions of employment is governed by the provisions of a statute. He relied on the following cases Bamgboye v. University of Ilorin 6SCNJ 296@347-348; Mallam Mohammed Alhassan v. Ahmadu Bello University, Zaria & 2 Ors 11 NWLR (Pt 1259)417-627; Isievwore v. NEPA 13 NWLR (Pt 784)456, Paras A-F. He submitted that reference was made in the Claimant’s letter of employment to the organizational handbook of the defendant, that the Claimant gave the defendants notice to produce but they failed to produce it. He urged the Court to hold that the failure of the defendants to produce the handbook is withholding evidence. Learned counsel referred the Court to Section VII pages 67-68 of the handbook. He therefore urged the Court to resolve issue one in favour of the Claimant and hold that the employment of Claimant is one that enjoys statutory flavor.
7. Learned counsel submitted on issue two, that where a statute provides for a condition to be followed, the public body must of necessity follow the statutory conditions and as such an employer in an employment with statutory flavor cannot terminate at his pleasure. He cited in support the case of Mallam Mohammed Alhassan v. Ahmadu Bello University, Zaria & Ors, supra. He submitted that the terms and conditions of Claimant’s employment contained in the handbook provides for the procedure to follow in the event of termination of employment which is that there must be one month’s notice or one month’s salary in lieu of notice. He submitted that while Claimant has been able to show by credible evidence that he has not been paid one month’s salary in lieu of notice, the defendants on the other hand failed to substantiate their assertion that claimant was paid. He submitted that the defendants have not been able to successfully prove vide Appendix A which they relied on that the sum was paid to either Claimant’s account or given to him personally. He urged the Court to hold that Appendix A is nothing but an afterthought by the defendants to cover up for their failure and hold that the termination of claimant’s employment was in breach of the terms and conditions of employment.
8. On issue three, Counsel submitted that in an employment with statutory flavor where the employment is not properly determined, the Court will make an order of specific performance. As such the Court will make a consequential order of reinstatement. He relied on Mallam Mohammed Alhassan v. Ahmadu Bello University, Zaria & Ors, supra and Bamgboye v. University of Ilorin, supra. He argued that the inference of a finding that the termination of such employment is null and void is that same is deemed to be continuous as if there was no termination. He cited in support the case of Balogun v. University of Abuja 13 NWLR (Pt 783)42@466-467, Paras F-B. He urged the Court to hold that the termination of Claimant’s employment is therefore null and void and as such entitled to a consequential order of reinstatement and other reliefs sought.
9. Learned counsel on behalf of the defendants filed his final written address on the 22nd day of April, 2022 and adopted same by letter dated the same date. Learned counsel therein formulated two issues for determination thus;
1. Whether or not the Claimant’s dismissal from the service of the defendants was unlawful?
2. Whether or not the claimant has proved his case on the preponderance of evidence to be entitled to the reliefs sought?
10. On issue one, learned counsel submitted that the dismissal of claimant from the defendants’ employment was lawful having complied with the conditions of service of staff which is as contained in the letter of employment. He referred the Court to the last paragraph of the letter of employment. He also referred the Court to Appendix A relied on by the defendants. He argued that he who has a right to hire has a right to fire and that the employment relationship between the parties is an employment contract and not one with statutory flavor. He referred the Court to the case of Organ v. NLNG 16 (Pt 1381) 506@537, Paras B-C.
11. Respecting issue two, learned counsel submitted that civil cases are decided on the preponderance of evidence urging the Court to hold that Claimant has not proven his case beyond the preponderance of evidence as to entitle him to the reliefs sought. He submitted that Claimant must prove his assertion that the condition for termination was not complied with by the defendants. He relied on the case of Olusanya v. Osinleye 7NWLR (Pt 1367)148@171, Para E. He contended that it is the defendant’s case that the only condition for termination is to give one month’s notice or one month’s salary in lieu of notice which the Company complied with. He referred the Court to the last page of Exhibit B which shows that the defendants paid the Claimant one month’s salary in lieu of notice and even paid for 4 days in April. He submitted that it is needless to dissipate energy on the issue of the defendants withholding evidence by not producing the handbook since the provision for notice contained in the handbook is equally contained in the letter of employment. Also, the counsel on behalf of the Claimant has already quoted the handbook in the address of claimant and the defendants have nothing to hide having complied with the condition stipulated therein. He urged the Court to dismiss the case of the Claimant with cost as it lacks merit.
