IN THE NATIONAL INDUSTRIAL COURT OF
NIGERIA
IN
THE LAGOS JUDICIAL DIVISION
HOLDEN
AT LAGOS
SUIT NO NICN/LA/64/2022
BEFORE HIS LORDSHIP, HON. JUSTICE (DR.)
I. J. ESSIEN
DATE: 21st July 2026
JACOB IKENWE Claimants
VIJU
INDUSTRIES (NIG) LTD Defendant
JONATHAN
OGBONE
JUDGMENT.
The
claimants commenced this action by a complaint dated the and filed on the 15/2/2022.
In the complaint the claimant sought the following relieves from the court:
a.
A
DECLARATION that the dismissal of the Claimant Via letter dated 25Th
June 2021 is irregular, illegal, null and void and of no effect whatsoever.
b.
A
DECLARATION that the dismissal of the Claimant without due adherence to the
provisions of the 1st Defendant’s HANDBOOK and other extant
Guidelines as applicable is irregular, illegal, null and void and of no effect
whatsoever.
c.
A
DECLARATION that the dismissal of the Claimant without affording him the
opportunity to make any form of representation or defend himself before any
duly constituted Investigative Committee or Panel of inquiry is
unconstitutional, illegal, null and void
and of no consequential effect.
d.
AN
ORDER of this Honourable Court nullifying the dismissal of the Claimant and
converting the dismissal to termination.
e.
AN
ORDER of this Honourable Court Compelling the Defendants to immediately pay to
the Claimant one month salary in lieu of notice in the sum of N90,000.00 (Ninety
-
thousand naira) and other benefits as
accrued from the
date of termination
of the Claimant’s employment up to the date judgment
is delivered.
f.
AN
ORDER of this Honourable Court Compelling the Defendants to immediately pay to
the Claimant the sum of N2,025,000,00 (two million twenty five thousand naira)
being unpaid gratuity/entitlement with interest thereon at 21% per annum
banking rate from the 1st of July, 2021 until the date of judgment
and 17% per annum interest from the date of judgment till the judgment sum is
fully liquidated.
g.
AN
ORDER of this Honourable Court Compelling the Defendants to immediately pay to
the Claimant the sum of N1,000,000,00 (one million naira) as general damages
for dismissing the Claimant without due process.
h.
AN
ORDER of this Honourable Court Compelling the Defendants to immediately pay to
the Claimant the sum of N1,000,000,00 (one million naira) as special and aggravated
damages for being subjected to psychological and emotional trauma, physical
dehumanizing conditions and other injuries following the dismissal of the
Claimant.
i.
N6,750,00
(six thousand seven hundred and fifty naira) being monthly contributory pension
from June, 2021 till judgment is delivered,
j.
N500,000,00
(five hundred thousand naira) only as cost of retaining solicitors and cost of
this action.
In
support of this claim, the claimant filed a witness deposition of the claimant
as the sole witness along with frontloaded documents.
The
defendants filed their statement of defence on the 25/3/2022. However, the
witness deposition of the defendants substituted witness was filed on the
12/9/2025.
Hearing
in this action commenced on the 6/11/2025. The claimant testified as CW-1. He
adopted his witness deposition and went on to tender the following documents in
evidence:
1.
Confirmation
of appointment is Exhibit C1
2.
Letter
of query is Exhibit C2a and b
3.
Response
to query is Exhibit C3
4.
Defendant
letter of 10/6/2021 is Exhibit C4
5.
Letter
of termination is Exhibit C5
6.
Defendant
staff handbook is Exhibit C6.
7.
Solicitors
Letter of demand is Exhibit C7
8.
Response
to solicitors letter of demand is Exhibit C8.
9.
Claimant
solicitors letter of response to defendants solicitor’s letter is Exhibit C9.
The
witness was cross examined by the defendants counsel and Exhibit C10 a, b,
c, d which are the queries served on the claimant was tendered through the
claimant.
A
document admitting stealing of a wallet was also tendered through CW-1 as Exhibit
C-11. At the close of the cross examination, the claimant closed his case.
The
Defendant opened their case on the 8/12/2025. Mr. Akinurele Samuel Bukunmi
testified as DW-1 and the sole witness of the defendants. The witness adopted
his witness deposition filed on the 12/9/2025 and went on to tender the
following documents in evidence:
1.
Warning
letters are Exhibit D1a, b, and c
2.
Internal
memo is Exhibit D2
3.
