IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

SUIT NO NICN/LA/64/2022

BEFORE HIS LORDSHIP, HON. JUSTICE (DR.) I. J. ESSIEN

 DATE: 21^st July 2026

 

BETWEEN

JACOB IKENWE                                                             Claimants               

                                                                                   

AND                                                                                                               

VIJU INDUSTRIES (NIG) LTD                                       Defendant                                   

JONATHAN OGBONE

                                     

JUDGMENT.

The claimants commenced this action by a complaint dated the and filed on the 15/2/2022. In the complaint the claimant sought the following relieves from the court:

 

a.     A DECLARATION that the dismissal of the Claimant Via letter dated 25^Th June 2021 is irregular, illegal, null and void and of no effect whatsoever.

b.    A DECLARATION that the dismissal of the Claimant without due adherence to the provisions of the 1^st Defendant’s HANDBOOK and other extant Guidelines as applicable is irregular, illegal, null and void and of no effect whatsoever.

c.     A DECLARATION that the dismissal of the Claimant without affording him the opportunity to make any form of representation or defend himself before any duly constituted Investigative Committee or Panel of inquiry is unconstitutional, illegal,  null and void and of no consequential effect.

d.    AN ORDER of this Honourable Court nullifying the dismissal of the Claimant and converting the dismissal to termination.

e.     AN ORDER of this Honourable Court Compelling the Defendants to immediately pay to the Claimant one month salary in lieu of notice in the sum of N90,000.00 (Ninety -

thousand naira) and other benefits as accrued  from  the  date  of  termination  of  the  Claimant’s employment up to the date judgment is delivered.

f.       AN ORDER of this Honourable Court Compelling the Defendants to immediately pay to the Claimant the sum of N2,025,000,00 (two million twenty five thousand naira) being unpaid gratuity/entitlement with interest thereon at 21% per annum banking rate from the 1^st of July, 2021 until the date of judgment and 17% per annum interest from the date of judgment till the judgment sum is fully liquidated.

g.     AN ORDER of this Honourable Court Compelling the Defendants to immediately pay to the Claimant the sum of N1,000,000,00 (one million naira) as general damages for dismissing the Claimant without due process.

h.    AN ORDER of this Honourable Court Compelling the Defendants to immediately pay to the Claimant the sum of N1,000,000,00 (one million naira) as special and aggravated damages for being subjected to psychological and emotional trauma, physical dehumanizing conditions and other injuries following the dismissal of the Claimant.

i.       N6,750,00 (six thousand seven hundred and fifty naira) being monthly contributory pension from June, 2021 till judgment is delivered,

j.       N500,000,00 (five hundred thousand naira) only as cost of retaining solicitors and cost of this action.

In support of this claim, the claimant filed a witness deposition of the claimant as the sole witness along with frontloaded documents.

The defendants filed their statement of defence on the 25/3/2022. However, the witness deposition of the defendants substituted witness was filed on the 12/9/2025.

Hearing in this action commenced on the 6/11/2025. The claimant testified as CW-1. He adopted his witness deposition and went on to tender the following documents in evidence:

1.       Confirmation of appointment is Exhibit C1

2.     Letter of query is Exhibit C2a and b

3.     Response to query is Exhibit C3

4.     Defendant letter of 10/6/2021 is Exhibit C4

5.     Letter of termination is Exhibit C5

6.     Defendant staff handbook is Exhibit C6.

7.     Solicitors Letter of demand is Exhibit C7

8.     Response to solicitors letter of demand is Exhibit C8.

9.     Claimant solicitors letter of response to defendants solicitor’s letter is Exhibit C9.

The witness was cross examined by the defendants counsel and Exhibit C10 a, b, c, d which are the queries served on the claimant was tendered through the claimant.

A document admitting stealing of a wallet was also tendered through CW-1 as Exhibit C-11. At the close of the cross examination, the claimant closed his case.

