IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON JUSTICE A.N UBAKA

 

DATED 23^rd MARCH, 2026                                            Suit No: NICN/LA/260/2021

 

BETWEEN

 

CAPT. AYODELE OLATUBOSUN                                          CLAIMANT

 

AND

 

APM TERMINALS APAPA LTD                                                 DEFENDANT

 

REPRESENTATION:

Gabriel Uduafi with D.K Nwokike for the Claimant 

Micheal Akinleye with Ibitayo Reju for the Defendant

 

JUDGMENT

 

By a general form of complaint filed on the 22^ND July, 2021 the claimant claimed the following reliefs against the defendant:

 

 

 

 

 

 

 

 

 

 

 

Accompanying the complaint are statement of facts, written statement on oath, list of witnesses, documents to be relied upon on trial dated and filed 22^nd July, 2021.

 

In reaction, the defendant entered formal appearance and then filed an Amended statement of defence, Counter Claim, witness written statement on oath (dated and filed 6^th March, 2024) and documents to be relied upon at trial dated 27^th November, 2025 but filed 1^st December, 2025. The defendant/counter claimant counterclaimed as follows:

 

 

 

 

In the alternative to (2) and (3): 

 

 

The claimant’s consequential amended Reply to the defendant’s Amended statement of defence and defence to counterclaim is dated 15^th December, 2025 but filed 16^th December, 2025.

 

The summary of the facts pleaded by the claimant is that he is a security expert having worked with the Nigerian Army and rose to the rank of a Captain until his voluntary retirement which was effective from 31^st December, 2006 and upon retirement from the Nigerian Army, he is  entitled to retain the rank (Captain) for life; that he was employed by the Defendant on 19^th February, 2007 as an HSSE Supervisor and was promoted to the position of Country Security Manager with effect from 1^st September, 2016 and that he served the Defendant for over 14 years with complete loyalty, dedication and excellence; that by the second paragraph of his letter of employment dated 19^th February, 2007, it was expressly stated thus: 

 

"Although you are being employed for the job named above, it is a condition of your employment that you agree and accept reassignment to any other job within the Group in which, in the opinion of the company, your services can be best utilized." 

 

That by reason of the above provision of the letter of employment, he admirably led the security team of the group of companies to which the Defendant belong in Nigeria and that on several occasions, he was deployed to the West Africa Container Terminal Limited (WACT) in Onne to help resolved several security issues and coordinate the activities of the security manager of WACT, a function he performed satisfactorily and he also rendered similar support services to Lylipond Container Terminal, Lagos which is also owned and operated by the Defendant; that in promoting him to the position of Country Security Manager by virtue of the letter dated 1^st September, 2016, the Defendant concluded the letter with, "Congratulations and keep up the good work"; that his role as Country Head of Security covers the Defendant's port terminal in Apapa, the West Africa Container Terminal in Onne, Inland Depot in Lillypond, Lagos and Kano and COMAN Terminal, Cotonou, Benin Republic. That on 24^th March, 2017, he was promoted to the position of Regional Security Coordinator for West Africa for AP­-Moller Maersk Group with the following Terms of Reference: 

 

            

            

iii.       Make sure information of relevance from Corporate Security and security managers from the brands and Bus is cascaded to the regional security team; 

            

iv.       Make sure that the regional security team has minimum monthly "touch base" conference calls of maximum 30 - 45 minutes (to discuss security incidents, ongoing projects in the different countries, coordinate security efforts, coordinate absence/vacations, etc.); and 

 

v.         Participate in a 2-day security committee meeting in Copenhagen once annually. 

 

 

That at the start of year 2020, the Defendant was named the most compliant International Ships and Ports Facility Security Code (ISPS Code) Onshore Facility in Nigeria by the Nigerian Maritime Administration and Safety Agency (NIMASA) and he was very instrumental in achieving this feat, and in his capacity as the Country Head of Security, he received the award on behalf of the Defendant. That on 18^th March, 2021 at about 1.30pm or thereabout, he was invited to the office of the Managing Director of the Defendant and was verbally and unceremoniously informed to cease from coming to work immediately until further notice and that in doing this, the Defendant took away his access pass/company's identity cards shortly after the information was passed to him and the security team of the Defendant; that an mail issued by the Managing Director of the Defendant, Klaus Laursen, was circulated within the company at about 2.15pm and by which the members of staff were informed as follows: 

 

“With the aim of further strengthening our efforts in increasing the security of APM Terminals Apapa, a reorganization of our security function has been initiated by APM Terminals headquarters in the Hague together with the corporate security function for A. P. Moller - Maersk in Copenhagen. As part of this reorganization, the task currently performed by our in-house security function will be handed over to an external security services provider G4S and security management CRG, on a temporary basis effective today, 18^th March. 

 

While the new setup will, among other things, ensure continuous, independent and third-party security audits of all our processes, helping us continuously improve our security standards, it means that we will regrettably need to close down our security function headed by Olatubosun Ayodele (Ayo). I would like to use this opportunity to thank Ayo and his team for their contributions to APM Terminals Apapa over many years. Please join me in wishing them lots of success in their future endeavors. 

 

Should you have any further questions on this, please feel free to reach me or our Chief Operations Officer, Steen Knudsen, directly.

 

That a second release (by mail) was issued by Steen Knudsen, the Chief Operations Officer of the company, in the following terms: 

 

Dear Colleagues, 

 

You have heard about the change in our security function, where we have replaced our in-house security team with an external service provider, on a temporary basis. This message is to give you additional perspective and information which might be relevant. 

 

As a result of the reorganization and the change we have implemented, we are obliged to ask you to discontinue any interaction with the outgoing team, who will also going forward have no access to our facilities. This action is dictated by the nature of this function, where the incoming security personnel will immediately assume their tasks and will have immediate responsibility for the security of our terminal. 

 

As mentioned, the new setup will help us continuously improve our security standards and eliminate any irregularities that might occur.

 

That the Defendant did not just end at making the alleged termination of his employment an internal issue within the company but also caused to be issued notices to third-parties service providers about the alleged termination of his employment and the appointment of foreign nationals in his place; that by the letters dated 18^th March, 2021, the Defendant wrote to several organizations including the Nigeria Custom Service, Apapa Area Command, wherein the Defendant stated as follows: 

 

“I trust that this letter finds you well. We felt the need to communicate in writing with your esteemed office regarding changes to the structure of the security management at our Apapa Terminal. We recognize that your organization is an important stakeholder in the wider collaborative security of the Terminal and the surrounding area. We therefore feel the need to proactively engage with you concerning these important developments. 

 

Following several security incidents at the terminal, Management would like to inform you that with effect from today, the following individuals will no longer be employees of APM Terminals Apapa Limited and will no longer represent the organization in any further capacity. 

 

1.        Olatubosun Ayodele (Security Manager) 

 

2.        Henry Aijehi (Assistant Manager Security) 

 

3.        David Abiodun (Security Supervisor) 

 

4.        Ahmed Adebanjo (Security Supervisor) 

 

5.        Akande Akeem (Security Officer) 

 

6.        William Boromi (Security Officer) 

 

7.        Okechukwu Eze (Security Officer) 

 

8.        Oghenetega Otegheri (Security Officer) 

 

These changes are driven by the need to implement a new security framework and restructuring required to achieve positive improvement in the security and risk management of our operations in Apapa, Lagos. The new security framework requires a new structure that is necessary to achieve the improved performance and strengthen our security organization 

 

 

That the communication the Defendant had with third parties in respect of the alleged termination of his employment and those of other members of his team have far-reaching implications, some of which include but not limited to the followings: 

 

a.         His contract of employment was unceremoniously and abruptly brought to end even without informing him. 

 

b.         He was indicted by those third parties’ communications for acts of gross incompetence in the management of the security duties without giving him the opportunity to make any form of representation regarding any security concern for which The Hague, Copenhagen and Lagos are all said to have agreed that he be relieved of his duties/employment and the entire department security department which he headed be completely dispensed with. 

 

c.         He was treated in complete disregard of the terms and conditions of employment of his employment as contained in his contract of employment, the employee’s handbook and international best practice in labour related matters. 

 

d.        He was adjudged guilty of offences for which he was not afforded the opportunity of a hearing in accordance with the processes and procedure laid out in the Defendant's Employee Handbook, a situation that is akin to shaving a man's head in his absence. 

 

e.         Defendant did not inform him of any of its communication within the company and with third parties as they pertain to his employment. he had to learn from outsiders/third parties about his employment status contrary to the information passed to him on 18^th March, 2021 that he was merely required to proceed on leave and nothing more. 

 

f.          Despite the acknowledgment of his long years of service and the excellent services, he was not afforded the benefit of a decent termination and payment of compensation in line with the policy of the Maersk/AP Moller group. 

 

g.         His record of service has been tainted with the unceremonious termination and thereby would significantly hamper or impair his rating and profile for jobs of similar nature or in the maritime industry. 

 

h.        The termination of his employment appears to have been orchestrated and/or duly endorsed by Copenhagen and Hague without recourse to the labour laws of this country where he served the Defendant for several years and the principles of the United Nations Global Compact on human rights and discrimination in respect of employment. 

 

 

j.          After several years of toil, labour and sacrifices in the service of the Defendant, his job was taken and handed over to G4S/Martin Whitefoot, a company owned by foreigners while rendering a generation of Nigerians jobless in their country; thus making the termination of my employment on grounds of redundancy a complete hoax. 

 

k.         He was treated as inferior stock who deserve no form of human dignity in dispensing with his services as against the treatment given to the expatriate staff of the same company and against international labour rules/United Nations protocols that forbid work-place discrimination. 

 

l.          Without a hearing, he was indicted and adjudged to have committed "irregularities" or security breaches in less than a year of the Defendant winning an award as the best security team in the Nigerian maritime industry. 

 

That the excuse that the termination of his employment is “... driven by the need to implement a new security framework and restructuring required to achieve positive improvement in the security and risk management of their operations in Apapa, Lagos ...” as set out in the letter quoted above is a complete hoax and without merit whatsoever. Over the time, his recommendation to the Defendant to implement changes for the improvement of the security of the terminal was never implemented by the Defendant; that till date, the Defendant has not thought it fit for it to have any official communication with him regarding the circumstances surrounding the very poor and disdainful manner in which he was discarded like tissue paper after over 14 years of service at the management level. That upon becoming aware of the third parties communication regarding his employment status with the Defendant, he instructed his Solicitors to write to the Defendant and its affiliate bodies, calling the attention of the Defendant and its affiliates to the treatment being meted on him; and by a letter dated 7^th April, 2021, he demanded for an engagement with the Defendant for the purpose of reaching a compromise on the quantum of compensation/severance package appropriate for him in the circumstances created by the Defendant; that same letter of 7^th April, 2021 was copied and sent by courier service to the Regional Vice President, APM Terminal, AMI Management, Dubai, United Arab Emirates; the Chief Executive Officer, Corporate Head Office, Hague, Netherland; and the Chief Executive Officer, AP Moller Maersk, Copenhagen, Denmark and they did not consider it fit to either reply the letter or have any form of direct engagement with him regarding the treatment meted out to me but rather than treat him with some modicum of respect and address the issues raised in the letter dated 7^th April, 2021, the Defendant decided to ignore him and entered into a form of compromise and settlement with the other members of his security team to drop their claims against the Defendant wherein the Defendant made some payments to the other employees on whose behalf the letter dated 7^th April, 2021 was written. 

 

That the unceremonious termination of his employment and other members of the security team by the Defendant provoked some level of reaction by and engagement between the Maritime Workers Union of Nigeria ("MWUN") and the Defendant; and at a meeting held between the parties on 6^th April, 2021, the parties executed a "Memorandum of Understanding Reached Between the Maritime Workers Union of Nigeria (MWUN) and the Management of APM Terminals Apapa Limited (AAPMTAL)" wherein the following resolutions were set out: 

 

a.         APMTAL management confirms that employees in the security department will continue to receive their monthly salaries in accordance with the extant labour law provisions and collective bargaining agreement (CBA). 

 

b.         APMT assured the Union that international APMT staff (Beninese) invited on Short Term Assignments as a stop gap to manage manning shortfall or to address specific training requirements, are only on a temporary solution and a permanent solution of hiring or upskilling local employees are in progress. 

 

c.         As a follow up to item 2 above, APM Terminals will furnish the Maritime Workers Union of Nigeria with a timeline for completion of Short-Term Assignments (up to 6 months). 

 

d.        In line with existing CSA, APMTAL will discuss and reach agreement with MWUN if/when it considers outsourcing or any of its operations. Maritime Workers Union of Nigeria resolves to continue to collaborate with APMT Management to reach amicable resolution. 

 

e.         In accordance with its policy, APMT management will continue to train and retrain its employees to enhance effective and quick service delivery. 

 

f.          Management affirms that it has no intention to close any department but was only reorganizing the security department to provide effective service. 

 

g.         Management to convene URGENTLY another meeting with the union to resolve all pending issues. APMT requested for a rescind of the planned strike by MWUN at the end of the 3 days ultimatum. 

