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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP:                           HON. JUSTICE M. N. ESOWE

 

DATE: MAY 10, 2023                                             SUIT NO. NICN/LA/261/2013

 

BETWEEN

MRS LINDA JOKANOLA                                                              CLAIMANT

 

AND

NIGERIA LNG LIMITED                                                             DEFENDANT

 

REPRESENTATION

Ahmed Gbadamosi Esq for the Claimant

Olufunke Olutoye Esq for the Defendant.

 

JUDGMENT

INTRODUCTION

1.      The Claimant is a former employee of the Defendant who worked in the information and technology department of the Defendant prior to the termination of her employment by the Defendant via a letter dated 18.12.2012. The Claimant avers that the termination of her employment by the Defendant is unlawful given the circumstances of this case.

 

2.      It is on the basis of the above that the Claimant is seeking the following as per her Complaint and Amended Statement of Facts filed on 14.11.2018:

 

a)     A DECLARATION that the suspension of the Claimant on the 21st of September, 2012 with half pay on the ground of failure to consent to the DNA test is illegal and unconstitutional and same constitutes unfair labour practice.

 

b)    A DECLARATION that the termination of the Claimant’s employment on a trumped up allegation of falsification of record is wrongful.

 

c)     AN ORDER directing the Defendant to pay the sum of N2,845,207.92 (Two Million, Eight Hundred and Forty Five Thousand, Two Hundred and Seven Naira, Ninety Two Kobo) to the Claimant being her entitlement for 3 months maternity leave denied her.

 

d)    AN ORDER directing the Defendant to pay the sum of N200,000,000.00 (Two Hundred Million Naira Only) as general damages for the victimization, harassment and the wrongful termination of her employment.

 

e)     Cost of litigation is N7,000,000.00

 

3.      The Defendant is also seeking against the Claimant as per its Amended Statement of Defence and Counter Claim filed on 15.02.2019 the following:

 

a)     AN ORDER directing the Claimant to pay to the Defendant the sum of N904,166.60 (Nine Hundred and Four Thousand One Hundred and Sixty Six Thousand Naira, Sixty Kobo) as money due to the Defendant under the car loan facility granted to the Claimant and interest at the rate of  21% per annum from 7th of January, 2013 till the final liquidation of the judgment sum.

 

4.      Hearing in this suit commenced on 01.12.2021 with the Claimant testifying as CW1. CW1 adopted her written statements on oath as her evidence in chief. Through her, twenty one documents were tendered and admitted in evidence and marked as Exhibits C1 to C21 respectively. CW1 was duly cross-examined after which the Claimant closed her case.

 

5.      On behalf of the Defendant, Nodon Otobo testified as DW1. DW1 adopted his written statements on oath as his evidence in chief. Through him, eleven documents were tendered and admitted in evidence and marked as Exhibit D1 to D9, D11 and D12 respectively. DW1 was duly cross-examined after which the Defendant closed its case. The matter was then adjourned to enable parties file and exchange their respective final written addresses.

 

6.       DEFENDANT’S FINAL WRITTEN ADDRESS

7.      The Defendant in its Final Written Address filed on 31.05.2022 formulated four issues for determination, namely:

 

8.      Whether the suspension of the Claimant was validly conducted by the Defendant?

 

9.      Whether the Claimant was entitled to maternity leave and accompanying benefits under the conditions of service of Nigeria LNG Limited, the Defendant herein?

 

10. Whether the Claimant’s contract of employment was validly and lawfully terminated by the Defendant?

 

11. Whether the Claimant’s has been able to show by credible evidence her entitlement to the reliefs sought?

 

12. On issue one, Learned Defence Counsel stated that there is evidence from the pleadings of the Claimant that Exhibit C13, the suspension letter issued to the Claimant clearly stated the reason for the suspension as “This action is necessitated by the need to prevent any potential interference with the investigation and resolution of this case to the logical conclusion”. Counsel further stated that the Claimant was suspended on the basis of the Defendant’s desire to prevent any interference with the ongoing investigation and not on the premise of the Claimant’s refusal to the Defendant’s request for the Claimant to undergo a DNA test as the Claimant wrongly alleged.

 

13. Learned Counsel submitted that the law is clear that where an employee is suspected of wrongdoing and such an employee provides an unsatisfactory explanation in respect of the allegations with which she has been confronted, such an employee cannot properly make out a case of unfair dismissal or breach of fair hearing. Counsel referred the Court to the case of Imonikhe v Unity Bank Plc (2011) 12 NWLR (Pt 1262) 624 at 648. Based on the above premise, Counsel then urged the Court to resolve this issue in favour of the Defendant and hold that the Claimant was properly suspended.

 

14. On issue two, Learned Counsel submitted that the Claimant has not been able to show that the Defendant came to a wrong conclusion in determining her application for maternity leave based on the application she put forward bearing in mind that the Claimant admitted under cross examination that the key document required by the Defendant to grant her application was retracted by the hospital. The Claimant failed to discharge the burden of proof imposed upon her by law as the burden of proof rests upon the person who asserts and wants the Court to believe a state of affairs or fact - Balogun v Labiran [1988] 3 NWLR (Pt. 80) 66.

 

15. Counsel further stated that the Claimant failed to fulfil the preconditions for the grant of leave and as such, the Defendant had a right to refuse the maternity leave application as it rightly did. Counsel then urged this Honourable Court to resolve the second issue in favour of the Defendant as the evidence adduced at the trial of this suit points to the fact that the Claimant failed to provide valid documentation to the Defendant to merit the grant of the maternity leave.

 

16. On issue three, Learned Counsel stated that the length of notice required to be given to the Claimant by the Defendant upon a decision to terminate the Claimant’s contract of employment is stated in Exhibit D5 and as such, the terms of the Claimant’s contract is in consonance with the position of the law as an employer has the right to terminate the contract of employment of its employee at any time, provided that same is done in accordance with the terms of the contract of employment.

 

17. Learned Counsel further stated that the evidence before this Court as contained in Exhibit D11 is that at the time of the termination of the contract, the Claimant had been paid her terminal benefits and the Claimant accepted this. There is no evidence presented at trial which disputes the receipt of this by the Claimant in the contents of Exhibit C21 where the Defendant issued a one-month notice to terminate the employment contract.

 

18. Counsel relied on plethora of Judicial authorities to support his position such as Longe v First Bank of Nigeria [2010] 6 NWLR (Pt 1189) 1 at 57, Oforishe v NGC LTD [2018] 2 NWLR Pt (1602) 35, Layade v Panalpina World Transport Nig Ltd [1996] 6 NWLR (Pt 456) 544. Counsel then submitted that the termination of the Claimant’s contract of employment was valid and lawful as it was done in accordance with the terms in Exhibit D5, Counsel then urged this Court to resolve this issue in favour of the Defendant.

