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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP……HON. JUSTICE B.A. ADEJUMO, OFR (PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA) DATE: 8TH OCTOBER, 2014 SUIT NO. NICN/AB/03/2012 BETWEEN: GODWIN OKOSI OMOUDU………………………………………CLAIMANT AND 1. PROFESSOR AIZE OBAYAN [Vice Chancellor Covenant University] 2. MR. J.N. TAIWO [Registrar Covenant University] 3. LOVE OYEDEPO DEFENDANTS [Director/Derds Covenant University] 4. COVENANT UNIVERSITY 5. THE GOVERNING COUNCIL OF COVENANT UNIVERSITY REPRESENTATIONS: J. O. Ogunwale, for the Claimant appearing with I. M. Aneke, esq; F. B. Agbanwu, appearing for the Defendants. JUDGMENT This suit was commenced by a complaint on the 13th of August, 2013. It was accompanied with a Statement of Facts and List of Documents to be Relied Upon. However, an amended written statement of facts titled “CLAIMANT’S WRITTEN STATEMENT OF FACTS” was filed on 26 September, 2013. The reliefs claimed therein are as listed hereunder: (a) An order of this Honourable Court declaring the termination of the claimant [sic] appointment as wrongful. [sic] (b) An order of this honourable court [sic] declaring the actions of the 3rd defendant as ultravires [sic]. [sic] (c) An order of this honourable court [sic] directing the 4th and 5th defendants to pay the claimant’s salaries from the date of his purported termination of employment i.e [sic] 15th July 2011 up to the date of the determination of this case by this honourable court [sic]. [sic] (d) (i) N20, 000, 000 (Twenty Million Naira) being general damages against the defendants jointly, severally for humiliation, harassment, apprehension and termination of the claimant [sic] appointment by the defendants on 15th July 2011. (ii) The cost of this action N1, 000, 000 (One Million Naira) TOTAL AMOUNT CLAIMED: N21, 000, 000 [Twenty One Million Naira Only) To the above, the defendants filed a Joint Statement of Defence on 3rd January, 2013. This Joint Statement of Defence was accompanied with Written Deposition on Oath of Jacob Fasugba, List of Witnesses, and List of Documents. To this Joint Statement of Defence, the claimant filed a reply on the 21st of January, 2013. On 16 September, 2013 the case was opened with the claimant testifying on behalf of himself. After all the initial and normal preliminaries were complied with, CL1 testified as follows. He stated that he was unemployed as at the time he was testifying. He said he swore to a Witness Statement on Oath. He applied to tender same. The Witness Statement on Oath deposed to by CL1 on 14/08/12 and filed on 21/01/13 was admitted in evidence as Exhibits CLW1A – CWID and CLW2A – CLW2B. Thereafter, the following documents were tendered without objection: 1. The appointment letter of Mr. Omoudu Okosi Godwin on the letter headed paper of Covenant University and dated May 5 2010 admitted as Exhibit CLW3; 2. A Pay Slip of Covenant University is admitted as Exhibit CLW4; 3. The Query issued to Godwin Omoudu on the letter headed paper of Covenant University and dated 6th June, 2011 admitted as Exhibit CLW5; 4. The Reply to the query dated 08/06/2011 admitted as Exhibit CLW6A – CLW6C; 5. The letter of termination dated July 15, 2011 and addressed to Godwin Omoudu admitted as Exhibit CLW7; 6. The receipts depicting payment of professional fees to Joseph O. Ogunwale & Co. dated 28 July, 2011 admitted as Exhibits CLW8 and CLW9 respectively; 7. Another receipt of payment of professional fees to Joseph O. Ogunwale & Co dated 20th of December, 2011 admitted as Exhibit CLW10; 8. The Enrollment of Order of Hon. Justice A.A. Babatunde of Ogun State High Court sitting in Ota, Ogun State dated 19 January, 2014 admitted as Exhibit CLW11A – CLW11B; 9. The document captioned “Discontinuance” dated 8th of August, 2012 in Suit No. HCT/277/2011 admitted as Exhibit CLW12; 10. The document dated 6th July, 2011, captioned “Internal Memo” and addressed to “The Director DERBS” admitted as Exhibit CLW13A – CLW13C; and 11. The judgment of Hon. Justice Solanke of Ogun State High Court sitting in Ayetoro Judicial Division admitted as Exhibit CLW14A – CLW14E; The matter thereafter proceeded to cross-examination. CW1 answered that by virtue of his letter of appointment he was appointed by the 4th defendant. He also answered that he knew that he was the only person whose appointment was terminated at the time his appointment was terminated. He said when he was served with the letter of termination his reaction was that he refused to accept it. He said at the time of his termination the only property of the 4th defendant with him were only two T-Shirts. He said he was not given an identity card. He said the he refused to collect the letter of termination the second time from the Coordinator but was he was called by the Director and given the said letter which he has tendered in this case. He said he knew one Taiwo Oladapo in his Department before he left the 4th defendant. He said he did not know one Jacob Fashola but knew one Mrs. Love Oyedepo. He also said he did not know one Deacon Adekeye. He admitted knowing one Mrs. Johnson but denied knowing one Mr. Oyeku. He said Mrs. Love Oyedepo is the Director of his Department. He said Mrs. Johnson is not in his Department but that he thought she is the Manager of Cafeteria I. He stated that he did not appear before any Committee before he left the 4th defendant and that neither was he aware that any of his colleagues appeared before any Committee before he left the 4th defendant. He clarified that the said letter of termination was given to him by Love Oyedepo whom he called the Director. The cross examination was brought to an end. There was no re-examination. The matter continued the following day the 17th of September, 2013. The defence opened its case by calling its only witness. DW complied with all the routine formalities. DW said he made a written Statement on Oath filed on 3rd January, 2012. He tendered the statement on oath by Jacob Fasuba without objection; and it was marked as Exhibit DW1A – DW1E. However, the following documents were admitted with objection: 1. The Covenant University Staff Handbook & Conditions of Service admitted with objection as Exhibit DW2 pp. 1 – 191[however, only after the Court ordered that its photocopy be made and given to the counsel to the claimant]; and 2. The Report of the Panel Set Up to Investigate the Allegations Cab/Shuttle Department admitted with objection as Exhibit DW3A – DW3C. The grounds of the objections are that Exhibit DW2 pp. 1 – 191 was not served on the claimant despite the service of notice to produce the same document on the 4th defendant; and that Exhibit DW3A – DW3C was both undated and unsigned. Ruling on the admissibility of these document are reserved till the writing of judgment on the case. The Court admitted the two documents subject to the right to expunge them or any of them at the time of writing judgment if it is discovered that both or either ought not to have been admitted. The under-mentioned document was also tendered with objection: 1. The Memo written by one Taiwo Oladapo to Coordinator S.S.D. dated July 1, 2011 and titled Re: Report on Adeolu admitted as Exhibit DW4A – DW4B. The