IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP: HON. JUSTICE S.A.YELWA—JUDGE

THIS TUESDAY, 27^TH DAY OF OCTOBER, 2026      

SUIT NO: NICN/LA/267/2022

 

BETWEEN:

MRS. DOLAPO JAFOJO .......................................................... CLAIMANT

AND

SAFEBODA NIGERIA LIMITED ........................ DEFENDANT/COUNTER CLAIMANT

 

JUDGMENT

The Claimant commenced this action by a General Form of Complaint, Statement of Facts which are accompanied by other necessary processes dated the 25th day of June 2022 and filed on the 28th day of June 2022, claiming against the Defendant as follows:

a)   A declaration that the Claimant's employment was terminated in bad faith and with the sole aim of bringing disrepute to the Claimant's career which she diligently built over the years.

b)   A declaration that the way and manner of termination of the Claimant's employment with the Defendant has affected her sterling career and impacted her marketability and future career progression in the labour market.

c)    A declaration that the Defendant did not comply with the Employment Contract in force and best international practices as at the time the Claimant's employment was wrongly terminated.

d)   An Order directing the Defendant to change the letter of termination to reflect that her termination was not out of poor performance but stemming from the desires of the Defendant to change the location of the Claimant's role.

e)    The sum of N985,001,472.00 (Nine Hundred and Eighty Five Million, One Thousand, Four Hundred and Seventy-Two Naira) being damages for wrongful termination of the Claimant's employment.

f)     The sum of N50,000,000.00 (Fifty Million Naira) being damages for destroying the goodwill in the Claimant's career by adducing the wrong reasons in the letter of termination issued to the Claimant.

g)   The sum of N50,000,000.00 (Fifty Million Naira) representing the Cost of this action.

 

The Defendant filed a Statement of Defence and Counterclaim dated the 15th day of November 2022, denying wrongful termination and counterclaiming as follows:

 

a.    An Order of this Honourable Court restraining the Defendant to the Counterclaim from continuing to hold herself out and misrepresenting to unsuspecting members of the public as the VP of Operations of the Counterclaimant.

b.    The sum of N1,000,000,000.00 (One Billion Naira) only for misrepresentation, economic loss and damage to goodwill suffered by the Counterclaimant on account of the false representation and damaging publication made by the Defendant to the Counterclaim on the reputation of the Counterclaimant.

c.     Cost of this action in the sum of N5,000,000.00 (Five Million Naira) only.

 

The Claimant filed a consequential amended reply to the Statement of Defence and defence to the Counterclaim on the 1st day of July 2024, joining issues with the Defendant.

 

 SUMMARY OF FACTS

The summary of the case arising from the processes filed by the parties before the court is that the Claimant was first contacted in September 2021 through a recruitment agent, Brighter Monday, and after a series of interviews and discussions with officers of the Defendant, including its Co-founders Maxime Dieudonne and Alastair Sussock, its Country Head Olaoluwa Arokoyu, and its VP of People Pamela Reynell, the claimant was offered the position of Vice President of Operations in Nigeria. A revised offer letter dated 20 October 2021 and an offer of employment dated 21 October 2021 were subsequently issued to the claimant, consequently, She resumed work on 4 January 2022 and was placed on a three-month probationary period.

However, by a letter of termination of appointment dated 30 March 2022, the Defendant terminated the Claimant's employment, citing dissatisfaction with her performance and a lack of connection and ownership of the role as VP of Operations. The Claimant contends on her part that the reason for her termination was that she was not physically based in Ibadan, moreover, the Defendant maintains that the termination was premised on her poor performance during probation.

 

  TRIAL

Trial commenced on the 26th day of November 2024 with the Claimant testifying as CW1. She adopted her written depositions sworn to, on 28 June 2022 and 1st July 2024 and subsequently tendered documents in evidence which were admitted and marked as follows:

1.      Email sent to the claimant dated 14/9/2021 and claimant’s reply thereto are Exhibits C1A&B,

2.       Email sent to the claimant dated 15/9/2021 and claimant’s reply thereto, are Exhibits C2 A&B,

3.      Email sent to the claimant dated 20/9/2021 is EXHIBIT C3,

4.      Email sent to the claimant by Maxime Dieudonne dated 29/9/2021 is Exhibit C4,

5.      Email sent to the claimant by Maxime Dieudonne dated 7/10/2021 is C5,

6.      Offer letter sent to the email account of the claimant on 13/10/2021 is Exhibit C6,

7.     The revised offer letter sent to the claimant’s mail by the defendant dated 20/10/2021 is Exhibit C7.

8.      Termination of appointment letter sent to the claimant by the defendant, dated 30/3/2022 is C9,

9.      Offer of employment contract dated 24/10/2021 is C9

10. The certificate of compliance with the law filed on 18/7/2022- C10

11.   Letter written by the claimant’s solicitors of 20/5/2022 -C11

Inrespect of the witness statement on oath deposed to on 1^st July, 2024 by CW1, the following documents were tendered and admitted in evidence:

12.  Printout of Linkd-in social media of 7/9/2021- C12,

13.  Email exchanged on 20/10/2021 between the claimant and Alastair Sussock of 26/10/2021-C13

14. Email of 7/10/2021 between the claimant and Ola Arokoyu is C14

15.  Recorded conversation between the claimant and Pamela Reynell and Doraagay (CD disc) is Exhibit C15.

16. Email Exchange of 4/10/2021, between the claimant and Andre Andrer is Exhibit C16

17.  The key performance indicator print out is exhibit C17

18.  Cert. of compliance in respect of the CD disc is C18

Exhibits C1A& B, to C18, including emails, the offer letters (notably Exhibits C6, C7 and C9), the termination letter (Exhibit C8), the contract of employment, a printout of a key performance indicator (Exhibit C17), and a recorded conversation on compact disc along with its certificate of compliance (Exhibits C15 and C18), which upon application by claimant’s counsel, (though objected to by the defendant’s counsel but with contention to address the court on reasons for the objection) was however played in open court. CW1 was then cross-examined after which, her case was closed.

 

The Defendant opened its case on the 20th day of May 2025 by zoom hearing with Mr. Rob Sanford who testified as DW1 and tendered documents in evidence though claimant’s counsel objected to the tendering g in evidence the Employees Hand Book on ground of it being a photocopy and that other documents do not meet up the requirements of Section 84 of the Evidence Act. Yet, they were admitted and marked as Exhibits D1 to D3, being the Employee Handbook, Proof of payments and a Printout of the Claimant's LinkedIn profile. DW1 was cross-examined and the Defendant closed its case the same day. Both parties thereafter filed their respective final written addresses in compliance with the rules of this court and thereafter adopted their respective written addresses through a virtual proceedings on 15/10/2026.

DEFENDANT’S FINAL WRITTEN ADDRESS:

Defendant’s final written address dated 27/1/2026 was filed subsequent to a leave of this court sought and obtained on 15/10/2026 wherein two issues were raised for the determination of the case to wit:

1.) Whether the claimant has proved her case before this court to entitle her to the reliefs sought; AND

 2.) Whether the defendant has not proved the counterclaim to entitle it to the relief sought in the counterclaim.

On issue 1, counsel from the onset, submitted that the claimant has woefully failed in proving her case to entitle her to the reliefs sought. Counsel contended that the claimant’s employment was lawfully and validly terminated in line with the offer of employment between the claimant and the defendant as such, not wrongful. Counsel maintained that the terms of the employment are as contained in the revised offer letter and offer of employment before the court in evidence as exhibits C7 and C9. The basis of the claimant’s case is that her employment was terminated because she was not physically in Ibadan, but defendant stated otherwise to the effect that the claimant’s performance was below expectation at the end of the probationary period thus, needless retaining her in the organization. Counsel relied on Exhibits C7 and C9 in line with the Supreme Court decision in IBRAHIM V ABDALLAH & ORS (2019) LPELR-48984 SC which case emphasizes on except in cases of fraud where pleaded oral evidence is not required in place of the document itself. Counsel submitted that the document reveals that while the intention of the parties was for the employment to be remote, the claimant’s physical presence was necessary in Ibadan. This is plainly indicated in Exhibit C7. Counsel noted that paras 4 of Exhibit C7 and clause 5 of Exhibit C9 show that the employment is not fixed until and except the employee completes the probationary period. Counsel drew the attention of the court to the definition of probation as in RAJI v OAU (2014) -LPELR 22088 CA. and the case of SIMEON v COLLEGE OF EDUCATION EKIADOLOR, BENIN (2014) LPELR 23320 CA and submitted that an employment relationship is governed by an offer of employment and went on to cite the case of ADEDJI & ORS v CBN (2022) LPELR-5962 (SC) where the Supreme Court held that every contract of employment relationship has terms that regulate notices, determination, wages and many more. Counsel submitted that in the instant case, the defendant, being cognizant of its rights under the offer of employment, terminated the claimant’s employment at the end of the probationary period in line with the terms stated in the offer of employment. It is the further submission of counsel that the termination of the claimant’s employment was not whimsical, or for the reasons provided by the claimant, but following performance review duly conducted by the defendant. Counsel upon review of testimony given by the claimant as elicited under cross-examination, urged the court to discountenance the claimant’s testimony as the court cannot pick and choose which version to believe, placing reliance on ANYANWU V PDP (2020) 3 NWLR PT 1710 P. 134 SC.

Defendant’s counsel further submitted that claimant has admitted receiving payment of two week’s salary in lieu of notice which was more than her entitlement as per the employment contract and has never returned or refused the excess payment to the defendant.

In further submission, counsel maintained that it is settled that the measure of damages for wrongful termination is the amount of salary the employee would have earned during the stipulated period and nothing more and that the claim for the sum of N985,001,472.00 (Nine Hundred and Eighty-Five Million, One Thousand, Four Hundred and Seventy-Two Naira) as damages for wrongful termination is presumptuous, without basis and that must fail. This is on the premise that the claimant has already been paid what is due to her under the law.

Regarding the claims of N50,000,000 as cost of action, counsel for the defendant submitted on the authority of DOGGO VASHDENE ASSOCIATES NIG. LTD & ORS (2022) LPELR-56910 CA that a court is not a further Christmas and therefore, will not grant any relief not claimed and proved.