 

19. On the fourth issue, Learned Counsel submitted that the Claimant has failed to show by credible evidence or at all her entitlements to the relief sought as it is required by law; that for a party to be awarded any relief by a Court of law, he must prove by credible and convincing evidence that he is indeed entitled to the reliefs which he seeks - Ayeni v Adesina [2007] (Pt. 1023) 233 at 264.

 

20. On relief 1 and 2 of the Claimant, Counsel further submitted that the evidence adduced at the trial of this suit points to the fact that the Claimant failed to provide valid documentation to the Defendant to merit the grant of the maternity leave. As such, the Claimant has failed to discharge the burden of proof imposed upon her by virtue of Sections 131 and 133 of the Evidence Act, 2011, Orji v Dorji Textile Mills (Nig) Limited & Ors [2009] 18 NWLR (Pt. 1173) 467 at 493-494 and 501-503. Since the Claimant has failed to prove her entitlement to reliefs 1 and 2, it becomes impossible for this Honourable Court to grant the Claimant reliefs 3-5.

 

21. Learned Counsel stated that the Defendant had the right to terminate the contract of employment of the Claimant and as such, the Claimant’s relief 4 must of necessity fail. Counsel then submitted that having regards to the facts pleaded and evidence adduced at the trial of this suit, the Claimant is not entitled to the grant of the reliefs for damages sought.

 

22. CLAIMANT’S FINAL WRITTEN ADDRESS

23. The Claimant in response to the Defendant’s final written address filed its final written address on 14.10.2022 wherein she formulated four issues for determination, namely:

 

24. Whether the suspension of the Claimant on the 21st of September, 2012 with half pay on the ground of failure to consent to DNA test is illegal and unconstitutional and the same constitutes unfair labour practice?

 

25. Whether in the circumstances of this case the Defendant’s decision to terminate the Claimant’s employment on a trumped up allegation of falsification of record was not wrongful and ultra vires the terms of the contract of employment that existed between the parties?

 

26. Whether the treatment meted out on the Claimant by the Defendant leading to the termination of her employment does not amount to unfair labour practice?

 

27. Whether in the circumstances of the case the Claimant is not entitled to damages from the wrongful and unjust termination of her employment by the Defendant.

 

28. On the first issue, Learned Counsel to the Claimant stated that the Claimant had submitted in her pleadings the sequence of events that led to her suspension and the Claimant’s employment letter and conditions of service does not in any portion, section or clause give the Defendant the powers under the employment contract to subject the Claimant as an employee to a maternity test over her children and any such act on the part of the Defendant would be an act ultra vires the powers and obligations of the Defendant in the employment contract - Sani v Kano State [2020] LPELR-50742 (CA).

 

29. Counsel went on to state that the reason for the suspension of the Claimant was her refusal to subject herself to a maternity test for her children as demanded by the Defendant. As such, Counsel submitted that the demand for maternity test is ultra vires the powers of the Defendant under the terms and condition of service - CBN v Igwillo [2007] LPELR-835 SC. Counsel then urged the Court to hold that the suspension of the Claimant is null and void for being ultra vires the terms of the contract of employment.

 

30. Counsel further submitted that the eventual termination of the Claimant from the Defendant’s employment without any indicting report from the security agencies that were brought into the investigations as well as the suspension of the Claimant thereby placing her on half pay and inflicting pain and financial hardship while she was nursing her babies all amounted to wrongful, unconstitutional and unfair labour practice and urged the Court to so hold.

 

31. On the second issue, Learned Counsel stated that despite the submission of the Defendant that the Claimant’s employment was terminated in line with the provision of the terms of her employment, the Court should take cognizance of the fact that the Claimant was on suspension for the allegation of a misconduct which was being investigated by the Defendant and until a clearance or indictment over that allegation is made upon the conclusion of the investigation, the Defendant’s act of terminating the Claimant’s employment would be an action in bad faith or contrary to the principle of law on presumption of innocence and denial of fair hearing. As such, Counsel urged the Court to hold that the termination of the Claimant’s employment without justification for the offence with which she was suspended in the first instance is wrongful. Counsel relied on plethora of judicial authorities to drive home his point such as City Central group of Companies Limited v Eze [2021] LPELR-55725 (CA), Osumili & Anor v CNPC/BGP International [2019] LPELR-46950 (CA), Safeti & Ors v Safeti & Anor [2006] LPELR-7579(CA).

 

32. Counsel submitted that the Defendant who had accused the Claimant of a misconduct and crime at the same time had a duty to not only give the Claimant an opportunity to defend herself in respect of the allegation but ought to have communicated its findings to the Claimant before the issuance of a termination letter. Counsel then urged the Court to so hold.

 

33. Counsel further submitted that the Claimant was not found wanting of all the allegations for which investigation were being carried out by the Defendant and the Police in the interim report by the Office of the Deputy Commissioner of Police Rivers State (Exhibit C13) and did not find the Claimant culpable of any crime neither did the report recommend her for the prosecution for any offence. Counsel then urged the Court to take cognizance of the fact that the Claimant’s employment was terminated before the Police interim report was issued.

 

34. On the third issue, Counsel began by stating that even though the concept of unfair labour practice is not expressly provided for in the Nigerian Labour law or any other local legislative enactment, the concept has gained a lot of recognition in the Nigerian Labour Courts. There is an unfair dismissal test recognized globally under International best practices that allows the Court in the case the National Industrial Court to apply a test of proportionality to the employer’s decision to dismiss. The principle of proportionality prescribes that all statutes that affect human rights should be proportionate and reasonable. Unfair Labour practice allows the Honourable Court to go beyond the documents of employment and take cognizance of decisions of an employer as being unfair regardless of the powers and advantaged position that the employer possesses - Cooper v Strong & W. CO. 126 N.W.541, 111 Minn.177.

 

35. Counsel further relied on Articles 4, 5, 6 of the International Labour Organization Convention on Termination of Employment Convention, 1982 (No. 158) to state that the above provisions are a clear departure from the general common law position that an employer has the power to terminate an employee with or without reason even though the termination constitutes a breach of contract.

 

36. Learned Counsel then stated that the Defendant in this case acted ultra vires the terms of the contract between the parties when it requested the Claimant and her husband to subject themselves to a DNA test for their set of twins. This act on its own is dehumanizing and amounts to an unfair labour practice and urged the Court to so hold.