objection was that it was not produced despite service of notice to produce same before it was tendered. The Court directed that the document be admitted subject to the right of the counsel to the claimant to reply and recall his witness if need be on account of the document. The examination-in-Chief of DW was brought to an end. The matter thereafter proceeded to cross-examination on the same day. DW answered that his work as an Accountant does not include sacking of the claimant. He admitted knowing the 3rd defendant in this case and that she is the Director of Strategic Business Services [SBS] of the 4th defendant. He said Miss Love Oyedepo is the Director of his Department and that she has the right to recruit and sack a staff of the 4th defendant. He stated further that whenever the need to set up panel arises it is those knowledgeable in the field concerned that would be co-opted to form the panel. He admitted that Mr. Godwin Omoudu was not invited by their Panel for investigation or participation. He said Mr. Taiwo and Mr. Williams Agbake were no longer in the service of the 4th defendant. He admitted that from the Report of the Panel Mr. William Agbake was suspended and later sacked. The cross-examination was brought to an end; and there was no re-examination. The case was thereafter adjourned to 13/11/13 for further hearing. Pending applications were taken on the 12th February, 2014 and the case thereafter adjourned to 27th March, 2014 for adoption of final written addresses. However, the matter eventually came up on the 6th of May, 2014 for the adoption. The counsel to the 1st – 5th defendant adopted the final written address dated 24/10/13 and filed 25/10/13. The same counsel also adopted the reply address dated 20/03/14. Thereafter, the counsel to the claimant adopted the final written address dated 13/11/13 and filed same day. In addition, counsel to the claimant urged the Court to discountenance the reply on points of law filed by the defendant as it amounts to re-argument of their case. The counsel to the defendant replied that this submission is misconceived and that their reply was purely on points of law. Thereafter, the case was adjourned to 03/07/14 for judgment but the judgment was not ready on this date. It was further adjourned to 30th July, 2014. On the 30th of July, 2014, again the judgment could not also be delivered. This time around, not as a result of any fault from the Court, but due to the industrial actions embarked upon by the Judiciary Staff Union of Nigeria, which totally barred access to the Court’s premises to deliver the judgment that was ready before the date. This industrial action commenced on the on the 21st of July, 2014 and ended on the 4th of August, 2014. And, as at the time the industrial actions were called off, the Court had began its annual vacation which started on the 4th of August, 2014 and ended on the 15th of September, 2014. The judgment was, for that reason, adjourned till today: 8th of October, 2014, when the exigencies of duties permit me to sit in Lagos after the resumption from the annual vacation. Let me now summarise the final written addresses of counsel for the parties. I shall start with that of the defendant which is the first in time. In arguing this final written address for the defendant, counsel formulated two issues as follows: i. Whether the termination of the claimant’s employment or appointment is wrongful. ii. Assuming but without conceding that the termination of the claimant’s employment or appointment is wrongful, what is the measure of damages recoverable in such circumstances? In arguing issue No. 1 as formulated above, counsel to the defendants reiterated the principle of law that that the burden of prove lies on the party who would lose if no evidence is adduced on both sides and cited Ukaezirigbo Okiri v. Ifeagha & Anor [2001] F.W.L.R. [Pt. 73] 140 at 142; section 132 of the Evidence Act, 2011; and Uzokwe v. Dansy Industries Nig Ltd [2002] 2 MJSC 37 at 46. Counsel submitted further that the claimant herein has the duty to place before this Court: a. The terms and conditions of the contract; and b. Prove in what manner the said terms were breached by the employer. Counsel referred the Court on this count to Akinfe v. U.B.A. [2007] 10 NWLR [Pt. 1041] 185; Amodu v.Amode [1990] 5 NWLR [Pt. 150] 356 at 370. Counsel argued further the Court has no vires to look outside the document containing the terms in order to decide the case; and cited Western Nigeria Development Corporation v. Abimbola [1966] 4 NSCC 172. It was submitted therefore that the claimant did not in his entire pleadings place before this Court his terms and conditions of service and did not also show in what manner they were breached. Counsel submitted that failure in this respect would automatically lead to the dismissal of the claimant’s case; and counsel referred the Court to Adams v. LSDPC [2000] 5 NWLR [Pt. 656] 291. Counsel argued also that the defendants pleaded in paragraph 9 of their Joint Statement of Defence that the Covenant University Handbook and Conditions of Service [Exhibit DW2] regulated the employment of the claimant. Counsel submitted that by virtue of the letter of appointment [Exhibit CL3] issued to the claimant [particularly paragraph 2 therein] it is clear that Exhibit DW2 contained the conditions and terms of employment of the claimant. Counsel thereafter proceeded to submit that the right to terminate a contract is either provided in the contract or read into it and referred this Court to Ladipo v. Chevron Nig. Ltd [2005] All FWLR [Pt. 260] 133 at 142. Counsel argued that in deciding the rights of the parties, the Court must not look beyond the document containing the contract; and that Exhibit DW2 is the document the Court must examine as containing the rights of the parties. In accordance with paragraph 5.4.4 headed ALL STAFF at pages 99 – 100 of Exhibit DW2, provisions were made for the termination of employment of all the staff of the 4th defendant; and it provides for 30-day notice or one-month salary in lieu thereof. Counsel submitted that these provisions are clearly unambiguous and must therefore be given its ordinary interpretation. Counsel submitted that a wrongful termination can only arise where the contract is brought to an end in breach of the terms of employment. Counsel cited in support of this contention 4th edition of Nigerian Labour Law by Akintunde Emiola at page 170 and Ajayi v. Texaco Nig. Ltd. [1987] 3 NWLR [Pt. 62] 577. Counsel submitted that the claimant herein did not plead and prove how the terms of the contract were breached in the termination of his appointment. Counsel submitted that where wrongful termination of contract is alleged, what the plaintiff must prove are whether the termination was wrongful and what the measure of damages is where such termination is found wrongful by the court. Counsel referred the Court to Charles v. the Nigerian Army [2010] 12 CMLR p.65 at 70. Counsel submitted that since the claimant herein has not discharged the burden of prove placed on him, the Court must come to the conclusion that he had failed to establish his case. Counsel moved to his issue No. 2 as formulated and reproduced earlier on. Counsel started