12. I have carefully perused the originating process, the statement of facts along with the accompanying processes, the statement of defence along with its accompanying processes and the final written addresses of parties in this case, I am of the humble view that the issues that will best determine this case are;
1. Whether Claimant’s employment is one clothed with statutory flavor.
2. Whether Claimant has proven his case to be entitled to the reliefs sought
13. Respecting issue one framed, learned counsel for the Claimant made a heavy weather of the argument that Claimant’s employment is one clothed with statutory flavor in his final written address in this case. I must say that learned Claimant’s counsel clearly misconceived the position of the law on employment with statutory flavor and I will proceed to state why. There is no doubt that there are basically three types of employment, namely; a). Purely master- servant relationship; b) where servants hold the office at the pleasure of the master and; c) employment with statutory flavour. See the cases of Comptroller General of Customs v. Gusau  LPELR- 42081(SC)1@30-31, Para F; CBN v. Igwillo  LPELR-835 (SC)1@20, Para B. An employment is said to be of statutory flavor when the appointment/employment and the conditions governing same are contained in the statute or in a regulation made pursuant to the statute. Accordingly, two conditions must be met, namely (a) that the employer is a creation of statute and (b) the conditions of service are contained in the statute creating the employer or in a regulation made pursuant to the statute. See the following cases; Oforishe v. Nigerian Gas Company Ltd 2 NWLR (Pt 1602)35 @60-61, Paras G-A; PHCN v. Offoelo,  LPELR-19717 (SC); Fakuade v. OAUTH 5 NWLR (Pt 5) 17; Olaniyan v. University of Lagos 2 NWLR (Pt 9)599 and; Eperokun v. University of Lagos  4 NWLR (Pt 34) 162. The law is long settled that where the employment contract is reduced into writing and it is not one that enjoys statutory protection it is no doubt one of master- servant relationship. Claimant’s employer in this case is a limited liability Company registered with the Corporate Affairs Commission which fact claimant averred in paragraphs 2 and 3 of his pleadings styled as “amended statement of claim” hereafter referred to properly as the amended statement of facts. It is not a creation of statute neither is it a Statutory Corporation. Claimant in this case pleaded his letter of employment which contains some terms and conditions of the employment. He equally pleaded vide paragraph 16 of the amended statement of facts a particular organization handbook of the defendant which though was not tendered. There is no doubt from the facts and circumstances of this case that the Claimant’s employment being one governed by the contract entered into between him and the defendants is one of a master-servant relationship and not one with statutory flavor as learned counsel for Claimant would have wanted the Court to hold. Accordingly, issue one is resolved against the Claimant.
14. Now, to issue two, claimant in this suit sought the grant of declaratory reliefs. It has been held in plethora of judicial authorities that in a claim for declaratory reliefs as in the instant case, the claimant must succeed on the strength of his own case and not on the weakness of the defendants’ case. The claimant would not be entitled to judgment even on admission. It is the duty of the claimant to first prove the existence or non-existence of what he asserted by relevant, admissible and credible evidence. Once this burden so placed on the claimant is discharged, the onus then shifts to the defendant. See the case of Uzodinma v. Ihedioha  5NWLR (Pt 1718) 529 @ 578, Paras D-G. However, a claimant is allowed to rely on aspects of defendant’s case that support his own. See the case of Hanatu v. Amadi  9 NWLR (Pt 1728) 128, Paras A-C and; Salisu v. Mobolaji  NWLR (Pt 1535) 280-281, Paras H-A and; C.D.C. (Nig) Ltd v. SCOA  6 NWLR (Pt 587)410.
