IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE (PROF) ELIZABETH A OJI

DATE: FRIDAY 4^TH OCTOBER 2024 SUIT NO: NICN/LA/305/2021

BETWEEN

SULYMAN KOLAWOLE BELLO CLAIMANT

AND

1. VIXEN ENTERPRISES LIMITED

2. GLOBACOM LIMITED

Representations:

Folabi Kuti SAN with Emmanuel Abraye, Philips Adekemi, Tanimola Oyekan, Toluwase Dele-Peters and Osayanwen Odeh for the Claimant

Bimbo Atilola with Zaynab Folabi, Joy Umensofor and Micheal Obasikene for the Defendants

JUDGMENT

Introduction and Claims:

1. On 23^rd August, 2021, the Claimant filed a General Complaint, Statement of Facts together with list of Claimant’s witnesses, the Claimant’s witness statement on oath, verifying affidavit, list of documents; all dated the same 23^rd August, 2021and copies of the documents to be relied on by the Claimant at the trial of this suit. The Claimant claims against the Defendants as follows:

A. A DECLARATION that the wrongful termination of the Claimant’s employment, and the failure of the Defendants to give reason for the termination of the Claimant’s employment in his termination letter dated 11^th November 2020 constitutes unfair labour practice, contrary to international best practices and are in contravention of the provisions of the ILO Termination of Employment Convention of 1982 (No. 158) and the ILO Termination of Employment Recommendation, 1982 (No. 166).

B. A DECLARATION that the termination of the Claimant’s employment vide letter dated 11^th November 2020 and the gross underpayment of the Claimant’s terminal dues by the Defendants, which payment was not made contemporaneously with the termination of the Claimant’s employment is wrongful.

C. AN ORDER directing the Defendants to pay the Claimant the sum of ?31,869,582.00 (thirty-one million, eight hundred and sixty-nine thousand, five hundred and eighty-two Naira) being the outstanding exit entitlements of the Claimant.

D. AN ORDER directing the Defendants to remit the outstanding tax sum of ?7,700,779.00 (Seven million, seven hundred thousand, seven hundred and seventy-nine Naira) being the tax remittance shortfalls from 2008 to 2020 to the Lagos State Government Board of Internal Revenue (LIRS).

E. AN ORDER directing the Defendants to pay the Claimant the sum of ?6,583,419.00 (Six million, five hundred and eighty-three thousand, four hundred and nineteen Naira) being the sum unlawfully deducted from his salaries from 2008 to 2020 under the guise of tax deductions.

F. AN ORDER directing the Defendants to pay the Claimant the sum of ?30,000,000.00 (thirty million Naira) as compensation in lieu of the official vehicles which the Defendants failed to avail the Claimant throughout the twelve (12) years of his employment with the Defendants.

G. AN ORDER directing the Defendants to refund the maintenance costs, driver’s, salaries/allowances and fuel costs reasonably assessed at ?10,000,000.00 (ten million Naira) to the Claimant.

H. GENERAL DAMAGES in the sum of ?100,000,000.00 (One hundred million Naira) for unfair treatment, wrongful termination, embarrassment, emotional trauma, and financial hardship caused to the Claimant by virtue of the unfair treatment and breach of contract by the Defendants, as well as ongoing impediment to a promising political career, losses suffered by the Claimant on account of the Defendants’ refusal to remit taxes deducted from the Claimant’s salaries in the course of the Claimant’s employment with the Defendants.

I. COST of engaging lawyers, instituting, and maintaining this action, assessed at ?10,000,000.00 (Ten million Naira).

J. INTEREST on the above sums at the rate of 10% per annum from the date judgment is delivered in this suit until the total sum is fully paid.

2. In response to the claims, the Defendants filed an Amended Statement of Defence and Counter-claim together with a list of Defendant’s witness and Defendant’s witness statement on oath deposed to by Mr Micheal Oladokun, copies of documents to be relied on at the trial. The Defendant counter-claimed as follows:

(i) N2,543,357 being the excess monetised unutilised leave days paid to the Defendant to Counter Claim by the Counter Claimant.

(ii) 21% Annual interest on Relief (i) above with effect from March, 2021 when same was paid to him by the Counter Claimant to June 2022 when this Counter Claim was filed.

(iii) 21% Annual interest on Relief (i) from date of Judgement until the judgement sum is duly paid to the Counter Claimant.

3. The Claimant filed a Reply dated 27^thday of June, 2022 to statement of defence and defence to the counter-claim. Trial commenced in the suit on 26^th July, 2022. The Claimant gave evidence by adopting his witness statement on oath deposed to on August 23, 2021 and additional written statement on oath deposed on June 27, 2022. The Claimant was cross-examined accordingly. During the examination in chief, the Claimant tendered in evidence, the following documents:

a. Exhibit C1	Claimant’s letter of appointment dated 20^th August 2008
b. Exhibit C2	Claimant’s promotion letter dated 9^th December, 2016
c. Exhibit C3	Letter of Disengagement dated 11^th November, 2020
d. Exhibit C4	Claimant’s leave application status as contained on the 2nd Defendant’s Human Resource Management System (HRMS Software)
e. Exhibit C5 A-D	Claimant’s pay slips for the month of December 2008, July 2009, December 2009, January and March 2016, as well as August and September 2020
f. Exhibit C6	Lagos State Government Board of Internal Revenue Individual Customer Report
g. Exhibit C7	Current Tax Certificate records on the Claimant’s electronic verification form
h. Exhibit C8A-C	Letter of introduction dated May 5, 2009, September30, 2011 and January 20, 2016 issued by the Defendants stating the Claimant’s gross salaries
i. Exhibit C9	Claimant’s All Progressives Congress (APC) membership cards
j. Exhibit C10	Claimant’s solicitors letter dated 17^th May, 2021
k. Exhibit C11	1^st Defendant’s letter dated 10^th June, 2021
l. Exhibit C12	Certificate of compliance with Section 84 of the Evidence Act, 2011.
m. Exhibit C13	Letter from the office of the Chairman, Dr, Mike Adenuga bearing the letter head of the Mike Adenuga Group
n. Exhibit C14 A-B	Best Staff Award Documents dated 30^thSeptember 2011 and 12^th February 2015
o. Exhibit C15 A-B	Waybill Documents dated 30^th September 2011 and 12^th February, 2015
p. Exhibit C16 A-C	Travel Authorization Documents and Internal Memorandum of the Defendants dated 6^th October, 2008, 7^th November 2008
q. Exhibit C17 A-D	Minutes of Meeting dated 14^th October 2008, 29^th October, 2008, 12^th November, 2008, 27^th November, 2008 and 11^th December 2008
r. Exhibit C18	Sponsorship agreement dated 18^th December
s. Exhibit C19 A-B	Internal Memo by the Chief Operating Officer of the 2^nd Defendant dated 7^th November 2008
t. Exhibit C20	Application for Access to airport Tarmac dated 27^th November, 2008
u. Exhibit C21 A-B	Claimant’s Domestic Travel Authorization Document dated 27^th November 2008 and Claimant’s Benin Office Identification Card dated 15^th January 2010
v. Exhibit C22 A-B	Internal Memo dated 9^th December 2016 and Cheque dated 3^rd of June 2016 issued by Dr. Mike Adenuga Group with the inscription “take over the digital urgently”
w. Exhibit C23	Internal Memo dated 5^th April, 2019 from the Head, Human Resources
x. Exhibit C24 A-B	Demand and Resignation letters dated 1^st June, 2010 and 1^st July 2010
y. Exhibit C25	Honda Pilot Lease Agreement dated 3^rd of December, 2013
z. Exhibit C26	Toyota Sequoia Lease Agreement dated 30^th April, 2012
aa. Exhibit C27	Receipt of Purchase from MOA-Technical Limited dated 29^th March 2017.
bb. Exhibit C28	Toyota Venza Lease Agreement dated 19^th May, 2020
cc. Exhibit C29	Appreciation Letter dated 12^th November 2012

4. The Defendants opened their case by calling their substituted witness, Mr. Oluwaseun Omolola, the Acting Manager. DW gave evidence on December 9, 2022 by adopting his witness statement on oath dated 5^th December 2022 and was cross-examined accordingly. The Defendants tendered the following Exhibits:

(a) Exhibit D1 Claimant’s contract of employment

(b) Exhibit D2 Table Showing the breakdown payment made to the
Claimant.

At the end of trial, the Court ordered the parties to file their respective final addresses. The Final Written Addresses were adopted on 25^th July 2024 and the matter adjourned for judgment.