Query
letter is Exhibit D3
4.
Reply
to query is Exhibit D4
5.
Queries
are Exhibit D5a and b
6.
Report
on Jacob Ikenwe is Exhibit D6
7.
Query
Letter dated 8/6/2021 is Exhibit D7
8.
Complaint
of unwholesome practice is Exhibit D8a and b
9.
Solicitor
letter of demand is Exhibit D9
10.Invitation to appear before a
disciplinary committee is Exhibit
D10
11.Reply to query dated 3/6/2009 is
Exhibit D11
12. Letter of warning is Exhibit D12a
and b
13. Letter of Apology is Exhibit D13
14 Defendant petition to COP is Exhibit
D14.
The
defendant witness was cross examined by the claimant counsel and thereafter the
defendant closed their case. The suit was adjourned for adoption of the final
addresses of the counsel to the parties. On the 20/5/2026, the claimant counsel
was absent in court. The claimant had also not filed a written address, despite
the fact that counsel was in court at the last adjourned date. The defendant
final written address was adopted and the matter was adjourned for judgment.
FACTS
IN ISSUE.
The Claimant Was Employed By the 1st
Defendant on the 29th September 2005 as a machine operator in the
Pasteurizing Section of the 1st Defendant factory located at Isolo,
Lagos State. On the 1/3/2008 the employment of the Claimant was confirmed and he was put on a salary of N142,320 per
annum and also transferred to the defendant office at Ikeja Industrial Area.
The claimant also worked in different sections of the 1st defendant
company. The claimant salary was increased to N90,000 which translate to
N1,080,000 per annum.
On
the 8/6/2021 the claimant was queried. On allegation of demanding money from
distributors and drivers before loading, encouraging distributors to use trucks
under his supervision and frustrating distributors and drivers who refuse to
adhere to the practice by delaying the loading of their product. On the
9/6/2021 he responded to the query denying all the allegations and on the on
10/6/2021 he was suspended from work pending the outcome of an investigation. The
claimant contend that the 1st defendant did not issue the Claimant
three (3) written warnings consecutively within one calendar year as stipulated
at Clause B-11 of the 1st Defendant’s Handbook before the Claimant was
suspended from work. The 1st Defendant did not set up nor invite the
Claimant to appear before any investigative panel or committee to defend
himself of the allegation against him, instead of calling the claimant back at
the expiration of the suspension, The 1st defendant dismissed the
claimant vide a letter dated the 25/6/2021. That upon the dismissal of the
claimant, the 1st defendant has refused to pay the Claimant the
whole or any part of his gratuity/entitlement contrary to the provisions and
stipulations in the Claimant’s letter/confirmation of employment and the 1st
Defendant’s Handbook. The Claimant cause his solicitors to write a letter of
demand on the 29/7/2021 for the payment of the gratuity and entitlement which
the 1st defendant responded by letter dated the 11/8/2021 denying
owing any money to the claimant. The claimant solicitor also replied to the
defendant solicitor response on the 11/8/2021. It is the contention of the
Claimant that he is entitled under Clause A-25 of the 1st defendant
hand book to the payment of his contributory pension and also under Clause
A-41(d) end of service gratuity having put in 15 years of continuous service in
the sum of N2,025,000. Finally it is contention that the dismissal is in breach
of the terms of employment of the Claimant by the Defendants and their refusal
to pay the Claimant his gratuity/entitlements has caused and continue to cause
the Claimant untold hardship, pain, anguish, psychological and emotional
trauma, public odium, embarrassment, humiliation, hunger, deprivation and
inconvenience hence this suit,
The
Defendant has denied most of the allegations contained in the statement of facts.