ON ISSUE TWO:

It is submitted that the defendant/counterclaimant has proved its counterclaim to entitle it to the relief sought in the counterclaim. Counsel stated that despite the valid termination, the claimant/defendant to counterclaim continued to hold herself out as an employee of the defendant/counterclaimant to unsuspecting members of the public and exhibitsD3 is in evidence. It is on this basis that this court was urged to grant the reliefs in the counterclaim and dismiss the claimant’s claim.

CLAIMANT’S FINAL WRITTEN ADDRESS:

Claimant on her part, filed her final written address dated 2/3/2026 through her counsel in which distilled a sole issue for determination to wit:

 Whether having regard to the facts and circumstances of this case, the claimant is entitled to the reliefs as contained on the face of the general form of complaints:

Claimant’s counsel submitted that the essence of this suit rests upon the relationship between the claimant and the defendant and stated that this court should first determine what guides/regulates the relationship between the parties and cited the case of OSHO V ADELEYE & ORS (2024) 8 NWLR PT 1941 P.431 @452.

It is the submission of counsel that from the nature of the contract of employment relationship between the claimant and the defendant, which is a master and servant or an employee and his employer type, it is peculiarly governed by the terms and conditions of the contract between them. That is to say it is the contract of service that determines the nature and extent of the employers’ rights and obligations. Counsel cited IBAMA V S.P.D.C (2005) 17 NWLR PT 954 P.364 @379. It is argued by counsel that the contract of employment is the bedrock on which parties to an employment contract found their case and the success or failure of the case depends on the terms agreed or deemed to have been agreed by the parties and relied on UMERA V NIGERIAN RAILWAY CORPORATION (2022) 10 NWLR PT 1838 P.349@ 386 and similarly Exhibit C9 which is the offer of the employment contract, dated 21/10/2021 on the basis of which counsel maintained there is a valid contract of employment between the parties and it is in Exhibit C9 that the mode of termination of the employment by either side is well spelt out to wit any breach thereof is remedied by damages. Furthermore, counsel submitted that by virtue of the nature of the existing contract of employment in issue, where an employee complains that the termination of his employment or dismissal is wrongful or unlawful, the duty placed by law on the employee to succeed in the claim is to plead and prove the terms of his contract of employment and explain how the dismissal or termination violated the terms of his employment. The employee is required to plead and prove the circumstance under which his appointment can be terminated under the condition of service. Counsel cited OLORUNTOBA-OJU V ABDUL-RAHEEM (with improper citation) and ANTE V UNIVERSITY OF CALABAR (2011) FWLR PT 41 P.1909 @ 1928. Counsel submitted that Exhibit C8 is the termination letter as it contained the reason for the termination that “the management is unsatisfied with your performance. The review of your performance indicates a lack of connection and ownership of the role as VP of operations”

It is the submission of counsel further that a cursory look at the amended statement of defence of the defendant, it is clear that the defendant has no reasons whatsoever to terminate the appointment/employment of the claimant. The defendant went far to accuse the claimant of “falsely misrepresenting herself to have qualifications which she does not possess” This allegation, is said to be an after-thought and counsel rated the allegation to be a criminal allegation that requires prove beyond reasonable doubt. Counsel submitted that where a party fails to provide evidence for a material fact asserted, the claim fails for lack of proof. Counsel cited MOGAJI V ODOFIN (1978) SC 63247, CBN V OCHIFE (2025) LPELR-80220 SC and EBOH V AKPOTU (1968) 1 ALLNLR 220 SC.

Going further, counsel submitted that the claim of the claimant that her employment was terminated because she was not based in Ibadan, which she made abundantly clear to the defendant and which the defendant acceded to and even issued Exhibit C7 in confirmation of same. To prove her claim, the claimant tendered Key Performance Indicator and print out (exhibit C17) and a recorded conversation where it was clearly stated that she had her employment terminated because the defendant needed someone in Ibadan (exhibit C15). Along with certificate of compliance as in exhibit C18, exhibit C15 was in evidence and played to the court and it is submitted that exhibit C15 is audible containing the fact that the claimant’s employment was alleged to have been terminated because she was not in Ibadan Moreso, exhibit C17 contains the name of the claimant though reflects the team. It is submitted, if evidence is uncontroverted, unchallenged and credible, it ought to be accepted. Counsel cited MILAD LAGOS STATE & ORS V ADEBAYO ADEYIGA & ORS (2012) 5 NWLR PT 1293 P.291 @331-332. In the whole, counsel submitted that assuming but not conceding that the termination of the claimant’s employment is based on poor performance, citing the court of appeal case of JOHN HOLT V NZERIBE (2018) LPELR-44943 CA, where the court relied on the case of OLAFIMIHAN V NOVA LAY-TECH LTD (1998) 4 NWLR PT 547 P.608 @611 where it was held: “In an action for wrongful dismissal where the employer contended that the employee was removed or dismissed for specific misconduct, poor performance, the removal or dismissal cannot be justified in the absence of adequate opportunity afforded to the employee to explain, justify or defend the alleged misconduct”