THE CASE OF THE CLAIMANT

5. The Claimant was employed by the Defendant vide letter of appointment dated 20^th August 2008 and seconded to the Marketing Communications Department of the 2^nd Defendant. The Claimant worked in the 2^nd Defendant’s employment until his employment was terminated by the 1^st Defendant without given any reason for the termination. Under the contract of employment, the Claimant was entitled to a yearly vacation of 22 working days at full pay in addition to normal public holidays. However, given the sensitivity of the Claimant’s position in the Defendants, the Claimant was mandated to only take the vacation at a time and manner convenient to the Defendants and subject to the approval of the Defendants. The Claimant was entitled to two hundred and eighty-five (285) accrued but unspent leave days, as at the date of the Claimant’s disengagement from the 2^nd Defendant, as shown in the Claimant’s leave application status contained on the 2^nd Defendant’s Human Resource Management System. All through the Claimant’s employment with the Defendants, the Claimant only went on leave on very extreme circumstances such as family emergencies and health issues. Furthermore, the Claimant is entitled to compensation for accrued but unspent leave days at double salary as per the Defendants’ established practices and internal policies. At the time of the termination of the Claimant’s employment with the Defendants, the compensation for the Claimant’s accrued but unspent leave days stood at ?30,712,798.00 (thirty million, seven hundred and twelve thousand, seven hundred and ninety-eight Naira). The 1^st Defendant paid the Claimant a sum of ?17,400,000.00 (seventeen million, four hundred thousand Naira) as final exit payment, compensation for accrued but unspent leave days, and payment in lieu of two (2) months’ notice but the comprehensive schedule/breakdown of the payment details was not provided to the Claimant. The Defendants’ purported exit payment was not made contemporaneously with the termination of the Claimant’s employment in the sense that the Claimant’s employment was terminated on 11^th November 2020 while the Claimant’s purported exit payment was made on 29^th March 2021. The 2^nd Defendant has a verification system which could have objectively assessed the Claimant’s unspent leave days and accurately determined the compensation payable to the Claimant. Rather than utilize the verification system, the Defendants deliberately underpaid the Claimant. The Claimant discovered in the course of perfecting the title to his property that the Defendants failed to remit the taxes deducted from his salaries in the years 2010, 2011, 2012. 2013, 2015, 2016 and 2017. The tax remittances for the years 2008, 2009, 2014, 2018, 2019 and 2020 were also grossly short of the actual deductions made from the Claimant’s salaries.

6. Particulars of unlawful deductions, and unremitted tax deductions

Tax year	Total annual income	Correct Gross earnings as 50% of annual income	Actual tax deducted from the Claimant’s salaries	Correct Gross earnings as 11% of gross earning	Actual tax deducted	Tax remittance shortfall to LIRS	Tax refund due to the Claimant
2008	14,000,000	2,427,419.35	447,308	267,016	232,672	34,344	80,292
2009	14,000,000	7,000,000.00	1,341,924	770,000	670,130	99,870	571,924
2010	14,000,000	7,000,000.00	1,341,924	770,000	-	770,000	571,924
2011	18,000,000	9,000,000.00	1,569,012	990,000	-	990,000	579,012
2012	18,000,000	9,000,000.00	1,569,012	990,000	-	990,000	579,012
2013	18,000,000	9,000,000.00	1,569,012	990,000	-	990,000	579,012
2014	18,000,000	9,000,000.00	1,569,012	990,000	509,953	480,047	579,012
2015	18,000,000	9,000,000.00	1,569,012	990,000	-	990,000	579,012
2016	22,700,000	11,350,000.00	1,721,344	1,248,500	-	1,248,500	472,844
2017	22,700,000	11,350,000.00	1,721,344	1,248,500	-	1,248,500	472,844
2018	22,700,000	11,350,000.00	1,721,344	1,248,500	1,731,237	(482,737)	472,844
2019	22,700,000	11,350,000.00	1,721,344	1,248,500	1,039,457	209,043	472,844
2020	22,700,000	11,350,000.00	1,721,344	1,248,500	1,115,287	133,213	472,844
Total			19,582,935	12,999,516		7,700,779	6,583,419

7. The Claimant is entitled to the sum of ?6,583,419.00 (Six million, five hundred and eighty-three thousand, four hundred and nineteen Naira) being the sum unlawfully deducted from his salaries from 2008 to 2020 under the guise of tax deductions. The Defendants are obligated to remit the outstanding tax sum of ?7,700,779.00 (Seven million, seven hundred thousand, seven hundred and seventy-nine Naira) being the tax remittance shortfalls from 2008 to 2020 to the Lagos State Government Board of Internal Revenue (LIRS). Pursuance to the internal policies of the Defendants and oral representations made to the Claimant by the Defendants’ Human Resource Personnel and senior management of the Defendants, the Claimant was entitled to an official car, being a senior officer of the Defendants. Throughout the pendency of the Claimant’s employment, the Defendants withheld the official vehicles to which the Claimant was entitled and shifted the obligation of maintenance of the vehicles purchased by the Claimant, and which the Claimant deployed to the Defendants’ use to the Claimant, thereby making the Claimant incur the costs of driver’s salaries and allowances, vehicle fueling, servicing, repairs and cost of registration and insurance which the Defendant failed to remit to the Claimant. All effort to recover the entitlements proved abortive hence this suit.

THE CASE OF THE DEFENDANTS

8. It is the case of Defendants that the Claimant’s employment was rightly determined and that the Defendants need not give reason before the Claimant’s employment will be terminated by the Defendant. It is the case of the Defendants that the Claimant had a total of 283 accrued but unspent leave days while in the service of the 1^st Defendant. The Claimant could not proceed on leave in some years, and the total accrued leave days was commuted to cash and paid to the Claimant during his exit from the Defendants. The Defendants are therefore not indebted to the Claimant in the sum of N30,712,789.00 as “compensation for accrued but unspent leave days” or in any sum whatsoever and howsoever. The total gross payments paid to the Claimant was N21,694,750.00 ( Twenty One Million, Six Hundred and Ninety Four Thousand, Seven Hundred and Fifty Naira) only and which sum translated to the net sum of N17,432,541.98 after deduction of applicable personal income tax, and pensions deductible from the payment in lieu of notice component of the pay. The gross monthly salary of the Claimant as at November 2020 when the Claimant left the service of the 1^st Defendant was N1,897,500.00 while his net take home monthly salary was N1,616,463.00. The Claimant’s daily net salary was therefore N1,616,463.00 ÷ 30 = N53,882.00. The monetized value of the 283 accrued but unutilized leave days due to the Claimant was N53,882 X 283 = N15,248,606. The 1^st Defendant, however, in error, computed the Claimant’s unutilised leave benefits on gross salary basis, hence the value of N17,899,750.00 was ascribed to the Claimant instead of N15,356,399.00 which translated to excess payment of N2,543,351 and which excess payment the Claimant never returned to the Defendants till date. It is the case of the Defendant that the Claimant took some time in completing the exit process which is the condition precedent for exit entitlement therefore, there was no way the payment could have been made contemporaneously with the termination. Consequently, the total net sum due to the Claimant when he was leaving the service of the company was N3,795,000.00 (2 months net salary in lieu of notice) + N15,356,399.00 ( value of 283 accrued leave days) less N204,930.00 (being pension payable on payment in lieu of notice) less N4,057,278.02 (personal income tax) = N14,889,190.98 instead of N17,432,541.98 paid to him, leading to excess payment of N2,543,351 to the Claimant. It is the case of Defendants that the Claimant’s taxes were, at all times, properly deducted and duly remitted to the tax authorities who had a duty to ensure that the Claimant’s tax records are properly updated and that the Defendant is not in any way responsible for the Claimant’s purported inability to process any commercial transactions or pursue his political aspirations. Furthermore, the Defendants state that they are not indebted to the Claimant in taxes deduction from the Claimant salaries or LIRS on the Claimant’s account as alleged or at all. It is the case of the Defendant that the contract of employment executed between the Claimant and the 1^st Defendant embodies the terms of the Claimant’s employment and it was never agreed or discussed at any time that official cars would be provided for the Claimant and that there was no policy mandating the Defendants to provide cars for the Claimant and no representations were ever made to that effect. More so, the Claimant never bought any vehicles for official use and the Defendants have pool cars in their offices for the use of staff and same are customarily used by any deserving staff who has a need for it in the course of their work, the Claimant inclusive.