The Defendant posits that in the course of the employment, the Claimant was
issued so many queries and sometimes suspended from work. That the Claimant
salary was never increased from N40,000 to N90,000 as claimed. That the
Claimant was not suspended but was asked to step aside by the letter of
10/6/2021. The Defendant admit the issuance of a query to the Claimant and
stated that the query was based on complaints by its distributors. That the
action of the defendant in frustrating the loading of product by distributors
who refused to patronise the trucks under the Claimant supervision adversely
affected the fortunes of the company. The defendant contends that it
constituted a panel to investigate the allegation against the claimant and at
the hearing the claimant admitted demanding monies from distributors and
drivers and gave preference to those that he collected monies from and the
admission was sequel to the fact that he was promised soft landing. That the 1st
defendant wrote a petition to the DPO Igbesa Police station against the
claimant and some other staff with respect to the extortion, frustration of the
distributors of the company and managing of third-party trucks. That it was
upon the admission of the allegations made against the Claimant at the hearing
of the panel that the claimant by the letter dated the 25/6/2021 dismissed the
Claimant from the employment of the 1st Defendant. The defendant
admits that under Clause A-41(d) the 1st defendant pays out end of
service gratuity benefits as stated in the handbook. The 1st Defendant handbook
stipulated
that the 1st Defendant shall pay 11-15 years continuous service
Ex-gratia award, 6 weeks pay for every completed year of service but the
Defendant did not put in 15 years of service to which he is entitled to the sum
of N2,025,000 as claimed in this action. The 1st Defendant posits
that the dismissal of the defendant was in line with the 1st
defendant handbook as the Claimant was afforded
the opportunity to make representation and defend himself before a duly
constituted Investigative Committee or panel of Inquiry.
These
represents the contending issues in this action.
ISSUES
FOR DETERMINATION.
The
Claimant did not file a final written address in this action. In the defendant
final written address filed on the 1/2/2026, the defendants formulated 6 issues
for determination to wit:
1.
Whether
the failures to plead and tender the letter of employment is fatal to the claimant’s
case.
2.
Whether
the staff Handbook is contractually binding without tendering letter of
employment incorporating it by reference.
3.
Whether
the Claimant’s dismissal was lawful and justified and in compliance with due
process.
4.
Whether
reply to statement of Defence not coupled with witness statement on oath is
deemed abandoned.
5.
Whether
the Claimant is entitled to any of the reliefs sought.
6.
Whether
the 2nd Defendant is proper party to this suit.
I
have carefully examined the issues formulated by the defendants. Only issue 3,
5 and 6 can be said to be issue that the court can consider in resolve the dispute in this action. The other
issues are fragments of what constitutes the major issue of which when
considered would resolve the dispute between the parties. To this end the issue
for determination is
1.
Whether the Claimant’s dismissal was lawful and justified
and in compliance with due process.
2.
Whether
the Claimant is entitled to any of the reliefs sought.
3.
Whether
the 2nd Defendant is proper party to this suit.
ON
ISSUES 1 AND 3
Before
I consider this main issue, let me consider the issue of proper party raised by
the defendant. The claimant joined the 2nd defendant Mr. Johnathan
Ogbone as 2nd defendant in this suit. The claimant in his statement
of facts described the 2nd defendant as the Human Resources Manager
of the 1st defendant. Throughout the pleading no specific
allegations of facts was made against him in person or as the Human Resources Manager
of the 1st defendant. The 2nd defendant would have been
acting in the capacity of an agent of a disclosed principal in the performance
of his duties as a staff of the 1st defendant. There is also no
reliefs sought against the 2nd defendant to justify his being joined
as a party to this action. It is not also in doubt that this suit can proceed
to judgment without joining the 2nd defendant. It therefore follows
that the 2nd defendant is neither a proper party, nor a necessary
party. The 2nd defendant can also not be a desirable party having
regards to the circumstances of this case. See Apugo V. Ugoji [2022] PLELR-59893 SC. (Pp. 18-19 paras. C) where the Supreme Court
held:
"Proper
parties are those who, though not interested in the plaintiff's claims, are
made parties for some good reason e.g. where an action is brought to rescind a
contract, any person is a proper party to it who was active or concurring in
the matters which gave the plaintiff the right to rescind. Desirable [parties
are] those who have an interest or who may be affected by the result. Necessary
parties are those who are not only interested in the subject matter of the
proceedings but also who in their absence, the proceedings could not be fairly
dealt with. In other words, the question to be settled in the action between
the existing parties must be a question which cannot be properly settled unless
they are parties to the action instituted by the plaintiff." Per KEKERE-EKUN, J.S.C (Pp. 18-19 paras. C)
In the case A-G, Federation V. Abubakar
[2007] 10 NWLR (Pt. 1041) 1 at 42, it was held: ‘A Defendant against whom no
relief is claimed and against whom no cause of action is disclosed is not a
necessary or proper party to the action’.
On
the strength of the above cited authorities, it is the findings of this court
the 2nd defendant Jonathan Ogbone the Human Resources Manager of the
1st defendant ought not to have been joined as a party to this
action. His name is hereby struck as a defendant in this action.
We
shall now consider the main issue adopted for determination.