by posing that, assuming, without conceding, that the termination of the contract is wrongful, what then is the measure of damages recoverable? Counsel submitted that where termination is found to be wrongful, the employee is only entitled to what he would have earned over the period required for his lawful termination. Counsel cited Garuba v. Kwara Inv. Ltd. [2005] 4 MJSC p. 58 at 63. Counsel argued that the claimant is not entitled to general damages as being claimed for humiliation, harassment and apprehension. Counsel thereafter submitted that the defendants have admitted in paragraph 10 of their Joint Statement of Defence that the claimant is entitled to one-month salary in lieu of notice and that this is in tandem with the provisions of Exhibit DW1 [?] but I think DW2. Counsel now proceeded to formulate another poser: “can the Court even award to the claimant the damages of paying one month’s salary in lieu of notice required for the termination of his employment or appointment as admitted by the defendants in paragraph 10 of their joint statement of defence…?” Counsel answered this in the negative based on the basis that the Court cannot award to a party what he did not claim. Counsel referred the Court to Shuaibu v. Muazu [2007] 7 NWLR [Pt. 1033] 271; Awoniyi v. AMOCK [2000] 6 SC [Pt. 1] 103; and Afrotech Technical Services [Nig] Ltd. v. Mia & Sons Ltd. [2000] 12 SC [Pt. 11] 1. Counsel finally urged the Court to dismiss the case of the claimant. I shall now move to the final written address of the claimant in response to the final written address of the defendants just summarized above. In arguing this final written address, the counsel to the claimant formulated three issues as reproduced hereunder: i. Whether the termination of the claimant [sic] employment is wrongful and ultravires [sic]. [sic] ii. Whether the claimant is entitled to claim the salary accrued from the said date of this employment termination to the determination of this case. [sic] iii. Whether the claimant is entitle [sic] to claim for general damages. [sic] In arguing issue No. 1 as formulated above, counsel to the claimant submitted that the burden of establishing wrongful termination rests on the employee and not the employer. Counsel argued that such employee must prove the following to succeed: a. That he was an employee of the defendant. b. The terms and conditions of his employment. c. The way and manner and by whom he can be removed. d. The way and manner the terms and conditions of his employment was [sic] breached by his employer. In tidying up his submission on the above count, counsel cited N.R.W. Ind. Ltd v. Akingbulugbe [2011] 11 NWLR [Pt. 1257] CA. Counsel submitted further that the claimant has shown in paragraph 9 of his pleading that he is an employee of the 4th defendant via the letter of appointment issued to him on the 5th of May, 2010 [Exhibit CLW3] by the 4th defendant. From Exhibit CLW3, counsel submitted, that it was clear that the level of the claimant was CUSS 4 Step 3 before the termination. Counsel submitted that as regards the terms and conditions of service of the claimant, no handbook containing same was given to the claimant at his time of appointment and during the period of his service. Counsel also submitted that by virtue of paragraph 1.1 of Exhibit DW2 at page 69, the said terms and conditions of service contained in the said handbook does not apply to the claimant as it only applied to staff on CUSS 06 and above. Counsel submitted that by virtue of the query issued the claimant [Exhibit CLW5] and his reply thereof [Exhibit CLW6] it is clear that the reason given for his termination was unrelated to the query. Counsel also submitted that where allegations are made against an employee, the employer is entitled to set up a panel to investigate same; and that such panel must give the employee the opportunity to state his own side of the case. Counsel argued that this must be done before taking any disciplinary action against the employee. Counsel cited Baba v. NCATC [1991] 5 NWLR [Pt. 192] 388 SC. Counsel submitted that from the testimonies of CLW and DW the claimant was not informed nor invited to the panel that was set up and headed by the 3rd defendant. Counsel further argued that if Exhibit DW2 is to be taken into reckonimg, the panel did not act in accordance with the procedures for disciplinary actions laid down in Exhibit DW2. On this, counsel referred the Court to pages 131 – 136 of Exhibit DW2, especially paragraph 8.4 [i], [ii] and [iii] – a – c. Counsel cited D.A. [Nig] AIEP Ltd v. Oludare [2007] 7 NWLR [Pt. 1033] 336 CA. Counsel argued that the termination of the claimant’s employment by the 3rd defendant was wrongful and ultra vires. Counsel subsequently made reference to Exhibit CLW8 which was not headed by the 4th defendant and which was neither signed by or on behalf of the Registrar of the 4th defendant. Counsel submitted that by virtue of section 11 [i] [b] of the Interpretation Act, it is he who employs that can terminate. And submitted that the termination of the employment of the claimant by the 3rd defendant is ultra vires and unlawful. Counsel referred the Court to the case of Agbo v. CBN [1996] 1O NWLR [Pt. 478] 370 CA. Counsel subsequently submitted that the claimant was not given an opportunity to justify his action or defend the alleged misconduct for which his employment was terminated by the panel. On this, counsel referred the Court to paragraph 9 – 16 of DW’s Statement on Oath [Exhibit DW1]. Thus, issue No. 1 was ended; and counsel moved to his issue No. 2. In arguing this issue No. 2, counsel submitted that the principle of assessment of damages for breach of contract is restitution in ingrum. On this counsel cited Kabelmetal Nig. Ltd v. Ative [2002] 10 NWLR [Pt. 775] 250 CA and IFETA v. SPDC Nig. Ltd. [2006] 8 NWLR [Pt. 983] 585 SC. Counsel submitted that the measure of damages herein is the amount the employee would have earned had the employment continued according to the contract. Counsel cited the case of Beredugo v. College of Technology [1991] 4 NWLR [Pt. 187] 651 CA. Thus ended arguments on issue No. 2 and counsel moved to issue No. 3. Counsel argued that the claimant is entitled to general damages by virtue of section 254C [1] of the Constitution of the Federal republic of Nigeria 1999 [hereafter ‘1999 Constitution”] which gives this Court the jurisdiction to deal with any civil cause like tort arising from or connected with employment, labour, trade union, industrial relations or any matter arising from workplace. Counsel submitted that the claimant is a victim of malicious prosecution by some group of colleagues in order to save the name of certain clergyman for fear of his being exposed and thereby jeopardizing the reputation of that clergyman and the Church. Counsel argued that the claim before the Court is tortuous arising from employer/employee relationship and matters incidental thereto; and that as such the claimant is entitled to general damages. Counsel submitted that by virtue of the above-quoted provisions of the Constitution, the Court is empowered to grant same. Claimant finally urged the Court to grant the claimant’s claims. Having carefully summarized the written response