THE CLAIMANT’S REPLY TO THE DEFENDANTS’ STATEMENT OF DEFENCE

9. The Claimant replied that the Defendants failed to furnish its employees with a Staff Handbook which will aid the assessment of the annual leave and other exit entitlements. Hence, in the absence of any document from the Defendants refuting same, the calculation by the Claimant should subsist. Furthermore, as at the time of the Claimant’s exit, the total exit entitlement was #49,302,123.00(forty-nine million, three hundred and two thousand, one hundred and twenty-three Naira), inclusive of the Claimant’s accrued but unspent leave days at double salary, net monthly salary, payment in lieu of 2 months' notice and salary for the leave days. The actual compensation and exit entitlements of the Claimant during the period of his employment is N31,869,582.00 (thirty-one million, eight hundred and sixty-nine thousand, five hundred and eighty-two Naira). This sum is after deducting the payment of N17.4m from a total due of N49.3M. The sum of N31.8M is now the outstanding sum. The Claimant further replied that during his interview as an employee, he was duly informed by the Executive-Director-Human Resources, Mr. Adewale Sangowawa of the Defendant's policy of issuing cars to managers of the company. The Claimant by a letter to the Defendant demanded his Off-Roll Compensation and Company Car upon discovery of the unwillingness of the 2nd Defendant to abide by the terms of its policies and to release the Claimant’s status car; and submitted his resignation letter. In a quick response to prevent the resignation, the 1st Defendant negotiated with the Claimant and promised to provide the status car for his official use throughout the Claimant’s employment.

THE CASE OF THE COUNTER-CLAIMANTS

10. The case of the Counter-claimants is that the gross monthly salary of the Claimant/Defendant to counter-claim as at November, 2020 when he left the service of the Defendant/Counter-Claimant was N1,897,500.00 while his net take home monthly salary was N1,616,463.00. Thus, his daily net salary was therefore N1,616,463.00 ÷30 = N53,882.00. The monetized value of the 283 accrued but unutilized leave days due to the Claimant was therefore N53,882 X 283 = N15,248,606. The Counter Claimant, however, in error, computed the Claimant’s unutilized leave benefits on gross salary basis, instead of net salary basis, hence the value of N17,899,750.00 was ascribed to Claimant instead of N15,356,399.00 which the Claimant claims and which in fact was truly due to him. Consequently, the total net sum due to the Defendant to counter-claim when he was leaving the service of the Defendant was N3,795,000.00 (2 months net salary in lieu of notice) + N15,356,399.00 ( value of 283 accrued leave days) Less N204,930.00 (being pension payable on payment in lieu of notice) less N4,057,278.02 (personal income tax) = N14,889,190.98 instead of N17,432,541.98 erroneously paid to the Claimant, leading to excess payment of N2,543,351 to the Defendant to Counter-claim.

THE DEFENDANT TO COUNTER-CLAIM’S STATEMENT OF DEFENCE AND DEFENCE TO COUNTER-CLAIM

11. It is the case of the Defendant to counterclaim that his monthly salary was #1,616,463.00. However, the computation for accrued but unspent leave days is at double salary as clearly delineated in the statement of facts of the Claimant. Further, the payment of #17,899,750.00 is inaccurate as the actual total sum is #49, 300,000.00 in accordance with the established and internal policies of the Defendant to the Counterclaim for the payment of the unutilized leave benefits of exiting employees. It is the case of the Defendant to Counter-Claim that the Counter-Claimant did not at any time before the institution of this suit object to the computation of the Claimant’s unutilized leave but only raised excess payment to intimidate the Claimant from prosecuting this suit.

SUBMISSIONS ON BEHALF OF THE DEFENDANTS

12. The Defendants raised four issues for determination as follows:

1. Whether clause 8 of the Claimant’s contract of employment offers him double or triple leave pay during the vacation period.

2. Whether an alleged ‘established practice’, ‘convention’ or ‘customary practice’ of an institution can be proved by the uncorroborated testimony of the Claimant.

3. Whether an ex-employee who has received payment in lieu of notice can sustain an action for wrongful termination of employment.

4. Whether the Claimant has proved his claims to be entitled to the reliefs sought

13. Issue one - Whether clause 8 of the Claimant’s contract of employment offers him double or triple leave pay during the vacation period? The Claimant argued that Exhibit D1 provides for a yearly vacation of 22 working days at full pay and that clause does not provide for double or triple leave pay for the vacation days. The literal interpretation, and indeed the only plausible interpretation of this clause is that the Claimant would be paid the Claimant’s full salary for the 22 days period despite the fact that he was away on vacation. The Defendant submits that in the construction or interpretation of a written document, the law is trite that same is to be given its ordinary, clear and literal interpretation where the words used therein is simple, clear and unambiguous. The Defendant urged the Court to so hold by relying on the case of case of Okoye v. C.O.P (2015) LPELR-24675(SC)

14. Issue two - Whether an alleged ‘established practice’, ‘convention’ or ‘customary practice’ of an Institution can be proved by the uncorroborated testimony of the Claimant? The Defendant argued that since the Claimant claimed that the Defendants’ policy donated double or triple leave pay to the employee of the Defendants including himself, he has the onus to prove same. The Claimant did not tender before this Honourable Court the purported policy that allegedly donates the windfalls to him. The Defendant submits that the law is trite that for the Claimant to benefit in employment relationship, it has to be by reference to a contract of employment, circular, Employee Handbook, Law or a Collective Bargaining Agreement. The Defendant urged the Court to so hold and relied on the case of Dungus & Ors v ENL Consortium Ltd (2015) 60 N.L.L.R (pt. 208) 39.

15, Issue three - Whether an ex-employee who has received payment in lieu of notice can sustain an action for wrongful termination of employment? The Defendant submits that the Defendant paid the Claimant salary in lieu of notice and that the Claimant took benefit of the exit payment and never returned it to the 1^st Defendant. That, it is long settled law that an employee who accepts salary in lieu of notice cannot thereafter validly challenge his termination as being wrongful or unlawful. The Claimant relied on the case of Odiase V Auchi Polytechnic (1998) 4 NWLR (Pt.547). The Defendant further submits that it is trite that where a contract of employment provides for the applicable notice period for termination but silent on payment in lieu of notice, either party is at liberty to make payment in lieu of notice to determine same of which the Defendant has done.

16. Issue four - Whether the Claimant has proved his case to be entitled to the reliefs sought? The Defendant argued that the Claimant has failed to establish his entitlement to the reliefs sought and that the Claimant has a duty to first establish those facts and also establish that those facts entitles him to the reliefs he seeks. It is only when a Claimant makes out a case that the burden of proof now shifts to the Defendant to adduce counter evidence in opposition to the Claimant’s evidence and sustain its defence. Where the Claimant fails to make out a case therefore, there is nothing for the Defendant to rebut and the case is liable to be dismissed. The Defendant urged the Court to so hold by relying on the case of Okomu Oil Palm Company Limited v. O. S. Iserhienrhien (2001) 6 NWLR (pt.710) 660 at 674. The Defendant argued that the Claimant has no locus standi to claim alleged unremitted taxes on behalf of the relevant authority that is tasked with the administration of tax in the State. The LIRS, being the relevant authority in this instance has not come forward to allege the Defendants of non-remittance or under remittance of taxes. The Defendant relied on the case of Longe Medical Centre & Anor v. AG, Ogun State & Anor (2020). Furthermore, that the allegation of non-remittance or under remittance of taxes is criminal and the law is trite that standard of proof for criminal allegations (even within a civil suit) is proof beyond reasonable doubt. The Defendants submit that the Claimant herein has not proved the criminal allegations of tax, fraud against the Defendants with any piece of evidence let alone proof beyond reasonable doubt. The Defendant relied on the case of Okoro & Anor v. Ejiofor (2022) LPELR-57270(CA)

17. On the issue that the Claimant is entitled to compensation in lieu of the provision of official vehicles and also car maintenance costs, the Defendant argued that the Claimant did not provide any document, instrument, contract, policy or CBA which donates these benefits to him. The Defendant submits that entitlements are not automatic and must be proved by the employee who claims such by relying on the case of Dungus & ors. V. ENL Consortium Ltd

(supra). On the relief for general damages, the Defendant argued that it is always available as of right when a contract has been breached, therefore as the Claimant failed to establish a breach of his contract of employment, he will not be entitled to general damages. The Defendant relied on the case of Suffolk Pet. Services Ltd. V. Adnan Mansor (Nig.) Ltd (2019) 2 NWLR (Pt. 1655). On the Counter-Claim, the Defendants sought to abandon their counter claim; hence no legal arguments were canvassed in this regard.

SUBMISSIONS ON BEHALF OF THE CLAIMANT

18. The Claimant raised one issue for determination as;

· Whether in view of all the surrounding facts and circumstances and the collective actions of the Defendants, the Claimant has established a case of wrongful termination and unfair labour practices contrary to international best practices, therefore entitling the Claimant to the reliefs sought?