It
is not in dispute that the Claimant was in the employment of the 1st
defendant. This is evidenced by the letter of confirmation of appointment
tendered as Exhibit C1, and also all the other exhibits that show that the
claimant was in the 1st defendant employment. The argument of the
defendant counsel that the Claimant failed to plead and tender his letter of
employment is of no moment when consideration is had to the principle that employment
contract need not always be in writing. The Court can imply the existence of a
contract of employment by the conduct of the parties though there be no written
terms of employment. In the case of Iyere V. Bendel Feed And Flour Mill
Ltd [2008 LPELR-1578 (SC) (Pp.
21 paras. D) The Supreme court recognised this position when it held inter
alia "I should add that an employee, except where a
different meaning is given in the context of the employment, means an
individual who has entered into or works under, or where the employment has
ceased, worked under, a contract of employment. A contract of employment
connotes a contract of service or apprenticeship, whether express or implied,
and if it is express, whether it is oral or in writing." Per MUHAMMAD, J.S.C.
Assuming
that the claimant was not issued a letter of appointment, and the failure to
present one if the appointment was made in writing cannot defeat the claim because
the subsequent confirmation of the appointment in Exhibit C1 which states in the
2nd to the last paragraphs of the letter that ‘from the date you
assume duties, other terms and conditions of service of the company will apply
to you. You will be expected to strictly adhere to the rules and regulations of
the company, and you should not be involved in any conduct which may be against
the company’s interest, show that the employment relationship was to be
regulated by Exhibit C1 and the Viju Industries Limited Staff Handbook tendered
as Exhibit C6. It is not the law as argued by the Defendant that Exhibit C6
must be incorporated into the contract of employment to be effective. The
handbook is part of the
rules
and regulation of the defendant as mentioned in the letter of confirmation of
the Claimant appointment Exhibit C1. The
defendant argument that the claim before the court is speculative and legally
unsustainable has no justification in law. It is accordingly discountenance.
It
is in evidence that the 1st defendant gave the Claimant a query as
evidenced by Exhibit C2a and b. The query is accompanied by a statement of 3
allegations of misconduct for which his response is required to wit;
i)
Demanding for money from distributors / driver before they can load.
ii)
Encourage Distributors to use trucks under him
iii)
Frustrating distributors/ drivers that refuse to patronise you .
The
Claimant answered the query in Exhibit C3, denying all the allegations made
against him in the query. Being unsatisfied with the reply to the query, the 1st
defendant by a letter dated the 10/6/2021 tendered as Exhibit C4 wrote thus:
Dear Mr Jacob Ikenwe,
Having reviewed your response to query
giving to you, you are to step aside from work for a week to enable the
management do a detailed investigation.
We assure you that this investigation
will be done without sentiment or bias and if you come out clean the company will
pay for the days of the investigation.
Sincerely,
For; Viju Ind. Nig. Ltd.
The defendant in his defence has argued
that the Claimant was never suspended. That he was asked to step aside. In
other-words, the defendant is trying to say the Exhibit 4 is not a letter of
suspension. The words ‘step aside’ is not a nomenclature known to labour. The
use of that word cannot take away the legal effect of what the 1st
defendant did under the circumstances which was to suspend the 1st
Claimant from work for a week to enable the defendant’s conduct an
investigation
into the allegation of misconduct levelled against the Claimant. In Miaphen
V. Unijos Consultancy Ltd (2013) LPELR-21904(CA) (Pp. 29-30 paras. B)
the Court of Appeal defined suspension as ‘The temporary withdrawal from
employment; as distinguished from permanent severance, e.g. suspension from
teaching without pay, between master and servant. In Longe v. FBN Plc.
(2010) 6 NWLR Pt. 1189 P. 1 @ 55 and 60 the Court described suspension as a
prelude to dismissal from an employment. It is a state of affairs which exists
while there is a contract in force between
an employer and employee, but
there is neither work being done in
pursuance of it nor remuneration being paid. It is neither a termination
of the contract of the employment nor a dismissal of the employee. It operates
to suspend the contract rather than terminate the contractual obligation of the
parties to each other. It is a term entitling the employer to suspend the
employment of the employee. It is a step taken before finally deciding what
disciplinary action is to be taken by an employer against an employee.
Suspension by an employer of an employee only means that the employee has been
stopped from performing the normal or ordinary functions or duties of his
office. See University of Calabar V. Esiaga (1997) 4 NWLR (pt. 302.p.