of the claimant in the final written address to the defendant’s final written address, I shall now turn to the Reply on Points of Law filed in response to the claimant’s final written address. Let me state at this stage that I shall only summarise what I believe to be reply on points of law properly so-called and not repetition or re-argument of the written address by the defendants. I have therefore most carefully combed through the so-called reply on points of law in juxtaposition with the defendants’ final written address and the claimant’s final written address and cannot find anything that resembles a reply on points of law. What I found was an attempt to re-beautify the original final written address of the defendants. That this is so is clearly discoverable from the fact that the purported reply on points of law did not pin-point the exact point of law been replied to. To reply on points of law, the points of law being replied to must be clearly identified by way of rephrasing and then the reply follows. The reply is to show that that point of law newly raised in the address of the other counsel is misconceived or not applicable to the case at hand or distinguishable or has been overridden by new or later authoritative statement of the law. Counsel instead just started readdressing the Court without showing to the Court what point of law it is that he was replying to. Right of reply on points of law, I must state emphatically, is not another avenue to re-argue the defendants’ case – see the Supreme Court in Basinco Motors Ltd. v. Woermann-Line & Anor. [2009] LPELR – 756 [SC] pp. 41 – 42, paras. A – D: Authorities abound on the purport and function of an appellant’s reply brief of argument, and where it does not fall within the requirement of the rule, then the reply brief becomes otiose. The purpose and purport of a reply brief is to address fresh points raised in a respondent’s brief of argument, and not to introduce fresh points. …The argument of the learned counsel of the appellant that non-consideration of the appellant’s reply brief of argument in the lower court amounted to a breach of the appellant’s right to fair hearing does not hold water. I will reproduce the provisions of section 36 [1] of the Constitution of the Federal republic of Nigeria 1999 at this juncture. It reads:-“36 [1] In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner to secure its independence and impartiality.” In instant case, I do not see that there was any breach of the appellant’s right of fair hearing, most especially when thoroughly reads the appellant’s brief of argument, which contains all relevant arguments that thoroughly and carefully covered the issues related to the grounds of appeal. The learned justice of the Court of Appeal gave the arguments in the appellant’s and respondent’s briefs of argument the attention that they deserved by considering them. The above constitutional provision does not impose upon a court the duty to deal with the same arguments over and over, and allow unnecessary repetitions to weigh it down. In other words, the doctrine of fair hearing does not extend to over stretching the court with unnecessary arguments that are not allowed by law. What I can see in the so-called reply on points of law is an attempt to supply new arguments in support of the earlier arguments canvassed in the defendants’ final written address and not a reply on any point of law newly raised in the claimant’s written address. I accordingly discountenance the so-called reply on points of law for being otiose. It is now left for me to resolve the case based on the pleadings, the other relevant processes, the pieces of evidence adduced at trial and the addresses of counsel to the parties. I must state that I have given all the documents and processes relating to this case a most careful consideration. I have also most painstakingly digested the addresses of counsel to the parties as could be discovered from my summaries of these above. However, before delving into the real issues involved, let me first settle some preliminary issues in relation to the documents objected to during trial which were tentatively admitted pending the writing of judgment. These documents are Exhibits DW2 pp. 1 – 199 [the University Handbook]; and DW3A – DW3C [the purported Report of “Panel Set Up to Investigate the Allegations in the Cab/Shuttle Department”. The arguments of the claimant’s counsel had been that DW2 is not admissible because it was not produced and served on the claimant in response to the notice to produced served on the defendants before being tendered in Court; and that DW3A – DW3C was unsigned and undated and as such inadmissible. Straight away, I must state that it is not the law that once notice to produce is not obeyed such document cannot be tendered by the offending defendant subsequently once it is ably pleaded by the defence. I have checked the pleadings of the defendants and found at paragraphs 9 – 10 thereof, particularly paragraph 9, that this handbook was ably pleaded. I must state that ‘notice to produce’ only entitled the party serving the notice to tender a secondary copy in his possession if the original is not produced: it does not and cannot bar the other party from tendering same if pleaded. See Chukwura v. Nduka & Anor. [2008] LPELR – 3985 [CA] p. 29 – 30, paras. B – A: …The position of law is very well amplified in Buhari v. Obasanjo [2005] 13 NWLR [Pt. 941] 1 at 198 where the Supreme Court said as follows – “A party on whom Notice to produce is served is not under any obligation to produce the document. The service of the Notice to produce only entitles the party serving the Notice to adduce secondary evidence of the document in question by virtue of section 98 of the Evidence Act… Also in Kossen [Nig.] Ltd v. Savanah Bank [Nig.] Ltd. [1995] LPELR – 1706 [SC] pp. 20 – 21, paras. F – B, it was held by the Supreme Court: …Exhibit 2 – 19 and 23 are photocopies, but Exhibits 24 – 28 are extracts from the respondents audit sheets. They are statements of accounts 2808 and 1664. Counsel submitted that the Exhibits were pleaded in paragraphs 17, 31 and 49 of the Amended Statement of Claim. Mr. Idowu conceded that at the time Exhibits 2 – 19 were tendered, there was no proof that ‘Notice to Produce’ had been served on the person bound to produce them. I agree with Mr. Idowu that the lapses in tendering them before serving a Notice to Produce does not vitiate its admissibility because they were used extensively by the appellants and no objection was raised saved a feeble one. If the Supreme Court permitted the admissibility of secondary copies of documents in a situation whereby notice to produce was not even served on the party having the original simply because the documents were pleaded and were relevant and extensively used by the party tendering, it is much more logical that documents pleaded as in the instant case and extensively referred by the defendants who tendered them would not be disallowed by reason of failure to serve copies of them on the opposing party on the mere feeble opposition, more so when the Court ordered that photocopies of the same documents be served on the opposing side before admittance. There can