 

h.        APM Terminals and MWUN agreed that APMT shall not exceed the expatriate quota approved by the ministry of interior. 

 

 

The above resolutions were signed by two representatives of the MWUN and two top management officials of the Defendant - Klaus Holm Laursen, Country Manager and Aniemeka Umeonyido, the Head of HR both of the Defendants; that a couple of days down the line, he read in several newspaper publications that the MWUN shutdown the premises of the Defendant and one of the reports by the Vanguard newspaper of April 15, 2021 runs thus: 

 

“Maritime Workers Union of Nigeria, MWUN, Thursday shutdown the premises of largest container terminal in Africa, APM Terminals Apapa, Lagos over alleged racism and breach of agreement reached with the union. 

 

Recall that MWUN and the management of the APMT have in the past three weeks, been in a running battle over the replacement of Nigerians with foreign workers. 

 

Last week, both parties entered into discussions in an attempt to resolve the issue, but failed to reach agreement after the management was alleged to have refused to give a time frame when some of the foreigners would leave. 

 

It was gathered that the management had claimed the foreigners were brought in to train Nigerians. 

 

President General of MWUN, Prince Adewale Adeyanju who confirmed the shutdown of the terminal to Vanguard, among others said 'The workers have shut-down the terminal because of the anti-labour practices going on at APMT. 

 

It depends on APMT, let them go and reposition themselves and follow the due process in line with the National Industrial Negotiating council, NJIC agreement that we signed with them. It is the law. They are taking advantage of Nigerians and bringing in foreigners to take over our jobs. Now the workers have taken their fate or destiny in their hands that they won't allow this to happen. 

 

The jobs that Nigerians can do, APMT is bringing in Egyptians, Ghanaians, among others to come and head departments that Nigerians have been heading. The white man heading the terminal has no regard for Nigerians. He is in our father's land and yet he would be calling us a" sorts of names. This is totally unacceptable. It is too bad 

 

They don't like us, yet they are making money in Nigeria, and taking the money back to develop their own country at the expense of Nigerians. 

That the report set out above was also carried by Daily Trend online publication of 15^th April, 2021, the Nigerian Tribune newspaper publication of 17^th April, 2021 ran a story titled "How APM Terminals, Apapa Brought in Ghanaian, Beninese to Replace Nigerians - MWUN" and part of the report run thus: 

 

“After the intervention of the Nigerian Shippers' Council (NSC), the maritime workers under the aegis of the Maritime Workers Union of Nigeria (MWUN) has suspended the shutdown of APM Terminals, Apapa over anti-labour practices. This is even as the workers stated that they embarked on strike because APM Terminals brought Ghanaians and Beninese to replace Nigerian workers in Apapa port.

 

……

 

Adeyanju alleged that the terminal operator collapsed the security department and brought in expatriates from the Benin Republic and Ghana to take over jobs meant for Nigerians. He said that collapsed department was done without due process even when the union had an existing agreement with the terminal operator that they have to work in line with labour best practices. 

 

According to Adeyanju, 'The APM Terminals management brought in people from Cotonou and Ghana to come and take over jobs meant for Nigerians. Jobs that people have been trained conveniently to carry out. The terminal workers in APMT are the best workers anyone can think of and what they are doing is to bring in Beninoise to take over the jobs all in the name of expatriates. " 

 

The intervention of the MWUN did not deter the Defendant from carrying out the clearance of the personnel of the entire security department on behalf of whom the letter dated 7^th April, 2021 was written. In defiance of the agreement with the MWUN and the intervention of the Nigerian Shippers Council, the Defendant went ahead to effect the eventual exit of workers listed in the letter set out above. While the Defendant negotiated and reached a compromise with the other members of his team who were paid off and eventually laid off, the Defendant refused to engage with him or his Solicitors to address unlawful manner in which his employment is being handled by the Defendant till date of commencing this action; that on or about 20^th June, 2021, Ihe Claimant received a WhatsApp from Aniemeka Umeonyido, the Head of HR of the Defendant who forwarded two documents from the Defendant, purporting to be a computation of his severance benefit and an “Acknowledgment of Receipt and Discharge”. According to Aniemeka Umeonyido, he was expected to execute the latter document as a condition for the payment sum set out in the accompanying computation document. The severance package offered to him was set out as in the table below:

 

May-21
Name:  Ayodele Olatunbosun
Designation: Country Security Manager
Department:  Security
Unique ID: OAY005
Period covered	5/1/2020
Effective Date	5/28/2020
Basic Salary	694,901.92
Housing Allowance	347,450.96
Transport Allowance	138,980.38
Utility Allowance	41,694.12
Meal Allowance	41,694.12
Entertainment	69,490.19
Vehicle Allowance	166,666.67
Drivers Allowance	86,250.00
Club Allowance	5,416.67
Leave Allowance	437,788.25
Leave Days Encashed	186,112.86
Road Allowance
Gross Pay (a)	2,216,446.13
Tax Reliefs/Allowance	459,955.89
Taxable Pay	1,756,490.24
PAYE Tax	395,357.44
Pension Contribution	94,506.66
NHF Contribution	17,372.55
Savings Scheme	21,600.00
Total Statutory Deduction (b)	528,836.65
Other Deduction
Car Loan
Housing upfront Recovered for 2021
Staff Loan	(164,812.00)
Capital Gain Tax	(814,781.52)
Total Other Deduction (c)	(979,593.52)
NET Pay (a+b+c)	708,015.96
Exit Additions;
Garden Leave payout (6 months’ notice)	9,555,270.18
1 Month Salary in Lieu of Notice	1,592,545.03
One Maersk Bonus	996,002.00
Ex Gratia Calculation	7,000,000.00
Loan Balance written off	164,812.00
Capital Gain Tax	814,781.52
Total of Other Additions	20,123,410.73
Net Position	20,831,426.68

 

That the "Acknowledgment of Receipt and Discharge" document which was sent along with the benefit computation reads as follows: 

 

“I, AYODELE OLATUNBOSUN of…………………….do hereby acknowledge receipt of the sum of N20,831.426.69 from APM Terminals Apapa Limited (the Company), paid into my salary account and hereby agree with the Company that the said sum constitutes a full and final settlement of all his entitlements with the Company for the period I was employed by the Company. I accept the said sum and declare that his employment with the Company ceases effectively on the date of this instrument. 

 

The elements of the said sum above are the following: 

 

1.        Payment of N500,000.00 for each year of service 

 

2.        Payment of 6 months gross salary (garden leave) 

 

3.        Payment of one (1) month's salary in lieu of notice 

 

4.        Prorated leave allowance and accrued leave days commuted to cash 

 

5.        Accrued One-Maersk bonus 

 

6.        Payment of May 2021 net salary 

 

7.        Staff loan of N164,812.00 has been written-off. 

 

I hereby have unequivocally authorized the Company to deduct any loan outstanding against me and my statutory tax deduction from the said sum. 

 

In consideration of the receipt of the above-mentioned sum, I declare that I have no further or other claim of whatsoever nature against the Company. This discharge extends to its holding Companies, associated Companies, directors, servants, agents and employees ('Relevant Entities'). I release and discharge the Company and each of the relevant entities from all claims, rights, demand and causes of action howsoever arising against them whether in the past, present or future regarding my entitlements, during the period I was employed by the Company. 

 

I further agree to fully indemnify and hold the Company and each of the Relevant entities harmless against any legal fees, expense, damages or liability in connection with any such claims, right, demand and/or cause of action made by me or my agent in relation to my entitlements for the period I was employed by the Company.” 

 

That in making the offer stated above and with the contents of the "Acknowledgment of Receipt and Discharge", the Defendant completely ignored the letter dated 7^th April, 2021 and seek to protect itself against "all claims, rights, demand and causes of action howsoever arising against them whether in the past, present or future regarding .... " There was no form of negotiation between the Defendant and him in respect of the manner he was treated and compensation package that may be appropriate in the circumstance; that in making the offer stated above, the Defendant did not give any reason neither did it state the basis for seeking to bring to an end, the employment relationship between the Defendant and him. Furthermore, the Defendant completely ignored the terms and conditions of employment in his letter of employment dated 17^th February, 2007 and the provisions of the Defendant's Employee Handbook regarding the severance of the employment relationship; that he knows that the Defendant acted whimsically and recklessly in seeking to put an end to the employment relationship between the parties which is regulated by the contract of employment as embodied both in the letter dated 17^th February, 2007, the Employee Handbook issued by the Defendant and international best practice regarding the termination of employment. That after about a month of making the offer above, the Defendant turned around to issue a document dated June 18, 2021 which was sent to him by email on 22^nd June, 2021, purporting to declare redundancy in respect of his employment wherein the said letter which was signed by Steen Knudsen, the Chief Operating Officer of the Defendant reads thus: 

 

“Private and Confidential 

 

Dear Mr. Ayodele Olatubosun, 

 

Following initial discussion on March 18, 2021 on your need to go on garden leave and our inability to agree a means to avoid redundancy or to identify a suitable alternative role for you within the organization, I regret to now inform you that your redundancy is confirmed. 

 

Find attached, details of your redundancy payment which will be available to you. This payment includes the following:

 

1.        Payment of N500,000.00 for each year of service 

 

2.        Payment of 6 months gross salary (garden leave) 

 

3.        Payment of one (1) months' salary in lieu of notice 

 

4.        Prorated leave allowance and accrued leave days commuted to cash 

 

5.        Accrued One-Maersk bonus 

 

6.        Payment of May 2021 net salary 

 

7.        Staff loan of N164,812.00 has been written-off. 

 

Your last day at work will therefore be June 30,2021. Please ensure that all company properties (including company's car) in your possession are returned to the undersigned on or before Friday, June 25, 2021. 

 

I would like to say that I very much regret that the current Company situation has necessitated your redundancy. On behalf of the Company, I would like to thank you for your contribution to the Company in the past and wish you the very best of luck in the future. 

 

That the invocation of redundancy provisions in respect of his employment was done in flagrant violation of the provisions of Clause 4.8 of the Employee Handbook which provides as follows: 

 

“The company would want to maintain a steady work force. However, economic circumstances may force the Company to reduce the number of staff by declaring a redundancy. Management will however endeavor to give enough notice in accordance with section 20 subsection a, band c of the Nigeria Labour Act 2005.” 

 

That not only did the Defendant fail to follow the mandatory procedure for the declaration of redundancy, the Defendant's decision did not fit the definition of redundancy as set out in Section 20 of the Labour Act, which the Defendant expressly incorporated into its Employee Handbook under Clause 4.8 thereof. The Defendant declaration of redundancy in respect of his employment is patently false and untenable for the following reasons: 

 

a.         The security department is a major and key component of the operations of the Defendant's terminal/business, and without the security functions in the terminal, the business of the Defendant stands in great jeopardy. 

 

b.         The Defendant did not and cannot dispense with the need for the security function for which the Claimant was employed for over 14 years prior to the letter dated 18^th June, 2021. 

 

c.         From the internal communication made by the Defendant on 18^th March, 2021 and as set out in paragraphs 11, 12 and 13 above, the security function of the Defendant for which he was employed was neither scrapped nor dispensed with, but transferred and handed over to an external security services provider G4S and security management CRG which are companies owned by foreigners. 

 

d.        By resolutions set out above, it is clear that the Defendant has not dispensed with the need for a security department as to render his position redundant. 

 

e.         At the time of employment on 17^th February, 2007 and with his military background, coupled with the trainings he had attended in the course of his employment, he possess the requisite capabilities and experience to fill the role which the Defendant now seeks to hand over to company owned by foreigners while he and the other members of the security department of the Defendant were disposed off for no reason at all. 

 

f.          Contrary to the claim of redundancy, the Defendant merely engaged in outsourcing of its security functions to companies in which the key personnel of the Defendant have interest either on ground of race or colour. 

 

g.         In reaching the resolutions set out above, the Defendant was manifestly deceptive in that at the time of executing the resolution in respect of outsourcing, the security functions of the Defendant were already outsourced way back before 18- March, 2021 when the Claimant and his team were discarded by the Defendant. 

 

h.        The treatment meted out to him by the Defendant is reminiscent of the discrimination he had protested about way back in May, 2020. 

 

 

That he had cause to raise an alarm to the Head of HR of the Defendant on 28^th May, 2020 when he sent an email in the following terms: 

 

This is to bring to your notice that Mr. Clayton Denis sent a message to me requesting lor a meeting yesterday 27th May, we agreed to meet at 0830hrs, Clayton came in for the meeting along with Paul Terry, a CRG consultant working with him. In the course of the meeting, Clayton mentioned that at the end of his current assignment in Nigeria, he will send a report to the Executive Board. He mentioned that he will include in his report to the board, that I was uncooperative during his assignment and that there will be consequences for me. 

 

I immediately highlighted to Mr. Clayton that he was threatening me and such behavour is not at sync with our Core Values. Although, he eventually apologized, I want to put this encounter on record as I consider it workplace violence. 