719
So
long as the claimant was asked to stop work for a time on pain of being denied
the salary for that period. It is the finding of this court that the Claimant
was suspended in Exhibit C4.
The
evidence before the court is that the letter of suspension Exhibit C4 was to
last for one week to enable the defendant to conduct an investigation in the
allegation made against the Claimant. The Claimant testified that the 1st
Defendant deliberately and wilfully failed, refused and or neglected to set up
an investigative panel or committee to investigate the matter and thereby
denied him the opportunity to defend himself. It is also his evidence that 1st
Defendant did not invite him to appear before any investigative panel or
committee to defend myself of the allegation against him before terminating the
employment on the 25/6/2021vide Exhibit C5. The claimant has been consistent in
this contention as reflected in his solicitors letter of demand tendered as C7
in paragraph 7 where he states that ‘That thereafter without further recourse
to our client,
either
via an invitation to defend himself of any allegation(s) or wrong doings
against his person, if any, you issued the letter of dismissal/termination
above stated’. The Defendant argued to the contrary and states that a panel was
set up and the Claimant was invited to appear and defend the allegation made
against him. Defendant relied on Exhibit D10, the letter of invitation dated
the 9/6/2021. I have carefully examined Exhibit D10, it is an invitation to
appear before an investigation panel on the 11/6/2021. Interestingly, the
letter is not addressed to the Claimant or anybody. There is no endorsement on
the letter that it was received by the claimant or anybody. Secondly The
Claimant was suspended on the 10/6/2021 by Exhibit C 4. However, the letter of
invitation is dated the 9/6/2021, which shows that the claimant was invited
even before he was suspended or the investigation panel was set up. In the
order of things, the letter of suspension ought to precede the letter of
invitation to appear before the panel and not the other way round. The letter of
invitation Exhibit D9 cannot be an invitation of the claimant to appear before
any investigation panel over the allegation which led to the suspension of the
claimant by Exhibit C4. What is more absurd about the story of the defendant is
that if truly a panel was set up to investigate the allegation and the Claimant
appeared and admitted the allegation as stated by the defendant, to establish this
assertion, the Defendant ought to have produced before this court a report of
the panel of investigation, which would have contained this finding. The burden
of establishing the truth of the assertion that a panel was set up and the
claimant appeared and admitted the allegation made against him lies on the
defendant. The law is that he who asserts must proof . See Section 131(1)
of the Evidence Act 2011. See also Ugiagbe V. Odeh & Anor [2022]
EPELR-57136 (CA) (Pp. 19-20 paras. D)
"The
law is that he who asserts must prove. See Section 131(1) of the Evidence Act,
2011. See the case of Omisore & Ors. v. Aregbesola & Ors.
(2015) NWLR (Pt.1482) 205 at 273. Therein, the apex Court per Nweze, JSC held:
"It
comes to this - the burden of proving a fact rests on the party who asserts the
affirmative of the issue and not upon the party who denies it, for a negative
is usually incapable of proof."
In
yet another case, Haruna V. Modibbo (2004) 16 NWLR
(Pt.900) 487, PP. 545, paras F - G, 572, para D, 577 paras E - G, it was held:
"The
burden of proof generally lies on the plaintiff. The proof lies upon him who affirms
not upon him who denies. This is because the negative does not admit of the
direct and simple proof of which the affirmative is capable." Per Abundaga, JCA.
The
Defendant was under a duty to lead credible evidence to proof the allegations
made by him. In the case of Ukeje & Anor V. Ukeje (2014)
LPELR-22724(SC) (Pp. 43 paras. B) The
Supreme Court Held thus:
"It
is not enough for a party to make an allegation before a Court, he must lead
credible evidence to prove same”. Per Okoro, J.S.C
See
also Union Bank Plc V. Astra Builders
(WA) Ltd [2010] 5 NWLR (Pt. 1185) 1; Imana V. Robinson (1979) 3 - 4 SC.
1.