no longer be any basis for complaint. The University Handbook [Exhibit DW2 pp. 1 191] is rightly admitted; and I so reaffirmed. I now come to Exhibit DW3A – DW3C [Report of the Investigative Panel] which is also objected to. The Court of Appeal held in Udo & Ors. v. Essien & Ors. [2014] LPELR – 22684 [CA] p. 23, paras. B – C that: “It is trite that unsigned and undated document has no evidential value.” I need say no more on this issue. I hold therefore that Exhibit DW3A – DW3C which I have examined and found to be both unsigned and undated is a worthless sheet of paper that has no evidential value in law: it is therefore in admissible in law; and I therefore expunge it from the records of the Court as having been wrongly admitted. This is more so because these lapses raised serious doubt about its authenticity especially when its contents are been challenged by the opposing side. I shall now deal with the real issues in controversy. To my mind the three issues that really call for determination in this case are: 1. Whether the termination of the appointment of the claimant is wrongful in law bearing in mind the circumstances of this case? 2. What measure of damages is awardable in the event of coming to the conclusion that the termination is wrongful in law? and 3. Whether the claimant is entitled to the cost of litigating this action. In deciding issue No. 1 as formulated above, the counsel to the defendant argued that the claimant did not place before this Court the terms and conditions of his appointment that were breached in the termination whereas the counsel to the claimant is of the view that the claimant was not given fair hearing in the termination of his appointment because the query issued is at variance with the reason adduced as being responsible for the termination. I must state that the issue involved herein is not so much, in the first instance, [I shall later come to the terms of contract] as to the terms of the contract involved but really as to what the effect of law is where an employer, even though not under an obligation within the terms of contract to give reason for termination, but has elected none-the-less to give reason. That is the square question to be answered here. I think failure to understand this is the basis of the whole controversy. And in answering this poser, I rely on the authoritative statement of the Supreme Court on the principle of law in question in SHELL PETROLEUM DEV. CO. LTD V. CHIEF VICTOR SUNDAY OLAREWAJU [2008] LPELR – 3046 [SC], where the Supreme Court has this to say on the duty of an employer where he has elected to state a reason for determining the appointment of an employee: The guiding principle which has been articulated and applied in many cases including Olatunbosun V. N.I.S.E.R. Council [1988] 1 NSCC 1025; [1988] 3 NWLR [Pt. 80] 25, is that an employer is not bound to give reasons for terminating the appointment of his employee. But where, as in this case, he gives a reason or cause for terminating the appointment, the law imposes on him a duty to establish the reason to the satisfaction of the court. [See p. 19 paras E – G] Exhibit CLW7 dated July 15, 2011 is, no doubt, the instrument by which the appointment of the claimant was determined. By paragraphs 1 & 2 of the said Exhibit, the following become evident: The report of the investigative panel set up to look into your involvement in the recent incident in CU Shuttle Services refers. After due and exhaustive deliberations on your appearance and statements from all the people involved, the outcome of the report seriously indicted you. Consequently, Management has concluded that the factors that informed your employment are not being met. Therefore your appointment with the Organization is hereby terminated with immediate effect. It is pertinent at this juncture to also reproduce the relevant contents of the query earlier issued to the claimant by the defendants. This is contained in Exhibit CLW5 dated June 6, 2011: You were reported to have assaulted verbally a senior Officer, the Head of Internal Audit, challenging him to a fight in public. You are therefore by this memo required to explain in writing to the undersigned within Twenty four [24] hours why severe disciplinary actions should not be taken against you in the light of the above observations. It is irrelevant to reproduce the contents of the reply to the query by the claimant in Exhibit CLW6A – CLW6C. What is clearly evident is that the subject-matter of the query in question as quoted above is totally at variance with the subject-matter of the reason for the termination. It is equally evident that there is no proof before the Court that the issue of the query had been satisfactorily settled before the termination. To compound the matter for the 4th defendant, its own witness under cross-examination clearly admitted that the claimant was never invited to the Panel ostensibly forming the new-found basis for his termination. Therefore, it is very clear that the basis for the termination of the appointment of the claimant was not satisfactorily established as required by law. It would seem that the claimant was being punished for an offence for which he probably knew nothing of or for which at the least, he was never given an opportunity to be heard before being punished for the undisclosed offence. Like I indicated earlier on, an employer is not under an obligation to give any reason in non-statutory employment, as in the instant case, for the termination of the employment of an employee, but once he ventures to give a reason or cause, he is stuck with the reason or cause and must establish such to the satisfaction of the Court. He thus becomes liable to the principles of fear hearing and if he falls short, the termination is bound to be declared wrongful. In the instant case, the claimant is denied fair hearing and at the same time, the reason for his termination is found to be false or un-established. I now come to whether the terms of the contract were breached in the termination. Counsel to the claimant is of the opinion at one length that the University Handbook [Exhibit DW2 pp. 1 – 191] does not contain the terms of the contract relating to the claimant. My simple answer is that this view is most erroneously misconceived. The letter of appointment of the claimant via paragraph 2 and the second sentence thereof states emphatically that: Our employment terms are as stated in the Staff Conditions of Service, which also contains attractive benefits aimed essentially at enhancing productivity, personal comfort and fulfillment. Exhibit DW2 pp. 1 – 191 [the University Handbook] has its full title as follows: “Covenant University Staff Handbook & Conditions of Service”. I am humbly of the opinion that this leaves no one in doubt that the “Staff Conditions of Service” being referred to in paragraph 2 of the letter of appointment just quoted above, is Exhibit DW2 pp. 1 –191. More so, it has not been suggested by the claimant’s counsel that the University has any other handbook which applies solely to staff in the claimant’s category. I therefore hold that the provisions being referred to by the claimant’s counsel are totally irrelevant to the case at hand. The relevant