In the instant case, according to counsel, since the respondent was not given any opportunity to defend herself on the allegations made against her, this termination was clearly wrongful. This is because there seems to be no fair hearing. It is further submitted that the law being trite that in a contract of employment between a master and a servant without statutory flavour as in the instant case, once the master complies with the terms of agreement, he may relieve the servant of his job with or without reason. But where the master gives reason, the burden rests on him to establish that reason. Counsel cited NIGERIAN INSTITUTE OF SOCIAL AND ECONOMIC RESEARCH COUNCIL (1988) 3 NWLR PT 80 P.25 Furthermore, counsel maintained by the case of EBERE ONYEKACHI ALOYSIUS V DIAMOND BANK PLC (2015) 58 NLLR P.92, The Supreme Court held “It is now contrary to International Labour Standard for an employer to terminate the employment of its employee without a reason or justifiable reason connected with the performance of the Employee’s work”

Counsel referred this court to Convention No.158 of the International Labour Organization on Termination of Appointment which requires giving valid reason for termination of appointment. Moreso, the Apex Court case of KUNLE OSISANYA V AFRIBANK NIG. PLC (2007) ALL FWLR, PT 360 P. 140 where an employer has given a reason for terminating or dismissing an employee, the burden lies on such employer to justify the said reason. In addition to aforesaid submissions, counsel referred the court to the case of ADEFISOYE STEPHEN ABIODUN V SAFARI SPPORT WEST LIMITED (2003) unreported NICN/LA/347/2023 where this court held that to justify termination for performance post-probation, the employer must provide documentary evidence of: (1.) Clearly defined performance standards. (2.) Evidence that the employee was warned about shortcomings. (3.) Evidence that the employee was given a fair chance to improve. And counsel referred the court to paras 3,4 and 22 of the DW1’s witness statement on oath and submitted that these paragraphs are clear that the defendant is out to mislead the court noting very well that the law is settled that a witness who has materially inconsistent evidence on oath does not deserve to be believed. Such witness does not deserve to be described as truthful.

Regarding the claims for damages, it is submitted that quantum of damages to be awarded for wrongful dismissal, the court is empowered by Section 19 (d) NICN Act, 2006 to make the award. The section permits that in all other cases for award of compensation, or damages in circumstance contemplated by the Act or any Act of the National Assembly dealing with any matter, that the court has jurisdiction to hear and can grant damages. Counsel cited the decision of this court in MS BINTA OLUWATOSIN ADEJOH V ARIK AIR LTD (In RECEIVERSHIP) unreported Suit NO. NICN/LA/290/2020, Judgment delivered on 21/1/2025 where it was held:

“Where a contract of employment is brought to an end by the employer contrary to the terms agreed therein, the quantum of damages awardable therefore cannot be based on the remuneration of the employee during the period of notice prescribed in the agreement for either party to terminate the agreement, the employer cannot enjoy the benefit he would have enjoyed if the contract had been brought to an end in accordance with the contract. Having brought the contract to an end in breach of the contract, the damages payable by it, cannot be restricted to only one month salary in lieu notice, which is what it would have been to pay if it had terminated the employment as prescribed in the contract. To limit the damages payable by the employer to one month salary in lieu of notice in this case would amount to enabling it to benefit from its wrongful act in breach of the contract. It is an inveterate rule of equity of great antiquity that equity will operate to prevent a party from benefiting from his wrongful act. It would be oppressive and unjust to the employee to award him damages on a basis prescribed in the contract of employment for termination of his employment in breach of that contract. Having brought his employment to an end outside the terms of the contract the employer cannot restrict the quantum of damages awardable to the employee to the terms prescribed in the contract. The quantum of damages awardable to the employee in such a situation should be in accordance with the general law of 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 breach of the contract of employment having regard to the monthly wage, current age of the employee ad the due date of retirement”

It is the final submission of claimants counsel that on the authority of BPS ENGINEERING & CONTRUCTION COMPANY LTD V FEDERAL ROAD MAINTENANCE AGENCY & ORS (2022) LPELR-59548 SC where the Apex court per Ogunwumiju JSC, laid down the principles to aid and guide the courts in arriving at a correct decision judicially and judiciously. They are set out as follows: 1. Where the injury done to the applicant cannot be estimated and sufficiently compensated by damages.

2.Where the injury to the applicant is so serious and material that the restoration of things to their former condition is the only method whereby justice can be adequately done.

3.  Where the injury complained of is in breach of an express agreement.

4.  Where the act is a simple and summary one which can be easily remedied; and

5.   Where the defendant/respondent attempts to steal a match on the plaintiff.

This court is urged to discountenance the defendant’s defence and the counterclaim and grant the claimant’s claims.