While
there is no hard and fast rule about a conduct that may be regarded as
misconduct that will attract dismissal. The law is also settled that the
employer has the right to dismiss the employee for misconduct. However the
established position of the law is also that where the allegation of misconduct
is such that can lead to the dismissal of an employee, the Employer must give
the employee opportunity to defend the allegation made against him. The
Defendant considers the allegation made against the Claimant as misconduct that
can lead to termination, in this wise the claimant was under a duty to afford
the Claimant the right to defend the allegation against him. See Oguejiofor
V. Access Bank [2020] LPELR-49583(CA)
(Pp. 35-41 paras. A)
In
the case of U.T.C. (Nig) Ltd V. Peters [2009]
LPELR-8426(CA) (Pp. 24 paras. B) The
Court of Appeal was very emphatic when it held thus:
"In
light of all the observations made above, it is evident that the lower Court
was right when it held at page 495 of the record thus: "Where a contract
had been properly terminated intention and notice become irrelevant. But where
the defendant pleads that a plaintiff is being removed for misconduct, his
removal cannot be justified in the absence of an adequate opportunity being
offered to him to explain, justify or else defend the alleged misconduct. The
Court frowns at refusing fair hearing to a person --------
whose
right is allegedly violated. Having so found above I hold that the 1st relief
of the plaintiff succeeds."
Per Kekere-Ekun, J.C.A
See
also Uba Plc V. Oranuba [2013] LPELR-20692(CA) (Pp. 47-48 paras. B)
On
the strength of the above adumbrated position of the law and the state of the
evidence adduced in this action, it is the finding of this court that the
defendant failed to proof that it afforded the Claimant the right to defend
himself of the allegations made against him before the Claimant was summarily
dismissed vide Exhibit C5. This being the case the dismissal of the claimant
was in breach of the principles of fair hearing and a violation the contract of
employment between the claimant and the defendant in this action. The dismissal
of the claimant in Exhibit C5 is hereby declared null and void. This Court
cannot order the reinstatement of the Claimant in view of the fact that the
employment relationship was that of master and servant. Accordingly, the dismissal is hereby converted to
termination of employment without proper notice. Relief No. A, B, C, and D succeeds.
In the course of the trial the parties tendered
several queries, warnings and suspensions in Exhibit C10 a to d, Exhibit D1a to
c, and Exhibit D2, D3, D4, D5a & b
and D7 to show a consistent pattern of
infraction committed by the Claimant while in course of the employment. More
particularly Exhibit C11 which the court admitted in evidence after being
satisfied that it was made by the Claimant is a confession of theft of a wallet
by this same Claimant. This was appropriate incidences where the summary
dismissal of the claimant would have been justified. However, the Defendant
instead of initiating disciplinary proceedings against the Claimant continued
to keep him in her employment. Those evidence cannot be used to justify the
dismissal of the claimant in this action. For failing to initiate the
disciplinary proceedings the defendant is deemed to have condoned the excesses
of the claimant. The Defendant cannot rely on those queries as he is barred
from doing so by Clause B-10 of the defendant Staff handbook tendered as
Exhibit C6.
ON
ISSUE NO 2.
Whether the Claimant is entitled to any
of the reliefs sought
In relief ‘e’ in the complaint, the
Claimant claims N90,000 being one month salary in lieu of notice and other
benefits as accrued to him form the date of termination of the contract. I have
already found in this judgment that the dismissal of the claimant is
unjustified and declared same void while also converting the dismissal to
termination without notice. Clause A-35 of the Defendant handbook Exhibit C6
requires each party to give the other one month notice in writing in the event
of termination of the employment. The claimant asserts that his monthly salary
was N90,000 per month. While the Defendant allege that the highest paid factory
worker was receiving the sum of N40,000 per month This is not a defence to the
claim of N90,000 salary per month. The claimant did not say that the claimant
salary was N40,000 so as to effectively join issues with the Claimant on this. The
claimant who was employed as far back as 2008 could not have continued to be on
a salary of N40,000 per month in 2021. None of the parties tendered a pay slip
or any other evidence of salary the claimant was receiving. This court is
favourably disposed to accepting the testimony of the Claimant on this issue. The Equitable principle that equity will not
suffer a wrong to be without a remedy readily applies to this situation. As
recent as 2026 the Supreme Court in the case of IDSL V. EVBUOMWAN & ORS. [2026] LPELR-83713 (SC) at 15-16 paras C-G. has extended the frontiers of the damages
awarded for wrongful termination of employment beyond the salary in lieu of
notice. The Supreme Court has held inter alia:
Having brought the employment to an end
outside the terms of employment, The employer cannot restrict the quantum of
damages to the employee to the terms prescribed in the contract. The quantum of
damages awardable to the employee in such circumstances should be in accordance
with the general law on contract on award of damages for breach of contract
which would involve a consideration of the consequential loss that has arisen
or would arise from the breach of the contract of employment.