provisions of the Handbook to the issue at handbook are the provisions of Article 5.4.4. at pages 99 – 100, titled “All Staff” which state: The appointment of a staff of the University can be terminated by a notice of thirty days [30] to that effect. The University shall pay such staff one month’s salary in lieu of such notice where the termination circumstances require his or her immediate departure. In terminating the appointment of the claimant by the University authorities, were these provisions complied with? The answer is largely to be found in the termination letter. The same paragraph 2 of the termination letter [Exhibit CLW7] earlier quoted answered this in the negative. The appointment of the claimant was stated to be terminated with immediate effect; and no mention of payment of salary in lieu of notice was made or of a promise to pay in future was indicated. The implication is that he ought to have been paid one month’s salary in lieu of notice before or contemporaneously with the termination, and it was not done. The Supreme Court held in CHUKWUMAH V. SHELL PETROLEUM [1993] LPELR – 864 [SC] 1 AT 28, PARAS. D – F thus: In my respectful view, where a contract of service gives a party a right of termination of the contract by either giving a particular length of notice or payment in lieu of the length of notice and the latter is chosen, the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice at the time of termination of the contract. It is not enough that in the letter of termination he offers to pay salary in lieu of notice. Thus in the case at hand, the defendant having terminated plaintiff’s employment without giving him the required notice, must pay him at the time of the termination, salary in lieu of notice. Payment made three months after termination cannot be in fulfillment of the defendant’s obligation under clause II. The defendant ought to have paid the salary either directly to the plaintiff or through his designated bank on 18th August 1981; and, where it is by payment into bank, the plaintiff must be so informed promptly. The payment into bank on 25th November 1981 cannot, in my respectful view, by any stretch of imagination, be said to be in compliance with clause II. Consequently, I must hold that when on the 18th August 1981 the defendant terminated the appointment of the plaintiff it did so without giving him two months notice nor pay him two months’ salary in lieu of notice as required by clause II of the terms of contract between the parties. In the circumstance, I must hold also that the termination of the plaintiff’s employment by the defendant on 18th August 1981 was in breach of the contract between the parties and was therefore wrongful. In the instant case, the defendants have conceded the fact that no salary in lieu of notice was paid to the claimant up till the moment– see paragraphs 10 and 11 of the Joint Statement of Defence. Therefore, for this immediate reason and the earlier reason that the appointment was terminated based on an unfounded reason, I declare the termination as wrongful. Thus, issue No. 1 is decided in favour of the claimant and against the defendants. I now move to issue No. 2 as formulated earlier on in this judgment. This deals with the proper damages to be awarded when the Court comes to the conclusion that the termination of the appointment of the claimant is wrongful. Counsel to the defendants has ably argued that the damages, if any, to which the claimant would be entitled is the amount of money specified in lieu of notice, and no more. Counsel also contended that even at that, the Court cannot award the salary in lieu of notice in the particular instance of this case because such was not even claimed by the claimant. On the other hand, the claimant’s counsel is of the opposing view that the claimant is entitled to general damages that must take into account injured feelings and other such factors as are considered in awarding damages in actions based on torts, in that in his view, the action herein is torts and not breach of contract. Counsel was also of the considered view that the Court ought to put the claimant in the position he would have been had the contract not been wrongfully determined. I have carefully combed all the authorities cited on this issue. First, let me preface my opinion on this issue with the authoritative statement of the principle of law that espoused whether wrongful termination of employment is tortuous or contractual. In G.B. Ollivant [Nig.] Ltd. v. Agbabiaka [1972] LPELR – 1295 [SC] p. 9, paras. C – F, the Supreme Court authoritatively clarified the controversy thus: At page 3 paragraph 5 of Clerk and Lindsell on Torts [12th Edition], the learned authors stated as follows in considering the relation of tort and contract: Sir Percy Winfield drew the distinction as follows: “At present day, tort and contract are distinguishable from one another in that the duties in the former are primarily fixed by law, while in the latter they are fixed by the parties themselves. Moreover, in tort the duty is towards persons generally; in contract it is towards a specific person or specific persons. If the claim depends on the proof of the terms of the contract, the action does not lie in tort, so claim for wrongful dismissal is a claim in contract.” I think the controversy on whether the cause of action herein is tort or contract has been sufficiently laid to rest by the Supreme Court in the above authority: that it is basically contractual and not tortuous. There is no way the claimant can run away from the fact that his action is based on breach of contract of employment. Therefore, I hold firmly that the cause of action herein is contractual and not tortuous. Let me now move to the real controversy: that is, the type of damages accruable to the claimant in the instant case. There appears to be a haze on this. I will therefore examine some authorities before coming to a conclusion. In Ativie v. Kabelmetal Nig. Ltd [2008] LPELR – 591 [SC] pp. 13 – 14, paras. F – A, [the Court of Appeal version has been cited by counsel to the claimant] the Supreme Court held, and I quote: It has been settled in a long line of authorities that cases of ordinary contract of employment where the terms provide for a specific period of notice before termination or salary in lieu thereof, the only remedy available to an employee who is wrongfully terminated is the award of salary for the period of the notice and other legitimate entitlements due to him at the time the employment was brought to an end. He gets no more. Next, I cite the Supreme Court in Ifeta v. SPDC [2006] LPELR – 1436 [SC] p. 36, paras. B – D, p. 40, paras. A – C respectively: The measure of damages where a master brings the contract of employment to an end without giving the requisite notice as stipulated in the parties’ contract is the salary the employee would have earned had the employment been determined as stipulated in the contract of employment. It is settled law that in action for termination of appointment where the court finds that the termination is wrongful, the proper measure of damages is what the employee would have earned within the period of notice required to properly bring the employment to