 

The Defendant opened their case on the 8/12/2025. Mr. Akinurele Samuel Bukunmi testified as DW-1 and the sole witness of the defendants. The witness adopted his witness deposition filed on the 12/9/2025 and went on to tender the following documents in evidence:

1.       Warning letters are Exhibit D1a, b, and c

2.     Internal memo is Exhibit D2

3.     Query letter is Exhibit D3

4.     Reply to query is Exhibit D4

5.     Queries are Exhibit D5a and b

6.     Report on Jacob Ikenwe is Exhibit D6

7.     Query Letter dated 8/6/2021 is Exhibit D7

8.     Complaint of unwholesome practice is Exhibit D8a and b

9.     Solicitor letter of demand is Exhibit D9

10.Invitation to appear before a disciplinary committee is Exhibit
     D10

11.Reply to query dated 3/6/2009 is Exhibit D11

12. Letter of warning is Exhibit D12a and b

13. Letter of Apology is Exhibit D13

14 Defendant petition to COP is Exhibit D14.

 

The defendant witness was cross examined by the claimant counsel and thereafter the defendant closed their case. The suit was adjourned for adoption of the final addresses of the counsel to the parties. On the 20/5/2026, the claimant counsel was absent in court. The claimant had also not filed a written address, despite the fact that counsel was in court at the last adjourned date. The defendant final written address was adopted and the matter was adjourned for judgment.

 

FACTS IN ISSUE.

 The Claimant Was Employed By the 1^st Defendant on the 29^th  September 2005 as a machine operator in the Pasteurizing Section of the 1^st Defendant factory located at Isolo, Lagos State. On the 1/3/2008 the employment of the Claimant was confirmed  and he was put on a salary of N142,320 per annum and also transferred to the defendant office at Ikeja Industrial Area. The claimant also worked in different sections of the 1^st defendant company. The claimant salary was increased to N90,000 which translate to N1,080,000 per annum.

 

On the 8/6/2021 the claimant was queried. On allegation of demanding money from distributors and drivers before loading, encouraging distributors to use trucks under his supervision and frustrating distributors and drivers who refuse to adhere to the practice by delaying the loading of their product. On the 9/6/2021 he responded to the query denying all the allegations and on the on 10/6/2021 he was suspended from work pending the outcome of an investigation. The claimant contend that the 1^st defendant did not issue the Claimant three (3) written warnings consecutively within one calendar year as stipulated at Clause B-11 of the 1st Defendant’s Handbook before the Claimant was suspended from work. The 1^st Defendant did not set up nor invite the Claimant to appear before any investigative panel or committee to defend himself of the allegation against him, instead of calling the claimant back at the expiration of the suspension, The 1^st defendant dismissed the claimant vide a letter dated the 25/6/2021. That upon the dismissal of the claimant, the 1^st defendant has refused to pay the Claimant the whole or any part of his gratuity/entitlement contrary to the provisions and stipulations in the Claimant’s letter/confirmation of employment and the 1^st Defendant’s Handbook. The Claimant cause his solicitors to write a letter of demand on the 29/7/2021 for the payment of the gratuity and entitlement which the 1^st defendant responded by letter dated the 11/8/2021 denying owing any money to the claimant. The claimant solicitor also replied to the defendant solicitor response on the 11/8/2021. It is the contention of the Claimant that he is entitled under Clause A-25 of the 1^st defendant hand book to the payment of his contributory pension and also under Clause A-41(d) end of service gratuity having put in 15 years of continuous service in the sum of N2,025,000. Finally it is contention that the dismissal is in breach of the terms of employment of the Claimant by the Defendants and their refusal to pay the Claimant his gratuity/entitlements has caused and continue to cause the Claimant untold hardship, pain, anguish, psychological and emotional trauma, public odium, embarrassment, humiliation, hunger, deprivation and inconvenience hence this suit,

 

The Defendant has denied most of the allegations contained in the statement of facts. The Defendant posits that in the course of the employment, the Claimant was issued so many queries and sometimes suspended from work. That the Claimant salary was never increased from N40,000 to N90,000 as claimed. That the Claimant was not suspended but was asked to step aside by the letter of 10/6/2021. The Defendant admit the issuance of a query to the Claimant and stated that the query was based on complaints by its distributors. That the action of the defendant in frustrating the loading of product by distributors who refused to patronise the trucks under the Claimant supervision adversely affected the fortunes of the company. The defendant contends that it constituted a panel to investigate the allegation against the claimant and at the hearing the claimant admitted demanding monies from distributors and drivers and gave preference to those that he collected monies from and the admission was sequel to the fact that he was promised soft landing. That the 1^st defendant wrote a petition to the DPO Igbesa Police station against the claimant and some other staff with respect to the extortion, frustration of the distributors of the company and managing of third-party trucks. That it was upon the admission of the allegations made against the Claimant at the hearing of the panel that the claimant by the letter dated the 25/6/2021 dismissed the Claimant from the employment of the 1^st Defendant. The defendant admits that under Clause A-41(d) the 1^st defendant pays out end of service gratuity benefits as stated in the handbook. The 1^st  Defendant handbook