15. Claimant in this case seeks a declaration that the termination of his employment is illegal, void and of no effect having been carried out in flagrant disregard of the 1st defendant’s conditions of service. It is trite law, that when an employee complains of wrongful termination of employment by his employer, he has the onus to prove the wrongful termination of the said employment by; (a) placing before the Court the terms and conditions of the contract of employment; and (b) proving in what manner the said terms were breached by the employer. See the following cases; Azever v. FBN Mortgages Ltd  LPELR-46851(CA)1@19-20, Para D; Angel Spinning & Dyeing Ltd. v. Ajah 13 NWLR (Pt. 685) 532; University of Calabar v. Essien  LPELR- 3416 (SC)1@56-57, Para F and; Amodu v. Amode 5 NWLR (Pt.150) 356. Claimant in this case as reasoned earlier pleaded his letter of employment which is marked as Exhibit M. He equally pleaded a particular organizational handbook which contains the other terms and conditions of Claimant’s employment which he did not tender but gave the defendant notice to produce same. In the case of Oguebie v. FBN  4 NWLR (Pt 1715)531@ 550, Paras C-E, the Court held inter alia that it is the duty of a party relying on documents in proof of his case to present at least secondary evidence of the contents of the document. In the same vein, the Supreme Court in the case of Ziregbe v. Eyekpimi 9NWLR (Pt 1729)327@351-352, Paras F-A, reasoned that the failure of a party to produce any document that is pleaded precludes the Court from relying on it. The failure of the Claimant to present the said handbook which he is relying on in proof of his case is thus fatal to his case.
16. I am not unmindful of the submission of learned Claimant’s counsel in his final written address specifically at page 141 of the record that failure of the defendant to produce the said handbook should be resolved as withholding evidence in Section 149(d) of the Evidence Act, 2011(as amended). Let me first state that there is no such thing as Evidence Act, 2011 (as amended) which learned Counsel is claiming to be citing from. The extant evidence Act, is “Evidence Act, 2011”. In the extant Evidence Act presumption as to withholding evidence is contained in Section 167(d) of the Evidence Act, the doctrine of withholding evidence as contained in Section 167(d) of the Evidence Act has its root in the latin maxim “Omnia praesumuntur contra spoliatorem” which means that “all things are presumed against a wrongdoer” can be invoked where an evidence which could be is not produced, it would be presumed to be against the party withholding it. See the following cases; Edosa v. Ehimwenma 5NWLR (Pt 1823)215@233, Para B (SC); Ewugba v. State 7NWLR (Pt 1618)262@ 281-282, Paras G-A and Smart v. State 9NWLR (Pt 1518)447@475, Paras F-H. It must be borne in mind that failure to produce a document pursuant to the service of a notice to produce cannot be resolved as withholding evidence. The Apex Court in the case of Eweje v. O.M. Oil Ind Ltd 4 NWLR (Pt 1765)117@138-139, Paras H-B; Fassassi v. Zanfara State Govt & Anor  LPELR- 49323; held that the service of a notice to produce does not compel the party served to produce the document. Rather it entitles the party serving the notice to adduce secondary evidence of the document in question. See also the case of Buhari v. Obasanjo 13NWLR (Pt 941)1. It is obvious from plethora of case law authorities that failure to produce pursuant to a notice to produce only entitles the party serving the notice to adduce secondary evidence of it. In fact, the apex Court in the case of Abimbola v. State  17NWLR (Pt 1806)399@436, Para B held that failure of a person to produce a document after being given notice to produce cannot be resolved as withholding evidence as Section 91 of the Evidence Act that deals with notice to produce does not relate to Section 167 of the Act that which deals with withholding evidence. Thus, it is clear that the defendants cannot be compelled to produce the said organizational handbook and neither can the failure of the defendants to produce same be resolved as withholding evidence.