19. The Claimant argued that the Defendants wrongfully terminated his employment by their failure to give reasons for the termination and that article 4 of the Termination of Employment Convention, 1982 (No. 158) provides that 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. The Claimant submits that this Court has power to apply international best practices and enforce labour standards, and has upheld the provisions of Article 4 of the Termination of Employment Convention, 1982 (No. 158) in Godwin Okosi Omodu v. Prof. Aize Obayan & Anor, unreported Suit No: NICN/AB/03/2012 and the case of Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) v. Schlumberger Anadrill Nigeria Limited [2008] 11 NLLR (Pt. 29) 164. The Claimant argued that where a contract of service gives a party a right of termination of the contract by giving a particular length of notice or payment in lieu of the length of notice and the latter is chosen, the party seeking to put an end to the contract must pay to the other party, the salary in lieu of notice at the time of the termination of the contract. The Claimant relied on the case of Chukwuma v. Shell B.P & Co Ltd (supra), Mr. Dawodu Azeez v. 3 Peats Investment Limited, unreported Suit No NICN/LA/628/2014 judgment of which was delivered on the July 16, 2018. The Claimant submits that even if it appears that the Claimant has not shown exactly when the payment in lieu of notice was made, once it appears to the Court that the payment was not made contemporaneously with the termination of the employment, the termination will be held wrongful. The Claimant relied on the case of Mrs. Oluwaseyi Ariyo v. Givanas Industry Nigeria Limited, unreported Suit No. NICN/LA/382/2020, judgment delivered on January 9, 2023 by Hon. Justice I.G. Nweneka, where the Court held that:

Although, there is no pleading and no evidence on when the sum of N92,000 was paid to the Claimant, from Exhibits 8 and D5, it is clear that it was not paid contemporaneously with the termination of her employment. Consequently, I find as a fact that the termination of Claimant’s employment, in this circumstance, is unlawful.

20. The Claimant argued that Exhibit C4, (Claimant’s leave application) status as contained on the 2nd Defendant’s Human Resource Management System (HRMS Software), shows 250 days as the unspent leave days till November 2019 and in addition to that, the outstanding leave days for 2020 in addition to accrued number of days brought the Claimant’s unspent leave days to 285 days. However, despite the Defendants having access to and full control of the HRM software belonging to the Defendants, the Defendants simply claimed that the unspent leave days were 283 days without presenting any evidence. Their failure to present any evidence to support their claim is absurd considering the fact that the Defendants are in possession of evidence that can either confirm or dispute the Claimant’s claim for 285 days as the unspent and accrued leave days. Having failed to properly controvert the Claimant’s claim for 285 as unspent leave days or present evidence in proof of their own assertion, the Claimant’s claim for 285 unspent leave days should be deemed admitted and consequently, proven. The Claimant argued that Exhibits C6 and C7 - Lagos State Government Board of Internal Revenue Individual Customer Report and Current Tax Certificate records on the Claimant’s electronic verification form were derived from the Lagos State Tax offices and website which enjoys the presumption of regularity and correctness. The Defendants have not presented any document challenging the claims and facts neither elicited from Exhibits C6 and C7 nor rebutted the presumption of correctness and regularity that inures in favour of same. The Defendant submits that Exhibits C6 and C7 remain credible and cogent and directly proves that the Defendants failed to remit deductible taxes for 2010 to 2017 save for 2014 and also failed to remit the full deductions for 2008, 2009, 2018, 2019 and 2020. Also, the Defendants stated that all tax deductions were made and conveniently however, failed to present any evidence in that regard. On the practice of double salary for unspent leave days, the Claimant argued that the Defendants simply made general denials without specific details and failed to present any documentation either through the handbook or its other conditions of service despite providing evidence that same is contained in a purported handbook. The Claimant submits that the law is that an evasive, vague, bogus or general denial, a mere denial of a detailed, factual situation without attacking the veracity of the details do not amount to a denial for the purpose of raising an issue for trial. If anything, they all amount to an admission. The Claimant relied on the cases of Ohiari v. Akabeze [1992] 2 NWLR (Pt. 221) 1; LSDPC v. Banire [1992] 5 NWLR (Pt. 243) 620; Dikwa v. Modu [1993] 3 NWLR (Pt. 280) 170; Sanusi v. Makinde [1994] 5 NWLR (Pt. 343) 214; Ekwealor v. Obasi [1990] 2 NWLR (Pt. 131) 231 and Idaayor v. Tigidam [1995] 7 NWLR (Pt. 377) 359.

21. On Claimant’s entitlement to an official car, the Claimant argued that the internal policies of the Defendants and oral representations made to the Claimant by the Defendants’ Human Resource personnel and senior management of the Defendants is that he is entitled to an official car, as a senior officer of the Defendants. While the Claimant was aware of these practices and the Claimant testified to same, no document or handbook was issued to him in that regard by the Defendants. The Claimant argued that while the Defendants stated that no such condition for official car exists in the handbook and conditions of service, unfortunately, the Defendants failed to tender any handbook or document describing the other conditions of service as between themselves and the Claimant. The Claimant submits that the Defendants only made general denials in several paragraphs of their defence as regards the official car and that the only inference to be drawn is that all the employee’s benefits would have been clearly delineated in the Defendants’ handbook. The Claimant argues that the Defendants, having claimed the existence of the Handbook without producing same, it should be inferred that the facts contained therein are adverse to the Defendants’ interests. The Claimant further submits that it is clearly both unfashionable and against international labour standards to keep employment relations undocumented and that the actions of the Defendants in failing to present key and vital employment documents in response to the Claimant’s case and in proof of theirs is a presumption of its non-existence and constitute unfair labour practices. The Claimant further submits that he has established the Defendants wrongfully terminated his employment and that the Defendants’ actions constituted unfair labour practices.

THE DEFENDANTS’ REPLY ON POINT OF LAW

22. On the issue that the Defendants must give reason before terminating the Claimant’s employment, the Defendants replied that the termination with cause or reason is an emerging principle of the Nigerian Labour and Employment Law with no clear consensus as demonstrated by many judgments of this Honourable Court and that the Defendants are not unaware of the isolated cases of this Court cited by the Claimant to the effect that termination must be with a reason. However, there are many more judgments of this same Court to the contrary. The Defendant relied on the case of Emana Ibor Edet v Fidelity Bank Plc, Suit no. NICN/LA/276/2014 (Unreported); Judgment delivered on 17 December 2019. The Defendant argued that Nigeria is yet to ratify ILO Convention heavily relied on by the Claimant. On Defendants withholding evidence, the Defendants replied that the question of presumption of withholding evidence does not arise in this case and that the Final Address cannot constitute evidence. On the issue that the failure to out rightly deny the fact that no practice stipulated that the Claimant is entitled to official car or double salary pay for unspent leave days amounting to admission, the Defendants argued that the alleged claims of the Claimant may only succeed on the strength of his own case and not the perceived weaknesses of the Defendant’s case. On the issue that the Court has no jurisdiction on taxation, the Defendants replied that the most recent decisions of the Court of Appeal on this jurisdictional issue, held that the NICN has no jurisdiction over defamation and other torts including causes of action not governed by labour and employment law principles. The Defendants relied on the cases of UBA & Ors v Oladejo (2021) LPELR -55329 (CA) Adeniyi Olushola v Anor v Adolphos Yakubu (2021) LPELR -560 15 (CA).

DECISION

23. I have carefully considered the processes filed in this case, the evidence led, the written submissions and authorities cited by Counsel in their final written addresses. I also evaluated all the exhibits tendered. I adopt the issue set down for determination, by the Claimant;

24. The fact that the Claimant was a staff of the 1^st Defendant, and seconded to the 2^nd Defendant is not in contest. Also, both parties agree that Claimant’s employment ended via letter dated 11^th November 2020, titled; “Services no Longer Required”(exhibit C3). The Claimant alleges that his termination is wrongful and an unfair labour practice, in that the Defendant did not give any reason for his termination. The Claimant alleges the contravention of the provisions of the ILO Termination of Employment Convention of 1982 (No. 158) and the ILO Termination of Employment Recommendation, 1982 (No. 166), and cited some decisions of this Court upholding the provision of Convention 158 and Recommendation 166. The Defendants on the other hand, contend that they complied with the terms of the Claimant’s employment by paying two months’ salary to the Claimant, in lieu of two months’ notice, therefore the termination is not wrongful. The Defendants also makes the point that the international instruments relied upon by the Claimant have not been ratified and that though some decisions of this Court have upheld the requirement to give reason before termination, others have not. The Defendants therefore submit that there is no binding authority on the application of Convention 158.

25. The Defendant relied on section 254(C)(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended 2011) which provides that:

Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified-relating to labour, employment, workplace, industrial relations or matters connected therewith.

The Defendants submit that the implication of the reproduced section 254(C)(2) is that before this Honourable Court can have jurisdiction to apply or rely on any international convention, treaty, or protocol - including the ILO Convention and Recommendation sought to be relied on by the Claimant - such international convention, treaty, or protocol must have been ratified by Nigeria.