 

I am quite taken aback that such interaction will be coming from a senior leader in Maersk group, notwithstanding all the campaign In Maersk against work place violence.

 

That the Defendant did nothing with respect to the threat issued by Clayton Denis and that the eventual decision to lay him off on the alleged ground of redundancy is a confirmation that the threat issued by Mr. Clayton Denis way back on 27^th May, 2020 had the sanction and backing of the Defendant; that the above threat by Clayton Denis and the eventual termination of his employment on ground of redundancy contravenes Articles 4 and 5 United Nations Convention C 158 Termination of Employment Convention, 1982 and Principle 6 of the United Nations Global Compact on the elimination of discrimination in respect of employment and occupation. Articles 4 and 5 of Convention C 158 - Termination of Employment Convention, 1982 provide as follows: 

 

Article 4

 

"The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service." 

 

Article 5

 

"The following, inter alia, shall not constitute valid reasons for termination: 

 

(a)      union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours; 

            

(b)     seeking office as, or acting or having acted in the capacity of, a workers' repre4sentative; 

            

(c)      the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; 

            

(d)     race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; 

            

(e)      absence from work during maternity leave." 

 

That there was no valid reason for the purported termination of his employment by the Defendant, as from the communication made by the Managing Director of the Defendant on 18^th March, 2021, he was laid off simply to enable the Defendant fill the position with companies (G4S and CRG) owned by foreign nationals, thus bringing the said termination within the purview of Articles 4 and 5(d) of Convention C 158 of 1982. That right from his years in the Military, he had always discharged his duties and handle all his responsibilities with diligence, dedication and excellence. Thus, by paragraph 2 of the letter dated 15^th December, 2006 issued by the Nigerian Army titled, "VOLUNTARY RETIREMENT NA OFFICER CAPTAIN OLATUBOSUN AYODELE (N/9962), it was recorded of him as follows: 

 

"On behalf of the Commander-in-Chief, the Army Council and the Nigerian Army in particular, the Chief of Army Staff wishes to express his profound appreciation and gratitude to the officer for his dedication and unblemished years of distinguished military service to the Nigerian Army and the Nation in general. During his 17 years and 4 months of service as an officer, he demonstrated good conduct in the discharge of his duties." 

 

That in the course of his employment with the Defendant, he performed his duties with the highest level of dedication, distinction and excellence and as evidenced from the yearly appraisal of the Defendant, his score was usually 4 out of 5 except for 2020 when he was scored 3 out of 5. The Maersk Group appraisal grading system is as shown in the table below:

 

Grade	Remark
1	Fails to meet expectations
2	Meets some expectations
3	Meets expectations
4	Exceeds expectations
5	Outstanding

 

That by the Defendant's Group grading system, there was never a year that he did not exceed the expectations of his employers, the Defendant and its Group of companies. Evident of the excellent performance is the Defendant's Memo to him issued in October 2019 wherein the Defendant commended him as follows: 

 

"As a token of our appreciation, the management of APM Terminals Apapa Ltd. would like to recognize your contributions in line with APM Terminals Spot Bonus Policy. 

 

The Bonus amount will be paid into your individual Bank account registered with APM Terminals Apapa Ltd.; 

 

Spot Bonus Amount: N500,000.00 

 

On behalf of APMTAL Management, we wish to thank you for your contribution and we look forward to achieving more together." 

 

That his excellent and commendable service to the Defendant is further buttressed by the fact that for the entire 14 years of his employment, he never had any disciplinary issue and thus, was never issued with any form of warning, query nor reprimand. That on 7^th November, 2012, the Economic and Financial Crimes Commission (EFCC) filed a Criminal Charge against the Defendant before the High Court of Lagos State, and he was joined as the 2^nd Defendant/Accused person in Charge No.: ID/219^c/12 for the offences which were set out as follows: 

 

"STATEMENT OF OFFENCE - 1^ST COUNT

 

Conspiracy to steal to 516 of the Criminal Code Cap C17, Laws of Lagos State of Nigeria 2003. 

 

PARTICULARS OF OFFENCE

 

AP. Moller Terminals Ltd and Olatubosun Ayodele on or about the 7th day of March 2006 at Apapa within the Ikeja Judicial Division with intent to defraud, conspired to steal a 1 by 40 feet container No. TTNU 55567672/2 loaded with Coated industrial papers, valued at N18,000,000.00 (Eighteen Million Naira Only) property of Emenike Anyabuonwu entrusted to you by the Nigerian Ports Authority. 

 

STATEMENT OF OFFENCE - 2^ND COUNT

 

Stealing contrary to Section 390 of the Criminal Code Cap C17, Laws of Lagos State of Nigeria 2003. 

 

PARTICULARS OF OFFENCE

 

AP Moller Terminal Ltd and Olatubosun Ayodele on or about the 7^th day of March, 2006 at Apapa within the Ikeja Judicial Division with Intent to defraud stole a 1 by 40 feet container No. TINU 5556767212, Loaded with Coated industrial papers, valued at N18,000,000.00 (Eighteen Million Naira Only) property of Emenike Anyabuonwu entrusted to you by the Nigerian Ports Authority." 

 

That despite the fact that the offences were alleged to have been committed almost one year before he was employed by the Defendant, coupled with the fact that the Petition that heralded the Charge was written and submitted months before his employment took effect, he was made to stand trial on behalf of the Defendant; that he was detained at the EFCC facility on 22^nd January, 2013 and formally charged on 28^th January, 2013 and his eventual release on bail happened on 28^th January, 2013 after perfecting the conditions of bail imposed pursuant to the bail application granted by the court on 28^th January, 2013; that part of the conditions of bail was the deposit of his international passport/travel document which have remained in the custody of the court till the date of filing this suit; that in purporting to discard with his employment services and the computation of the severance package set out above, the Defendant failed to take into consideration, the considerable level of distress, depravity of his constitutional rights on account of the criminal allegations which were alleged to have been committed by the Defendant before he was employed by the Defendant; that the Defendant failed to consider the legal and cost implication for him as he had to pay for legal services in seeking to extricate himself from the criminal liability in Charge No.: ID/219^c/2012 and that the law firm has charged the sum of N7,000,000.00 (Seven Million Naira) for legal representation in the pending criminal proceedings. That the defendant did not consider the agony he has suffered for the past eight years without the liberty or freedom of movement, which is predicated on the travel documents that is still in custody of the court till date. That his last monthly pay slip/salary advice is as follows:

 

Basic Salary	694,901.92
Housing Allowance	347,450.96
Transport Allowance	138,980.38
Utility Allowance	41,694.12
Meal Allowance	41,694.12
Entertainment	69,490.19
Vehicle Allowance	166,666.67
Drivers Allowance	86,250.00
Club Allowance	5,416.67
Total	1,592,545.03

 

That the last salary he received from the Defendant was for the Month of June, 2021 and in seeking to dispense with his services/employment, the Defendant ought to take into consideration his record of outstanding performance and the ongoing criminal trial in coming to a negotiated terms of disengagement and the compensation appropriate in the circumstances of his case; that the sum of N20,831.426.69 offered by the Defendant as severance package is grossly inadequate compared to the compensation paid to foreigners who occupy similar managerial position in the Defendant and the Maersk Group; that the Defendant normally pays to foreigners who occupy similar managerial position 50% of their monthly pay multiply by the number of years of service as ex gratia component of the severance package but in his own case, the Defendant merely applied the sum of N500,000.00 (Five Hundred Thousand Naira only) in computing the ex-gratia component of the severance package. Thus, the proposal to pay the sum of N20,831.426.69 as severance package, and which was computed on the basis of the sum of N500,000.00 (Five Hundred Thousand Naira only) per every year of service is in itself, discrimination in the work place and amounts to an unfair labour practice which he had raised in the mail set above; that 50% of his monthly emolument/pay package is the sum of N796,272.52 (Seven Hundred and Ninety-Six Thousand, Two Hundred and Seventy­-Two Naira, Fifty Two Kobo) and having served for 14 years, four months before the Defendant issued the letter dated 18^th June, 2021 which purports to terminate his employment, the sum of N796,272.52 multiply by 14 years and four months in computing the ex-gratia element of the severance package gives the sum of N11,413,239.45 (Eleven Million, Four Hundred and Thirteen Thousand, Two Hundred and Thirty-Nine Naira, Forty-Five Kobo). That contrary to the practice by the Defendant in allowing exiting managers to leave with their official cars and mobile numbers, the Defendant, acting in a very vindictive manner, unilaterally and without notice to him blocked the mobile number which he used for years while in service on the Defendant which he only became aware of the blocking of the line on 5^th June, 2021 when he could no longer make calls on the mobile line; that while the issue of severance of his employment (redundancy) has not been fully negotiated and resolved in accordance with Clause 4.8 of the Defendant's Employee Handbook and Section 20 of the Labour Act referenced therein, the Defendant has also threatened to invoke criminal prosecution against him in respect of the official car which was freely given to him as part of his perquisites of office. That in applying the 50% of monthly payment as ex gratia payment in the computation of severance package, his severance package is as follows: 

 

Exit Additions;
Garden Leave payout (6 months’ notice)	9,555,270.18
June Salary	1,592,545.03
1 Month Salary in Lieu of Notice	1,592,545.03
One Maersk Bonus	996,002.00
Ex Gratia Calculation	11,413,239.45
Loan balance written off	164,812.00
Capital Gain Tax	814,781.52
Leave Allowance	437,788.25
Leave Allowance Encashed	186,112.86
Total	26,753,096.32

 

In his consequential Reply to the defendant’s Statement of Defence and Counter claim, CW stated that in furtherance of his role as the Country Security Manager of the Defendant, he led the team that designed the security framework for the Defendant. Thus, in 2015 and 2016, he led the team that designed and implemented a Physical Security Review for other members of the Defendant's group in the West Africa sub-region - APM Terminals Benin in Republic of Benin and West Africa Container Terminal, Onne, Port Harcourt, Rivers State; that in the Coman SA Document, part of the recommendation of his team under the heading, "VSS" runs thus: 

 

"Apapa support conducted a site survey with IT and the HSSE Managers, the following is suggested: 

 

1.        Electronic monitoring should be given urgent attention, with camaras installed at strategic locations and monitored from a restricted control room. 

 

2.        VSS should be put in-place in other to remove guards along the perimeter fence and also reduce the number of guards at the entrance and exit gates." 

 

That in the Onne Document, part of the recommendation of his team under the heading, "VSS" runs thus: 

 

The newly installed CCTV system for visual surveillance will add a lot of benefit to securing the facility, moving forward it will be suggested that the cameras coverage be extended particularly to have a wider view of the quay apron and where possible that the cameras be infrared with motion detection ability, the view at night needs more enhancement for clearer images. The management is strongly advised to consider increasing the scope of CCTV coverage. 

 

That in accordance with the security policy of the Maersk Group, he made proposals to replace the perimeter fence in the Apapa Terminal and to upgrade the existing CCTV cameras and the installation of new camaras. he submitted two memos; the first dated 4^th June, 2018 and titled, "Expenditure for a second perimeter fence on the Terminal", wherein he proposed as follows: 

 

"1.      Proposal 

 

APM Terminals Apapa Limited Security Department proposes to replace the Terminal perimeter fence with a TSA and ISPS standards anti-rust and anti-corrosion perimeter fence. 

 

2.        Background         

 

The existing mesh wire perimeter fence infrastructure is old and vulnerable. It was constructed in May 2006 (more than 12 years ago) and shared with neighbours .... 

 

The Proposed perimeter fence. There is adequate protection of the mesh wire from weather elements as it is coated with anti-rust. It will provide complete perimeter coverage with perimeter intrusion detection system integrated to the CCTV, thus creating monitoring ability through the use of video analytics. The galvanized poles are 4 inches in diameter making it strong enough to withstand the weight of the mesh wire. This project will ensure the entire fence line meets current TSA and ISPS standards. 

 

It will ensure the security of cargoes in APMT care and eliminate the frequent need to post guards to secure open fenceline and potential intrusion. Most importantly, the outcome of the Risk Assessment and Treatment plan commissioned by the corporate office that took place between 26^th - 30^th September, 2016 in Terminals across Africa recommended a replacement of the perimeter fence as part of her recommendation based on the diminished condition of the fenceline (Report of the Risk Assessment and treat plan is attached)." 

 

That by the second memo titled, "Upgrade of CCTV cameras in the Main Terminal and installation of new cameras at the exam area", he also proposed as follows: 

 

"1.      Proposal 

 

APM Terminals Apapa Limited Security Department proposes to install 30 new cameras (23 cameras will be replaced in the Main Terminal and 7 new ones for exam base) and repair of CCTV infrastructures to enhance the CCTV coverage in the Main terminal and exam area to ensure the safety and security of company assets and in compliance with the BU code of conduct. 