17. From the foregoing, it is clear that the only document before the Court which this Court can rely on in the absence of the handbook is the letter of appointment in proof of the terms and conditions of employment. Claimant in this case vide paragraph 16 of the amended statement of facts averred that he was not given any notice neither any salary in lieu of notice in flagrant disregard of the conditions of employment contained in the handbook. The defendants vide paragraph 12 of the statement of defence averred that Claimant’s employment was terminated for services no longer needed and one month salary in lieu of notice was paid to him. The defendants relied on a document titled appendix A. The Claimant in response vide paragraphs 6-7 of the Reply averred that shortly after he was disengaged the defendant paid the sum of
N573,566.04K into his account without description on the 9th day of April, 2019 and when he approached the account section of the defendants for clarification, he was told that the amount paid to his account represents his salaries and arrears for over 9 months having unilaterally deducted his indebtedness to their cooperative in error. Claimant relied on his statement of account together with its certificate of compliance hereby marked as Exhibit M4. The law is of common that in a master- servant employment where parties have reduced the terms and conditions of service into writing by way of contract, the terms must be observed and complied with by parties. This is because the common law recognizes and protects the sanctity of contract. The position of law as regards master servant relationship is clear as the law sees it as a contractual one governed by the terms and conditions of the employment contracts. See the case of Oak Pensions v. Olayinka  LPELR- 43207 (CA)1@ 39-42, Para G. As such, where the employer wishes to terminate employee’s employment, he must do so in accordance with the contract entered into by parties. See the cases of Organ & Ors v. Nigeria Liquified Natural Gas Ltd  LPELR-20942 (SC)1@ 34-35, Para E and; Longe v. FBN  LPELR-1793 (SC)1@ 71-72, Para F. In the case of Keystone Bank Ltd v. Clarke  LPELR-49732 (CA)1@ 24, Para A, the appellate Court per Nimpar JCA, quoted with approval the decision in Olaniyan & Ors v. Unilag & Anor, supra and held that just like other contracts, contract of employment’s creation and termination are subject to the general principle of contract. As such where the terms of contract are in writing, parties are bound by the express terms of their contract. The duty of Court in such instance is to interpret the terms of contract of the parties and give effect to it. See also the case of Sahara Energy Resources Ltd v. Mrs Olawumi Oyebola  LPELR-51806 (CA)1@25-26, Paras B-B and; Omega Bank (Nig.) Plc v. O.B.C. Ltd  8 NWLR (Pt 928) 547. The Court in interpreting the terms of the contract between the parties must give the words their plain, ordinary and natural meaning where the words used are clear and unambiguous. In the case of Esset Petroleum Ent. (Nig) Ltd v. Petroleum Equalization Fund (Mgt) Board & Anor  LPELR-47355 (CA)1@ 25-27, Para E, the Court held that where the words used in a contract are clear, the operative words in it should be given their simple and grammatical meaning. See also the case of FCMB V. John Andy & Sons Co. Ltd  53322(CA).
18. I have reasoned earlier in this judgment that Claimant failed to tender the handbook that provided for giving of a notice before termination. The Court however, does not lose sight of the fact that the letter of employment (Exhibit M) which also forms the bedrock of relationship between parties also contains a provision for giving notice. This fact was equally alluded in the final written address of the defendants. The letter of employment Exhibit M being a document will speak for itself. See the case of Olukemi v. Airtel Networks Ltd  2 NWLR (Pt 1761) 499 @546, Asuquo & Anor v. Omole & Anor  LPELR- 47867(CA). I have perused the said Exhibit M and it provides thus as regards notice; “Both the company and you can terminate the employment by giving one month notice or paying one month salary in lieu of notice. However, during the probationary period, the notice period shall be two weeks on either side”. It is clear from Exhibit M that the employment relationship can only be terminated by giving one month notice or one month salary in lieu of notice by either Claimant or the employer but where the employment was terminated during the probationary period, the employment can only be terminated by two weeks’ notice on either side. From the pleadings of Claimant and the evidence on record particularly Exhibit M1, it is clear that claimant is a confirmed staff of the defendants. As such, the two weeks’ notice period will not apply in this case but the one month notice period. Thus, it is without doubt that Claimant is entitled to one month notice or one month’s salary in lieu of notice before termination of his employment.