Also
in the case of FESTUS MRAKPO V. POLICE SERVICE COMISSION [2016] LPELR-40489
(CA) THE Court of Appeal held inter alia:
Where an employee is wrongfully removed
either by a summary dismissal which is not justified or by the giving of
insufficient notice, the normal remedy to which he is entitled is damages. The
main head of damages is the salary or wages which the wrongfully removed
employee would have earned up to the earliest time at which the employer could
have validly have terminated the employment. Thus, where the contract provides
that the employer could terminate the employment by giving two months notice in
writing or two months salary in lieu of such notice and if the employee is
dismissed without notice or salary in lieu, the employer would be liable for
more than two months salary.
From the facts of this case the court
has already found that the Claimant was wrongfully dismissed. The measure of
damages would certainly not be limited to the one month salary in lieu of
notice because he was unlawfully terminated which is in breach of the
requirement of notice. This is a case of wrongful dismissal anchored on the
breach of the fundamental requirement of the denial of fair hearing or the denial
of the opportunity to defend the allegation of misconduct levelled against the
Claimant. For these reasons, this court must take into consideration the
employee monthly salary which he has missed by reason of the wrongful
dismissal, and also the consequence of the economic loss arising from the
premature termination of the employment. To this end This court would award the
Claimant salaries at the sum of N90,000 to 24 months for the wrongful dismissal
from the employment in the total sum of N2,160,000 (Two Million One Hundred and
Sixty Thousand Naira only).
RELIEF
NO ‘F’
In this relief the claimant claims the
sum of N2,025,000,00 (two mllion twenty five thousand naira) being unpaid
gratuity/entitlement with interest thereon at 21% per annum banking rate from
the 1st of July, 2021 until the date of judgment and 17% per annum
interest from the date of judgment till the judgment sum is fully liquidated.
The Claimant testified that By Clause
A-14 (d) of the Defendant handbook was to pay an employee that has put in 11-15
years continuous service an Ex-gratia award of 6 weeks pay for every completed
year of service. The claimant testified that that he had put in 15 years of
service for which he is entitled to the sum N2,025,000,00k. The contention of
the defendant that the claimant has not put in 15 years of service to be entitled
to the Ex-gratia payment is misconceived. By clause A-5 of the Defendant
handbook Exhibit C6, the probationary period was 6 months. If the claimant
appointment was confirmed on the 1st March 2008, The Claimant was employed in October 2007.
From October 2007 to 25th June 2021, the Claimant would have served
the Defendant foe a period of 14 years. The claimant therefore become qualified
to take benefit of Clause A-41(d) of the stipulation in the Defendant handbook
Exhibit C6. It is the finding of this court that the Claimant has proved his
entitlement to judgment in the sum of N2,025,000,00k being the Ex-gratia payment
or gratuity entitlement of the claimant upon the successfully putting in 14
years of service with the Defendant. The Claimant also claims prejudgment
interest on the above sum. The law is that a party who claims pre judgment
interest must plead and proof his entitlement to the interest either by
agreement or by mercantile custom. Wema Bank V. Abc/Omega Information
Technology Ltd [2015] LPELR-24724(CA)
(Pp. 19 paras. E) "The claim for pre-judgment interest is not made
as of right and as such must be strictly proved by sufficient and credible
evidence of an agreement by the parties containing all the essential details of
the interest payable on the debt or loan. Per Oseji, J.C.A (Pp. 19 paras. E). The
Claimant offered no prove in this regards the interest can therefore not be
awarded by this court. The claim of 21% interest is therefore refused and
dismissed.
RELIEF ‘G’ and ‘H’
In
these reliefs, the Claimant claims N1,000,000 as general damages for dismissing
the Claimant without due process. Furthermore the claimant claims another
N1,000,000 special and aggravated damages for being subjected to psychological
and emotional trauma. Physical dehumanizing conditions and other injuries
following the dismissal of the Claimant. This court has already awarded 24
months salaries as damages to the claimant. The Claimant cannot claim a further
sum in as general damages. The claim of N1,000,000 as general damages is
refused and dismissed.
This
court cannot award any aggravated damages. In the award of aggravated damages the court in awarding damages takes into account the
malice and bad motive of the defendant which may have increased or "aggravated"
the claimant's feelings of hurt and distress and so awards higher damages,
traditionally referred to as 'aggravated damages', to compensate for that.