 

 

DECISION OF THE COURT

This case was earlier assigned to my Learned brother Hon Justice (Professor) E.A Oji—(Judge) of this court, where proceedings commenced on 2/11/2022 but subsequently transferred and proceedings started before me de-novo on 22/3/2024. However, I have taken my time to meticulously read through all the processes filed, listened to both parties and their counsel. I have also carefully examined the issues framed by both parties against the pleadings, the evidence led at trial and the reliefs sought on both sides, I am satisfied that the controversy requires two distinct enquiries. After reading through the addresses of counsel, the issues raised are, in substance, the same viewed from both sides. The Counterclaim filed by the defendant in law constitutes an independent cause of action requiring its own determination. Accordingly, the Court adopts the following two issues for determination, which are so germane with the issues raised by counsel. The issues are:

1.       Whether the Claimant has proved her case before this Honourable Court to entitle her to the reliefs sought.

2.     Whether the Defendant has proved its Counterclaim to entitle it to the relief sought in the Counterclaim.

 ISSUE ONE:

Whether the Claimant has proved her case before this Honourable Court to entitle her to the reliefs sought.

It is settled law that this being a civil claim, the burden of proof rests on the party who asserts the affirmative of any issue, and the standard remains proof on the preponderance of evidence or balance of probabilities. See Sections 131, 132 and 133 of the Evidence Act, 2011 (as amended in 2023). The Claimant, who testified as CW1, carries the initial burden to prove that her employment was terminated wrongly and in breach of the agreed terms.

There is no doubt that the relationship between the parties is one of master and servant founded upon a contract of employment. It is trite that such a relationship is governed by the terms and conditions of the contract between the parties, and that the contract of employment is the bedrock upon which the parties found their respective cases. See Ibama v. S.P.D.C. (2005) 17 NWLR (Pt. 954) 364; and Umera v. Nigerian Railway Corporation [2022] 10 NWLR (Pt. 1838) 349. where by the principles established in these cases, an employee complains that his termination was wrongful, the law requires him to plead and prove the terms of the contract, the circumstances under which the appointment may be terminated, the procedure stipulated for termination, and the manner in which the termination breached those terms. Supreme Court reiterated in Ibama’s case that an employee who claims his employment was wrongfully terminated bears the heavy onus of placing the terms and conditions of the contract before the court and proving how the employer breached them. The plaintiff swims or sinks with his own case. See also Oloruntoba-Oju v. Abdul-Raheem [2009] All FWLR (Pt. 497) 1. The Supreme Court ordered the appellants’ reinstatement, and held that the procedural legalities surrounding their terminations had not been honoured by the University of Ilorin authorities.

Let me resolve the issue at hand under four heads corresponding to the materials arising on the pleadings and the evidence of the parties, viz:

a.     The agreed location of the Claimant's role;

b.    The actual reason for the termination;

c.     The manner of termination and payment in lieu of notice; and

d.    The consequences of the termination relied upon in support of the damages claimed.

 (a) The Agreed Location of the Claimant's Role

It is easier to deal with this by analyzing the exhibits before the court. A dispassionate evaluation of the evidence given by the contending parties is necessary at this stage. The Claimant's central case is that her termination was engineered because she would not relocate to Ibadan, a condition she contends was never part of her bargain. The documentary trail on this question is largely common ground and is, in my view, decisive. Exhibit C6, the offer letter of 13th October 2021, did not expressly state the role to be in Lagos. Exhibit C7, the revised offer letter of 20th October 2021, states that the position is based in Lagos with travels to Ibadan and new cities as needed. Exhibit C9, the Offer of Employment dated 21st October 2021, at Clause 3 headed Location and Duties, states that “This is fully remote employment. However, you may be required to visit the host location.”  These documents were tendered by CW1 and admitted in evidence.

There is, on the face of these documents, the need to reconcile between Exhibit C7, which contemplates a Lagos base with travel to Ibadan as required, and Exhibit C9, which describes the employment as fully remote. It is settled that documents must be construed as a whole and, where possible, harmoniously. Reading Exhibits C7 and C9 together, what is beyond dispute is that the role did not require the Claimant to be permanently resident or physically stationed in Ibadan. Neither document imposes any obligation of residence in Ibadan. Whether the engagement is characterized as Lagos-based with travel, or as fully remote, neither reading supports a contractual requirement of permanent physical presence in Ibadan. It is a trite law that parties are bound by the terms of the contract and these terms should be read as they are without any embellishments. So, once parties enter into a contract, on no account should terms extraneous to the contract or on which there was no agreement to be read into the contract. See A.G. RIVERS STATE V A.G AKWA-IBOM STATE (2011) 3 SCNJ, P1, and also UWA & ANOR V AKPABIO & ANOR (2014) 2-3 SC, P1. However, under cross-examination, DW1 was unable to point to any contractual clause requiring the Claimant to be stationed in Ibadan. A document tendered and admitted must be given its full legal effect, and oral evidence will not be permitted to contradict the clear terms of a written instrument. See Longe v. First Bank of Nigeria Plc (2006) 3 NWLR Pt. 967 p.228. On this question I find, as a fact, that permanent physical presence in Ibadan was not a term of the Claimant's contract of employment. This is in line with the position reached by the Court of Appeal in SHINKAFI & ANOR V ALHASSAN (2016) LPELR-45427 CA where it is reemphasized that in the construction of any document, the cardinal principle is that the parties are presumed to intend what they have in fact said or written down. In law, it is established that documents filed are like words uttered and do speak for themselves. They are more reliable and authentic than words from the vocal cord of man which are subject to change or distortion. See AIKI V IDOWU (2006) 9 NWLR PT 984, P.50 Thus, it has become clearer that the agreed location of the claimant by the combined exhibits is other than Ibadan but can rarely travel thereto.