26. The Defendants have made valid arguments with respect to section 254(C)(2) on international conventions and treaties, but makes no submission on what constitutes ‘international best practices’. Section 7(6) of the National Industrial Court Act 2006 provides a legal ground for the application of non- domesticated conventions as examples of international best practices. Section 7(6) NIC Act provides:

7(6) The Court shall, in exercising its jurisdiction or any of the powers conferred upon it by this Act or any other enactment or law, have due regard to good or international best practice in labour or industrial relations and what amounts to good or international best practice in labour or industrial relations shall be a question of fact.

27. Section 254(C)(1) (F) reiterates this head of jurisdiction when it grants this Court jurisdiction over matters relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters. Certainly, these best practices cannot only be found in treaties ratified by Nigeria, but can also be found in treaties adopted by the international community as evidence of what is internationally acceptable as good practices. This also means or implies that the said practices need not be contained in the terms and conditions of service between the parties. Where these practices have become so acceptable that they are incorporated in treaties and conventions, they certainly become evidence of international best practices, whether they are ratified or not. However, in order to apply the provision of an ILO convention (whether ratified or not) as an example of international best practices, the particular convention must be pleaded; see Oyo State Government v. Alhaji Bashir Apap & Anor, Suit No. NIC/36/2007. This Court, in many of its decisions, has taken the position that ILO Convention 158 – Termination of Employment Convention 1982, though un-ratified, is evidence of international best practice. See Bello Ibrahim v. Eco Bank Plc Unreported Suit No: NICN/ABJ/144/2018, the judgment of which was delivered on 17th December 2019 where Kado J applied the ILO Termination of Employment Convention, 1982 (No. 158) and held that the Defendant had the duty to give a reason for the termination of the employment of the Claimant. The relevant provision of ILO Convention 158 is Article 4 – 5. They 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' representative;

(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.

2024, with a view to determining whether the case was one of constructive dismissal and, therefore, whether the Claimant had a right to compensation, the Court referred to the ILO Convention, No. 158 – despite the fact that this Convention has not been ratified by Botswana – and the General Survey of the Committee of Experts on the Application of Conventions and Recommendations concerning protection against unjustified dismissal, indicating that:

Under its equitable jurisdiction this Court can bring the principles of Convention No. 158 to bear in this case. This the Court can do so because the Court of Appeal has held that this Court may, under its equitable jurisdiction apply international labour standards to assist it reach a proper determination of issues it is called upon by litigants to determine […]” (Culled from the ITCILO commentary on the judgment).

29. Exhibit C3, letter, terminating Claimant’s employment, for services no longer required; is contrary to international best practice requiring that termination need to be with reason. I thus accept the submissions of the Claimant that the Defendants acted contrary to international best practice as evidenced in ILO Convention 158, when it terminated the Claimant’s employment without stating any reason. The ILO conventions and standards represent evidence of international best practices in labour relations; the ILO’s tripartite representation having ensured that all interests in the world of work are represented in the negotiations and adoptions of these conventions and recommendations. No sector in the employment industry can therefore cry foul over the content of any output of the ILO, as the interests of the government, employers and employees are duly represented in all ILO’s deliberations.

30. Though I have found Claimants termination to have been wrongful for being against international best practice, based on Convention 158, I have taken cognisance of the Court of Appeal decision in Keystone Bank v. Afolabi 14 (2017) LPELR-42390 that “it is not disputed that the relationship between the parties is one of master and servant and as such an employer who hires an employee under the common law has the corresponding right to fire him at any time even without assigning any reasons for so doing”, and to note that that decision was not based on the 3^rd Alteration Act of the 1999 Constitution which gave this Court the power to apply international best practices. Also, I note that the decision in Oak Pensions Limited & Ors v. Mr. Michael Oladipo Olayinka, 15 (2017) LPELR-43207(CA) that allegations of unfair labour practices and international best practices cannot operate to dislodge the contractual obligations of parties, has been overtaken by the decision of the Court of Appeal in the case of Sahara Energy Resources Ltd v. Mrs Olawunmi Oyebola (2020) LPELR – 51806 (CA) where the Court of Appeal, in a significant shift from some of its disapproving decisions, affirmed the latitude of this Court to depart from orthodox common law while espousing on the provision of Section 254C (1) (f) of the 1999 Constitution as amended and Section 7 (6) of the National Industrial Act. The said provisions state that:

“254C (1) Notwithstanding the provisions of Sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-

(f) relating to or connected with unfair labour practice or international best practices in labour employment and industrial relation matters;”

Then Section 7 (6) of the National Industrial Act stipulates as follows:

“(6) The Court shall, in exercising its jurisdiction or any of the powers conferred upon it by this Act or any other enactment or law, have due regard to good or international best practice in labour or industrial relations and what amounts to good or international best practice in labour or industrial relations shall be a question of fact.”

31. The Court of Appeal Lagos Division in Sahara Energy Resources Limited v. Mrs Olawunmi Oyebola (2020) LPELR-51806(CA) leading judgment delivered by UA Ogakwu, JCA on 3rd December, 2020 recognised and reiterated the potentials of the above provisions to change the application of legal principles, from what it used to be. The Court held that:

The above provisions enjoin the National Industrial Court in the exercise of its jurisdiction, to “have due regard to good or international best practices in labour or industrial relations”. The importance of this novel provision, in my deferential view, is that the National Industrial Court, in considering the measure or quantum of damages is to do so in accordance with “good or international best practices in labour or industrial relations”, which shall be a question of fact. It will be stating the obvious to say that prior to the Third Alteration, when employment and labour matters were handled by the High Courts, there was no obligation to apply and follow good or international best practices. It is an innovative provision which seems to be directed at enthroning an entirely new employment and labour jurisprudence. It will be disregarding this innovation if we continue to deal with the measure of damages in total disregard of the changes wrought to the law by legislation. The proper attitude of the court when confronted with an innovation introduced by way of an amendment to an existing law or a new statute simpliciter (in this case, the Third Alteration to the 1999 Constitution and the National Industrial Court Act of 2006) was enunciated in the case of Bank of England vs. Vagliano Brothers (1891) A. C. 107 at 144-145 (per Lord Herschell) as follows:

"I think the proper course in the first instance is to examine the language of the statute and to ask what is the natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start by enquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.”

The above passage was quoted with approval by the Supreme Court in NDIC vs. OKEM ENTERPRISES (2004) 10 NWLR (PT 880) 107. Indeed, the note of caution sounded by this Court in NASARAWA STATE SPECIALIST HOSPITAL MANAGEMENT BOARD vs. MOHAMMED (2018) LPELR (44551) 1 at 20-21 on the imperative of treating or applying older case law authorities that pre-date the Third Alteration Act with extreme circumspection, bears re-echoing here.

Let me iterate that by the doctrine of stare decisis, this court is bound by the decisions of the apex court as well as the decisions of this court. However, as I have demonstrated and stated above, the principle laid down in the said cases did not reckon with and take into consideration the obligation on the lower court to now apply good or international best practices in adjudication. The hitherto existing principle, which merely form a starting point, entrenched the common law orthodoxy on the quantum or measure of damages in labour matters. I am aware of the position of this Court which has maintained the common law orthodoxy, one of such cases being the decision in OAK PENSIONS LTD vs. OLAYINKA (2017) LPELR (43207) 1 [a panel I was privileged to be part of]. In the lead judgment of Garba, JCA [now JSC] in the said case, which I concurred with, the two years’ salary awarded as damages was set aside. It has to be stated post-haste that no such relief was claimed at the lower court in the said case, so it was ab initio wrong for the lower court to have awarded a relief not claimed; unlike in this matter, where the Respondent had specifically claimed N10million general damages for unlawful dismissal and breach of contract, which the lower court is empowered to award under Section 19 (d) of the National Industrial Court Act.

In the OAK PENSION case at pages 45-46, my Lord, Garba, JCA (now JSC) set out the reasoning that informed the decision of the Court in the following words:

“It should be noted that the primary duty of a Court of law is to do justice, at least substantial, in all matters and causes that come before them, for adjudication by a dispassionate appraisal of peculiar facts, evaluation of the material evidence and application of the relevant laws and rules of equity. In the determination of the justice of a case and the entitlement of the parties in equity, the facts and material evidence… placed before a Court, are sine qua non. The decision to make any order in a case, whether sought for or not by any of the parties, must be predicated on such facts and evidence, taking the rights, obligations and interests of both parties into account or consideration. That was not done by the trial Court before and in the award of compensation to the Respondent.