Again, I refer to Winfield and Jolowicz 18th Edition at Para 22-8 . See
the case of Western Publishing Co. Ltd & Anor V. Fayemi [2015]
LPELR-24735(CA) (Pp. 61-73 paras. D)
The
evidence before the court does not suggest the need to award this kind of
damages, this so because the Claimant here was under a disciplinary procedure.
But for the fact that the Defendant committed a fundamental slip in the conduct
of the proceedings the claimant would not have had any reprieve as granted by
this court in this judgment. The claimant is not who by the evidence elicited in this judgment can
be called a good employee.
Also,
If the claimant claims the above sum as special damages, it must be
specifically pleaded and strictly proved his entitlement to the award of same..
See the case of Flourmills of Nigeria Plc & Anor V. Nigeria Customs
Service Board & Ors. [2016] LPELR-41256(CA) (Pp. 32-34 paras. E)
For
the reasons stated above the claim of N1,000,000 as special and aggravated
damages is refused and accordingly dismissed.
ON
CLAIM I,
In this claim the Claimant seeks an
order for the payment of N6,750,00 (six thousand seven hundred and fifty naira)
being monthly contributory pension from June, 2021 till judgment is delivered.
Let me start by saying that this claim is misconceived. This claim is rooted in
special damages. The Claimant is therefore under an evidential burden to plead
this claim and offer strict proof of the entitlement for the court to grant
same. The evidence before the court is that the claimant’s dismissal which this
court has set aside was made in Exhibit C6 on the 25/6/2021. From that date the
claimant is deemed not to have been earning salary for which ----------
a contributory pension deduction could
have been made by his employer the defendant and remitted to any pension
account operated by the defendant pursuant to Sections 9 and 11 of the Pension
Reform Act 2014. To claim contributory pension when the Claimant was not
earning any salary is like putting something on nothing and expecting it to
stand. So long as no salary was earned by the Claimant the defendant was under
no obligation to make any pension deduction un-behalf of the Claimant. For this
reason, the claim must fail. It is accordingly dismissed.
ON
CLAIM J.
The
claimant under this head of relief claims the sum N500, 000 as cost of
retaining solicitors and cost of this action.
The claim of solicitors cost has never
won the favour of the court in this jurisdiction. In the case of Suffolk
Petroleum V. Adnan Mansour Nig. Ltd [2019] 2 NWLR(pt. 1655 pg. 1 at 33
paras D-F The Court of Appeal held:
There is no basis for the award of
professional fees allegedly paid by a party
in respect of a case and the other party cannot be made liable for the fees
paid by the party. It is an unusual claim and difficult to accept in Nigeria.
The issue of damages as an aspect of solicitors fees is not one that lends
itself support in a court of law.
See also Michael V. Access Bank [2017]
LPELR-41981-1 at 48-49.
The claim for solicitors coat has no
basis in our law. The claim must fail. It is hereby dismissed.
CONCLUSION.
The claim of the claimant in this suit
succeeds in part. Judgement is hereby entered in favour of the claimant in the
following terms.
a.
A DECLARATION is hereby made that the dismissal of the
Claimant Via letter dated 25th June, 2021 is irregular, illegal,
null and void and of no effect
whatsoever for being in breach of the Claimant right to fair hearing.
b.
A
DECLARATION is hereby made that the dismissal of the Claimant without due
adherence to the provisions of the 1st Defendant’s handbook and
other extant Guidelines as applicable is irregular, illegal, null and void and
of no effect whatsoever.
c.
A
DECLARATION is hereby made that that the dismissal of the Claimant without
affording him the opportunity to make any form of representation or defend
himself before any duly constituted Investigative Committee or Panel of inquiry
is unconstitutional, illegal, null and void.
d.
AN
ORDER is hereby made nullifying the dismissal of the Claimant. The dismissal of
the Claimant is hereby converted to termination.
e.
The
Defendants shall pay to the Claimant salaries at the sum of N90,000 for 24
months for the wrongful dismissal of the Claimant from the employment in the total sum of
N2,160,000 (Two Million One Hundred and Sixty Thousand Naira only).
2. Reliefs, f, g, h, i and j on the writ are
refused and accordingly dismissed.
3.
The Defendant shall pay cost of N500,000 to the Claimant.
Judgment
is hereby entered.
___________________________________
Hon. Justice (Dr.) I. J. Essien
(Presiding
Judge)
REPRESENTATION.
P.T.Dabor
Esq.for the claimant
D. C. Ejikeme
Esq. for defendant