 

37. On the fourth issue, Counsel submitted that  the actions of the Defendant in this case shows that the Defendant rather than protect the Claimant from all forms of unfair treatment, psychological and emotional stress, harassment, victimization and vindictiveness exposed the Claimant to those conditions without any justification and in line with the submissions and authorities cited urged this Court to hold that the actions of the Defendant in this case amount to unfair labour practices and award damages in favour of the Claimant.

 

38. DEFENDANT’S  REPLY ON POINTS OF LAW

39. Reacting to the Claimant’s Final Address, the Defendant filed a Reply on Point of Law filed on 29.11.2022 wherein Counsel submitted on the first issue in the Claimant’s Final Written Address that the Claimant’s Counsel has failed to demonstrate before this Honourable Court that the Claimant’s suspension amounts to unfair labour practice. Rather, they have proceeded to make arguments that are not applicable to the facts before this Honourable Court, including an over fixation on the unrelated doctrine of ultra vires.

 

40. Counsel further stated that the cases of CBN v Igwillo [2007] LPER-835 (SC) and Iwuchukwu & Anor v A.G. Anambra State [2015] LPER-24487 (CA) referenced by the Claimant to argue that the Defendant acted ultra vires its powers do not apply to the instant case as the material facts are different. While the above cases relate to actions done by statutory bodies in excess of their statutory empowerment, the question in this case borders on contract of employment and the validity of a termination of employment in line with such contract. As such, Counsel urged the Court to so hold that the material facts are different.

 

41. Contrary to the Claimant’s assertion that she was suspended on the ground of failure to consent to a DNA test, Counsel stated that by Exhibit C13, the suspension letter issued clearly stated “the need to prevent potential interference with the investigation and resolution of this case to the logical conclusion” as the reason for the suspension and the Defendant’s initial request for a DNA test was only a magnanimous attempt by the Defendant to get from the Claimant, a satisfactory explanation in order to quickly resolve the situation. Counsel then submitted that the Claimant’s suspension is in accordance with the law and when an unsatisfactory explanation is provided by an employee in response to allegations, such employee cannot successfully claim illegal, unfair or wrongful termination - Imonikhe v Unity Bank Plc [2011] 12 NWLR  (Pt. 1262) 624 at 648.

 

42. Reacting to issues two and three of the Claimant’s Final Written Address, Counsel submitted that the assertion of the Claimant is unfounded and baseless. Counsel stated that the position of the law is that an employer has a corresponding right to terminate the contract of employment of the said employee. Parties are bound by their own agreements and they cannot resile from same after entering into it consciously and by their own volition - Adabanya v Air France [2018] LPELR-49894 (CA), Obanye v Union Bank Nigeria Plc [2018] 17 NWLR (Pt 1648) 375. Counsel then submitted that the termination of the Claimant’s employment in line with the provisions of the employment contract is lawful and urged the Court to hold same.

 

43. Reacting to issue four of the Claimant’s Final Written Address, the Defendant submitted that owing to the Claimant’s failure to specifically show how the Defendant accused her of baby theft, document forgery, or harassment, such assertion must fail in the absence of proof and urged this Honourable Court to so hold. The law is trite that he who asserts the existence or inexistence of a particular thing must establish facts to prove such, otherwise the assertion would be baseless and of no effect – Mari v Nasiru [2021] LPELR-55069 (CA) and NUP v INEC [2021] LPELR-58407 (SC). Counsel then submitted that the Claimant is not entitled to damages for failure to fulfil the condition precedence for a grant of maternity leave.

 

44. RESOLUTION

45. Upon a careful review and consideration of the facts and circumstances of this case, the evidence adduced by parties herein and the various submissions of Learned Counsel on both sides, this Court distils the issues below for determination, namely:

 

46. Having regards to the facts and circumstances of this suit has the Claimant proven her case to entitle her to the reliefs sought.

 

47. Has the Defendant/Counterclaimant adduced credible evidence to entitle it to the grant of its counterclaim.

 

48. Civil cases are generally decided on the preponderance of evidence or on the balance of probability - Usulor v Ebonyi State Govt & Anor (2020) LPELR-49935(CA). The law places on the party that asserts the existence of certain facts the duty to adduce and or produce cogent, credible and convincing evidence in proof of such assertion(s). This burden is not static, it oscillates in civil cases – Sections 131 – 134 of the Evidence Act, 2011. The Claimant in the instant case seeks certain declaratory reliefs which are usually not granted as a matter of course or even on the admission by the Defendant or in the absence of a defence. The Claimant must succeed on the strength of her claims and not on the weakness of the defence. See Adesina v Airfrance [2022] 8 NWLR (Pt. 1833) 523 SC, Adamu v Nigerian Airforce [2022] 5 NWLR (Pt. 1822) 159 (SC).

 

49. The Claimant’s relief one is for a declaration that her suspension by the Defendant on the 21.09.2012 with half pay on the ground of failure to consent to the DNA test is illegal and unconstitutional and same constitutes unfair labour practice. Suspension means to Suspension means to defer, lay aside, or hold in abeyance. It also means to halt halfway but not to bring to an end or, terminate. Suspension pending investigation can never amount to a breach of a party’s right to fair hearing. See Akinyanji v UniIlorin (2005) 7 NWLR (Pt. 923) 87.

 

50. “Suspension is not a demotion and does not entail a diminution of rank, office or position. It cannot import a diminution of the rights of the employee given to him under the law. An employer suspending his employee from work only means the suspension of the employee from performance of the ordinary duties assigned to him by virtue of his office. [University of Calabar v Esiaga (1997) 4 NWLR (Pt. 502) 719]…” See Longe v FBN Plc (2010) 6 NWLR (Pt. 1189) 1. 

 

51. The suspension of an employee is not an unusual procedure taken in order to facilitate an investigation, so an employee on suspension can hardly complain of not having been given a hearing, nor can he or she demand that the rules of natural justice should apply. The interest of the business of the employer becomes paramount and the employee is made to keep off the premises thereof until later. See SPDC v Lawson-Jack (1998) 4 NWLR (Pt. 545) 249.

 

52. While an employer can suspend his employee when necessary and it may not amount to a breach of the employee’s fundamental rights - Amadiume v Ibok [2006] 6 NWLR (Pt 975) 158; it would amount to a violation of fair hearing and the rule of natural justice for an employee to be suspended on half salary when the employee has not been queried and accorded a fair hearing on the query - UBA Plc v Oranuba [2014] 2 NWLR (Pt 1390) 1.

 

53. It is the Claimant’s contention in this case that her suspension is as a result of her failure to consent to a DNA test to determine the maternity of her children and this renders her suspension illegal, unconstitutional and same constitutes unfair labour practice. The Claimant relied on Exhibit C10, her suspension letter to prove that she was suspended for refusal to consent to DNA test to determine the maternity of her children. The Defendant on the other vehemently denies suspending the Claimant as a result of failure to consent to DNA test it alleges it suspended CW1 in order to prevent any potential interference with the investigation and resolution of the case to a logical conclusion.