stipulated that the 1^st Defendant shall pay 11-15 years continuous service Ex-gratia award, 6 weeks pay for every completed year of service but the Defendant did not put in 15 years of service to which he is entitled to the sum of N2,025,000 as claimed in this action. The 1^st Defendant posits that the dismissal of the defendant was in line with the 1^st defendant handbook as the Claimant was afforded  the opportunity to make representation and defend himself before a duly constituted Investigative Committee or panel of Inquiry.

These represents the contending issues in this action.

 

ISSUES FOR DETERMINATION.

The Claimant did not file a final written address in this action. In the defendant final written address filed on the 1/2/2026, the defendants formulated 6 issues for determination to wit:

1.       Whether the failures to plead and tender the letter of employment is fatal to the claimant’s case.

2.     Whether the staff Handbook is contractually binding without tendering letter of employment incorporating it by reference.

3.     Whether the Claimant’s dismissal was lawful and justified and in compliance with due process.

4.     Whether reply to statement of Defence not coupled with witness statement on oath is deemed abandoned.

5.     Whether the Claimant is entitled to any of the reliefs sought.

6.     Whether the 2^nd Defendant is proper party to this suit.

I have carefully examined the issues formulated by the defendants. Only issue 3, 5 and 6 can be said to be issue that the court can consider in  resolve the dispute in this action. The other issues are fragments of what constitutes the major issue of which when considered would resolve the dispute between the parties. To this end the issue for determination is

 

1.      Whether the Claimant’s dismissal was lawful and justified and in compliance with due process.

2.     Whether the Claimant is entitled to any of the reliefs sought.

3.     Whether the 2^nd Defendant is proper party to this suit.

 

 

ON ISSUES 1 AND 3

Before I consider this main issue, let me consider the issue of proper party raised by the defendant. The claimant joined the 2^nd defendant Mr. Johnathan Ogbone as 2^nd defendant in this suit. The claimant in his statement of facts described the 2^nd defendant as the Human Resources Manager of the 1^st defendant. Throughout the pleading no specific allegations of facts was made against him in person or as the Human Resources Manager of the 1^st defendant. The 2^nd defendant would have been acting in the capacity of an agent of a disclosed principal in the performance of his duties as a staff of the 1^st defendant. There is also no reliefs sought against the 2^nd defendant to justify his being joined as a party to this action. It is not also in doubt that this suit can proceed to judgment without joining the 2^nd defendant. It therefore follows that the 2^nd defendant is neither a proper party, nor a necessary party. The 2^nd defendant can also not be a desirable party having regards to the circumstances of this case. See Apugo V. Ugoji [2022] PLELR-59893 SC.  (Pp. 18-19 paras. C) where the Supreme Court held:

"Proper parties are those who, though not interested in the plaintiff's claims, are made parties for some good reason e.g. where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable [parties are] those who have an interest or who may be affected by the result. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff."  Per KEKERE-EKUN, J.S.C (Pp. 18-19 paras. C)

 

 In the case A-G, Federation V. Abubakar [2007] 10 NWLR (Pt. 1041) 1 at 42, it was held: ‘A Defendant against whom no relief is claimed and against whom no cause of action is disclosed is not a necessary or proper party to the action’.

On the strength of the above cited authorities, it is the findings of this court the 2^nd defendant Jonathan Ogbone the Human Resources Manager of the 1^st defendant ought not to have been joined as a party to this action. His name is hereby struck as a defendant in this action.

 

We shall now consider the main issue adopted for determination.