19. I do not lose sight of the fact that learned counsel on behalf of Claimant in his final written address pages 141 and 142 of the record referred the Court to several portions of the said handbook on disengagement which provided also for one month’s notice or one month’s salary in lieu in the event of termination. As reasoned supra, Claimant did not tender the said Handbook which is part of the documents being relied on. Let me remind learned Claimant counsel that address of Counsel no matter how beautifully written or done cannot take the place of evidence where there is none. See the cases of Angadi v. PDP 15 NWLR (Pt 1641)1@31, Para E; Oyeyemi v. Owoeye 12 NWLR (Pt 1580)364@403, Paras E-F, 404, Paras A-B, 417, Paras D-E and; Agbaruka v. F.B.N Ltd 3NWLR (Pt 1182)465@485, Para G. The address of learned counsel wherein he quoted Section VII of the Handbook (a document that is not before the Court); providing for one month’s notice cannot take the place of evidence, which is the handbook which was not tendered in this case. As such, that portion of the address of Counsel is of no relevance in this case and thus discountenanced.
20. Claimant in this case had maintained that he was asked to stop work and which state of affairs persisted for over 9 months. The defendants on their part in their joint statement of defence denied the assertion of the Claimant that he was asked to stop work. They contended that the Company’s Human Resource only ordered that Claimant’s salary be stopped. They relied on Exhibit D4. This fact was equally reiterated in the statement on oath of DW Yahaya Zakari Jibril. However, this Court finds from a perusal of the Exhibits particularly Exhibit D3 an internal memo titled “re-instatement and payment of arrears of salaries of Moses Ibrahim (Ankpa-Staff)” recalling Claimant clearly shows that Claimant was ordered to be reinstated and called back to work from suspension as evinced on the memo. The question that requires an answer here is if Claimant was not asked to stop work as contended by the defendants how come Exhibit D3 which was tendered by the defendants stating that he should be recalled to work and be paid all his salaries from the period of suspension from work to the date of the memo. It is a standing principle of law that oral evidence will not be allowed to contradict documentary evidence. See the following cases; Arije v. Arije & Ors  LPELR-44193(SC)1@36-37, Para E; Fakomiti v. Ilori & Anor  LPELR-46367(CA)1@25, Para A and; Michael Dan Udo v. Chief C. Udom Eshiet  8 NWLR (Pt 363) 482@503, Paras B - D. The ipse dixit of DW in paragraph 10 of his written statement on oath cannot be allowed to discredit clear contents of Exhibit D3 showing that claimant was reinstated and recalled to work and was to be paid his arrears of salaries from the period of suspension to the date of the memo. Thus, the ipse dixit of DW in paragraph 10 of the statement on oath is of no evidential value as same cannot impeach or alter the content of exhibit D3. I so find and hold.
21. Now to the contention between parties about the payment or non-payment of the one month’s salary in lieu of notice. Claimant on his own part maintained that he was not paid one month’s salary in lieu of notice contrary to the assertion of the defendant that the sum of
N573, 156.04K which was paid into his account on 9th April 2019 represents his salaries and arrears for over 9 months the defendants having unilaterally deducted his indebtedness to the cooperative in error. Claimant supported this assertion with Exhibit M4. The defendants on their own part maintained that Claimant was paid his one month’s salary in lieu of notice and relied on Exhibit D which is a list of full and final settlement of Claimant. This Court believes the assertion of the Claimant that the said sum that he was told by the accounts section that the money was for his arrears of salaries after unilateral deduction of his indebtedness to the Cooperative and I will explain why. Claimant had earlier averred in paragraph 18 of his amended statement of facts that the said sum of N573, 156.04 was paid to him as his arrears of salaries but same fell short of how much he is entitled to. The defendants in response vide paragraph 14 of their joint statement of defence responded that the said sum represents Claimant’s full and final settlement for his arrears of salaries which facts were equally reiterated in the statement on oath of DW. It is a trite principle of law that documentary evidence is the hanger on which to assess oral evidence. See the following cases; Emeka v. Innocent & Ors  LPELR-48190(CA)1@26-27, Para F; Oyewusi & Ors v. Olagbami & Ors  LPELR-44906(SC)1@39, Paras B-B and; First Bank v. Azifuaku  LPELR-(CA)1@19, Paras E-E. I have perused Exhibit M4 relied on by claimant and it is clear that truly on 09-April 2019 Dangote Coal Mines Ltd did transfer the sum of N573,156.04K to the account of Claimant but there was no description of what it was meant for. It should be noted that Exhibit D3 relied on by the defendants” states clearly that Claimant has been reinstated and that he is to be paid his arrears of salaries from the date of suspension to the date of the letter which is February, 22, 2019. Also Exhibit D2 document titled “Fund Transfer’ which was also relied on by the defendants in this case authorized Access Bank, the Bank of Dangote Coal Mines Ltd to debit its account with the sum of N573,156.04 in favour of Claimant through his Guaranty Trust Bank Account which this Court finds to be the same amount that was credited to Claimant’s GTB account on 09, April, 2019 as seen in Exhibit M4. It is thus clear without any shadow of doubt that of a truth the sum of N573,156.04K Claimant was paid was his arrears of salaries as alleged by him and as deducible from exhibits D2 and D3 tendered by the defendants.