 

54. It would appear that the genesis of the Claimant’s travails began with her applying for maternity leave, a right protected by law (see Section 54 of the Labour Act) and which the Defendant appears not to contest CW1 is ordinarily entitled to when properly applied for. The Defendant contends that in its undertaking, by reason of Article 6.2 of its condition of service (6th edition, exhibit D4) it has set out certain condition precedence which should be fulfilled before its female employee may be granted maternity leave which it alleges and insists CW1 did not fulfil.

 

55. This is a Court of law and it is not one of its duties to carry out investigation to ascertain the veracity of whether or not CW1 was pregnant or that she had a confinement on 12.02.2012. Its duty is to evaluate the evidence before it dispassionately and arrive at a just decision having regards to the position of the law on the matters before it. With utmost deference, it seems the Defendant’s Counsel position and insistence on the non-fulfilment of condition precedence is a bit misplaced as the content of the mail trail reflected by Exhibits C4 – C7 indicate that the process or procedure for applying for and obtaining maternity leave in the Defendant is not one necessarily cast in stone. It appears to take cognizance of different possible scenarios.

 

56. Prior to delivery, the employee of the Defendant seeking maternity leave upon been confirmed as pregnant by its medical personnel may initiate the application process beginning with the approval of the employee’s line manager. Where the application for leave was not made or commenced before the expected date of delivery, the employee seeking maternity leave and who does not make use of the Defendant’s Medical Facilities is expected to obtain a report or medical certificate from the medical facility the employee uses which would be transmitted to the Gynaecologist in the Defendant’s medical facility for verification and confirmation to initiate the maternity leave application process. CW1 appears to fall in the latter category for the most part save that she alludes to the fact that prior to her expected date of delivery she had commenced the maternity leave application process.

 

57. What then gave rise to the suspension of the Claimant by the Defendant? The Defendant vide Exhibit C9 – a letter dated 01.08.2012 addressed to the Claimant’s Counsel alleges that the disciplining of CW1 was due to “an infraction of the Company’s core value of integrity in seeking to take advantage of certain conditions of service for NLNG employees to which she was not entitled”. Exhibit C10 – the Defendant’s letter suspending CW1 from duty with half pay dated 21.09.2012 however reads:

 

58. “…We refer to the query issued to you by your Line Manager (IMT) on 28th March, 2012 and your response on alleged claim of Maternity on 29th March, 2012. Management has reviewed your written response and the clarifications you provided during the Disciplinary Committee sittings. Management also noted your non-consent for DNA test that you earlier verbally indicated to undergo subject to your spouse’s approval. After a careful review of your submissions by the Disciplinary Committee, the Committee reached the conclusion that: your refusal to consent to DNA test has truncated the ability of Disciplinary Committee to conclusively determine the maternity claim. In the circumstance, Management has referred the matter to Security Agencies for proper investigation. In view of the above, Management has decided that you be suspended from duties pending the outcome of Security Agencies investigation, and Management’s final decision on the case. You are hereby suspended from duties with half pay for three (3) months. This action is necessitated by the need to prevent any potential interference with the investigation and resolution of this case to a logical conclusion…” [Underlined for emphasis].

 

59. Exhibit C11 – the police interim report shows that the Manager of Corporate Security Services of the Defendant made a complaint of alleged forgery against CW1 on 15.01.2013 vide a letter with reference number: NLNG/PD/CSS/13/003. The allegations of infraction of the Defendant’s core values and forgery on the part of CW1 were all subsequent to her application for maternity leave an application she cancelled given the response of some of the Defendant’s staff. So in answer to the earlier poser, in the Defendant’s view CW1 was not only contractually un-entitled to maternity leave but in its view CW1 had made certain misrepresentations which the Defendant felt it needed to clarify by requesting for a DNA test. If the Defendant thought that CW1 was lying to it about her entitlement to maternity leave there are so many ways the Defendant could have ascertain the truth and not subject CW1 to opprobrium.

 

60. Section 54(5) of the Labour Act protects a woman’s right to nurse a child whether legitimate or illegitimate; Article 6.4 of the Defendant’s Condition of Service recognizes and makes room for leave on adoption or surrogacy. I must need say that the way and manner the Defendant went about trying to ascertain CW1 claim of birthing a set of twins was not only regrettable but despicable as it did not only affect CW1’s dignity as a person but her right to private life. For instance, CW1 in her documentary evidence noted that the Defendant sent one of its medical personnel to access her personal medical records in the maternity clinic she was using without recourse to her. It is common knowledge that on this part of the divide, society places a great burden on the female gender that is yet to have the gift of a child, it would therefore be uncanny for such traditional burden and mentality to be transferred to the corporate world in whatever disguise.

 

61. This is not to justify any unscrupulous behaviour on the part of a “waiting mother or spouse.” Be that as it may, it is my respective view that the allegations of kidnapping and forgery were for the Police to investigate and should have been reported to the Police by the Defendant at the earliest date and not almost a year after CW1 was alleged to have put to bed. CW1 was placed on suspension from duty with half pay by the Defendant after almost seven (7) months of putting to bed and or applying for maternity leave. I am of the humble view that CW1 was suspended partly because in the opinion of the Defendant’s disciplinary committee she truncated its investigations or findings by failing to undergo a DNA test and the Defendant wanted to use another medium to decipher the truth surrounding CW1’s maternity leave application.

 

62. Be that as it may, one wonders how CW1 continuous working for the Defendant would have been able to prevent any potential interference with an investigation alleged to being conducted by Security Agencies other than the Defendant. Paragraph 5 of exhibit C10 – the Defendant’s letter suspending CW1 states: “…In view of the above, Management has decided that you be suspended from duties pending the outcome of Security Agencies investigation, and Management’s final decision on the case…” It is the law that a document speaks for itself and where the wordings of a document are clear and unambiguous they should be given their plain and ordinary meanings. This Court notes, with deference, that the entire episode surrounding CW1’s maternity leave application and the Defendant’s response particularly as it relates to CW1’s suspension and subsequent dismissal seems that the Defendant is playing “the ostrich head in the sand”.

 

63. The wordings of exhibit C10 are clear and unambiguous, CW1 is alleged to have truncated the ability of the Defendant’s disciplinary committee reaching a conclusion on her case by her refusal to consent to DNA testing so the need to engage Security Agencies to investigate CW1. Exhibit C11 is unequivocal that the allegation of forgery against the Claimant was not made until 15.01.2013 almost a month after the Defendant had determined the employment contract with the Claimant; and almost four months after CW1 was placed on suspension. I cannot but agree with the Claimant’s Counsel that the Defendant was acting outside its powers to demand or suggest that CW1 undergo DNA test.