It is not in dispute that the Claimant was in the employment of the 1^st defendant. This is evidenced by the letter of confirmation of appointment tendered as Exhibit C1, and also all the other exhibits that show that the claimant was in the 1^st defendant employment. The argument of the defendant counsel that the Claimant failed to plead and tender his letter of employment is of no moment when consideration is had to the principle that employment contract need not always be in writing. The Court can imply the existence of a contract of employment by the conduct of the parties though there be no written terms of employment. In the case of Iyere V. Bendel Feed And Flour Mill Ltd  [2008 LPELR-1578 (SC) (Pp. 21 paras. D) The Supreme court recognised this position when it held inter alia "I should add that an employee, except where a different meaning is given in the context of the employment, means an individual who has entered into or works under, or where the employment has ceased, worked under, a contract of employment. A contract of employment connotes a contract of service or apprenticeship, whether express or implied, and if it is express, whether it is oral or in writing."  Per MUHAMMAD, J.S.C.

 

Assuming that the claimant was not issued a letter of appointment, and the failure to present one if the appointment was made in writing cannot defeat the claim because the subsequent confirmation of the appointment in Exhibit C1 which states in the 2^nd to the last paragraphs of the letter that ‘from the date you assume duties, other terms and conditions of service of the company will apply to you. You will be expected to strictly adhere to the rules and regulations of the company, and you should not be involved in any conduct which may be against the company’s interest, show that the employment relationship was to be regulated by Exhibit C1 and the Viju Industries Limited Staff Handbook tendered as Exhibit C6. It is not the law as argued by the Defendant that Exhibit C6 must be incorporated into the contract of employment to be effective. The handbook is part of the

rules and regulation of the defendant as mentioned in the letter of confirmation of the Claimant appointment Exhibit C1.  The defendant argument that the claim before the court is speculative and legally unsustainable has no justification in law. It is accordingly discountenance.

 

It is in evidence that the 1^st defendant gave the Claimant a query as evidenced by Exhibit C2a and b. The query is accompanied by a statement of 3 allegations of misconduct for which his response is required to wit;

i) Demanding for money from distributors / driver before they can load.

ii) Encourage Distributors to use trucks under him

iii) Frustrating distributors/ drivers that refuse to patronise you .

The Claimant answered the query in Exhibit C3, denying all the allegations made against him in the query. Being unsatisfied with the reply to the query, the 1^st defendant by a letter dated the 10/6/2021 tendered as Exhibit C4 wrote thus:

          Dear Mr Jacob Ikenwe,

         

Having reviewed your response to query giving to you, you are to step aside from work for a week to enable the management do a detailed investigation.

We assure you that this investigation will be done without sentiment or bias and if you come out clean the company will pay for the days of the investigation.

 

Sincerely,

For; Viju Ind. Nig. Ltd.

  The defendant in his defence has argued that the Claimant was never suspended. That he was asked to step aside. In other-words, the defendant is trying to say the Exhibit 4 is not a letter of suspension. The words ‘step aside’ is not a nomenclature known to labour. The use of that word cannot take away the legal effect of what the 1^st defendant did under the circumstances which was to suspend the 1^st Claimant from work for a week to enable the defendant’s conduct an

 

investigation into the allegation of misconduct levelled against the Claimant. In Miaphen V. Unijos Consultancy Ltd (2013) LPELR-21904(CA) (Pp. 29-30 paras. B) the Court of Appeal defined suspension as ‘The temporary withdrawal from employment; as distinguished from permanent severance, e.g. suspension from teaching without pay, between master and servant. In Longe v. FBN Plc. (2010) 6 NWLR Pt. 1189 P. 1 @ 55 and 60 the Court described suspension as a prelude to dismissal from an employment. It is a state of affairs which exists while there is a contract in force between  an  employer and employee, but there is neither work being done in  pursuance of it nor remuneration being paid. It is neither a termination of the contract of the employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligation of the parties to each other. It is a term entitling the employer to suspend the employment of the employee. It is a step taken before finally deciding what disciplinary action is to be taken by an employer against an employee. Suspension by an employer of an employee only means that the employee has been stopped from performing the normal or ordinary functions or duties of his office. See University of Calabar V. Esiaga (1997) 4 NWLR (pt. 302.p. 719

So long as the claimant was asked to stop work for a time on pain of being denied the salary for that period. It is the finding of this court that the Claimant was suspended in Exhibit C4.