In the above premises of the law, the award of two (2) years' salary as compensation for the termination of the Respondent's employment cannot be supported and/or justified by the peculiar facts, circumstances and evidence placed before the trial Court and so wrong in law. It was a relief not claimed by the Respondent, it was not a consequential relief to give effect to the decision by the trial Court that the Respondent's master-servant employment was wrongfully but effectively terminated by the 1st Appellant…, but a distinct and substantive relief which was gratuitously awarded the Respondent to which he was/is not entitled to, in law.”

(Emphasis supplied)

In considering and applying international best practices as a question of fact, it is the facts of the given matter that would form the base from which to consider how the law has been applied in line with international best practices in other jurisdictions. In the circumstances of this matter, where the dismissal of the Respondent was predicated on allegations bordering on dishonesty and bribery, which no doubt carries a stigma, it is what will form the base in considering the measure of damages to award in tune with international best practices. In this wise, there is the progressive decision of this Court in BRITISH AIRWAYS vs. MAKANJUOLA (1993) 8 NWLR (PT 311) 276 at 288 (per Ubaezonu, JCA), delivered way back in 1993, which affirmed the award of two years’ salary as damages by the trial court. In the said case, it was held that the quantum of damages recoverable by an employee depends on whether the wrongful termination of employment was as a result of the failure to give the required notice or as a result of an alleged malpractice (and if the former, the quantum of damages may be the employee’s salary in lieu of notice, but if the latter then since such a termination carries with it some stigma on the character of the employee, he shall be entitled to substantial damages far beyond the payment of salary in lieu of notice).

It has to be remembered that the National Industrial Court is a specialized court exclusively established primarily for labour and employment related matters. In that regard, except where patently and manifestly wrong, there has to be some deference to the decisions of that court in that area of the core competence and specialisation of the court. This has been recognized internationally. For instance, the appellate courts in England have stated that employment judges have a good knowledge of the world of work and a sense, derived from experience, of what is real there and what is window-dressing. Such employment tribunals are to be ‘realistic and worldly wise’, and ‘sensible and robust…in order to prevent form from undermining substance’. See UBER B.V. (UBV) vs. YASEEN ASLAM (2018) EWCA CIV 2748 (19th December 2018) at Paragraphs 48 and 49 and AUTOCLENZ LTD vs. BELCHER (2011) UKSC 41 or (2011) ICR 1157.

Furthermore, the views expressed by Arturo Bronstein in the legal work International and Comparative Labour Law: Current Challenges (Palgrave Macmillan), 2009 at pages 1-2 bears redacting. He stated:

…the goal of labour law is to ensure that no employer can be allowed to impose – and no worker can be allowed to accept – conditions of work which fall below what is understood to be a decent threshold in a given society at a given time. Thus labour law is not just a means of regulating the exchange between labour and capital as civil or commercial law does with respect to civil or commercial contracts; rather, it is a means (indeed it is the principal means) to operationalize what the International Labour Organization (ILO) nowadays defines as ‘decent work’, which, in addition to protecting the worker, calls for the respect of democracy in overall labour relations, including at the work-place.

Decent work and protection of the worker would necessarily connote that in circumstances where the employee is unlawfully dismissed, it should attract substantial damages, where claimed, in line with international best practices and not based on the hitherto existing principles that pre-date the advent of the innovative provisions of the Third Alteration to the 1999 Constitution. International best practices in labour or industrial relations are almost always mirrored in the light of the conduct of the employer; the actions (or inaction) of the employee are seldom the subject of consideration since it is the action of the employer which has been found to be wrongful/unlawful that has been brought to light for the necessary salve to be afforded the employee.

Section 254C (1) (f) and (h) and (2) of the 1999 Constitution empowers the lower court to apply international best practices in labour, and conventions, treaties, recommendations and protocols ratified by Nigeria. The High Courts were not so empowered in exercise of jurisdiction in labour matters which culminated in the principle of the superior courts on the measure of damages.

I am mindful of the fact that it may appear that international best practices, like public policy, may be an unruly horse and might be difficult to apply. Alluding to a similar situation as it relates to public policy in ENDERBY TOWN FC vs. FOOTBALL ASSOCIATION (1971) 1 CH 591 at 606-6077, Lord Denning, MR asseverated that public policy is an unruly horse. So obstreperous is the horse that no judge should ever try to mount it lest it run away with him. I disagree. With a good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles. It can leap the fences put up by fictions and come down on the side of justice.

Now, on my part, I ask if a judge is such a good man (jockey)? I would think so. If the Judge of the lower court, that specialized court in employment and labour related matters, be that intrepid man of great learning, then the application of international best practices would not be difficult, abstruse or arcane in its application and would always end up on the side of justice. Therefore, the innovative provisions necessarily demand a rethink of the principle in the light of changed circumstances in law. Accordingly, I will be deferential to the general damages awarded by the lower court in exercise of its jurisdiction to apply international best practices.

32. I have taken time to reproduce the above quoted part of the judgment of the Court of Appeal. First, it took cognisance of the decision in Oak Pensions and still came to the conclusion that this Court can apply international best practices, when pleaded. It went further to acknowledge the position of Arturo Bronstein, as a highly qualified publicist in the field of labour law. Arturo Bronstein in the same quoted legal work International and Comparative Labour Law: Current Challenges (Palgrave Macmillan), 2009 also noted that ILO standards, that is, Conventions, Recommendations and Codes of Practice, whether ratified or not, “not only reflect a certain universal wisdom; they also enjoy a social legitimacy that would seem hard to challenge. Based on the above, I am convinced that this Court can and should apply Convention 158, as pleaded and established by the Claimant. I hold that the failure of the Defendants to give reasons for the termination of the Claimant’s employment, in the termination letter dated 11^th November 2020 constitutes unfair labour practice, contrary to international best practices.

33. The second part of the issue set down for determination is whether the Claimant is entitled to the reliefs he seeks in this suit. I shall take the reliefs sought by the Claimant; seriatim.

34. Relief ‘A’ is for “A DECLARATION that the wrongful termination of the claimant’s employment, and the failure of the defendants to give reason for the termination of the claimant’s employment in his termination letter dated 11^th November 2020 constitutes unfair labour practice, contrary to international best practices and are in contravention of the provisions of the ILO Termination of Employment Convention of 1982 (No. 158) and the ILO Termination of Employment Recommendation, 1982 (No. 166). By the finding on the first part of the issue set for determination, this relief is proved. I so hold.

35. Relief ‘B’ is for “A DECLARATION that the termination of the claimant’s employment vide letter dated 11^th November 2020 and the gross underpayment of the claimant’s terminal dues by the defendants, which payment was not made contemporaneously with the termination of the claimant’s employment is wrongful.” Two issues arise from this relief; one is the alleged gross underpayment of the Claimant’s terminal dues, and second; the non-contemporaneous payment of the terminal dues with the termination. Has the Claimant proved that he was underpaid? The Claimant gave evidence of the underpayment as follows:

26. As per company policy contained in the defendants’ usual practice and internal policies, I am entitled to compensation for accrued but unspent leave days at double salary. At the time of the termination of my employment with the defendants, the compensation for my accrued but unspent leave days stood at ?30,712,798.00 (thirty million, seven hundred and twelve thousand, seven hundred and ninety-eight Naira) as shown on my leave application status as contained on the 2^nd defendant’s Human Resource Management System.

31. In line with the contract of employment and the defendants’ usual practice and internal policies, I am entitled to the following as exit payment:

Number of leave days	285
Net monthly salary	?1,616,463.00
Salary per day	?53,882.00
Salary for the leave days	?15,356,399.00
Compensation for the unspent leave days at double salary	?30,712,798.00
Payment in lieu of 2 months’ notice	?3,232,926.00
Total Entitlement	?49,302,123.00
Total payment received	?17,432,541.00
Balance Due	?31,869,582.00

The Defendants refuted this fact, when the DW gave evidence that:

10. The provision on yearly vacation of 22 working days at full pay simply means that the Claimant would be paid his full salary for the 22 days period despite the fact that he was away on vacation in the same manner that he would have been paid if he had been working during the period. It did not and cannot mean that the Claimant would be paid double or triple salary for the vacation period as wrongly alleged by the Claimant.

24. That I vehemently deny the contents of the table reproduced in paragraph 29 of the Statement of Facts, and paragraph 30 of the Statement of Facts, and further aver as follows:

(a) The said table is ridiculous and grossly inaccurate as the Claimant chose to duplicate (or even triplicate) the monetisation of his unspent leave days. Item 4 of the said table correctly put “salary for the leave days as N15,356,399.00 while item 5 again seeks compensation for the same unspent leave days at double rate i.e N30,712,789.00”. This implies that the Claimant is claiming a triplicate claim for the same unutilised 283 accrued leave days.

(b) The Defendants do not owe the Claimant any unpaid salaries.