 

2.        Background 

 

23 CCTV cameras will be replaced at critical locations within the Main Terminal to replace the ones that had gone bad over the years and repair or expand some other CCTV infrastructures shared with a sister department. This in the long run will eliminate pilfering and broaching within the facility. promote best practice. reduce guard He as the technology will reduce posting of guards to critical beat, reduce vulnerability from reliance on guard force. promote efficiency and reduce cost and above all ensure high standard of safety by way of eliminating human from active operational areas. Please note that APMT IT also shares most of the CCTV infrastructures, hence the need to upgrade and expand them for seamless benefit. 

That the Defendant's management failed to approve the recommendations made by him for a second perimeter fence and the installation of CCTV cameras but rather opted for the engagement of KLASS Security as a stop gap measure; that the Defendant failed to comply with the various recommendations made by him in improving the security situation in the Defendant's terminal, hence the adoption of the "stop gap measure" to continue to use KLASS Security for surveillance of the terminal as contained in the email of Wednesday, 8^th January, 2020 by Jacob Martin; that his appraisal year-after-year saw him out­perform his peers in the managerial cadre and that in the Performance Review for the year 2016, and by an email of Wednesday, 2^nd November, 2016, he wrote to the Defendant as follows: 

 

"Dear Mrs. Akinlade, 

 

Taking stock as part of Security Department forward planning for 2017, kindly advise on all loss related verifiable claims for the period under review, if any please advise on loss, cost of loss and settled claims." 

 

That in answer to his inquiry stated above, the Defendant replied to him by an email of 3^rd November, 2016 stating unequivocally as follows: 

 

"Dear Ayo, 

 

We recorded nil claim in respect of pilferages/missing containers for the stated period. 

 

That his Performance Appraisal Scores during the relevant period was 4 points out of a maximum of 5 points and October, 2019, he was awarded a Spot Bonus in the sum of N500,000.00 (Five Hundred Thousand Naira); that upon his promotion to the position of Country Security Manager, Job Level 5, his responsibilities were set out in the letter dated 1^st September, 2016 to include: 

            

i.          To drive standardization of security levels within country; 

 

                        ii.         Coordinate/give input to Hague on country specific areas;

 

iii.       Implement/participate in projects geared towards improvement; 

and 

 

iv.       Share best practice/intelligence with BU Security managers within portfolio. 

 

That he got another major promotion on 24^th March, 2017 in less than a year of the promotion in the letter dated 1^st September, 2016 and by which he was required to carry out additional responsibilities as fully set out in paragraph 6 of the Statement of Facts filed in this case. Thus, and by every assessment, the Claimant was a high flier all through the period of his employment with the Defendant, a point eloquently attested to by his year performance appraisal score of 4 as set out in paragraph 38 of the Statement of Facts filed in this case; that the three security companies - Asset Guard Services Nigeria Limited (G4S), Halogen Security Company Limited and Control Risk West Africa Limited were engaged by the Defendant to provide guard services for the terminal, as their functions have nothing to do with his duties and responsibilities as Country Security Manager. Specifically. 

 

            

 

 

iv.       Till date, the three guard companies continue to render guard services to the Defendant even with the engagement of a foreigner to take over his duties and responsibilities under the title, Risk Control Manager. 

 

That by an announcement signed by Klaus Holm Laursen, the Country Manager of the Defendant, Mr. Wayne Thornton was appointed, under a new job title, to take up part of his role in the Defendant. The appointment which was announced to take effect from 14th October, 2021 reads thus: 

 

"We are excited that Wayne Thornton will be joining APM Terminals Nigeria as Risk Control Manager on October 14, 2021. In this capacity, Wayne will report to me with dotted line to Naved and Steen on WACT and APMT Apapa related topics. 

 

Wayne will be seated in the APM Terminals country office in Ikoyi, but spend a considerable portion of his time in both WACT and APMT Apapa. 

 

The Risk Control function is key to ensure that we build a strong and efficient structure to secure our employees, our facilities and the goods that we are handling and storing on behalf of our customers. 

 

In his new role, Wayne will work with the security organizations across our operations in Onne, Kano and Apapa to develop and implement standards and strategies around our security infrastructure and processes. 

 

Wayne comes with vast experience in security and risk control management across various multinational companies including Jagal Group, Nigerdock FZE-Snake Island Integrated Free zone and Control Risks. 

 

Wayne is a Certified Security Management Professional (International Security Management Institute) and member of Security Institute (MSyL) and ASIS, and enjoys mentoring/coaching staff, developing teams, operational strategies and delivering results that provide operational excellence. 

 

Our APMM Core Values are directly linked with our ability to secure our operations. We can only protect Our Name, when authorities, employees and customers can trust us. Constant Care means that we continuously strengthen our controls, while Our Employees demand a safe and secure working environment. Uprightness and Humbleness means that we accept our shortcomings and work with determination and tirelessly to improve every day, 

 

Please join me to welcome Wayne to APM Terminals Nigeria and to the APMM group, and wish him all the best in his role." 

 

That part of his job description/responsibilities is what have been assigned to Wayne Thornton as Control Risk Manager, as the additional responsibilities set out his promotion letter dated 1^st September, 2016 are way beyond the responsibilities now being handled by Wayne Thornton, the new Risk Control Manager. Accordingly, the services provided by the three guard companies are not part of his job description under which supervision the three guard companies were; that there was no meeting of any sort between the management of the Defendant and him where the issue of redundancy and terminal benefits were either raised or discussed before, during and after the termination of his employment but merely received text and WhatsApp messages forwarding the Defendant's offer of termination benefit months after the alleged termination of the his employment was internally communicated to staff and third parties; that the Defendant acted in gross violation of Articles 13 and 14 of the United Nations Convention C158 - Termination of Employment Convention, 1982 and Section 20 of the Labour Act both of which require prior notice and negotiation, as recognized by Clause 4.8 of the Defendant's Employee Handbook; that Articles 13 and 14 of the Convention C158 which provide as follows: 

 

"Article 13 

 

 

1.        When the employer contemplates terminations for reasons of an economic, technological, structural or similar nature, the employer shall: 

 

(a)     provide the workers' representatives concerned in good time with relevant information including the reasons for the terminations contemplated, the number and categories of workers likely to be affected and the period over which the terminations are intended to be carried out; 

 

(b)     give, in accordance with national law and practice, the workers' representatives concerned, as early as possible, an opportunity for consultation on measures to be taken to avert or to minimize the terminations and measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment. 

 

2.        The applicability of paragraph 1 of this Article may be limited by the methods of implementation referred to in Article 1 of this Convention to cases in which the number of workers whose termination of employment is contemplated is at least a specified number or percentage of the workforce. 

 

3.        For the purposes of this Article the term the workers' representatives concerned means the workers' representatives recognized as such by national law or practice, in conformity with the Workers' Representatives Convention, 1971. 

 

Article 14 

 

1.        When the employer contemplates terminations for reasons of an economic, technological, structural or similar nature, he shall notify, in accordance with national law and practice, the competent authority thereof as early as possible, giving relevant information, including a written statement of the reasons for the terminations, the number and categories of workers likely to be affected and the period over which the terminations are intended to be carried out. 

 

2.        National laws or regulations may limit the applicability of paragraph 1 of this Article to cases in which the number of workers whose termination of employment is contemplated is at least a specified number or percentage of the workforce. 

 

3.        The employer shall notify the competent authority of the terminations referred to in paragraph 1 of this Article a minimum period of time before carrying out the terminations, such period to be specified by national laws or regulations." 

 

That the alleged outsourcing (assuming but without conceding that same is true) of the security functions of the Defendant is in violation of the requirements and definition of redundancy both under Nigerian law, the United Nation Conventions and international best practice; that the subject matter of the Charge in Suit No.: ID/219^c/12 is wholly against the Defendant and that he was joined in the Charge simply because the Defendant was unable to produce key personnel who had earlier made statements to EFCC, such personnel include Joseph Hogan, Bob Campbell, Esther Nwoke who made statements to the EFCC in respect of the investigation of the missing Container No. TTNU557672/2, the subject of the Charge; that the severance package offered to him was highly unfair and same is a reflection of the discrimination meted out to him, as several of the management staff in his category were hugely compensated monetarily and in addition to their official cars. Such staff include: 

 

            

 

That there is no existence of any Company Vehicle Policy that requires an existing management staff to handover his car back to the Defendant and where such policy exists (a point which is not conceded), the application of same to him amounts to work place discrimination and in contravention of Principle 6 of the UN Global Compact and Section 42 of the 1999 Constitution (as amended), as the staff listed above left the services of the Defendant with their official cars. That the defendant’s counterclaims are mere afterthought following the Defendant's failure to cajole and compel him to accept the sum of N20,831,426.62 offered by the Defendant as severance package following the unlawful termination of his employment. CW prays the honourable court to dismiss the Defendant's Counterclaim for being frivolous, unmeritorious, vexatious and made in utmost bad faith and to award substantial cost against the Counterclaimant in accordance with the relevant provisions of the Rules of this Honourable Court. 

 

Under cross examination by the defendant/counter claimant’s counsel, CW stated that ex-gratia payment means payment after service; CW confirmed that the difference between his computation of what he thinks he is entitled to and the defendant’s computation is the ex-gratia payment; that he does not have the document showing the amount paid to the foreigners by the defendant but it is in the custody of the defendant; that there was no documentation stating that he is entitled to the official car after termination of his employment; that he does not have the contract of employment of the persons that left the defendant with their cars; that his performance was not excellent because it was graded by Nigerians, the defendant being a multinational company.

 

There was no Re-Examination by the claimant’s counsel. The claimant thereafter closed his case.

 

The defendant/counterclaimant opened its defence by calling its sole witness, Benedict Nwangwu, the Employee Relations Manager of the defendant, wherein he adopted his witness statement on oath as evidence in this case. The defendant/counter claimant’s witness statement on oath is that the Claimant in this case was employed by the Defendant on 19^th February, 2007 and following the Claimant's engagement by the Defendant, he knows that the Defendant experienced several cases of pilferage from containers and security breaches during the tenure of the Claimant as Security Manager of the Defendant; that he is aware that the Claimant was subsequently deployed to the West Africa Container Terminal Limited (WACT) in Onne and that the Defendant's aim of seconding its employees on Short Term Assignments is to build the technical capacity of its employees and to provide them with the opportunity to obtain vast knowledge while also sharing their experiences with other colleagues; that by a letter dated 1^st September, 2016, the Claimant was promoted to the position of the Country Security Manager and that sometime in 2019, the Defendant was presented an award for its compliance with International Ships and Ports Facility Security Code (ISPS Code) Onshore in its Facility in Nigeria and from his knowledge and experience, the award was for the Defendant's Terminal and not the Defendant's security unit as the award was in recognition of Defendant's policies and systems put in place- to promote security at the terminal and for the considerable investments made by the Defendant on infrastructure at its terminal; that from his review of the relevant documents related to this case, the Claimant received the award on behalf of the Defendant in his capacity as an employee and nothing more; that sometime in February 2021, the management of the Defendant decided that there was an urgent operational need to reorganize the Defendant's security function and unit/department in view of some of the persistent security challenges and security breaches being experienced by the Defendant including but not limited to the following: 

 

a.         There were high cases of pilferage from containers in the yard and there was a lack of proper closure of investigation into these cases. 

 

b.         There were consistent reports of lack of cooperation from several enforcement agencies who claimed the security department of the Defendant which was headed by the Claimant was not cooperating with their investigative assignments. 

 

That on 17^th January 2021, following a petition by a customer, a joint inspection was carried out on Container No. MRKU4977768, regrettably it was discovered that over 256 cartons of Tramadol had been pilfered from the said Container and the records reveal that the Defendant received a letter of demand from the customer for the payment of the sum of N526,600,000.00 (Five Hundred and Twenty-Five Million Six Hundred Thousand Naira) being the alleged costs of the missing cartons of Tramadol; that also in August 2020,  the defendant received a complaint (via email) from one of its customers that some strange items were found in their container no. TRLU7634025 during offloading. The Defendant in March 2019, received another complaint from its customer that 128 cartons of Andre wine were stolen from their container no. HLXU 1223510; that the business of the Defendant was being severally impacted by the multiple summons to police, customs and EFCC hearings arising from the pilfering of containers and other security issues and these were distracting the Defendant from its core business purpose as it became clear that the above captured myriad of security challenges faced by the Defendant constitute a very serious threat to the Defendant's business operations in Nigeria. That given the importance of security to the business operations of the Defendant, it became obvious that the Defendant needed to review its strategy and approach to security at its terminal to checkmate the various security issues confronting the Defendant. Therefore, when this matter was reviewed by the top management of the company at country, regional and global level, it was agreed that there was a need for the Defendant to focus on its core competence and outsource the areas that it did not have full capacity to handle like security and following the decision to temporarily outsource the security functions at the Defendant's terminal, the Claimant and other members of his security team were invited to the office of the Managing Director of the Defendant, the invitation was aimed at informing the Claimant and other members of his department of the re-organization of the security function of the Defendant which will impact the employment of the Claimant and that the Defendant also issued a mail to its employees notifying them of the Defendant's decision and how same will affect the employment of the Claimant and the other members of the security unit. 