 

The evidence before the court is that the letter of suspension Exhibit C4 was to last for one week to enable the defendant to conduct an investigation in the allegation made against the Claimant. The Claimant testified that the 1^st Defendant deliberately and wilfully failed, refused and or neglected to set up an investigative panel or committee to investigate the matter and thereby denied him the opportunity to defend himself. It is also his evidence that 1^st Defendant did not invite him to appear before any investigative panel or committee to defend myself of the allegation against him before terminating the employment on the 25/6/2021vide Exhibit C5. The claimant has been consistent in this contention as reflected in his solicitors letter of demand tendered as C7 in paragraph 7 where he states that ‘That thereafter without further recourse to our client,

either via an invitation to defend himself of any allegation(s) or wrong doings against his person, if any, you issued the letter of dismissal/termination above stated’. The Defendant argued to the contrary and states that a panel was set up and the Claimant was invited to appear and defend the allegation made against him. Defendant relied on Exhibit D10, the letter of invitation dated the 9/6/2021. I have carefully examined Exhibit D10, it is an invitation to appear before an investigation panel on the 11/6/2021. Interestingly, the letter is not addressed to the Claimant or anybody. There is no endorsement on the letter that it was received by the claimant or anybody. Secondly The Claimant was suspended on the 10/6/2021 by Exhibit C 4. However, the letter of invitation is dated the 9/6/2021, which shows that the claimant was invited even before he was suspended or the investigation panel was set up. In the order of things, the letter of suspension ought to precede the letter of invitation to appear before the panel and not the other way round. The letter of invitation Exhibit D9 cannot be an invitation of the claimant to appear before any investigation panel over the allegation which led to the suspension of the claimant by Exhibit C4. What is more absurd about the story of the defendant is that if truly a panel was set up to investigate the allegation and the Claimant appeared and admitted the allegation as stated by the defendant, to establish this assertion, the Defendant ought to have produced before this court a report of the panel of investigation, which would have contained this finding. The burden of establishing the truth of the assertion that a panel was set up and the claimant appeared and admitted the allegation made against him lies on the defendant. The law is that he who asserts must proof . See Section 131(1) of the Evidence Act 2011. See also Ugiagbe V. Odeh & Anor [2022] EPELR-57136 (CA) (Pp. 19-20 paras. D)

"The law is that he who asserts must prove. See Section 131(1) of the Evidence Act, 2011. See the case of Omisore & Ors. v. Aregbesola & Ors. (2015) NWLR (Pt.1482) 205 at 273. Therein, the apex Court per Nweze, JSC held:

"It comes to this - the burden of proving a fact rests on the party who asserts the affirmative of the issue and not upon the party who denies it, for a negative is usually incapable of proof."

In yet another case, Haruna V. Modibbo (2004) 16 NWLR (Pt.900) 487, PP. 545, paras F - G, 572, para D, 577 paras E - G, it was held:

"The burden of proof generally lies on the plaintiff. The proof lies upon him who affirms not upon him who denies. This is because the negative does not admit of the direct and simple proof of which the affirmative is capable."  Per Abundaga,  JCA.

The Defendant was under a duty to lead credible evidence to proof the allegations made by him. In the case of Ukeje & Anor V. Ukeje (2014) LPELR-22724(SC)  (Pp. 43 paras. B) The Supreme Court Held thus:

"It is not enough for a party to make an allegation before a Court, he must lead credible evidence to prove same”. Per Okoro, J.S.C

See also  Union Bank Plc V. Astra Builders (WA) Ltd [2010] 5 NWLR (Pt. 1185) 1; Imana V. Robinson (1979) 3 - 4 SC. 1.  

 

While there is no hard and fast rule about a conduct that may be regarded as misconduct that will attract dismissal. The law is also settled that the employer has the right to dismiss the employee for misconduct. However the established position of the law is also that where the allegation of misconduct is such that can lead to the dismissal of an employee, the Employer must give the employee opportunity to defend the allegation made against him. The Defendant considers the allegation made against the Claimant as misconduct that can lead to termination, in this wise the claimant was under a duty to afford the Claimant the right to defend the allegation against him. See Oguejiofor V. Access Bank [2020] LPELR-49583(CA)  (Pp. 35-41 paras. A)  