 (b) The Actual Reason for the Termination

The more contested question is the actual reason for the termination. Two competing set of facts are set out by the parties before this court. The Claimant deposed in her written statements on oath and maintained under cross-examination, that she was told the termination was not performance-based but arose from the Defendant's need for someone physically on ground in Ibadan. The Defendant's position given by DW1 and pleaded in its Statement of Defence, is that the termination was solely for below-par performance during probation.

Exhibit C8, the termination letter of 30th March 2022, is the pivot. It states that “the Management is unsatisfied with your performance" and that the review of performance “indicates a lack of connection and ownership of the role as VP of Operations” On its face, therefore, the reason the Defendant itself committed to writing is “performance”.

The law on this point is now settled. In a contract of master and servant, the employer may terminate with or without reason, provided he complies with the agreed terms.  However, where the employer gives a reason for the termination, the burden rests on the employer to establish that reason. See John Holt v. Nzeribe (2018) LPELR-44943 (CA), where reliance was on the Supreme Court decision in Olatunbosun v. NIGERIAN INSTITUTE OF SOCIAL AND ECONOMIC RESEARCH COUNCIL. (1988) 3 NWLR (Pt. 80) 25. Having stated “performance”  as its reason in Exhibit C8, the Defendant therefore has assumed the burden of proving that reason.

In my view, the Defendant has failed to discharge that burden. DW1, Mr. Rob Sanford, was not a witness to the recruitment or to the day-to-day management of the Claimant. Under cross-examination he admitted that he did not take part in the recruitment process. He did not know the recruiter, could not recall members of the relevant team, and conceded that he was certain of only one of the Claimant's trips to Ibadan. When asked how the company evaluated staff performance, his answer was that, as a line manager, he would request 360-degree feedback and make an assessment; yet he was not in fact the Claimant's line manager. The Claimant's line manager, Maxime Dieudonne, who could have spoken to the performance assessment and to the conversation preceding the termination, was listed as a witness but was never called. DW1 further admitted that he did not know whether the Claimant had ever been reprimanded, warned or cautioned during her service.

Critically, the Defendant, pleaded that performance reviews and key performance indicators showed the Claimant to be below par, tendered no performance review, no appraisal, no probation review form and no documentary performance record of its own. The Employee Handbook, Exhibit D1, provides for a performance appraisal after probation, yet no completed appraisal was produced. A party that asserts below-par performance as the justification for a termination, and which grounds its defence upon an evaluation it says it conducted, is expected to produce the instrument of that evaluation. The Defendant produced nothing of the sort.

The law is clear that where an employer alleges poor performance or misconduct as the ground of termination, the employer must afford the employee an adequate opportunity to explain or improve, and must be able to prove the alleged shortcoming. See John Holt v. Nzeribe (supra); Olafimihan v. Nova Lay-Tech Ltd (1998) 4 NWLR (Pt. 547) 608-621 CA. The Claimant testified, uncontradicted, that she received no Probation Review Form and that her performance was never formally reviewed, discussed with her or evaluated. Facts pleaded but unsupported by evidence are deemed abandoned. I find DW1's evidence on the performance assessment to be substantially hearsay in character and of little probative value on this very crutial question.

For completeness, I have considered the Claimant's own evidence as to performance. She tendered Exhibit C17, the key performance indicator printout, as proof of her excellence. Under cross-examination, however, she conceded that the document reflected a team rating and not her individual rating, that she could not claim sole responsibility for the results since it was a team effort, and that she had no document before the Court showing her individual KPI. To that extent, the Claimant did not affirmatively establish her own documented individual excellence. But that consequence does not assist the Defendant. The burden of justifying the stated reason lay on the Defendant, and the state of the evidence is that neither party placed before the Court any objective, documented measure of the Claimant's individual performance. In that state of affairs, the party bearing the burden on that issue — the Defendant — has failed to discharge it.

 

As to the Claimant's reliance on Exhibit C15, the recorded conversation, I must observe that the content of that recording as captured and tested on the record is thin. The only portion ventilated under cross-examination was that in which the Claimant acknowledged that the numbers were “not exactly where they are supposed to be” The record does not reproduce any clear statement attributing the termination to the Claimant's absence from Ibadan. A submission of counsel, however forceful, cannot supply evidential content which the record does not itself disclose, and I decline to find as a fact that which the exhibit, as proved, does not establish. Exhibit C15 therefore does not carry the weight the Claimant places upon it.

Nevertheless, the resolution of this head does not turn on the strength of the Claimant's affirmative case as to location; it turns on the Defendant's failure to prove the very reason it advanced in Exhibit C8. Having stated performance as the ground, and having failed to lead credible, direct or documentary evidence to establish it, the Defendant cannot be heard to say that the termination was justified on that ground. I so hold.