 

64. The Defendant accuses the Claimant of dishonesty, forgery amongst other in relation to her application for maternity leave and the best way in its opinion to empirically handle it or to verify the truth was to suggest CW1 undergo DNA testing alongside her children and spouse; seeing it could not lay its hands on any concrete evidence to support these allegations. I have refrained from commenting on the issue of whistle blowing on the allegations of kidnapping, as to me it is not supported by pleadings of either party and Counsel’s address cannot take the place of evidence. I am of the humble view that CW1 was suspended owing to allegations of providing false information to support her application for maternity leave which the Defendant thought would have been resolved by a DNA test. I so find and hold.

 

65. An act is said to be illegal only when it is one which the law directly forbids, such as to commit murder or obstruct the highway. Similarly, an act is unconstitutional if it is directly prohibited by the Constitution or is contrary to one of its provision. An act that is wrongful, in the sense that it infringes on the rights of another will not be illegal or unconstitutional unless it is an act that is at the same time directly forbidden by law or is contrary to or in conflict with a Constitutional provision – Ezekwere v Golden Guinea Brew. Ltd (2000) 8 NWLR (Pt. 670) 648. I am of the respectful view that the way and manner the Defendant went about its bid to ascertain the veracity of the Claimant’s claims as regards her application for maternity leave was wrongful and unconstitutional, as it violated her right to dignity of person and private life; it also constituted unfair labour practice as it stirred psychological harassment against CW1.

 

66. In the light of all the evidence before the Court while it may be said that the refusal of CW1 to consent to DNA testing formed part of the reasons that influenced the Defendant suspending her from it, it does appear to me that that was not the sole reason. The Defendant was within the ambits of the law to conduct an investigation with respect to the information availed it by CW1 for the grant of her maternity leave application. This leg of the Claimant’s claims fails and is hereby dismissed. I so find and hold.

 

67. The Claimant’s relief two is for a declaration that the termination of her employment on a trumped up allegation of falsification of record is wrongful. An act is said to be wrongful when it constitutes an act which in the ordinary course will infringe upon the right of another to his or her damage, unless it is done in exercise of an equal or superior right. The term “wrongful” though occasionally equated with negligence, has to be considered a more comprehensive term, including criminal, wilful, wanton, reckless and all other acts which in ordinary course will infringe on the rights of another to his damage. See Ezekwere v Golden Guinea Brew. Ltd (supra).

 

68. Paragraph 1 of exhibit C14 – the termination of employment letter issued by the Defendant provides: “…You will recall your involvement in a matter which was considered by the Management of NLNG and which established amongst other things that you wilfully tendered false and misleading documentation to Company. Under Part B, Paragraph (IV) Section 6(vi) of the NLNG Employee Handbook, falsification of records is a behaviour which constitutes gross misconduct and which would normally attract summary dismissal…” It is the content of this letter that CW1 protests contains trumped up allegations against her which the Court should declare as wrongful. The Defendant did not adequately respond to this issue rather it argued that it was well within the ambits of the law to refuse the application for maternity leave and it acted within the terms of the employment contract in terminating the Claimant’s employment.

 

69. The issue here in my humble view is has the Defendant adduced credible evidence to justify the rationale for terminating the Claimant’s employment stated in exhibit C14? The pristine position of the law on termination of employment with reason before the applicability of international best labour practice is that a master has the right to terminate his servant’s employment for good or bad reasons or for no reason at all. Without any reason, the employer can terminate the employment of his employee and render himself liable to pay damages and such other entitlements of the employee that accrued at the time of the termination only – Obanye v UBN Plc (2018) 17 NWLR (Pt. 1648) 375. Although, international best labour practice requires employers to give reasons for the termination of an employee’s employment, what may be regarded as international best labour practice is a question of facts. See Article 4 of the International Labour Organization, Termination of Employment Convention No. 158, Section 7(6) of the National Industrial Court Act.

 

70. So, where an employer states a reason for the termination of an employee’s employment, the law places on such an employer a burden to show that such reason must be plausible to justify such termination of the appointment of the employee – Taiwo v Kingsway Stores Ltd (1950) 19 NLR 122, Angel Spinning Dyeing Ltd v Ajah (2000) 13 NWLR (Pt. 685) 532. The Defendant having stated a reason for the termination of CW1’s appointment, the onus lies on it to establish that cause of reason Prof Dupe Olatubosun v Nigerian Institute of Social & Economic Research Council (1988) 3 NWLR (Pt. 80) 25, Osisanya v Afribank Nig Plc (2011) 24 NLLR (Pt. 67) 30 SC.

 

71. Even at this, it is not the business of the Court to embark on a voyage of discovery and import reasons and motives for the termination – NNPC v Idoniboye-Obu (1996) 1 NWLR (Pt. 427) 655. At this point, this Court is not concerned with the motive which impelled the Defendant to terminate the Claimant’s employment but whether the reason stated in the letter of termination was plausible to justify such termination. The Defendant did not tender its Employee’s Handbook which it relied on and referred to in the letter of termination. What was produced before the Court is the 6th edition of the Defendant’s condition of service.

 

72. The query issued by CW1’s then Line Manager was not produced neither was CW1’s response to the query produced. The finding(s) of the Defendant’s disciplinary committee on the Claimant’s case before it was also not produced. All these documents would have been a great aid to the Court in ascertaining the reasonableness and truth of the reason stated in the letter of termination for terminating the Claimant’s appointment. In view of the fact that all these documents are not before the Court, consideration and evaluation of the mail trail, the interim police report, that is, exhibits C4, C5, C6, C7 and C11 respectively will be looked into as they provide certain information concerning conversations and or correspondences in relation to CW1’s maternity leave application.

 

73. Both parties herein seem to be in agreement that CW1 made an application for maternity leave, one of the documents later forwarded on CW1’s behalf for processing the maternity leave application was retracted as the issuing hospital alleged it was issued in error, the maternity leave was not granted. CW1 gave evidence that when she observed the manner her application for maternity leave was been handled, and given that it was not granted without delay, she applied for ten (10) days sick leave which exhibit C6 shows was not really granted as the leave granted was deducted from CW1’s annual leave entitlement. CW1 alleged that on conclusion of her leave she resumed worked with the Defendant. Exhibit C7 indicates that about five (5) months down the line following CW1’s application for maternity leave, the decision or outcome of the Defendant’s disciplinary committee meeting was communicated to CW1 requesting her voluntary consent to undergo a DNA test of herself and babies. Exhibit C9 – the Defendant’s letter to the Claimant’s spouse Solicitor noted that the grounds upon which CW1 faced the disciplinary committee was an infraction of the Company’s core value of integrity in seeking to take advantage of certain conditions of service for NLNG employees to which she was not entitled.