(c) The Claimant’s triplicate claims for unused leave days is indicative of the Claimant’s mindset and penchant for false claims.

36. It is obvious that parties do not agree on this issue. It can therefore only be resolved by looking at the terms and conditions binding on the parties; which are before the Court. Exhibit C1(also D1) is Claimant’s Letter of Appointment dated the August 20, 2008. The relevant portion is clause 8 thereof titled “Vacation”. It provides that:

Vacation: “Following the completion of one year service and confirmation of employment, you will be entitled to a yearly vacation of 22 working days at full pay, in addition to the normal public holidays. Holidays must be taken at a time and in a manner that is convenient to the Company. However, the Company will not unreasonably withhold approval if the circumstances permit.”

(Underlining mine)

37. The provision of this clause is clear, precise and straightforward. It provides for a yearly vacation of 22 working days at full pay. It does not provide for double leave pay for the vacation days (let alone triple). The Claimant did not tender evidence to establish the alleged practices and internal practices, which entitles him to double or triple leave pay. It is definitely for the Claimant who has alleged the existence of that fact, to establish it; which he has failed to do. The law is that he who asserts must prove. See Section 131(1) of the Evidence Act. It is not sufficient for the Claimant to simply allege the existence of a “practice” or “convention”, he has the onus to prove same with credible evidence. See also Section 132 of the Evidence Act (2011). The Claimant introduced the fact of the non-availability of the Defendant’s handbook as exhibit before the Court, in his final written address. I have gone through the Claimant’s pleadings and evidence, and nowhere was the existence or non-existence of a handbook, made an issue. It was in his final written address that Claimant’s Counsel raised a contention of lack of sufficient documentation of employment relations by the Defendants in his interaction with the Claimant; in the Defendants failing to issue to the Claimant or produce to the Court, a handbook. The law is trite that Final Address of counsel does not constitute evidence. See Aliucha & Anor v Elechi & Ors (2012) LPELR -7823 (SC). Though the Defendant admitted to having a handbook in the course of cross examination, there is no evidence that the Claimant sought for its production, in proof of his case. I agree with Defendants and contrary to the Claimant’s argument that the question of presumption of withholding evidence does not arise in this case. I agree with the Defendants that a party who alleges that a Handbook donates certain benefits to him first has the onus to produce it in Court, it is when he demonstrates that he does not have the document and that same is in the possession of the adverse party that the question of presumption of withholding evidence may arise. The Claimant must discharge this onus (that himself does not have the document) before he can raise the presumption in law. In the circumstance, the evidence before the Court (Claimant’s contract) does not support double or triple payment of leave pay as sought by the Claimant. This aspect of the Claimant’s relief cannot be granted.

38. On the second aspect; the non-contemporaneous payment of the terminal benefits by the Defendant; the Claimant’s case is that Defendants’ purported exit payment was not made contemporaneously with the termination of his employment. Whereas the Claimant’s employment was terminated on 11^th November 2020, the claimant’s purported exit payment was made on 29^th March 2021. The Claimant’s argument is that the law is that where a contract of service gives a party a right of termination of the contract by giving a particular length of notice or payment in lieu of the length of notice and the latter is chosen, the party seeking to put an end to the contract must pay to the other party, the salary in lieu of notice at the time of the termination of the contract. He relies on the case of Chukwuma v. Shell B.P & Co Ltd [1993] 4 NWLR (Pt. 289) 512, and some decisions of this Court; for example Mr. Dawodu Azeez v. 3 Peats Investment Limited, unreported Suit No NICN/LA/628/2014 Judgment of which was delivered on the July 16, 2018.

39. The Defendants, on the other hand, contend that this prayer is misconceived because; the letter of termination stated clearly that the Claimant is requested to return all the company's properties in his possession to the Human Resources Department and to equally do a proper handover. The Defendants state that the exit payments due to the Claimant were paid to him upon his completion of the exit process which was a condition precedent to the payment thereof. The Defendants further averred that the Claimant took some time in completing the exit process hence; there was no way the payment could have been made to him on the same date his employment was terminated.

40. Parties therefore are in agreement that the payment of the salary in lieu of notice was not paid on the same date the Claimant was terminated. The Claimant gave evidence that whereas his employment was terminated on 11^th November 2020, the Claimant’s purported exit payment was made on 29^th March 2021. Though the Claimant did not tender any document showing when the terminal benefits were paid, the Defendants did not challenge this date. It is therefore deemed admitted.

41. I have considered the cases relied on by the parties in their varied submissions. The Defendants argued that the Court of Appeal had on a few occasions, explained that the requirement of "contemporaneous payment" of payment in lieu of notice does not mean that the payment must be made the same day the letter of termination was issued. The Defendants referred to the case of Ikemba v. Pyrammidt Company Nig. Ltd (2021) LPELR-56145(CA), where the Court of Appeal held that:

Appellant's counsel however contended that the payment of the salary in lieu of notice and terminal benefits was not properly done as the payment ought to have been done contemporaneously with the termination of the Appellant's employment. With due respect, the law is not that salary in lieu of notice and terminal benefits must strictly be paid at the same time as the termination of employment. The Supreme Court in Chukwumah v. Shell Petroleum (Nig) Ltd (1993) LPELR-864 (SC) Pp. 50-51, paras. E-A explained the position of the law thus: "I think the mode and time of payment of the salary in lieu of notice depends on the circumstance of each case. ... As was the case in Ajayi v. Texaco Nigeria Ltd. (1987) 3 NWLR (Pt.62) 577, the letter of termination of an appointment might also inform the employee that salary in lieu of notice and his other entitlement would be paid to him and the actual payment made thereafter. In Olaniyan & Ors. v. University of Lagos (1985) 2 NWLR (Pt.9) 559 a cheque for the salary in lieu of notice was sent with the letter of termination."

- Per ABUBAKAR SADIQ UMAR, JCA (Pp 26 - 27 Paras D - F)

The Defendants further referred to the Court of Appeal in Nig. Security Printing and Minting Plc v. Olaleye (2020) LPELR-50409(CA) where the Court also held that:

... But, from the content of the termination, the option of payment of salary in lieu of notice chosen by the Appellant was made contemporaneously with the termination since the Respondent was notified to collect her salary and allowance up to the date of the letter, as well as one month salary in lieu of notice of the termination at the same time in the letter. The letter of termination did not say or suggest that the one month salary in lieu of notice was to be paid at a later date or in future, but at the same time with the salary and allowances up to the date of the letter. To be contemporaneous is to be, happen, to occur or take place at the same time; simultaneously. This was what happened in the case of the termination of the Respondent's employment by the Appellant; vide the letter dated the 26th March, 2009 which at the same time offered the one month salary in lieu of notice to the Respondent for the termination. The offer and notice of the one month salary in lieu of notice for the termination was contemporaneous and simultaneous with the notice of the termination in the same letter from and by the Appellant. It was not the case of the Respondent that she did not collect the salary and allowances up to the date of the letter or that she was denied or not given the one month salary in lieu of notice when she went to collect the salary and allowances for March as directed in the letter of termination. I strongly hold the view that the Appellant did not have to write and physically present a bank cheque or amount for one month salary in lieu of notice before the payment could be said to have been contemporaneous with the termination. This is because, the Appellant being a corporate entity cannot physically do so since the termination letter will be the authority by which the one month salary in lieu of notice can be paid out of its accounts. The un-deniable fact that the letter of termination of the employment offered and notified the Respondent that one month salary was to be paid to her along with the salary and allowances up to 26th March, 2009 at the same time, shows prima facie, that the termination of the employment and the payment of the one month salary in lieu of notice, were done contemporaneously and simultaneously as provided for in paragraph 2 of the terms and conditions of the contract freely agreed to by the parties which governed their relationship. ..."

- Per MOHAMMED LAWAL GARBA, JCA (Pp 15 - 27 Paras E - A) (Underlining mine)

The Claimant relied mainly on the case of Chukwuma v. Shell B.P & Co Ltd [1993] 4 NWLR (Pt. 289) 512. The point to note however is the dictum of the Supreme Court in that same case that:

I think the mode and time of payment of the salary in lieu of notice depends on the circumstance of each case. ...

As was the case in Ajayi v. Texaco Nigeria Ltd. (1987) 3 NWLR (Pt.62) 577, the letter of termination of an appointment might also inform the employee that salary in lieu of notice and his other entitlement would be paid to him and the actual payment made thereafter.

42. Indeed, the Supreme Court in Chukwuma v. Shell B.P & Co Ltd (Supra) did not lay a hard and fast rule that contemporaneity must be on the exact date the letter of termination was issued. As stated by the Supreme Court, a lot depends on the circumstance of each case. In this case, exhibit C3 dated 11^th November 2020(the letter of disengagement), informed the Claimant that:

In accordance with your letter of employment, you will be paid two (2) months’ salary in lieu of notice. Also, your salary up to date will be credited to your account once you have completed the exit process and issued a final clearance.