 

That in view of the background facts leading to the decision to outsource the security functions at the Defendant's terminal as well as the sensitive nature of the security functions, the Claimant and other members of his team were required to proceed on leave pending the conclusion of further negotiations on the issue of redundancy while the Defendant continued to pay the salaries of the Claimant; that following the Defendant's decision advising the Claimant to proceed on leave, the Defendant outsourced its security functions to three external/ companies to provide security solutions at the Defendant's Terminal since the Defendant's Terminal could not be left unsecured and the three companies that were engaged by the Defendant for this purpose are all Nigerian companies and their operatives deployed to the Defendant's terminal are also Nigerians; that in view of the significant step taken by the Defendant to beef up its security operation, it was necessary for the Defendant to communicate the re-organization of its security unit to relevant third parties that have cause to interact with the Defendant's security unit which was aimed at providing the third parties with the required comfort and information regarding the new security arrangements at the Defendant's terminal; that the decision to provide an update on its security apparatus was made primarily to ensure there is a smooth sailing relationship between the Defendant, its clients and other stake holders who do business in and around the Apapa Terminal; that the Defendant never intended to embarrass the affected employees (including the Claimant), instead, the Defendant's decision was to promote business continuity and the update was only shared with agencies and organization that would, in the ordinary course of business, have interactions with the security unit of the Defendant. 

 

That in the course of the Claimant's employment with the Defendant, the Defendant made significant investment in its security infrastructure and provided the Claimant with the tools and equipment required to excel in his position as the security manager of the Defendant as the award issued to the Defendant in the same 2019 was a certification and recognition of the investment made by the Defendant in its security infrastructure and systems. As a matter of fact, the Claimant could not have achieved any success or remained in the employment of the Defendant for over 14 years if he was not provided with the enabling environment by the Defendant; that in line with the Defendant's policy on redundancy, the Defendant's Human Resources Manager at that time (Mr. Aniemeka Nnaemeka Umeonyido) and acting on behalf of the Defendant had series of discussions with the Claimant and other members of the security team in a bid to negotiate the terms of the Claimant's exit from the Defendant's employment and that during the course of negotiation with the Claimant and the other members of the security team, the Defendant was able to reach an amicable resolution with the other members of the security. However, the engagement with the Claimant was deadlocked as he was making demands which the company was not able to accede to as other members of the security unit including but not limited to Henry Aijehi successfully reached a consensus with the Defendant and their demands were consequently met by the Defendant; that he is aware that there was a meeting between the Defendant and the Maritime Workers Union of Nigeria ("MWUN"), the purpose of the meeting was not limited to the departure of the Claimant from the Defendant and the Memorandum of Understanding which captured the resolutions reached at the meeting clearly indicates that there were several other issues that do not relate to the Claimant' s departure that was discussed at the meeting. 

 

That the Expatriate Quota returns issued by Nigeria Immigration Service (NIS) in 2020 clearly shows that, the Expatriate quota position granted to the Defendant was 22. However, the Defendant only utilized 9 Expatriate quota position. As a matter of fact, three of the expatriate positions (Chief Finance Officer, HSSE Manager and Project Manager) have since been fully Nationalized and are currently occupied by Nigerians; that there are deliberate misunderstanding and misrepresentation of the capacity in which some of these expatriates are in Nigeria and the Defendant has made substantial capital investment in the last 2 years thereby increasing the need for on-the-job training, these trainings are necessary to ensure the proper use of the equipment and Return on Investment (ROI); that these trainings are also in line with the KPIs sent by the Nigerian Ports Authority for the Defendant and some of the expatriates are from the manufacturers of the equipment and are only in Nigeria to commission and train; that the computation of the Claimant's redundancy benefit was done in good faith and in line with the existing policy of the Defendant (at the time) on redundancy as provided in its Employee Handbook and that the Defendant communicated to the Claimant the basis-for its decision and the re-organization of the Defendant's security department which rendered the role of the Claimant redundant.

 

That even after informing the Claimant of his redundancy, the Defendant (in compliance with the provisions of the Employee Handbook which provides that recourse must be made to section 20 of the Labour Act should redundancy arise) took significant steps to comply with the provisions of section 20 of the Labour Act to wit: 

 

That the Defendant was never involved or responsible for the threats issued by Mr. Clayton on 27^th May 2020 or on any other day whatsoever and that the Defendant's decision to declare the Claimant's role as redundant was in full compliance with Article 4 of the Convention C158-Termination of Employment Convention 1982; that the pending Charge at the High Court of Lagos State was not filed by the Defendant and the Defendant could not have filed the Charge as it lacked the statutory powers to conduct any criminal investigation or prosecute. Also, the decision to prosecute the Claimant as a co-defendant was strictly at the discretion of the officers of the Economic and Financial Crimes Commission (EFCC) based on their investigation; that the Defendant did not also have any involvement whatsoever in the determination of the bail conditions imposed on the Claimant and the subsequent seizure of his passport or any other travel documents and that the Defendant ensured that the criminal trial did not affect its obligations to the Claimant and his professional growth as the Claimant embarked on several foreign trips sponsored by the Defendant for training and business purposes as follows: 

 

i.          In June 2019, the Claimant travelled to Dubai, UAE. 

 

ii.         In August 2019, the Claimant travelled on a business trip to APM Terminals, Callao in Peru. 

 

iii.       On 30^th August 2019, the Claimant travelled to Accra, Ghana. 

 

That the Defendant was not mandated to consider the Claimant's alleged experiences with the EFCC or compensate the Claimant for the ongoing criminal trial since same did not affect the Defendant's obligations to the Claimant. Also, the Defendant was not responsible for the actions of the EFCC and there was a limit to which the Defendant could have interfered with the decisions/actions of the EFCC; that the Defendant in being fair and just offered the Claimant the sum of N20,831,526.69 (Twenty Million Eight Hundred and Thirty-One Thousand Five Hundred and Twenty Six Naira Sixty Nine Kobo) which had a minor difference of about N5,921.569.63 (Five Million Nine Hundred and Twenty One Thousand Five Hundred and Sixty Nine Naira Sixty Three Kobo) as final entitlement and that the Defendant made its offer to the Claimant in good faith and with the expectation that parties will settle amicably without resorting to Court, just like it did with other members of the Claimant's team at the time. Surprisingly, the Claimant refused to accept what was a very fair offer, and then proceeded to commence the instant action; that barely less than a month after the Claimant's employment was terminated by the Defendant on ground of redundancy, the Claimant was already working for another company, ICTSNL, as its Head of Security and that it was a known fact among workers in the maritime industry that the Claimant was already working for ICTSNL while his employment with the Defendant was still subsisting which is an act of gross misconduct and a gross violation of the terms-of the Claimant's contract of employment. That the Claimant did not suffer any form of discrimination or retribution from the Defendant in connection with his prosecution by the EFCC, rather, the Claimant was provided with adequate time and facility by the Defendant to attend to the criminal prosecution and that if the Claimant is aggrieved with his prosecution by the EFCC, his remedy lies against the EFCC and not the Defendant. That the official car provided to the Claimant was at the discretion of the Defendant and under the Defendant's Vehicle Policy, the management of the Defendant has the absolute discretion to withdraw the official car from the Claimant at any time; that the Claimant was allowed to use the official car all through the period of negotiations with the Defendant until the computation of his final entitlement. 

 

That sometime in 2020, the Defendant presented the Claimant with an official car, 2020 Toyota Fortuner 2.7.-L, 4WD, SUV to aid him in the performance of his duties, the car was to be used essentially for official purposes only and that the documents evidencing ownership of the car were all registered in the name of the Defendant; that after informing the Claimant of the re-organization of the security department and how same has rendered his role in the defendant redundant, the Defendant proceeded to carry out a computation of the benefits that it reasonably felt the Claimant was due giving his years of service. The computation carried out by the Defendant was done in good faith and to negotiate an amicable exit and redundancy payment for the Claimant; that following the computation of the Claimant's redundancy benefits, the same was communicated to him by the Defendant along with a demand for the return of the official car in his possession. However, the Claimant has failed, neglected and/or refuse to return the official car in his possession which clearly does not belong to him; that owing to the Claimant's unnecessary claim, the Defendant had to engage the services of counsel to enter a defence in this action and file a Counter Claim on behalf of the Defendant and that as a result, the Defendant has been constrained to pay the sum of N10,000,000.00 as professional fees as the cost of prosecuting this matter. DW prays the honourable court to dismiss the case of the Claimant and award costs against him on a -full indemnity basis and to grant all the reliefs sought in the Defendant's Counter Claim.

 

Under cross examination by the claimant’s counsel, DW stated that he joined the defendant in April, 2023; that he was not in any consultancy with the defendant before his employment; that the letter on redundancy issued by the Chief Operating Officer is not before the court; that he left the service of PENGASSAN in March, 2023; that he is not aware that Femi Ransome-Kuti and Daniel Odibe left the defendant with Toyota Land Cruisers; CW confirmed that as at today there is ongoing investigation of missing items from the defendant’s terminal. That everything he deposited was based on the defendant’s documents available in the company.

 

There was no re-examination by the defendant/counterclaimant’s counsel. The defendant/counterclaimant thereafter closed its case.

 

The parties were directed to file their final written addresses. The defendant/counterclaimant’s final written address is dated and filed 20^th August, 2024 while the claimant’s final written address is dated 15^th December, 2024 but filed 16^th December, 2024. The defendant/counterclaimant’s Reply on point of law is dated 5^th January, 2026 but filed 14^th January, 2026.

 

Learned counsel on behalf of the defendant/counterclaimant formulated three (3) issues for the court’s determination viz:

 

 

 

 

It is the defendant/counterclaimant’s counsel submission on issue one (1) that by claiming for the Redundancy Benefit and/or increase in the amount of the Redundancy Benefit, the Claimant is estopped from challenging the reason for the termination of his employment; that it is inconsistent for an employee who is challenging the reason for the termination of his employment to at the same time seek payment of the terminal benefits attached to the reason for the termination. That in the event that the honourable court is inclined to hold that the Claimant is entitled to challenge the reason for the termination of his employment notwithstanding his claim for the benefit attached to the said termination, by the facts pleaded and evidence admitted in this case, the Claimant is not entitled to any of the reliefs sought in his main claim. That the Defendant did not run afoul of any legislation or indeed the contract of employment and in fact lawfully terminated the Claimant's employment and that it is important to note that the relationship between the Claimant and the Defendant is a master/servant relationship and not an employment with statutory flavour. Therefore, in determining any issue relating to the employment relationship including termination of the same, it is the contract of employment that must be examined and considered.

 

That the Defendant is entitled to reorganize its operations and activities as the Defendant is not a security company or organization and its decision to completely outsource the functions of its security department headed by the Claimant is well within its rights and that the securities challenges being experienced by the Defendant and its impact on the Defendant's operations fall within the meaning of economic circumstances ground for redundancy in. Clause 4.8 of the Handbook; that by clause 4.3 of the defendant’s handbook, the notice period required for termination of employment is one (1) month and that by the testimony of the claimant under cross examination, he admitted that the meeting of 18^th March, 2021 was discussion on the termination of his employment and the decision to ask the claimant and his team to stop work; that it is evident that the Defendant communicated its decision to take steps to determine the Claimant's employment relationship from the point where the Claimant was requested to go on garden leave and without any objection, he continued to receive salaries and entitlements even within that period and that the Claimant must be estopped from challenging a process which he consented and has indeed taken benefit of. 

 

Continuing, counsel submitted that is clear from the totality of the evidence presented in this case that there is no document that provides for what the Claimant may be entitled to in cases of redundancy. Although, the Claimant alleged that there is a standard, he failed to provide any evidence to establish any such standard. Rather the Claimant made reference to alleged compensation paid to some unnamed foreigners without providing any evidence of any such payments made to the unnamed foreigners. Notwithstanding, the Defendant diligently computed the Claimant's terminal benefits together with those of his team members who were also declared redundant at the same time. However, while other team members accepted the Defendant's computation and were duly paid by the Defendant, the Claimant rejected the computation. That it is clear that the Claimant has been unable to substantiate its allegations that the Defendant breached the terms of the contract of employment, the Handbook, and the relevant provisions of the Labour Act in dispensing with his services. He cited the case of Aji v. Chad Basin Development Authority & Anor (2015) LPELR-24562(SC) and urged the honourable court to so hold. 

 

On issue two (2); counsel submitted that the claimant is not entitled to any of the monetary claims in the said reliefs and in respect of the claimant’s claim for the sum of     N26, 753, 096. 32 as severance package; counsel submitted that the only reason for difference between this claim and the amount offered to the Claimant by the Defendant is the allegation at paragraphs 47 and 48 in the Statement of Facts on the allegation that the Defendant pays to unnamed foreigners 50% of their monthly pay multiply by the number of years of service as ex gratia component of the severance package; that this allegation is unsubstantiated as the claimant did not provide any form of evidence to establish this assertion or the names of any foreigner that received the said 50% ex-gratia payment. He cited the case of Oyeledun v. Adewuyi (2017) LPELR-43256(CA).