 

74. This in my respectful view represents the allegation or charge against CW1 for which she was queried and invited to face the Defendant’s disciplinary committee. There is no evidence before the Court to show that CW1 was ever indicted on the said charge other than the first paragraph of the letter of termination of employment which narrated a purportedly conclusive finding. The key materials with which the Defendant used to arrive at this indictment are not before the Court to aid it assessing the reasonableness of the said decision. Exhibit C11 – the police interim report concluded that following its investigation prior to the report detectives assigned to undertake the investigation were sceptical of the background of the proprietress of the Clinic or Maternity Home CW1 was alleged to have put to bed and the genuineness of the Clinic. These in my humble view are not conclusive proof of falsification of any document or forgery or did it amount to an indictment in that regards.

 

75. It is no doubt a reasonable thing to terminate an employee’s appointment for gross misconduct in the form of falsification of records. But the alleged indictment of CW1 as per the content of Exhibit C14 – letter of termination is quite different from what was presented as the charge against the Claimant as per Exhibit C9 - the Defendant’s letter to the Claimant’s spouse Counsel. This in the respectful view of this Court is wrongful as amongst other things it reveals CW1 was charged for a thing and purportedly indicted for another thing. More so, the Defendant has not placed before the Court satisfactory evidence to show that the reason for terminating CW1’s appointment stated in exhibit C14 is plausible to justify the termination.

 

76. CW1 has adduced credible evidence before this Court that reveals that following her application for maternity leave allegation of infraction of the Company’s values and forgery were made against her but she was never indicted. The burden thus shifts to the Defendant to prove that its indictment was justified, that from its findings CW1 falsified records and breached the Company’s policy and core values. The burden of proof in civil cases is not static, it oscillates. When an allegation that an employee falsified documents presented to its employers is stated as the reason for terminating the employee’s appointment, such allegation is capable of affecting the Claimant’s chances of securing another job as it creates an impression that the Claimant is dishonest and criminally minded.

 

77. The position of our laws is settled that equity will not suffer a wrong to go without a remedy. In the light of the foregoing in view of the evidence adduced by the Claimant I find and hold that the Claimant’s relief two succeeds and it is hereby declared that the termination of the Claimant’s employment on a trumped up allegation of falsification of record is wrongful. I so hold.

 

78. Relief three is for an order directing the Defendant to pay the sum of N2,845,207.92 (Two Million, Eight Hundred and Forty Five Thousand, Two Hundred and Seven Naira, Ninety Two Kobo) to the Claimant being her entitlement for 3 months maternity leave denied her. Just as parties are bound by the terms of their agreement such that it is not the function of the Court to make a contract for the parties or to rewrite the one, which they have made, parties are equally bound by their pleadings. The Court acts not out of sentiments or speculations. This Court has noted earlier that both the Claimant and the Defendant are in agreement that CW1 applied for maternity leave, that maternity leave by virtue of the Defendant’s condition of service is for three (3) months and that the Defendant did not grant the Claimant’s application for maternity leave.

 

79. CW1 under cross-examination admitted that one of the key documents to facilitate the grant of her application for maternity leave was retracted by the issuing hospital or clinic with the latter saying it issued the said letter or medical certificate in error. In her mail trail, particularly exhibit C7, CW1 noted that she cancelled her application for maternity leave. Equity follows the law, it will not assist a volunteer, in the instant case, the Claimant to use the machinery of the law to derive a benefit or entitlement from a procedure she had resiled from. Exhibit C4 – part of the mail trail on the Claimant’s application for maternity leave reveal that certain staff of the Defendant, in their own way, did their best to put CW1 in the know of the procedure for processing and obtaining maternity leave.

 

80. Unlike promotion which the Supreme Court has held to be a privilege and not a right, Section 54 of the Labour Act protects a woman in any employment’s right to maternity leave. Section 58 of the Labour Act makes it an offence where any person, who, being a proprietor, owner or manager of any industrial, commercial or agricultural undertaking contravenes any provision of Section 54 of the Act such that such person shall be guilty of an offence and on conviction liable to a fine not exceeding N200.00 or to imprisonment for a term not exceeding three months, or to both. Section 54(1)(a) of the Labour Act places a condition precedent for a woman employee to benefit from her right to maternity leave which is providing a medical certificate given by a registered medical practitioner.

 

81. CW1 did not give evidence that at the point she initiated the “SAP” maternity leave application process she provided a medical certificate given or issued by a registered medical practitioner to go alongside her application. It was in a bid to get a medical certificate that CW1 approached Braithwaite Memorial Hospital which issued a certificate or letter that it later retracted stating it was issued in error. CW1 has not therefore shown that she complied with all the requirements to enable the Defendant grant her application for maternity leave yet the Defendant proceeded to deny her application. CW1 has stated in her evidence in chief that she cancelled her application for maternity leave and resumed work, since there is no claim for payment of her emoluments upon resumption, it can be safely presumed that CW1 was duly paid.

 

82. The Claimant has thus adduced unsatisfactory evidence to support the grant of this relief. It is the law that he who seeks equity must do equity, it would in my respectful view defeat equity if the Defendant is ordered to pay the Claimant any sum as entitlement for maternity leave denied her when CW1 herself admitted to cancelling her application for maternity leave. This claim accordingly fails and is hereby dismissed. I so hold.

 

83. Relief four (4) is for general damages for victimization, harassment and wrongful termination of employment in the sum of N200million. This claim contains three issues which for convenience can be categorised into two broad categories, namely, the issues of work place victimization and harassment; and the issue of wrongful termination of employment. The law places on every employer a responsibility to provide for its employees a safe and conducive work place free of hazards which include sexual harassment – SCC (Nig) Ltd v Anya (2012) 7 NWLR (Pt. 1305) 213. Order 14 Rule 1(2)(e), (l) and (m) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 provides: “Where in an action before the Court, a Claimant alleges workplace discrimination, such Claimant shall state whether the alleged workplace discrimination is on any of the following grounds: (e) family situation, (l) health, (m) pregnancy…”

 

84. Notwithstanding the fact that the Defendant requested CW1 and her babies undergo a DNA test to ascertain whether or not CW1 actually put to bed and was entitled to maternity leave, the fact remains that the way and manner the Defendant went about it led to not only a discriminatory situation for CW1 but also amounted to psychological workplace harassment. Some of the comments made by few staff in Exhibits C4, C5, C6 and C7 respectively evince that CW1’s family situation, pregnancy status were made subject of discussion even when they did not have actual relationship with CW1’s responsibilities under her employment contract even when CW1 made it clear that it was causing her emotional and psychological stress.