22. I have equally perused Exhibit D relied on by the defendants in support of their assertion that Claimant has been paid his one month’s salary in lieu of notice and I can categorically say that the Exhibit is just a breakdown of Claimant’s entitlement. There is nothing in the said Exhibit that shows that Claimant was actually paid the sum of N94, 815.17 calculated in the Exhibit. It is merely a breakdown and nothing more. It doesn’t show Claimant has been paid as alleged by the defendants. It is merely a breakdown as the document speaks for itself. In fact, the stamp on it shows that the Audit Department of Dangote Group passed same on the 9th day of May, 2019 which date is clearly a month after Claimant’s employment was terminated on the 4th day of April, 2019. The Court in the case of Bolou v. Federal College of Education, Obudu & Anor  LPELR-47465(CA)1@22-24, Paras C-C held that the burden of proving payment of salary in lieu of notice lies on the party asserting the positive which is the employer in line with Sections 131 and 132 of the Evidence Act and that the employee assertion of the negative does not place any such burden on him. That the employer has the burden to prove that the employee was actually been paid. The defendants herein are duty bound to show that they actually paid the said sum to the Claimant. There was no such evidence before this Court. The defendants who have this burden has failed to prove or substantiate their assertion that Claimant was paid in view of the reasoning above that there is nothing in Exhibit D to show that Claimant was paid or that the said sum was paid to his account.
23. I am mindful of the submission of learned counsel on behalf of the defendants on issue two formulated in his final written address that the defendants have been able to show that Claimant was paid one month salary in lieu of notice and he referred the Court to Appendix B which shows that Claimant was paid one month’s salary for March and four days in April (which is herein as Exhibit D1). Let me first state that defendants in his pleadings specifically by paragraphs 12 and 13 of the defendants’s joint statement of defence that the Claimant was paid one month’s salary in lieu of notice and the document evincing the payment is Appendix A (which is herein as Exhibit D). In fact the defendants went further in paragraph 14 of the same joint statement of defence to plead that Claimant was paid his march salary including the four days he served in April while pleading and relying on Appendix B (herein as Exhibit D1). It is thus clear from the pleadings of the defendants that the sum paid to Claimant in Exhibit D1 (referred to as Appendix B in counsel’s address) represents claimant’s salary for the Month of March and 4days in April in which he worked different from one month’s salary in lieu of notice in proof of which they are relying on Exhibit D1. The averments of the defendants are clear to the effect that the document showing claimant was paid one month’s salary in lieu of notice is Exhibit D and not Exhibit D1 as learned counsel would want this Court to believe. In the case of Ozomgbachi v. Amadi & Ors  LPELR-45152(SC)1@54, Paras A-D the Apex Court held that parties are bound by their pleadings and a party will not be allowed to set up a case different from its pleadings. See also Young Shall Grow Motors Ltd v. Onalaja 3NWLR (Pt 1763)200@316, Paras B-E and; Sogunro v. Yeku 9 NWLR (1570)290@310-311, Paras C-C. As such parties including their counsel cannot orbit outside the compass of the issues so joined in their pleadings in search of a more luxurious facts. It is wrong of learned counsel to be trying in his address to mislead the Court by setting up a case different from the one set up in the defendants’ pleadings as there was nothing in the pleadings of party that says that the amount paid to Claimant as salary for March and 4days in April represent his one month’s salary in lieu of notice. Besides it is clear from the facts averred by parties and the evidence before the Court that Claimant worked for March 2019 and 4 days in April and thus entitled to be paid for the work he did which is separate from one month’s salary in lieu of notice provided for in his letter of employment.