 (c) The Manner of Termination and Payment in Lieu of Notice

Clause 17 of Exhibit C9 reserves to the Defendant the right to terminate during the probationary period by giving one week's notice. Exhibit C8 states that the Claimant would receive one week's salary in lieu of notice. Under cross-examination, the Claimant admitted that she was in fact paid two weeks' salary in lieu of notice, and that she did not return the excess. Exhibit D2, the bank records tendered by the Defendant, corroborates the payments made to the Claimant, including her March salary and accrued leave allowance.

The fact of payment is therefore established and admitted, and what is admitted needs no further proof. See Section 123 of the Evidence Act, 2011 which was well amplified in Ndukwe v. LPDC & Anor (2007) LPELR-1978 (SC) where the Supreme strongly reaffirmed the trite legal maxim that what is admitted needs no further proof. The essence of this principle of law is that it indicates that no fact needs to be proved in any civil proceeding if the parties involved agree to admit it prior to, or during the hearing. I find that, in point of form, the contractual mode of termination during probation  notice or payment in lieu was complied with, and indeed exceeded. That the Defendant paid more than the strict contractual minimum does not, however, convert an unjustified reason into a justified one; it goes only to the quantum ultimately payable and to the Defendant's bona fides in effecting payment.

 (d) The Consequences Relied Upon in Support of the Damages Claim

The Claimant pleaded that the termination destroyed her reputation and rendered her unemployable, such that prospective employers treated her "like a leper." This head underpins the very substantial sum of N985,001,472.00 claimed in relief (e) and the N50,000,000.00 claimed in relief (f).

The burden of proving such loss lay squarely on the Claimant, for he who asserts must prove. See Ojomo v. Ijeh (1987) 4 NWLR (Pt. 64) 216. This case firmly reaffirms the foundational principle of evidenc law that the burden of proof rests on the claimant as captured by the latin maxim “Ei incumbit probation qui dicit, non qui negat” Under cross-examination, the Claimant admitted that she is currently employed by a company called Moove, and had been so employed for over a year. She further admitted that she had no document before the Court showing that any rejection of a job application was attributable to any destruction of her reputation by the Defendant. Her assertion of unemployability is thus directly contradicted by her own admission of subsequent employment and is unsupported by any documentary proof.

A claim for damages for injury to reputation and goodwill is not presumed; it must be established by credible evidence of actual loss. See Ajigbotosho v. Reynolds Construction Co. Ltd. (2019) 3 NWLR (Pt. 1659) 287. The Claimant having failed to prove the reputational and financial consequences she pleaded, the aggravated loss relied upon in support of reliefs (e) and (f) is not made out. The law places legal requirement which the claimant has not met up and so this court is not expected to make estimate for her in the absence of specific monetary or economic losses resulting from that damaged reputation.

 Issue One

Drawing the lines together, I find as follows:

 Firstly, permanent physical presence in Ibadan was not a term of the Claimant's contract.

 Secondly, the Defendant, having stated performance as its reason for termination in Exhibit C8, failed to establish that reason by any credible or documentary evidence, and accordingly failed to justify the termination on the ground it itself advanced; to that extent the termination was wrongful.

Thirdly, the contractual mode of termination was in form complied with and exceeded.

 Fourthly, the Claimant failed to prove the aggravated reputational and financial consequences she pleaded.

It follows therefore that the Claimant has established that her termination was wrongful in the sense that the Defendant failed to justify the stated ground, but she has failed to establish the enormous consequential loss on which her monetary claims are founded. The measure of damages for wrongful termination in a contract of master and servant is, as a general rule, the salary the employee would have earned during the period of notice stipulated in the contract. See Talon Global Services Ltd v. Olali (2021) LPELR-54114 (CA). Here, the notice period was one week, and the Claimant has already been paid two weeks' salary in lieu which is however, more than her contractual entitlement of one week agreed upon.

Accordingly, Issue One is resolved partly in favour of the Claimant and partly in favour of the Defendant to the said extent. The termination is found to be wrongful in the limited sense explained, but the Claimant is not entitled to the damages claimed, having already received a sum exceeding her contractual entitlement and having failed to prove any further loss.

 

ISSUE TWO

Whether the Defendant has proved its Counterclaim to entitle it to the relief sought.

The counterclaimant by way of counterclaim maintains that the employment of the defendant to the counterclaim was terminated via a notice of termination of appointment dated 30/3/2022 which is in line with her terms of employment and the employee hand book of the counterclaimant and was paid her entitlements. Furthermore, it is contended that she rather falsely represented to unsuspecting members of the public as the VP of operations to the counterclaimant who discovered this through her Linkedin profile while during the pendency of this suit filed by the defendant to the counterclaim. This, the counterclaimant stated has caused damage to the reputation built over the years thereby reducing the image of the counterclaimant built over the years in the eyes of right-thinking members of the society. It is the claim of the counterclaimant that the defendant to the counterclaim continued false, unfounded and malicious representation of the defendant to the counterclaim as an employee after her termination caused severe damage to the goodwill built. Arising from this contention, the counterclaimant sought for order of restrain against the defendant to the counterclaim from continuing to hold herself out and misrepresenting to the unsuspecting members of the public as the VP of operations to the counterclaimant. Flowing from this, the sum of N1,000,000,000 (One Billion Naira) for misrepresentation, economic loss and damages to goodwill was sought and also cost of action in the sum of N5,000,000.00. The counterclaim as such was filed along with other necessary processes.