 

85. CW1 thus became a victim of unfavourable interest or attention at her workplace which led to an adverse situation for CW1 as her employment with the Defendant was terminated as this Court has found on unproven allegations of providing false information to take advantage of the Defendant’s condition of service. All these acts of the Defendant and some of its staff inflicted untold emotional and psychological trauma and injury on the person which should ordinarily entitle her to compensation. Learned Counsel to the Defendant has argued that the Claimant is not entitled to damages and even if she is she can only be awarded damages in the sum payable in lieu of notice given the peculiarity of the instant suit bothering on labour matters.

 

86. Generally, the law gives the Court discretion in assessing the quantum of damages that may be awarded in any given case using the standard of a reasonable man. It is therefore necessary for the Court to make proper assessment of the damages awarded according to the peculiar facts and circumstances of the case before it. See Akinboye v Adeko (2011) LPELR – 4551, Abiara v Reg. T.M.C.N (2007) 11 NWLR (Pt. 1045) 280, Gari v Seirafina (Nig.) Ltd (2008) 2 NWLR (Pt. 1070).

 

87. On the issue of wrongful termination of employment, the Supreme Court in UTC Nigerian Plc v Samuel Peters [2022] 18 NWLR (Pt. 1862) at 297 held that: “...An employee who complains that his employment was wrongly terminated has the onus to place before the Court the terms and conditions of the contract of employment and to prove the way and manner those terms were breached by the employer”. See also Nitel Plc v Awka [2006] 2 NWLR (Pt. 964) 391 CA, Angel Spinning & Dyeing Ltd v Ajah [supra], Aji v C.B.D.A [2015] 16 NWLR (Pt. 1486) 554 SC.

 

88. The Claimant in discharging the burden of proving her wrongful termination tendered in evidence her letter of employment, Exhibit C1, condition of service and the letter of termination of employment from the services of the Defendant on 18.12.2012. CW1 further stated in her evidence in chief at paragraphs 39-40 that her employment was wrongfully terminated via a letter dated 18.12.2012 and that the termination was based on the allegation that she wilfully tendered false and misleading documentation to the Defendant.

 

89. Article 27 of the Defendant’s condition of service (6th edition) deals with cessation of employment, Article 2.7.1.1 provides that the company has a reciprocal right to terminate an employee’s appointment upon giving him/her due notice. Article 27.1.2 states that the Company will pay the sum equal to the salary of an employee in lieu of notice of termination. Article 27.2.1 provides that: employees whose services are terminated will be entitled to: (a) Salary up to the date of termination, (b) 3 months’ salary in lieu of notice; (c) Payment in lieu of earned annual leave. The termination of CW1’s appointment vide Exhibit C14 dated 14.12.2012 was to take effect from 24.12.2012 and the Defendant stated therein that the Claimant was to be paid her entitlements forthwith suggesting she was to be paid contemporaneously.

 

90. Termination of an employee’s employment would not be regarded as wrongful or unlawful once there is credible evidence that an employee was paid contemporaneously in lieu of notice, notwithstanding the fact that adequate notice in line with the terms or conditions of service was not given. Defence Counsel has argued that in a master and servant relationship which is devoid of statutory flavour, the termination of the employment of an employee by the employer cannot be wrongful unless it is in breach of the terms and conditions of the contract of employment. Parties are bound by the terms of their contract voluntarily entered into.

 

91. While there might not have been an actual breach of the Defendant’s conditions of service and the terms of employment between the Claimant and Defendant in this case as regards the termination of the Claimant’s employment; the failure by the Defendant to adduce credible evidence that reveals the reasonableness to justify the reason stated in the termination letter for terminating the Claimant’s employment raises a critical issue. For where an employee whose employment was terminated by his or her employee on allegations of committal of a crime or malpractice which is not supported by evidence such unproven allegations or accusation have the capacity of maligning the character and or personality of the employee.

 

92. It is in such situations that the law gives the Court wider leverage in assessing the quantum of damages that may be awarded to such employee. Thus it has been held that “The quantum of damages recoverable by a party for wrongful termination of his employment will largely depend 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. If wrongful termination is as a result of the former, the quantum of damages recoverable may be the employee’s salary for the period of the required notice. But if it is due to the latter then such a determination carries with it some stigma on the character of the employee for which he shall be entitled to substantial damages far beyond his salary for the period of the requisite notice.” See Ezekiel v West Minister Dredging Ltd (2000) 9 NWLR (Pt. 672) 248 at 262, British Airways v Makanjuola (1993) 8 NWLR (Pt. 311) 276, Sahara Energy Resources Ltd v Oyebola (2020) LCN/15462(CA), Capt Akanni v The Nigerian Army & 3 Ors (unreported, Suit No.: NICN/ABJ/125/2018, judgment delivered 27.05.2020 by Hon Justice B.B. Kanyip, PhD HPNICN).

 

93. The accusation against CW1 in the letter of termination carries with it some stigma on the character of CW1 which in the opinion of this Court should entitle her to substantial damages far beyond her salary for the period of the requisite notice. Since the law is settled that general damages flows naturally from the act complained of, the award of which lies at the discretion of the Court based on the evidence before it - Nitel Trustees Ltd v Syndicated Inv. Holdings Ltd  [2023] 5 NWLR (Pt 1876) 93 SC. I am of the humble view that the Claimant has adduced convincing evidence in proof of this leg of her claims, I however assess the damages for victimization, harassment and wrongful termination payable by the Defendant in the sum of N10,000,000.00 (Ten Million Naira only). The Defendant is hereby ordered to pay the Claimant the sum of N10,000,000.00 (Ten Million Naira only) as general damages for the victimization, harassment and the wrongful termination of her employment.

 

94. Relief five is for the cost of this litigation in the sum of N7million. It is the law that costs follows event and though debatable, it is usually awarded to a successful party in litigation who has proved his entitlement to same in the class of special damages - Nwanji v Coastal Services Nig Ltd (2004) LPELR-2106(SC). In Yakubu v Min. Housing & Environment, Bauchi State (2021) 12 NWLR (Pt. 1791) 465, it was held inter alia: “cost of an action and cost of filing the action are one and same thing. The general rule is that costs follows event and a successful party is entitled to costs the award or refusal of costs is at the discretion of the Court provided it is exercised judicially and judiciously…” Costs are awarded to indemnify the successful party not as punishment on the party who pays them nor given as a bonus to the party who receives them. In the instant case, having found that only few of the Claimant’s claims to be successful, it would therefore appear injudicious to award her cost of litigation. In the light of this, this claim fails and is therefore dismissed. I so hold.