In the case of U.T.C. (Nig) Ltd V. Peters [2009] LPELR-8426(CA)  (Pp. 24 paras. B) The Court of Appeal was very emphatic when it held thus:  

"In light of all the observations made above, it is evident that the lower Court was right when it held at page 495 of the record thus: "Where a contract had been properly terminated intention and notice become irrelevant. But where the defendant pleads that a plaintiff is being removed for misconduct, his removal cannot be justified in the absence of an adequate opportunity being offered to him to explain, justify or else defend the alleged misconduct. The Court frowns at refusing fair hearing to a person --------

 

whose right is allegedly violated. Having so found above I hold that the 1st relief of the plaintiff succeeds."  Per Kekere-Ekun, J.C.A

See also Uba Plc V. Oranuba [2013] LPELR-20692(CA)  (Pp. 47-48 paras. B)

 

On the strength of the above adumbrated position of the law and the state of the evidence adduced in this action, it is the finding of this court that the defendant failed to proof that it afforded the Claimant the right to defend himself of the allegations made against him before the Claimant was summarily dismissed vide Exhibit C5. This being the case the dismissal of the claimant was in breach of the principles of fair hearing and a violation the contract of employment between the claimant and the defendant in this action. The dismissal of the claimant in Exhibit C5 is hereby declared null and void. This Court cannot order the reinstatement of the Claimant in view of the fact that the employment relationship was that of master and servant. Accordingly,  the dismissal is hereby converted to termination of employment without proper notice. Relief  No. A, B, C, and D succeeds.

 

 In the course of the trial the parties tendered several queries, warnings and suspensions in Exhibit C10 a to d, Exhibit D1a to c,  and Exhibit D2, D3, D4, D5a & b and  D7 to show a consistent pattern of infraction committed by the Claimant while in course of the employment. More particularly Exhibit C11 which the court admitted in evidence after being satisfied that it was made by the Claimant is a confession of theft of a wallet by this same Claimant. This was appropriate incidences where the summary dismissal of the claimant would have been justified. However, the Defendant instead of initiating disciplinary proceedings against the Claimant continued to keep him in her employment. Those evidence cannot be used to justify the dismissal of the claimant in this action. For failing to initiate the disciplinary proceedings the defendant is deemed to have condoned the excesses of the claimant. The Defendant cannot rely on those queries as he is barred from doing so by Clause B-10 of the defendant Staff handbook tendered as Exhibit C6. 

 

 

ON ISSUE NO 2.

Whether the Claimant is entitled to any of the reliefs sought

In relief ‘e’ in the complaint, the Claimant claims N90,000 being one month salary in lieu of notice and other benefits as accrued to him form the date of termination of the contract. I have already found in this judgment that the dismissal of the claimant is unjustified and declared same void while also converting the dismissal to termination without notice. Clause A-35 of the Defendant handbook Exhibit C6 requires each party to give the other one month notice in writing in the event of termination of the employment. The claimant asserts that his monthly salary was N90,000 per month. While the Defendant allege that the highest paid factory worker was receiving the sum of N40,000 per month This is not a defence to the claim of N90,000 salary per month. The claimant did not say that the claimant salary was N40,000 so as to effectively join issues with the Claimant on this. The claimant who was employed as far back as 2008 could not have continued to be on a salary of N40,000 per month in 2021. None of the parties tendered a pay slip or any other evidence of salary the claimant was receiving. This court is favourably disposed to accepting the testimony of the Claimant on this issue.  The Equitable principle that equity will not suffer a wrong to be without a remedy readily applies to this situation. As recent as 2026 the Supreme Court in the case of IDSL V.  EVBUOMWAN & ORS.  [2026] LPELR-83713 (SC) at 15-16 paras C-G.  has extended the frontiers of the damages awarded for wrongful termination of employment beyond the salary in lieu of notice. The Supreme Court has held inter alia:

Having brought the employment to an end outside the terms of employment, The employer cannot restrict the quantum of damages to the employee to the terms prescribed in the contract. The quantum of damages awardable to the employee in such circumstances should be in accordance with the general law on contract on award of damages for breach of contract which would involve a consideration of the consequential loss that has arisen or would arise from the breach of the contract of employment.