an end and together with other benefits by way of overtime, rent subsidy etc in accordance with the terms of the contract of employment. However, in SPDC Ltd v. Olarewaju [2008] LPELR – 3046 [SC] p. 31, paras. D – G, the Supreme Court has this to say on the measure of damages in wrongful dismissal: It is trite that in cases of wrongful dismissal such as the present case, the measure of damages is prima facie, the amount the plaintiff would have earned had the employment continued according to the contract of employment, subject to the deduction in respect of amount accruing from any other employment which the plaintiff in minimizing damages either obtained or should reasonably have obtained. In like manner, but with a rider, in Olatunbosun v. Nigerian Institute of Social and Economic Research Council [1988] LPELR – 2574 [SC] pp. 55 – 57, paras. G – A, the Supreme held: In a claim for wrongful dismissal the measure of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract… Where, however, the defendant on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded apart from other entitlements, should be limited to the amount which would have been earned by the plaintiff over the period of notice bearing in mind that it is the duty of the plaintiff to minimize the damage which he sustains by wrongful dismissal. Clearly, in resolving the controversy, a distinction should be made between an employment that enjoys statutory flavour and one that does not: that is, one that is strictly so-called master/servant relationship and the one governed strictly by statute. In the termination of master/servant contract, the measure of damages recoverable in established wrongful dismissal is the amount of damages recoverable, and where the contract could be terminated, on the giving of notice, the amount the plaintiff would have earned during the period of the notice that was not given – see Osisanya v. Afribank Plc [2007] LPELR – 2809 [SC] pp. 15 – 17, paras. C – A. However, the Supreme Court appeared to have departed from this position, when in SPDC Ltd v. Olarewaju [supra] it awarded the additional damages for wrongful detention and humiliation. While it appeared that the case is one of master/servant relationship, considering the parties to the case, it would, however, appear that no issue of notice or payment in lieu thereof cropped up therein. What comes clear is that damages for detention and humiliation could be awarded, if proved, in addition to the payment in lieu of notice or damages for wrongful dismissal, even where giving of notice or payment in lieu thereof is provided for. Meaning that, where the issue of general or special damages is not proved, if length of notice of payment in lieu thereof is provided for, in validly terminating the contract, the measure of damages would remain the amount of money the claimant would have earned for the period of the notice, plus his other lawful entitlements for that period, but where it is proved, the Court is imbued with the discretionary power, to award additional damages for injured feelings, etc. What the Court could do now appears not closed but dependent on the peculiar facts and circumstances of the case. The above [in addition to consideration of unfair labour practice, which will be dealt with later in this judgment] appears to be the foreshadowed rationale for this Court’s decision in Industrial Cartons Ltd v. NUPAPPW (2006) 6 NLLR (Pt. 15) 258, a case of wrongful termination of employment, where it was decided that one month salary in lieu of notice would not meet the justice of the case. The Court frowned at the peremptory manner by which the Claimant’s appointment was terminated which it believed had the effect of suggesting that the Claimant did something wrong. The Court awarded six months salaries as meeting the justice of the case. The peculiar facts of this case relevant to the situation at hand is that the claimant herein was never invited to any panel nor made aware of the existence or terms of reference of the panel [this was even confirmed by the only witness the defendants’ called under cross examination] and yet the defendants went ahead to base their summary dismissal of the claimant on the outcome of a panel held clearly and secretly behind the claimant. Though, it is not stated exactly the offence committed in the letter of termination, it is clearly stated however, that: The report of the investigation panel set up to look into your involvement in the recent incident in CU Shuttle Services refers. After due and exhaustive deliberations on your appearance and statements from all the people involved, the outcome of the report seriously indicted you. Consequently, Management has concluded that the factors that informed your employment are not being met. Therefore your appointment with the Organization is hereby terminated with immediate effect. [Underlining mine for emphasis] [See paragraphs 1 & 2 of Exhibit CLW7] It is on record that the claimant had a query issued to him on another entirely different issue to which he had replied; and which query had not been finally rested before the purported termination. It is clear that the termination is based clearly on an unrelated panel issue, on an incident relating to CU shuttle Services, and not on misunderstanding with a senior officer, which is the fulcrum of the query. To make the matter worse, the claimant was never given the opportunity of fair hearing by way of invitation to appear before the panel before his appointment was terminated, based on the report of this so-called panel. This is clearly a travesty of justice! And to compound it, the letter of termination [Exhibit CLW7], which is based on the report of the panel, suggests that the claimant did something very reprehensible, such that no reasonable employer is supposed to employ him or at the least, that the claimant had no quality of being a good employee. This, without more, casts serious aspersion on the future employability of the claimant, who never was invited; talk less, of being afforded the opportunity of being heard, before being so-indicted. Res ipsa loquiturr: the termination letter speaks for itself. There is no need for further proof. And come to think of it: this travesty of justice issued out of a citadel of learning and civility, which the 4th defendant is supposed to be! Employers of labour must think of the future implications of their actions in terminating an appointment. They must be very wary of jeopardizing the future employment opportunities of their employees without just and clear cause. If the termination letter had been rested on the fact that the employee’s services were no longer required, without more, one would, perhaps, have probably found no fault with the employer, for exercising a right granted him by law, but when the employer went ahead to impugn on the personal integrity and employability of the claimant, without just a cause, the claimant becomes automatically entitled to general damages to assuage his injured feeling, injured reputation, and impugned employability: for no reasonable employer of labour would possibly employ a person whose employment was terminated on the grounds that he betrayed the factors that informed his