 

On the claim for the sum of N5, 000, 000 as compensation or workplace discrimination; counsel submitted that the evidence before the honourable court do not speak of discrimination and victimization against the Claimant rather, it is evidence of the support and recognition that the Claimant received whilst in the employment of the Defendant and that it is quite shocking to see that the Claimant asserts that the Defendant treated him unfairly when the Defendant's records and indeed the evidence before the Honourable Court shows that the Defendant continually invested in the Claimant's professional growth by sponsoring him on foreign trips to improve his professional capacity; that the Defendant did not make this huge economic investment in all its members of staff, however, because of its attitude towards the Claimant, it elected to send the Claimant on international trainings that were highly economically demanding including but not limited to trips to the United Arab Emirates, Peru and Ghana. 

 

On the criminal charge against the claimant and the claim for N50, 000, 000 as exemplary damages and cost of N7, 000, 000 as cost of legal representation in Charge No.ID/219C/12; counsel submitted that the honourable court lacks the jurisdiction to entertain this claim against the Defendant which borders on an ongoing criminal trial before the High Court of Lagos State; that the sum claimed cannot be granted without a consideration and/or pronouncement on the propriety of the Claimant's arrest, detention and ongoing trial; that the Claimant's claim against the Defendant in relation to the criminal prosecution is vexatious, frivolous, and unfounded. He urged the honourable court to so hold.

 

On the claim for the retention of the official car and mobile number; counsel submitted that the claimant has done nothing close to discharging the burden of proof required to sustain the relief; that the Claimant has not by any document whatsoever demonstrated any contractual obligation on the path of the parties that entitles the Claimant to retain the Defendant's car and neither did the Claimant provide any fact to establish the contract of employment of the said persons and the circumstances of their disengagement from the Defendant for this Honourable Court to determine whether there is any similarity between the Claimant's employment and the said persons or any basis to apply the alleged facts and circumstances of their termination to the Claimant in this case. 

 

On issue three (3); counsel submitted that that the content of Exhibit CA56 is very clear and devoid of ambiguity as there is no portion of exhibit CA56 that stipulates that an employee shall be entitled (as part of his severance package) to retain any of the Defendant's vehicles; that having identified that there is nothing in his contract of employment, the Defendant's handbook or vehicle policy that entitles the Claimant to retain the car, it is only trite to submit that the Claimant's continuous use and retention of the Defendant's car is unlawful. He urged the honourable court to order the Claimant to immediately return the car to the Defendant's office. 

 

Learned counsel on behalf of the claimant formulated two (2) issues for the court’s determination viz:

 

 

 

It is the claimant’s counsel submission on issue one (1) that there was no legally justifiable basis for dispensing with the services of the claimant on grounds of redundancy; that the applicable principles of redundancy as stipulated under Section 20 of the Labour Act which is referenced by Clause 4.8 of the Employee Handbook (Exhibit CA20) were brutally breached by the Defendant in this case. Thus, the excuse of redundancy does not avail the Defendant in this case; that the Claimant gave irrebuttable evidence that there was no redundancy via exhibits CA7 and CA 10, the security department of the Defendant was still needed, and during the cross examination of DW1, he admitted that the Defendant still has a security department that is currently being manned by a number of employees engaged to replace the Claimant and his team. Similarly, Exhibit CA7 has clearly stated that the tasks which were being performed by Claimant were "handed over to an external security services provider G4S and security management by CRG .... " Thus, and in accordance with Article 4 of United Nations Convention C158 on termination of employment (Exhibit CA23), the Defendant has not given any valid reason for the manner in which the employment of the Claimant was brought to an end in this case; that having not justified the shameful manner in which the Claimant's employment was terminated, the communication to third parties organization and the excellent service record of the Claimant which was put in evidence in this case, the Claimant is entitled to all the reliefs, including the damages sought in this case. He cited the case of Skye Bank Plc v. Adegun supra at 29 - 30 paragraphs G – E.

 

That exemplary damages are awarded where the defendant's action is oppressive, arbitrary, unconstitutional and in order to curtail the exercise of naked power and acts of administrative or executive lawlessness as in this case; that that the Claimant not only proved this head of claim as to his severance package, he also gave a mathematical basis for arriving at this sum, and his evidence was not dislodged under cross-examination. He cited the case of ABN Ltd. v. Akabueze (1997) 6 NWLR (Pt.509) 374 at 406 and urged the honourable court to resolve this issue against the defendant and accordingly grant all the reliefs sought by the claimant.

 

On issue two (2); counsel submitted that the defendant's counterclaim merely relies on its reason of redundancy for the justification for seeking the reliefs therein which is the return of the official car attached to the position of the Claimant and which was, at no point to the termination of the employment and the negotiation that subsequently followed for his terminal benefits was ever demanded; that it was upon the refusal of the Claimant to accept the terms of Exhibit CA 19 that the Claimant came up with letter of termination in Exhibit CA22 and therein introduced the return of the official car; that the piece of paper sought to be tendered as Certificate of Compliance with Section 84(4) of the Evidence Act is a worthless piece of paper and cannot be admitted by the honourable court and that by paragraph (3)(a)(iii) of the National Industrial Court of Nigeria Practice Direction, 2022, such a document must be struck out. He urged the honourable court to resolve this issue against the counterclaimant and in consequence, dismiss the counterclaim for lacking in merit and for being brought in utmost bad faith. 

 

It is the defendant/counterclaimant’s Reply on point that having taking benefit of the terms of the garden leave which the Claimant does not deny he went on, cannot turn around to challenge the way his time in the Defendant was brought to an end. Consequently, all the arguments made by the Claimants regarding his ostensible wrongful termination cannot even see the light of day and must fall like a pack of cards on the basis of his own actions; that assuming without even conceding that the erstwhile members of staff of the Defendant which the Claimant referred to were given their cars upon their exit from the Defendant, it is safe to say that those other members of staff had a distinct contract with the Defendant which the Claimant was never a party to. It then turns out that the Claimant is seeking to take benefit of a contract which he was not a party to. He cited the case of Febson Fitness Centre v Cappa H. Ltd (2015) 6 NWLR (Pt.1455) 263 at 278.

 

That there is no portion of the Rules of the honourable court or the Act that mandates a party to file a Certificate of Compliance, but the Claimant's counsel appears to have made it mandatory in his address; that if the draftsman of the Rules of Court intended that a Certificate of Identification/Compliance ought to be filed, it will have been expressly mentioned in the Rules of the honourable court or perhaps the Act. In view of its absence, he urged the honourable court to invoke the expressio unius est exclusion alterious rule in the circumstance. He cited the case of A.G of Ondo State v A.G of Ekiti State (2001) LPELR-622.

     

I have considered the processes filed, the evidence of the parties, written submissions and authorities cited. In my considered opinion, the issues for determination are 

 

1. Whether on the pleadings and evidence, the claimant is entitled to the reliefs claimed.
2. Whether the defendant is entitled to its counterclaim. 

 

The case of the claimant is that after he joined the defendant, he managed effectively the security department of the defendant without query or complaint and was made to leave the company unceremoniously, first by garden leave wherein he stayed home for three (3) months with full salary and then a letter informing the other staff of the development. That the letter of termination is based on redundancy hence he should be paid appropriately.  The parties as required by law have put in evidence their documents in support. The claimant has tendered letter of employment (exhibit CA3), Promotion letter (exhibit CA4), Regional Security Coordination Role (exhibit CA 5), Re: Organization of the security function (exhibit CA7).   Email  (exhibit CA8), Restructure of security management  (exhibit  CA9),   Email (exhibit  CA 10),  Employee handbook (exhibit CA20),  Letter from defendant (exhibit  CA21),   Salary review (exhibit 36-38), The defendant tendered  letter of demand for missing items (exhibit ( CA47), Email trail ( Exhibit 48, 49, 50,) Memorandum of agreement between MWUN and APM ( exhibit CA 52) Defendants / HR policy (exhibit CA 56), Proof of ownership certificate (exhibit CA 57 ). Burden of proof being the obligation that a party bears to adduce evidence in court to establish his case is on the claimant who wants judgment in his favor. It is the contention of the claimant that the manner of his termination is inconsistent with the laid down procedure in the employee handbook, in addition to the method resorted to by the defendant.  A release was issued by the managing director of the defendant wherein he circulated information to all staff on the decision by the management and it states 

 

‘’With the aim of further strengthening our efforts in increasing the security of APM Terminals Apapa, a reorganization of our security function has been initiated by APM Terminals headquarters in the Hague together with the corporate security function for A. P. Moller - Maersk in Copenhagen. As part of this reorganization, the task currently performed by our in-house security function will be handed over to an external security services provider G4S and security management CRG, on a temporary basis effective today, 18^th March. 

 

While the new setup will, among other things, ensure continuous, independent and third-party security audits of all our processes, helping us continuously improve our security standards, it means that we will regrettably need to close down our security function headed by Olatubosun Ayodele (Ayo). I would like to use this opportunity to thank Ayo and his team for their contributions to APM Terminals Apapa over many years. Please join me in wishing them lots of success in their future endeavors. 

 

Should you have any further questions on this, please feel free to reach me or our Chief Operations Officer, Steen Knudsen, directly.

 

The claimant averred further that the defendant now issued another document on the change of baton in the security department 

 

That a second release (by mail) was issued by Steen Knudsen, the Chief Operations Officer of the company, in the following terms: 

 

Dear Colleagues, 

 

You have heard about the change in our security function, where we have replaced our in-house security team with an external service provider, on a temporary basis. This message is to give you additional perspective and information which might be relevant. 

 

As a result of the reorganization and the change we have implemented, we are obliged to ask you to discontinue any interaction with the outgoing team, who will also going forward have no access to our facilities. This action is dictated by the nature of this function, where the incoming security personnel will immediately assume their tasks and will have immediate responsibility for the security of our terminal. 

 

As mentioned, the new setup will help us continuously improve our security standards and eliminate any irregularities that might occur. 

 

The letters issued by the defendant reproduced above refer to the claimant’s employment and the need to inject new force and strengthen the security lapse in the defendant.  To the learned counsel to the claimant, foreign nationals have been given his job.   Exhibit CA 20 is the employee handbook and clause 4.0 sets the provisions relating to termination of employment of the employees in the defendant’s company. Part of the clause 4.0 relevant to the claimant are 4.1 (d) and 4.8 which provides thus 

 

Clause 4.1   

 

An employee may disengage from the services of the company following 

 

1. Resignation / Abandonment of duty 
2. Retirement 
3.  Death or 
4.  Redundancy  

 

On the other hand, clause 4.8 makes provision for Redundancy 

 

The company would want to maintain a steady work force. However, economic circumstances may force the Company to reduce the number of staff by declaring a redundancy. Management will however endeavor to give enough notice in accordance with Section 20 subsection a, band c of the Nigeria Labour Act 2005. 

 

It is clear from the provisions of clause 4.8 is on redundancy and it states the conditions under which the defendant will declare Redundancy.  Clause 4.8 of the employee handbook (exhibit CA 20) referred to Section 20 of the Nigeria Labour Act and the provision therein provides for a condition precedent for a company declaring redundancy to fulfil and comply with the defendant submit that same has been fulfilled. Section 20 (3) defines redundancy as

 

                        An involuntary and permanent loss of employment caused by an excess of manpower

 

While section 20 (1) in the event of redundancy – (a) the employer shall inform the trade union or worker representative concerned of the reasons for the extent of the anticipated redundancy (b) the principle of last shall be adopted in the discharge of the particular category of workers affected. That it shall be based on merit, including skill, ability and reliability. I believe the claimant was given the employee handbook and the principle the defendant applied is that the ability and reliability was no longer there based on the security lapses in the security department. 

 

In this case the defendant by the claimant’s pleading was invited with other security staff for a meeting where they were advised to go home on the 18^th of March 2021, then a second letter before eventually terminating the claimant’s employment.  The claimant averred in paragraph 13 of the statement of fact that the excuse of the defendant for his termination is driven by the need to implement a new security frame work and restructuring required to achieve positive improvement in the security and risk management is a complete hoax. In response to this, the defendant in paragraph 16 of the statement of defence and counterclaim is that it never intended to embarrass the claimant but that there was need to share the change with the agencies who interacted with the security department including the claimant.

 

Now did the defendant terminate the claimant’s appointment by redundancy.  Here again the claimant stated that the alleged outsourcing of the security functions of the defendant is in violation of the requirement and the definition of redundancy both under the Nigerian law and international best practice.  Clause 4.8 of exhibit CA20 states that economic circumstances may force the company to reduce the number of staff by declaring a redundancy and that management will give enough notice in accordance with Section 20 subsection a, b, c of the Nigerian labour Act   2005.    The claimant was sent on leave and paid appropriately for the period. Then in paragraph 29 of the statement of facts the claimant averred that a letter written by the Chief Operating Officer was sent to him declaring Redundancy is Reproduced below.