Also in the case of FESTUS MRAKPO V. POLICE SERVICE COMISSION [2016] LPELR-40489 (CA) THE Court of Appeal held inter alia:

Where an employee is wrongfully removed either by a summary dismissal which is not justified or by the giving of insufficient notice, the normal remedy to which he is entitled is damages. The main head of damages is the salary or wages which the wrongfully removed employee would have earned up to the earliest time at which the employer could have validly have terminated the employment. Thus, where the contract provides that the employer could terminate the employment by giving two months notice in writing or two months salary in lieu of such notice and if the employee is dismissed without notice or salary in lieu, the employer would be liable for more than two months salary.

From the facts of this case the court has already found that the Claimant was wrongfully dismissed. The measure of damages would certainly not be limited to the one month salary in lieu of notice because he was unlawfully  terminated which is in breach of the requirement of notice. This is a case of wrongful dismissal anchored on the breach of the fundamental requirement of the denial of fair hearing or the denial of the opportunity to defend the allegation of misconduct levelled against the Claimant. For these reasons, this court must take into consideration the employee monthly salary which he has missed by reason of the wrongful dismissal, and also the consequence of the economic loss arising from the premature termination of the employment. To this end This court would award the Claimant salaries at the sum of N90,000 to 24 months for the wrongful dismissal from the employment in the total sum of N2,160,000 (Two Million One Hundred and Sixty Thousand Naira only).

RELIEF NO ‘F’

In this relief the claimant claims the sum of N2,025,000,00 (two mllion twenty five thousand naira) being unpaid gratuity/entitlement with interest thereon at 21% per annum banking rate from the 1^st of July, 2021 until the date of judgment and 17% per annum interest from the date of judgment till the judgment sum is fully liquidated.   

The Claimant testified that By Clause A-14 (d) of the Defendant handbook was to pay an employee that has put in 11-15 years continuous service an Ex-gratia award of 6 weeks pay for every completed year of service. The claimant testified that that he had put in 15 years of service for which he is entitled to the sum N2,025,000,00k. The contention of the defendant that the claimant has not put in 15 years of service to be entitled to the Ex-gratia payment is misconceived. By clause A-5 of the Defendant handbook Exhibit C6, the probationary period was 6 months. If the claimant appointment was confirmed on the 1st March 2008,  The Claimant was employed in October 2007. From October 2007 to 25^th June 2021, the Claimant would have served the Defendant foe a period of 14 years. The claimant therefore become qualified to take benefit of Clause A-41(d) of the stipulation in the Defendant handbook Exhibit C6. It is the finding of this court that the Claimant has proved his entitlement to judgment in the sum of N2,025,000,00k being the Ex-gratia payment or gratuity entitlement of the claimant upon the successfully putting in 14 years of service with the Defendant. The Claimant also claims prejudgment interest on the above sum. The law is that a party who claims pre judgment interest must plead and proof his entitlement to the interest either by agreement or by mercantile custom. Wema Bank V. Abc/Omega Information Technology Ltd [2015] LPELR-24724(CA)  (Pp. 19 paras. E) "The claim for pre-judgment interest is not made as of right and as such must be strictly proved by sufficient and credible evidence of an agreement by the parties containing all the essential details of the interest payable on the debt or loan.  Per Oseji, J.C.A (Pp. 19 paras. E). The Claimant offered no prove in this regards the interest can therefore not be awarded by this court. The claim of 21% interest is therefore refused and dismissed.

 RELIEF ‘G’ and ‘H’

In these reliefs, the Claimant claims N1,000,000 as general damages for dismissing the Claimant without due process. Furthermore the claimant claims another N1,000,000 special and aggravated damages for being subjected to psychological and emotional trauma. Physical dehumanizing conditions and other injuries following the dismissal of the Claimant. This court has already awarded 24 months salaries as damages to the claimant. The Claimant cannot claim a further sum in as general damages. The claim of N1,000,000 as general damages is refused and dismissed.

 

This court cannot award any aggravated damages. In the award of aggravated damages the court in awarding damages takes into account the malice and bad motive of the defendant which may have increased or "aggravated" the claimant's feelings of hurt and distress and so awards higher damages, traditionally referred to as 'aggravated damages', to compensate for that. Again, I refer to Winfield and Jolowicz 18th Edition at Para 22-8 . See the case of Western Publishing Co. Ltd & Anor V. Fayemi [2015] LPELR-24735(CA)  (Pp. 61-73 paras. D)

The evidence before the court does not suggest the need to award this kind of damages, this so because the Claimant here was under a disciplinary procedure. But for the fact that the Defendant committed a fundamental slip in the conduct of the proceedings the claimant would not have had any reprieve as granted by this court in this judgment. The claimant is not who  by the evidence elicited in this judgment can be called a good employee. 