 On the part of the defendant to the counterclaim, she denied the facts contained in the counterclaim by filing defence to the counterclaim. Issues were properly joined in that respect and the defendant to the counterclaim contends that the counterclaim lacks merit as it amounts to abuse of the court and urged for dismissal of same. The defence is accompanied by other necessary processes. Counsel on both sides contended in their submissions for and against the counterclaim and defence thereto in their respective written addresses.

 

For the Counterclaim, the burden lies on the Defendant/Counterclaimant to prove its case. A counterclaim being a separate and independent action requires proof as in the main case. See Section 136 of the Evidence Act, 2011. The Defendant asserts that, following her termination, the Claimant continued to hold herself out as its VP of Operations, to its reputational and economic damage in the sum of One Billion Naira, relying on Exhibit D3, the printout of the Claimant's LinkedIn profile, which lists her position as Vice President Operations (Nigeria), SafeBoda.

 

I am of firm view that Exhibit D3, on its face, shows the role listed as current as at the pleaded date after the termination.The Claimant's answer is that LinkedIn permits users to state their work experience, that she updated her profile when employed, and that she never falsely represented a continuing engagement with the defendant/counterclaimant. What the Defendant/counterclaimant failed to prove, however, is the asserted consequence of the listing.

DW1 gave no evidence of any identifiable economic loss, any damaged transaction, or any measurable injury to goodwill flowing from the listing. No financial record, no evidence of reputational harm in the eyes of any identifiable third party, and no basis whatsoever for the figure of One Billion Naira was placed before the Court.

 A claim of economic loss and damage to goodwill is in the nature of special damage; it is never presumed and must be strictly proved by evidence of actual loss. See Ajigbotosho v. Reynolds Construction Co. Ltd. (supra); Onyiorah v. Onyiorah & Anor (2019) LPELR-49096 (SC). The Defendant/counterclaimant showed the listing but neither prove financial loss it claims, nor any causal link between the listing and any alleged harm.

The claim for the sum of One Billion Naira as in prayer “b” therefore has neither been substantiated nor proved and so fails entirely for want of proof. The claim for cost of action in the sum of Five Million Naira as in prayer “c”, being likewise unproven, also must fail and so equally failed.

As to the injunctive relief which is contained in prayer “a” to wit restraining the Claimant from holding herself out as the Defendant's VP of Operations, while the substantive claim for damages was said to have been failed, the undisputed fact remains that the Claimant is no longer in the Defendant's employment. It shall not be accurate or proper for the Claimant to continue to represent, on any public platform that she presently holds the position of Vice President of Operations of the Defendant. To the limited extent of restraining any such continuing or future representation of a present employment relationship, and this alone, prayer “a” would be to the extent grantable. Thus, the defendant to the counterclaim is restrained from further representing as the current VP operations to the counterclaimant.

In my final analysis of the issue, Issue Two is resolved substantially against the Defendant/counterclaimant. The Counterclaim fails except for the limited declaratory/injunctive relief as to the representation of a present employment relationship.

For the avoidance of doubt, I make the following orders:

1.       It is DECLARED that the Defendant, having stated poor performance as the reason for the termination of the Claimant's employment in the letter of termination dated 30th March 2022 (Exhibit C8), failed to establish that reason, and the termination of the Claimant's employment on that basis was accordingly wrongful.

2.     The Claimant's claim for a declaration that permanent physical presence in Ibadan was not a term of her employment SUCCEEDS, it being so found that such residence was not a contractual requirement.

3.     The Claimant's claim in relief (d), for an Order directing the Defendant to amend the letter of termination, is REFUSED, the Court being unable to compel an employer to substitute a reason not established by the evidence; the Court's finding that the stated performance ground was not proved is sufficient vindication of the Claimant on that question.

4.     The Claimant's claims for damages in reliefs (e) and (f) in the sums of N985,001,472.00 and N50,000,000.00 are respectively REFUSED, the Claimant having already received salary in lieu of notice exceeding her contractual entitlement and having failed to prove any further or consequential loss.

5.     The Claimant's claim in relief (g) for cost of action in the sum of N50,000,000.00 is REFUSED for want of proof.

6.     The Defendant's Counterclaim in prayers (b) and (c) for the sums of N1,000,000,000.00 and N5,000,000.00 respectively is DISMISSED for want of proof.

7.     The Defendant's Counterclaim in prayer (a) succeeds only to the limited extent that the Claimant is RESTRAINED from representing on any public platform that she presently holds the position of Vice President of Operations of the Defendant, her employment having been terminated on 30th March 2022.

8.     Each party shall bear its own costs. This is the Judgment of the Court and same is accordingly entered.

 

 

……………………………………………………….

HON. JUSTICE S.A YELWA

(JUDGE)

 

APPEARANCES:

AYO IGE               --       --       --       FOR THE CLAIMANT

COLLINS ODOH          --       --       --       FOR THE DEFENDANT