 

95. Moving on to the counter claim of the Defendant, the Defendant/Counterclaimant is asking for the sum of N904,166.60 (Nine Hundred and Four Thousand One Hundred and Sixty Six Thousand Naira, Sixty Kobo), as money due to the Defendant under the car loan facility granted to the Claimant and interest at the rate of 21% per annum from 07.01.2013 till the final liquidation of the judgment sum. It is trite law that a counter claim is a separate and independent action from the main action in which it is made. See Tourist Co. Nig Ltd v Neo Vista Prop. Ltd [2022] 15 NWLR (Pt. 1853) 317 SC. Where there is a counter claim, the Counterclaimant is expected to prove his entitlement to his claim as a Counterclaimant must succeed on the strength of his own case and not the weakness of his adversary’s case - Ayorinde v Kuforiji [2022] 12 NWLR (Pt. 1843) 43.

 

96. It is important to note that both the Counterclaimant and the Defendant to the counterclaim were silent on the issue of the counterclaim during trial and in their respective final written addresses. As in all civil matters that require the discharge of the burden of proof, a Counterclaimant will fail if he fails to lead evidence in support of the action. The Defendant/Counterclaimant in an attempt at proving its claims against the Claimant/Defendant to the Counterclaim produced before the Court certain payslips or advice of the Defendant to the counterclaim and a Deed of Guarantee executed in the Defendant to the counterclaim’s favour. The payslip indicate that a car loan in the sum of N1,550,000.00 was issued to the Defendant to the counterclaim, although she contends that she was entitled to it.

 

97. The sum of N32,291.67 was to be deducted from the Claimant/Defendant to the counterclaim basic monthly salary on a monthly basis until the entire sum was liquidated. The Defendant to the counterclaim contends that the sum of N324,733.08 was wrongly debited from her account with the staff cooperative society of the Counterclaimant alongside the sum of N444,792.96 which was already deducted when her entitlements was to be paid her as her indebtedness to the cooperative society. The Counterclaimant did not deny this fact; it is the law that facts admitted need no further proof. Besides, Article 11 of the Counterclaimant’s condition of service provides that “employees shall be eligible to draw a car loan to purchase a car. 50% of the value of the car shall be a grant. Therefore, employees who apply for the car loan shall repay only half the value of the collected…” Both the Counterclaimant and the Defendant to the counterclaimant did not mention any thing in this regards as touching the grant on a car loan, perhaps it is inapplicable in the circumstance.

 

98. A careful consideration of Exhibit D6 shows that deductions were made for 20 months from the Defendant to the counterclaim monthly emoluments which amounted to N645,833.40 (Six Hundred and Forty Five Thousand, Eight Hundred and Thirty Three Naira, Forty Kobo) leaving a balance of N904,166.60 (Nine Hundred and Four Thousand One Hundred and Sixty Six Naira, Sixty Kobo). Since the Counterclaimant did not deny that the sum of N324,733.08 was wrongly debited from the Defendant to the counterclaimant’s account with the cooperative society of the Defendant/Counterclaimant, this fact is ordinarily deemed admitted and needs no further proof.

 

99. This means the Defendant to the counterclaim was debited twice for her alleged indebtedness to the cooperative society of the Defendant/Counterclaimant. Even at this, the law is he who asserts must prove, the Defendant to the counterclaim ought therefore to have produced her statement of account with the said cooperative society to support her assertion of double deductions or additional debiting of her account with the cooperative society making the second deductions wrong.

 

100.      In the absence of which I find that the Counterclaimant has prove its case that the Defendant to the counterclaim is indebted to it in the sum of N904,166.60 (Nine Hundred and Four Thousand One Hundred and Sixty Six Thousand Naira, Sixty Kobo) as money due to the Defendant under the car loan facility granted to the Claimant. In the light of this, the Claimant/Defendant to the counterclaim is hereby ordered to pay the Defendant/Counterclaimant the sum of N904,166.60 (Nine Hundred and Four Thousand One Hundred and Sixty Six Thousand Naira, Sixty Kobo) as money due to the Defendant under the car loan facility granted to the Claimant. I so hold.

 

101.      On the issue of interest, the Defendant/Counterclaimant seeks interest at the rate of 21% per annum from 07.01.2013 till the final liquidation of the judgment sum. There is however no evidence that the loan agreement made provision for the charging of interest in case of default. It is the law that a Court can only award a pre-judgment interest where there is an agreement for payment of interest or under mercantile custom or under a principle of equity such as breach of fiduciary duty. In such cases, the pre-judgment interest must be specifically pleaded and strictly proved. See United Bank of Africa Plc v Mrs Doreen Nkolika Oranuba [2013] LPELR-20692 CA 49 and Olasunkanmi Greg Agbabiaka v. First Bank of Nigeria Plc [2006] LPELR-11756 CA at 21.

 

102.      In Berliet Nig Ltd v. Alhaji Mustapha Kachalla [1995] LPELR-775 SC, Ogundare JSC held: “There clearly is a difference between award of interest pre-judgment where plaintiff must specifically claim such and prove it and the award of interest on a judgment-debt which is purely statutory and can only be awarded if there are provisions to that effect in the law or rules of court.”

 

103.      In view of the above, I find that the Defendant/Counterclaimant as adduced unsatisfactory evidence to show its entitlement to the claim for ante/pre-judgment interest, I therefore find and hold that the claim for pre- interest fails and same is hereby dismissed.

 

104.      On the whole, the Claimant’s claims succeeds in part, likewise, the Counterclaimant’s claims succeeds in part. The issues for determination are resolved partly in the affirmative in favour of both the Claimant and the Defendant/Counterclaimant. For clarity, the orders of the Court are as follows, other than the orders set out below all other claims fail and are hereby dismissed:

a)     IT IS DECLARED the termination of the Claimant’s employment on a trumped up allegation of falsification of record is wrongful.

b)    The Defendant is hereby ordered to pay the Claimant the sum of N10,000,000.00 (Ten Million Naira only) as general damages for the victimization, harassment and the wrongful termination of her employment.

 

103. In relation to the counterclaim, it is ordered as follows:

a)     The Claimant/Defendant to the counterclaim is hereby ordered to pay the Defendant/Counterclaimant the sum of N904,166.60 (Nine Hundred and Four Thousand One Hundred and Sixty Six Thousand Naira, Sixty Kobo) as money due to the Defendant under the car loan facility granted to the Claimant.

 

104. No order as to cost, parties to bear their respective costs.

 

105. Judgment is accordingly entered.

 

 

Hon. Justice M. N. Esowe, FCIArb

Presiding Judge