 

“Private and Confidential 

 

Dear Mr. Ayodele Olatubosun, 

 

Following initial discussion on March 18, 2021 on your need to go on garden leave and our inability to agree a means to avoid redundancy or to identify a suitable alternative role for you within the organization, I regret to now inform you that your redundancy is confirmed. 

 

Find attached, details of your redundancy payment which will be available to you. This payment includes the following: 

 

1.         Payment of N500,000.00 for each year of service 

 

2.        Payment of 6 months gross salary (garden leave) 

3.        Payment of one (1) months' salary in lieu of notice 

 

4.        Prorated leave allowance and accrued leave days commuted to cash 

 

5.        Accrued One-Maersk bonus of N996,002.00 

 

6.        Payment of June 2021 net salary 

 

7.        Staff loan of N164,812.00 has been written-off. 

 

Your last day at work will therefore be June 30, 2021. Please ensure that all company properties (including company's car) in your possession are returned to the undersigned on or before Friday, June 25, 2021. 

 

I would like to say that I very much regret that the current Company situation has necessitated your redundancy. On behalf of the Company, I would like to thank you for your contribution to the Company in the past and wish you the very best of luck in the future.

 

The provision of Section 20 of the Labour Act LFN 2004, which has a provision for redundancy provides condition precedent for a company declaring redundancy to fulfil and comply with.  The provision is that enough notice is to be given to the employee before embarking on this. The claimant was given notice and the defendant gave the reasons on why the claimant’s employment was terminated and same was communicated to the claimant, the basis for the reorganization of the defendant’s security department to wit:

 

 Particulars of Redundancy 

 

(i)       By a Letter of Employment dated 17^th February 2007, the Claimant was employed by the Defendant. 

 

(ii)      The Claimant rose through the ranks in the Defendant and was subsequently promoted to the position of Country Security Manager on 1^st September 2016. 

 

(iii)     By virtue of the said promotion, the Claimant headed the internal security unit in the Defendant which was responsible for providing all the security needs of the Defendant. 

            

(iv)     Unfortunately, despite the efforts of the in-house Security team the Claimant was still facing considerable security challenges and this was evident in the consistent security breaches at the Defendant's Terminal as highlighted above. 

            

(v)      In view of the security challenges suffered by the Defendant and to maintain its reputation and confidence of its customers, it became imperative for the Defendant to re-organize its security operations. Therefore, the Defendant resolved to focus on its core competence and outsource the areas that it did not have full capacity to handle like security. 

 

(vi)     In outsourcing the security function, the Defendant had to acknowledge that its security needs were more than what could be handled internally. Therefore, the Defendant engaged three Nigerian security entities (Asset Guard Services Nig Ltd (G4S), Halogen Security Company Limited, and Control Risk West African Ltd) to provide the security services provided by the Claimant and his team. 

 

(vii)    Further to (vi) above, the role of the Claimant became surplus to requirement as the Defendant was swamped with excess manpower in the security unit. 

 

(viii)  The services that were to be provided by these security entities were sufficient to meet the Defendant's security needs; hence, the Claimant's team consequently became redundant. 

 

That even after informing the Claimant of his redundancy, the Defendant (in compliance with the provisions of the Employee Handbook which provides that recourse must be made to Section 20 of the Labour Act should redundancy arise), still adhered to the procedure. In carrying out the reorganization, what did the defendant do or did they use the word reorganization as a make up?  

 

1. The Defendant had discussions with the Claimant and the Maritime Workers Union of Nigeria (MWUN) on its decision to dispense with the services of the Claimant and his team members on the basis of redundancy. 
2. The Claimant was provided with sufficient time between March to June 2021 during which period the Defendant continued to pay his salaries and entitlements. 
3. In compliance with Section 20 (1) (c), the Defendant used its best endeavour and exhausted every possible alternative in discussing and negotiating redundancy payment with the Claimant and MWUN. 

 

The defendant had security challenge as averred in paragraph 3 of the statement of defense and counterclaim. This was enough need to reorganize the security department of the defendant as the entire team were laid off and replaced with three (3) other firms. To the claimant, the submission is that the court is to hold that this is not redundancy but a tact to bring in foreign personnel to man the defendant’s security department. I agree with the defendant’s submission that if the claimant disagrees with it on the issue of redundancy why claim under same. That in dispensing with the services of the claimant, the defendant made him redundant, as the defendant had pleaded earlier that there was need to inject new security system as they had incessant cases of pilfering which affected the operations of the defendant negatively. Indeed, the claimant in his final address addressed the issue raised by the defense counsel that relief iv is admission of wrongful termination of employment and that he equally accepted his termination on ground of redundancy as that is not the claimant’s position.  Having referred to paragraph 4.0 at page 5 of exhibit CA20 that states that while employment is subject to the terms and conditions as stated in the handbook, specific rules will be introduced but will not affect the staff condition of service. So, what condition did the defendant breach in the termination of the claimant’s employment?  To the claimant exhibit CA7-CA10 breached the contract of employment, exhibit CA7 is a letter from the defendant on the need to reorganize while exhibit CA10 is on the CCTV which is not related to the claimant’s employment. In exhibit CA21 enumerated the details of redundancy payment which includes the following but not limited to (payment of one (1) months gross salary in lieu of notice.

 

Was there any restructuring carried out by the defendant?  The claimant stated that the defendant has contracted three foreign firms to take over the security control of the defendant’s company, has equally stated that there is no reason for the termination.  Clause 4 of the handbook has specific provision on redundancy in 4.8 where it stated ‘’ the company would want to maintain a steady work force. however, economic circumstances may force the company to reduce the number of staff by declaring a redundancy. management will however endeavor to give enough notice in accordance with section 20 subsection a, b, c, of the Nigeria labor Act 2005. In Redundancy / Reorganization, the common means by which employment is brought to an end is by termination. However, in times of economic downturn, excess manpower, or due to technological or structural reasons, employers of labor may be compelled to adopt measure that will enable them to remain in business which includes declaration of some positions as redundant and reducing the number of employees. Rather the defendant removed the entire security department and replaced them with new security companies.  The claimant’s service was no longer needed due to no-fault of his.

 

It is settled law that parties to agreement or contract are bound by the terms and conditions of the contract they signed as in this case and cannot operate outside its terms and conditions. Since this is a master/servant relationship, such an employer who hires an employee has the corresponding right to fire at any time but this must be done within the ambit of the contract between the parties. Under cross examination to the question ‘’ under your contract of employment, how many months’ notice are you entitled to before termination and he responded one (1) month. There was no breach in terms of the notice period.  The gravamen of the claimant is that although he was rendered redundant by the defendant the principle as provided in the employee handbook where section 20 of the labour Act was factored in was not followed 

 

It is imperative at this juncture to distinguish between termination of appointment and redundancy. While redundancy in service is mode of removing off an employee from service when his post is declared ‘redundant’ by his employer. It is not a voluntary or forced retirement. It is not a dismissal from service. It is a form unique only to its procedure where an employee is quietly and lawfully relieved of his post. Such type of removal from office does not carry along with it any other benefit except those enumerated by the terms of contract to be payable by an employer declared ‘redundant’. It is clear from the abundant judicial authorities that the conditions applicable to redundancy are quite distinct from those applicable to retirement or other conventional modes of relieving an employee such as termination. Exhibit CA21 is the detail of the redundancy payment to the claimant, the claimant has not told the court the benefit that has not been paid by the defendant.   I note here, that there is no provision in the employee handbook on what is to be paid in case of redundancy.   The defendant in paragraph 5.60 of its final address referred to same that neither the claimant’s contract of employment nor the defendant’s Employee handbook provide for terminal benefit in cases of redundancy and under cross examination CW confirmed that there is no document provided but there is a standard. The court is not told what the standard is and what he is being owed under the redundancy procedure. What the defendant did was reorganization/ redundancy but chose to stick to redundancy. The claimant’s grouse is that there is no reason to do away with his services as he had put in his best for the defendant.  The claimant seems not to be aware of the law that a private limited company or any employer of labour like the defendant does not owe any obligation to retain the services of any unwanted employee and may terminate the appointment without any given reason. However, where the employer states a reason for the termination such reasons must be plausible to justify such termination of the appointment of the employee. See Angel Shipping Ltd v Ajah (200) LPELR -10724 (CA).

 

In an employment of master/servant relationship and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed to, any other form connotes wrongful termination or dismissal. See Union Bank v Ogboh (1995) 2 SCNJ 1.  Once the employer complies with the agreement between the parties then the termination is not wrongful.   In the instant case the claimant has not claimed for wrongful termination in his reliefs. Reliefs 1, 2 3 are reproduced hereunder 

 

 

 

 

It is the law that courts cannot grant a relief not sought by the parties, as courts are not Father Christmas. The claimant did not bring up the issue of wrongful termination as that is his contention and the court cannot equally make a finding for that and go on to hold so. In the instant case, the letter of termination was based on ground of redundancy. The letter announcing the removal of the claimant had stated thus

 

With the aim of strengthening our efforts in increasing the security of APM terminals in Apapa, reorganization of our security function has been initiated by APM terminal HQ in the HAGUE.

 

The defendant in defense of its position on the security lapses tendered exhibit CA 47 which is a demand letter from a law firm to the defendant for a total cost of N525, 600,000 and the letter is dated 21^st March 2021 and the reorganization started on 18^th March 2021 when the MD called the security staff for a meeting.  The claimant in exhibit CA 35 acknowledged the fact after an email trail on security lapses in the terminal and the way forward and wrote

 

 Dear Martin 

 

We recently engaged KLASS security to provide support in curbing the attempts to pilfer cargoes most especially prohibited drug – tramadol, we have recorded appreciable traction in that direction  

 

Olatubosun Ayodele

 

The next question is how is redundancy done under the terms and conditions of the employment of the claimant with the defendant? The learned counsel to the defendant submits that the procedure was followed in the sense that the claimant and other security staff were sent on leave with full pay, which serves as notice period and that the union MWUN had discussion with the management of the defendant and then the decision taken was within the power of the defendant to reorganize in order to have proper security.  Having given reason of reorganization, there must be proof of same.  It was as a result of these lapses that led to the defendant’s decision to reorganize the defendant’s security functions and declare redundancy that led to the termination by redundancy of all staff in the security department. I therefore find and hold that the reorganization/redundancy was as a result of the security lapse and same was acknowledged by the claimant. Having said all of this, the question is whether the claimant has proved the reliefs he claims.  It is trite law that he who asserts must prove. See Darego v A.G. Leventis (Nig) Ltd (2015) LPELR -25009(CA). Afrocats (Nig) Co Ltd & Anor v Skye Bank & Anor (2017) LPELR -43397 (CA).  

 

The claimant has a duty to prove entitlement to the claims and the quantum of the sums claimed. Termination of appointment may be imposed at any time by either party giving to the other required notice in writing or such other period of notice as specified in the staff letter of appointment or notice periods in accordance with the level of staff or pay cash in lieu of such periods as specified in the staff handbook. In the instant case the defendant chose to terminate the claimant’s appointment.  This distinction and an earlier definition of redundancy shows that the termination of the appointment of the claimant is redundancy not the same as the claimant leaving by termination. Termination of appointment implies complete severance of an employer/employee relationship by dispensing with the services of an employee with the position extant, while redundancy implies that the post occupied by an employee is no longer necessary and /or is no longer useful to the employer. Redundancy was based on the need to reorganize the security department and the need to bring in more capable hands and did not scrap the position the claimant occupied in the company. See Union Bank v Saludeen (2017) LPELR -43415(CA).  

 

The defendant has a right to bring the relationship of master and servant to an end by terminating the employment of the claimant giving one month notice or a month’s salary in lieu. The defendant complied with the latter.

 

Relief 1 is on the claimant’s pleading is in paragraph 31(e) of the statement of facts 

 

At the time of employment on 17^th February 2007 and with the military background of the claimant coupled with the trainings the claimant had attended in the course of his employment, the claimant possess the requisite capabilities and experience to fill the role which the defendant now seeks to hand over to company owned by foreigners while the claimant and other members of the security department of the defendant were disposed of for no reason at all .

 

In response the defendant in paragraph 28 (vi) averred 

 

In outsourcing the security function, the defendant had to acknowledge that its security needs were more than what could be handled internally. Therefore, the defendant engaged three Nigerian security entities (Asset Guard Services Nig Ltd (G4S), Halogen Security Company Limited and Control Risk West African Ltd to provide security services by the claimant and his team. 

 

The claimant responded to this in paragraph 16 of the consequential amended reply that the three companies were engaged by the defendant to provide guard services and that the functions had nothing to do with the claimant’s duties and responsibilities as country security manager.  First there is no evidence that the new security companies are owned by foreigners.  I find that the assertion of the claimant cannot be correct as the defendant in above paragraph 28 listed the companies and the claimant in his reply (16) ii stated that he executed the contract on behalf of the defendant for Martin Whitefoot to take over his job and gives notice to defendant to produce the full document. On notice to produce, see Nweke v state (2017) LPELR – 42 103 (SC) on effect of a notice to produce and held thus 

 

A party on whom notice to produce is served is not under any obligation to produce the document. The service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document in question by virtue of section 91 of the Evidence Act 2011. 