Also, If the claimant claims the above sum as special damages, it must be specifically pleaded and strictly proved his entitlement to the award of same.. See the case of Flourmills of Nigeria Plc & Anor V. Nigeria Customs Service Board & Ors. [2016] LPELR-41256(CA) (Pp. 32-34 paras. E)

For the reasons stated above the claim of N1,000,000 as special and aggravated damages is refused and accordingly dismissed.

 

ON CLAIM I,

In this claim the Claimant seeks an order for the payment of N6,750,00 (six thousand seven hundred and fifty naira) being monthly contributory pension from June, 2021 till judgment is delivered. Let me start by saying that this claim is misconceived. This claim is rooted in special damages. The Claimant is therefore under an evidential burden to plead this claim and offer strict proof of the entitlement for the court to grant same. The evidence before the court is that the claimant’s dismissal which this court has set aside was made in Exhibit C6 on the 25/6/2021. From that date the claimant is deemed not to have been earning salary for which ----------

a contributory pension deduction could have been made by his employer the defendant and remitted to any pension account operated by the defendant pursuant to Sections 9 and 11 of the Pension Reform Act 2014. To claim contributory pension when the Claimant was not earning any salary is like putting something on nothing and expecting it to stand. So long as no salary was earned by the Claimant the defendant was under no obligation to make any pension deduction un-behalf of the Claimant. For this reason, the claim must fail. It is accordingly dismissed.

 

 

ON CLAIM J.

The claimant under this head of relief claims the sum N500, 000 as cost of retaining solicitors and cost of this action.

The claim of solicitors cost has never won the favour of the court in this jurisdiction. In the case of Suffolk Petroleum V. Adnan Mansour Nig. Ltd [2019] 2 NWLR(pt. 1655 pg. 1 at 33 paras D-F  The Court of Appeal held:

There is no basis for the award of professional fees allegedly paid by  a party in respect of a case and the other party cannot be made liable for the fees paid by the party. It is an unusual claim and difficult to accept in Nigeria. The issue of damages as an aspect of solicitors fees is not one that lends itself support in a court of law.

See also Michael V. Access Bank [2017] LPELR-41981-1 at 48-49.

The claim for solicitors coat has no basis in our law. The claim must fail. It is hereby dismissed.

CONCLUSION.

The claim of the claimant in this suit succeeds in part. Judgement is hereby entered in favour of the claimant in the following terms.

a.      A DECLARATION is hereby made that the dismissal of the Claimant Via letter dated 25^th  June, 2021 is irregular, illegal,

null and void and of no effect whatsoever for being in breach of the Claimant right to fair hearing.

b.    A DECLARATION is hereby made that the dismissal of the Claimant without due adherence to the provisions of the 1^st Defendant’s handbook and other extant Guidelines as applicable is irregular, illegal, null and void and of no effect whatsoever.

c.     A DECLARATION is hereby made that that the dismissal of the Claimant without affording him the opportunity to make any form of representation or defend himself before any duly constituted Investigative Committee or Panel of inquiry is unconstitutional, illegal, null and void.

d.    AN ORDER is hereby made nullifying the dismissal of the Claimant. The dismissal of the Claimant is hereby converted to termination.

e.     The Defendants shall pay to the Claimant salaries at the sum of N90,000 for 24 months for the wrongful dismissal of the Claimant  from the employment in the total sum of N2,160,000 (Two Million One Hundred and Sixty Thousand Naira only).

 

2.  Reliefs,  f, g, h, i and j on the writ are refused and accordingly dismissed.

 

3. The Defendant shall pay cost of N500,000 to the Claimant.

 

Judgment is hereby entered.

 

___________________________________

Hon. Justice (Dr.) I. J. Essien

(Presiding Judge)

 

REPRESENTATION.

P.T.Dabor Esq.for the claimant

D. C. Ejikeme Esq.  for defendant