24. In view of all reasoned supra I find that Claimant was not paid one month salary in lieu of notice which he is entitled to before termination of his employment by the defendants. Failure to pay the one month salary in lieu of notice is in breach of the term of claimant’s employment, In the case of Ibama v. SP.D.C. (Nig.) Ltd.  17 NWLR (Pt.945) 364 Onnoghen JSC, CJN (now retired) held: "Except in employment governed by Statute wherein the procedure for employment and discipline (including dismissal) of an employee are clearly spelt out, any other employment outside the Statute is governed by the terms under which the parties agreed to master and servant... In other cases governed only by agreement of the parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed to; any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void…” See also the case of Katto v. CBN LPELR-1677(SC)1@30-31, Para E. Claimant in this case in his first relief seeks a declaration that the termination of his employment is illegal, void and of no effect having been carried out in flagrant disregard of the 1st defendant’s conditions of service. I have held that the claimant’s employment is not one that enjoys statutory protection but one of a master-servant employment. It then means that in line with the above judicial authorities the termination of such employment even where found to be contrary to terms and conditions of employment cannot be declared as unlawful but wrongful. Accordingly, Claimant’s first succeeds to the extent that termination of Claimant’s employment is wrongful for being in breach of the terms of the contract. I so find and hold.
25. Noteworthy is the fact that learned counsel on behalf of the defendants in his final written address kept referring to the severance of the employment relationship between parties in this case as dismissal. Need I remind learned defence counsel that there is a whole world of difference between termination and dismissal? While in termination of employment the right to terminate is mutual and most times entails a right to notice and there is equally no loss of accrued benefits, in dismissal there is no right to notice and there is equally loss of all benefits as it is a disciplinary/punitive measure. See the following cases; Ekunola v. CBN LPELR-2039(SC); UBN Plc v. Soares LPELR-8018(CA)1@21-22, Para F and; 7UP Bottling Company Plc v. Augustus LPELR-20873(CA)1@26, Para B. Exhibit M2 which is the document evincing the severance of the relationship clearly shows that Claimant’s termination is not in consequence of any disciplinary or punitive issue and that Claimant was entitled to benefits and entitlements (if any). It is thus clear that the severance of the employment relationship as rightly referred to severally in this judgment is termination and not dismissal as learned counsel on behalf of defendants termed it in his final written address. I so find and hold.
26. Claimant in his second relief seeks a declaration that he is still in the employment of the defendants and as such entitled to all his salaries and allowances until the defendants’ resort to the conditions of service. It is trite that in a master- servant employment where termination is declared as wrongful as in this instant the employee cannot choose to treat his employment as still subsisting and decide to claim for salaries beyond the period of termination. This is because the fact that the termination of a servant is otherwise than in accordance with the procedure laid down in his contract of service, does not however in a case where the rights of the parties are regulated by contract normally prevent the termination from being effective termination of the contract. The only remedy available to the employee is a claim for damages. This is based on the notion that no servant can be imposed by the Court on an unwilling master even where the master's behaviour is wrong. For this wrongful act, he is only liable in damages and nothing more. See the following cases; Oforishe v. Nigerian Gas Co. Ltd, supra; Ekunola v. Central Bank of Nigeria & Anor.  15 NWLR (Pt. 1377) 224 @68-269; Olarewaju v. Afribank (Nig.) Plc  13 NWLR (Pt. 731) 691@705 Dr Chukwumah v. Shell Petroleum Development Co. of Nigeria Ltd. [1993) 4 NWLR (Pt. 289) 512@560. The second relief thus fails.