This was followed by exhibit D2 (Breakdown of Entitlements) dated 12^th November 2020. The Claimant has informed the Court that the payment was made in March 2021, without stating when he finished his exit process. In the circumstance of this suit, I am not convinced of the wrongfulness of the termination, on this ground of non-payment of the terminal benefits, contemporaneously with the termination. Relief ‘B’ fails.

43. Relief ‘C’ for “AN ORDER directing the Defendants to pay the Claimant the sum of ?31,869,582.00 (thirty-one million, eight hundred and sixty-nine thousand, five hundred and eighty-two Naira) being the outstanding exit entitlements of the claimant. The outstanding exit entitlement claim by the Claimant is as shown in the table below:

1. Number of leave days	285
2. Net monthly salary	?1,616,463.00
3. Salary per day	?53,882.00
4. Salary for the leave days	?15,356,399.00
5. Compensation for the unspent leave days at double salary	?30,712,798.00
6. Payment in lieu of 2 months’ notice	?3,232,926.00
Total Entitlement	?49,302,123.00
Total payment received	?17,432,541.00
Balance Due	?31,869,582.00

44. I have inserted numbers into the table for easy reference to the items. The table shows that the claim is founded on items 4, 5 and 6. Item 4 is the Claimant’s salary for the leave days for 285 days at ?53,882.00 per day for ?15,356,399.00. However, Exhibit D2 (Breakdown of Entitlements) shows the Defendants calculated outstanding leave days for 283 days and arrived at ?17,899.750. This is more than what the Claimant calculated. Item ‘4’ is what is contained in the Claimant’s contract (exhibit C1/D1) and has already been paid to the Claimant. Item 5 is compensation for the unspent leave days at double salary. What this means is that the Claimant is claiming triple rate for the unspent leave days. I have already found that this is not supported by evidence. It is therefore unfounded, and not grantable. Item 6 is captured in exhibit D2 as N3,795,000.00 higher than ?3,232,926.00 in the above table and has been paid to the Claimant. There is nothing more to be paid to the Claimant, under this relief.

45. Reliefs ‘D’ and ‘E’ are for “AN ORDER directing the defendants to remit the outstanding tax sum of ?7,700,779.00 (Seven million, seven hundred thousand, seven hundred and seventy-nine Naira) being the tax remittance shortfalls from 2008 to 2020 to the Lagos State Government Board of Internal Revenue (LIRS); “AN ORDER directing the defendants to pay the claimant the sum of ?6,583,419.00 (Six million, five hundred and eighty-three thousand, four hundred and nineteen Naira) being the sum unlawfully deducted from his salaries from 2008 to 2020 under the guise of tax deductions. I have gone through the Claimant’s evidence to see how he arrived at these sums. Exhibit C5 is a bundle of Claimant’s pay slips, showing PAYE deductions. It is the pay slip that should prove what was deducted, before considering what was remitted. The following deductions were made for the months stated:

(i) December 2008- 111,826.97

(ii) July 2009 - 111,826.97

(iii) December 2009- 111,826.97

(iv) January 2016 - 130,751.03

(v) February 2016 - 130,751.03

(vi) March 2016 - 130,751.03

(vii) August 2020 - 143,445.30

(viii) September 2020 143,445.30

Exhibit C6 shows remittances to the Lagos State Board of Internal Revenue; without a corresponding evidence of what was actually deducted for the periods. The Claimant gave evidence as to what deductions were made from his salary for the period 2008 to 2020 as follows:

Particulars of unlawful deductions, and unremitted tax deductions

Tax year	Total annual income	Correct Gross earnings as 50% of annual income	Actual tax deducted from the claimant’s salaries	Correct Gross earnings as 11% of gross earning	Actual tax deducted	Tax remittance shortfall to LIRS	Tax refund due to the claimant
2008	14,000,000	2,427,419.35	447,308	267,016	232,672	34,344	80,292
2009	14,000,000	7,000,000.00	1,341,924	770,000	670,130	99,870	571,924
2010	14,000,000	7,000,000.00	1,341,924	770,000	-	770,000	571,924
2011	18,000,000	9,000,000.00	1,569,012	990,000	-	990,000	579,012
2012	18,000,000	9,000,000.00	1,569,012	990,000	-	990,000	579,012
2013	18,000,000	9,000,000.00	1,569,012	990,000	-	990,000	579,012
2014	18,000,000	9,000,000.00	1,569,012	990,000	509,953	480,047	579,012
2015	18,000,000	9,000,000.00	1,569,012	990,000	-	990,000	579,012
2016	22,700,000	11,350,000.00	1,721,344	1,248,500	-	1,248,500	472,844
2017	22,700,000	11,350,000.00	1,721,344	1,248,500	-	1,248,500	472,844
2018	22,700,000	11,350,000.00	1,721,344	1,248,500	1,731,237	(482,737)	472,844
2019	22,700,000	11,350,000.00	1,721,344	1,248,500	1,039,457	209,043	472,844
2020	22,700,000	11,350,000.00	1,721,344	1,248,500	1,115,287	133,213	472,844
Total			19,582,935	12,999,516		7,700,779	6,583,419

46. The above table does not correspond with the exhibits tendered in this case, in proof of the deductions. As a result, exhibits C6 and C7 are not helpful to the Claimant in proving this relief. This relief fails. However, the Claimant if convinced that the Lagos State Government has been shortchanged in the remittance of taxes by the Defendants is encouraged to make a report to the appropriate authority who can then investigate it expertly and ensure the Defendants are held liable.

47. Reliefs ‘F’ and ‘G’ are for “AN ORDER directing the defendants to pay the claimant the sum of ?30,000,000.00 (thirty million Naira) as compensation in lieu of the official vehicles which the defendants failed to avail the claimant throughout the twelve (12) years of his employment with the defendants; and “AN ORDER directing the defendants to refund the maintenance costs, driver’s, salaries/allowances and fuel costs reasonably assessed at ?10,000,000.00 (ten million Naira) to the claimant. The Claimant gave oral evidence that to aid the quick execution of his duties, and in pursuance of the internal policies of the Defendants and oral representations made to him by the Defendants’ human resource personnel and senior management of the Defendants, he was entitled to an official car, being a senior officer of the Defendants. In this relief, the Claimant seeks compensation for the failure of the Defendants to give him the official car, and a refund of the maintenance costs for using his personal car in the course of his employment with the Defendants. Though the Claimant referred to exhibits C15 and C16 as proof that the Claimant had to purchase vehicles in order to ensure compliance with all his official duties; they actually prove that the Defendants paid for the Claimant’s official trips to Ghana. Exhibits C25 to C28 however establish the fact that the Claimant purchased personal vehicles. Exhibits C15 and C16 show trips to Ghana, and exhibits C19 and C21; trips to the Republic of Benin. These documents show the trips were borne by the Defendants, and not with Claimant’s private vehicles.

48. The Defendants’ witness gave evidence that the Defendants have pool cars in their offices for the use of staff and same are customarily used by any deserving staff who has a need for it in the course of their work, the Claimant inclusive. The Claimant did not present to the Court, any document, instrument, contract, policy or CBA which donates the right to be given official car(s); and compensation in lieu of the official vehicles. Again, it is the Claimant who has asserted the existence of these rights and benefits, that should prove that they actually existed and accrued to him; one way or the other. The same goes for the right to be provided with maintenance costs, driver’s salaries/allowances and fuel costs; and refund for the expenses. The Claimant having failed to prove these entitlements, these reliefs fail.

49. Relief ‘H’ is for “GENERAL DAMAGES in the sum of ?100,000,000.00 (One hundred million Naira) for unfair treatment, wrongful termination, embarrassment, emotional trauma, and financial hardship caused to the Claimant by virtue of the unfair treatment and breach of contract by the Defendants, as well as ongoing impediment to a promising political career, losses suffered by the Claimant on account of the Defendants’ refusal to remit taxes deducted from the Claimant’s salaries in the course of the Claimant’s employment with the Defendants. The only relief that has succeeded is relief ‘A’ for a declaration that Claimant’s termination is wrongful, for failure of the Defendants to give reason(s) for the termination, contrary to international best practices.

For the wrongful termination of Claimant’s employment, I award the sum of N2,000,000.00 (Two Million Naira) against the Defendants, and in favour of the Claimant. Parties are to bear their individual costs for this action. Interest shall accrue on the judgment sum at the rate of 10% per annum 60 days after this date of judgment until the total sum is fully paid.

Judgment is entered accordingly.

…………………………………….

Hon. Justice (Prof) Elizabeth A. Oji