 

There is no document to show that the company are owned and controlled by foreigners. The claimant devoted most of his time in his pleadings to the encounter with the Managing Director as a foreigner was bent on terminating his employment and that the defendant is to negotiate with him on what his benefit by his calculation is. What the claimants fails to realize is that while in master/servant relationship, each party is at liberty to determine the employment as the employer has no right to deny the employee from resigning if he wishes to do so. The relief fails and is dismissed. 

 

Relief 2 is for Declaration that the Defendant acted in breach of the provisions of Section 20 of the Labour Act in declaring the Claimant redundant and in its failure to engage the Claimant in negotiations regarding his severance pay package.   It is also the case of the claimant that the invocation of redundancy provisions in respect of his employment was done in flagrant violation of the provisions of clause 4.8 of the Employee Handbook. The claimant has referred to the defendant’s pleadings and evidence that there was no shortage of manpower and not only did the defendant fail to follow the mandatory procedure for the declaration of redundancy as set out in Section 20 of the Labour Act. In paragraph 4.18  of his final address the claimant enumerated the steps for redundancy in the Employee handbook that necessitated the engagement of three companies to perform the security functions of the claimant and added specifically in paragraph 4.20 ‘’ we submit that assuming but without necessarily conceding that this contention is factually and evidentially correct, it establishes a need for more manpower that defies the statutory definition of redundancy under Section 20 of the labour Act. The claimant sees the replacement of the claimant as unlawful termination and has referred to breach by the defendant without more. Where there is evidence of pilfering in the defendant which though did not indict the claimant, the defendant in order to sustain its business has a duty to do the needful as law suits against the defendant were beginning to be the order of the day (exhibit CA 47). The position of the law is that a claimant must succeed on the strength of his case and never rely on weakness of the defendant. See Abogede v State (1994) LPELR – 61777 (CA). The reliefs fail and is dismissed. The claimant in this relief wants the defendant to negotiate with him. As earlier held in this judgment, there is no provision as to what amount is to be paid to an employee under redundancy.   This leaves no room for negotiation as it becomes discretionary, the sum of 26, 753, 096. 23 calculated by the claimant as what he is entitled to has no basis as the claimant did not tell the court how he arrived at that figure apart from reference to other staff and using 50% for the ex-gratia payment which brought the figure from N7,000,000 to N11, 413, 239. 45.  Fundamentally, the claimant’s expectation for payments made ex gratia to be increased by the defendant has no legal backing. The relief fails. 

  

Relief 3 is for the defendant to engage the claimant in negotiations regarding his severance pay package. The word negotiation is from the verb negotiate and it means to discuss, bargain in order to reach an agreement or settlement.   The evidence before the court is that the claimant was paid N20,000, 000 which he rejected and claimed N26, 753, 096. 23. The law in this regard is settled on issue of entitlement.  In Mohammed Umar Adabara v Unity bank Plc (2025) LPERL – 80002 (CA) on how to prove entitlements in labor matters and held thus 

 

The general rule is that a party who asserts must prove his assertion, in labor related matters, an employees can only claim if an entitlement is shown, an entitlement is shown by reference to the law that gives, the collective agreement from the entitlement was agreed upon between the contracting parties or the conditions of service governing the relationship of the employer and his / her employee.

 

Based on this authority, there is no room for negotiation in this case save for what parties agreed to.  The claimant averred in paragraph 41 of the statement of facts on being a defendant in a case involving his employer. Exhibit CA 27 and 28 are a Certified True Copy (CTC) of the proceedings before the High Court of Lagos State. That the claimant was the 2^nd defendant in the case is uncontroverted. What the court is to look into is how the claimant became a party in the case as per his averment in paragraph 41 of the statement of fact. 

 

 Claimant avers that on 7^th November, 2012, the Economic and Financial Crimes Commission (EFCC) filed a Criminal Charge against the Defendant before the High Court of Lagos State, and the Claimant was joined as the 2^nd Defendant/Accused person in Charge No. ID/219^c/12 for the offences which were set out as follows: 

 

"STATEMENT OF OFFNECE -1^ST COUNT

 

Conspiracy to steal to 516 of the Criminal Code Cap C17, Laws of Lagos State of Nigeria 2003. 

 

 

PARTICULARS OF OFFENCE

 

AP. Moller Terminals Ltd and Olatubosun Ayodele on or about the 7th day of March 2006 at Apapa within the Ikeja Judicial Division with intent to defraud, conspired to steal a 1 by 40 feet container No. TTNU 55567672/2 loaded with Coated industrial papers, valued at N18,000,000.00 (Eighteen Million Naira Only) property of Emenike Anyabuonwu entrusted to you by the Nigerian Ports Authority. 

 

STATEMENT OF OFFENCE - 2^ND COUNT

 

Stealing contrary to Section 390 of the Criminal Code Cap C17, Laws of Lagos State of Nigeria 2003 

 

PARTICULARS OF OFFENCE

 

AP Moller Terminal Ltd and Olatubosun Ayodele on or about the 7th day of March 2006 at Apapa within the Ikeja Judicial Division with intent to defraud stole a 1 by 40 feet container No. TTNU 55567672/2, Loaded with Coated industrial papers, valued at N18,000,000.00 (Eighteen Million Naira Only) property of Emenike Anyabuonwu entrusted to you by the Nigerian Ports Authority. " 

 

But the claimant in paragraph 42 has stated that the offence was alleged to have been committed almost one year before the claimant was employed.  There is a missing link as the claimant has not told the court how he became involved with the case before he was employed. Until the missing link is put properly before the court, the court is unable to grant the relief, was the joinder of the claimant as second defendant the prerequisite for employment in the defendant? The claimant in paragraph 24 of his consequential reply   stated that the claimant was joined in the case simply because the defendant was unable to produce key personnel who had earlier made statements to EFCC. Again, the court has not been shown a letter by the claimant that he was under an obligation to be made a defendant in a criminal matter that he is not a party to or a joinder of the claimant as a party. Now paragraph 4.29 of the claimant’s final address captures the claimant’s involvement in the matter he referred the court to and particularly to the email April 21, 2021. The email is exhibit CA50 in the 4^th paragraph 

 

Finally, Ayo indicated that if there is support needed from him or Henry wrf to information, investigation, or current cases the past team handled, that they will be willing to assist on the condition that we reach out before their official exit. He also declined being APMT’s witness in court after his exit.

 

This clearly shows that he was not only a defendant but was also a witness and nothing more as he declined to continue to be the witness for the defendant.  The relief is not grantable as the court is not seized of what transpired between the parties. 

 

The next relief is for the Claimant is to keep the official car and mobile number 0706 418 9214 in addition to his severance package. The car was given as official car by the defendant to do his official duty. In exhibit CA21 the third paragraph states 

 

Your last day at work will therefore be June 30 2021. Please ensure that all company properties including company’s car in your possession are returned to the undersigned on or before Friday June 25 2022. 

 

The claimant is aware that being an official car and without permission to keep it, has a duty to return the car. The defendant counterclaimed for the car in the amended statement of defence and counterclaim.  That the proposal to the claimant did not include the counterclaimant’s car. In response the claimant sees this as a vendetta because the claimant refused to accept the sum paid as benefit.  This is simply no response. The relief fails and is dismissed.

 

Relief 6 is for the sum of N26, 753, 096.32 being severance package for the claimant. The claimant tendered his letter of employment, staff handbook and other documents related to his employment. In line with the staff handbook (exhibit CA 20), an employee may disengage from the services of the company following 

 

1. Resignation
2. Retirement 
3. Death 

 d) redundancy.

 

By clause 4.8 is Redundancy which the claimant exited the defendant company and the notice period is in accordance with section 20 sub section a, b, and c of the Nigeria labors Act 2005, which in turn stipulates that he must be given enough notice which the defendant complied with from March to June 2021 during which period his salary was fully paid. The claimant was issued a cheque of N20, 832, 526. 69 which he returned as that did not his reflect the ex- gratia payment. The argument of the claimant is that the calculation used for other disengaged staffs was not applied to his final entitlement considering the fact that the middle management staff whom he supervised up to the time of resignation, had their entitlements calculated using a different formula. He averred in paragraph 26 of the statement of fact that that there was no negotiation between the claimant and the defendant in respect of the manner he was treated and compensation package that may be appropriate in the circumstance.

 

Meanwhile in making the claim as averred in paragraph 47 of the statement of facts that the severance package is grossly inadequate compared to the compensation paid to foreigners who occupy similar managerial position in the defendant and the Maersk Group, the claimant did not tender document to show those who occupied same position and was paid more than him. It is settled law that pleading without evidence goes to no issue. The claimant’s pleading completely ignored this principle. See Onabule v Sanya (2016) LPELR -414 23 (CA), Kings Cross Construction Ltd v Minister FCT (2023) LPELR -60740 (CA). The claimant then calculated his severance package, that the defendant in coming up with N20, 832, 526.69 did not take into consideration the incarceration and denial of the claimant’s right to freedom of movement which he was subjected to since the confiscation of his passport on account of the pending criminal charge against the defendant and came up with the sum of N26, 753, 096. 32 by increasing the ex-gratia payment from N7.000.000 to N11, 413,239.45 using 50% monthly payment in computation of severance package as shown in paragraph 52 of the statement of facts.  In Busari Giwa & Ors v Wema Bank Nig Plc (2021) LPELR -54851 (CA) where the Court of Appeal explained the meaning of ex-gratia as follows

 

The appellants pleaded in paragraph 11 A. They relied on copies of letters of earlier staff whose employment were determined to prove this customary ex- gratia customary payment. In P.A.N Ltd v Saliu Oje (supra) at page 17, this court per Mohammed JCA (now CJN) defined ex gratia payment thus    what is ex gratia? the term is Latin, it connotes something given out of grace, favor, indulgence or gratuitous. Henry black is a term ‘’ applied to anything accorded as a favor, as distinguished from that which may be demanded ex – debito, a matter of right ‘’ so it follows that ex gratia payment being claimed by the respondents is a payment by one who recognizes no legal obligation to pay. 

 

There is no such provision in the condition of service governing the employment of the claimant. From the above authority, the law is clear that ex gratia payment is not binding as there is no such agreement in the contract of employment. The claimant has not established or adduced evidence in support of his averments in his pleadings.  I have read the testimony of the claimant under cross examination 

 

 Under cross examination the CW testified as follow:

  

Question: part of the computation includes ex gratia payment 

Answer:   Yes 

Question: Do you know the meaning of ex-gratia 

Answer: Payment after service 

Question:  The difference between your computation of what you think you are entitled to and the defendant computation is the ex-gratia payment 

Answer: Yes 

 

The claimant cannot on his own calculate what is given to him gratuitously, for to do that means he has the power to remain in employment for as long as he likes as the court can only make an order based on the entitlement being part of his contract of employment.  I hold that the claimant is entitled to the sum of N20, 832, 526.69   

 

The next relief is for N50,0000 (Fifty Million Naira) as aggravated damages. There is nothing before the court to show same. 

 

Relief 8 is for the sum of N5, 000, 000 as compensation or workplace discrimination against the claimant. what has the claimant put in place for the court to rely on. There is nothing to show he was discriminated. In n my respectful view, the claimant has only proved his claims to the entitlement of N20, 832, 526.69 to   being his entitlement which he returned.

 

On the counterclaim; the counterclaimant claimed for the car given to the claimant by the defendant which claimant retained as wrongful and prays the court to mandate the defendant to the counterclaim to return the car 2020 Toyota Fortuner 2.7 -L, 4WD SUV with chassis number MHFDX8FS2L0107189.   The counter claimant averred that the defendant presented a car to the claimant to aid his official duty. After the termination due to redundancy, the defendant to the counterclaim did not return the car which was not included in the contract of service. The company vehicle policy is as stated in exhibit CA 56. The claimant’s response on the demand for the car in his consequential reply is that it was an afterthought since the defendant could not cajole the claimant to accept the sum of 20, 831, 426.62. There is no document showing the SUV formed part of the claimant’s severance package. Under cross examination to the question ‘’ The car given to you by the defendant is still in your possession and there is nothing in your contract of employment that entitles you to the car at termination and he answered that the car was given to me and all managers. you leave with your own car given. there is no documentation when I was given the car. The claimant is to return the car to the defendant. I do not know how demand for official car is discrimination. The defendant in its reply on point of law submit that there is no evidence that justifies the claimant’s entitlement to keep the defendant’s car and this explains why the claimant has struggled but was left with no other option but to refer to the contracts of other members of staff. It was for the defendant to the counterclaim to prove this and convincingly too and given the totality of the foregoing testimony of CW, I am unable to hold that he is entitled to retain the car. 

 

For purposes of this suit   therefore, and for all the reasons adduced, this suit succeeds only in terms of the following orders –

 

 

 

 

 

Judgement is entered accordingly

 

 

 

HON. JUSTICE A.N. UBAKA

JUDGE