27. Claimant in his third relief claims for the sum of N5,000,000 as general damages. It is trite that at common law the measure of damages for wrongful termination is how much the employee would have gotten over the period of notice. See the following cases; Obanye v. UBN  LPELR-(SC)1@29-30, Para B; Gboboh v. British Airways Plc -40099(CA)1@13-13, Para F. In the case of Sahara Energy Resources Ltd v. Olawumi Oyebola,supra the Appellate Court per Ogakwu, JCA had the opportunity to decide on the common law orthodoxy on the quantum of damages for termination of employment and held inter alia thus; “…In the circumstances of this matter, where the dismissal of the Respondent was predicated on allegations bordering on dishonesty and bribery, which no doubt carries a stigma, it is what will form the base in considering the measure of damages to award in tune with international best practices. In this wise, there is the progressive decision of this Court in BRITISH AIRWAYS vs MAKANJUOLA (1993) 8 NWLR (PT 311) 276 at 288 (per Ubaezonu, JCA), delivered way back in 1993, which affirmed the award of two years’ salary as damages by the trial court. In the said case, it was held that the quantum of damages recoverable by an employee depends on whether the wrongful termination of employment was as a result of the failure to give the required notice or as a result of an alleged malpractice( and if the former, the quantum of damages may be the employee’s salary in lieu of notice, but if the latter then since such termination carries with it some stigma on the character of the employee, he shall be entitled to substantial damages far beyond the payment of salary in lieu of notice)… Accordingly, I will be a deferential to the general damages awarded by the lower court in the exercise of its jurisdiction to apply international best practices...” [Emphasis mine] Flowing from the above, it means that if wrongful termination is as a result of failure to give required notice, the quantum of damages may be employee’s salary in lieu of notice but if as a result of alleged malpractice which carries with it stigma, the employee is entitled to substantial damages. Although there is evidence in this case to show that Claimant was alleged to have committed criminal breach of trust against the defendants and was subsequently acquitted of same, there is no evidence before this Court to show that the termination of Claimant’s employment had anything to do with the alleged crime of criminal breach of trust which would have meant that such termination carries a stigma on the person of the Claimant in which case he would be entitled to substantial damages in line with international best practices. In fact, from the facts and circumstances of this case Claimant was recalled to work after some time and was even paid all his arrears of salaries as reasoned earlier in this judgment. Also, Exhibit M2 the letter of termination is clear in that Claimant’s employment was terminated because his services were no longer required. Claimant in this case ought to have gotten one month’s salary in lieu of notice of termination which the defendants failed to give. I find that the quantum of damages which Claimant is entitled to is his one month’s salary. Exhibit M the letter of employment evinces that Claimant’s one month’s salary is
N57,760.00 per month. Accordingly, I find that Claimant is entitled to the sum of N57,760 as damages for wrongful termination. I so find and hold.
28. Claimant vide his fourth relief claims for the cost of litigation. Claimant did not assess the cost but passed on the burden to the Court. The position of the law as seen in the decision of the Apex Court in Mekwunye v. Emirates Airlines, supra;  LPELR-46553(SC) Pp. 67-73, Para E is that costs including cost of litigation is at the discretion of the Court once empowered by its Rules. This Court has similar copious provisions as that of the Federal High Court relied upon by the Supreme Court in the case of Mekwunye v. Emirates Airlines, supra. The Rules of this Court, particularly Order 55 Rules 1,2,3,4 and 5 empowers the Court to grant costs of action at its own discretion. The discretionary power of the Court is to be exercised judicially and judiciously. The claimant in this suit did not assess the cost, rather he passed the burden on the Court. Considering the history and length of the case; the number of appearances in this case and; the number of processes filed, I will in my discretion award the claimant a reasonable cost of action. In exercise of the discretionary power of this Court to award costs, I award the sum of N200,000.00 as cost of litigation in this suit.
29. For the avoidance of doubt and the reasons earlier given, I declare and order as follows;
1. The termination of Claimant’s employment is wrongful for being in breach of the terms of contract.
2. Claimant is entitled to the sum of
N57,760 as general damages.
3. Claimant is entitled to the sum of
N200,000 as cost of litigation
4. This judgment is to be complied with within 14 days of the delivery of the judgment, failure of which it will attract a 10% post judgment interest per annum.
30. Judgment entered accordingly.
Hon. Justice Oyebiola Oyewumi