employment, arising from the report of a kangaroo panel [conducted behind the claimant], indicting him. Ubi jus, ibi remedium: the claimant has a right to his employment reputation and feelings. If these are infringed, under the guise of termination of employment, the Court is under a duty to protect the claimant/employee. The scenario painted above is clearly a case of unjust labour practice. For it can never be just where an employer of labour, without just and established cause, impugned the integrity of an employee and based on this impugnation, goes ahead to peremptorily terminate his employment. The law has moved from the narrow confines of common law in master/servant relationship, to a more proactive approach that secures the rights of both parties to an employment contract. Thus, the attention has shifted, to protection of employees in cases of unfair labour practices, in tandem with what obtains in the comity of nations. The conduct of the defendants, in this instance, clearly amounts to unfair labour practice. Thus, Prof. O.D. Amucheazi and P.U. Abba adumbrated correctly, in their excellent book: The National Industrial Court – Law, Practice and Procedure, Wildlife Publishing House, UK, 2013, pp. 301 – 302, when they stated that: The practice of relying on general principles of best practice in international labour in the domestic forum is not unique to Nigeria, since it is employed in other countries similarly set up with respect to labour relations as in Nigeria. In Botswana, the Industrial Court stated, in the case of Thandi Marope v. Botswana Diamond Valuing Co. [PTY] Ltd: As the industrial Court is not only a court of law but also a court of equity, it applies rules of natural justice or rules of equity, as they are sometimes called, when determining trade disputes. These rules are derived from the common law as well as from the conventions and recommendations of the ILO. Also, in Trinidad and Tobago, the Industrial Court, in the case of Bank and General Workers’ Union v. Public Service Association of Trinidad and Tobago, held that the right of an employee to be heard was “fundamental principle of natural justice” reaffirmed by relevant ILO instruments and thus representing best international labour practice. On this note, the Industrial Court held in the instant case that an employee in private service is entitled to avail himself of right to a prior hearing before being dismissed, despite the absence of such requirement in the domestic labour statute in the country and in his contract of service… The Termination of Employment Convention requires a valid reason for termination of employment by the employer; this practice is generally applied in most jurisdictions the world over where improper motives for termination of an employee’s service render such termination unfair dismissal. [Underling mine for emphasis] In concomitance with the above, Steven Anderman, in his brilliant contribution, “Termination of Employment: Whose Property Rights?”, in the eminent book [a collection of essays, by an internationally distinguished group of scholars, in honour of Bob Hepple QC], The Future of Labour Law: Liber Amicorum Bob Hepple QC, C. Barnard, et al, eds., Hart Publishing, 2004, pp. 111 – 112, speaking about unfair labour practices, said: Historically, the legislation introducing unfair dismissal protection was meant to create a substantive and procedural test of fairness as well as the remedies of compensation for financial loss over and above pay in lieu of proper notice and reinstatement, all of which were lacking in common law. The statute was meant to replace the meagre protection then offered by the common law action of wrongful dismissal which was based on the freedom of the employer to exercise its power to terminate employment. This change in the nature of legislative policy expressed itself in the creation of individual rights for employees that emphasise the importance of placing limits on the employer’s exercise of its power to dismiss in the interests of an improved measure of fair treatment for individual employees. This legislation went against the grain of the common law in that it placed tribunals and courts in the position of applying objective standards of fairness to managerial conduct in exercising the employer’s extended ‘property’ rights.[Underlining mine for emphasis] It is precisely this change, which section 254C [1] [f] of the 1999 Constitution [as altered], has brought about, albeit obliquely, in the common law hitherto position, on master and servant contracts. By these provisions, it would seem confirmed, that the Court can look into the case of unfair labour practice, once raised, in the pleadings of the claimant and proved at trial. I must say, with utmost respect, that the situation envisaged under the item of ‘unfair labour practice’ in section 254C [1] [f] of the 1999 Constitution [as altered], seems, to me, to be different from that envisaged under the item of ‘international best practices in labour’, though the two are not necessarily un-coterminous. But a clear distinction exists and should always be borne in mind. When it comes to unfair labour practice simplicity, as distinct from international best practices in labour, the only burden placed on the claimant is to prove unfair labour practice against himself: it seems not necessary, to prove what obtains in foreign jurisdictions, though doing so may make it more persuasive. Once the claimant establishes unfair labour practice on himself against the defendant, it becomes the duty of the Court to use its objective criterion of what is fair to arrive at a decision. In doing this, the Court can, however, draw on any source, persuasive or judicially binding, to assist it in arriving at a just decision. Since the word ‘international’ is not attached to ‘unfair labour practice’ and the disjunctive adverb ‘or’ is used in introducing the two heads, as alternatives, no issue of proof of foreign law arises therefore in relation to unfair labour practice as would be necessary in the case of international best practices. In the instant case, I have found, as earlier indicated, unfair labour practice established, in the unfair summary dismissal of the claimant, when the letter of termination, was based on an unfounded indictment from a fundamentally-flawed panel, which attempts to rubbish the employability integrity of the claimant. The claimant has therefore satisfactorily discharged the burden of proof placed on him. The above views seemed to have been firmly endorsed by, my Lord, Hon. Justice A. Ibrahim, in His well-researched paper, “The Effect of the Application of Best Practices on the Common Law Principle of Master and Servant in Employment Relationship” delivered at the NBA Annual Conference [Section on Legal Practice] held between18th – 20th November, 2013 at Makurdi, Benue State, published in SLP Newsletter Vol. 1 No. 9, August, 2014, pp. 5 - 6. His Lordship stated, while quoting verbatim, the case of Mariam v. University of Ilorin Teaching Hospital Management Board [Unreported] Suit No. NICN/LA/359/2012, delivered June 19th, 2013, that: … where an employer acts outside of the pale of bona fide i.e. within the pale of mala fide, unfairness, vindictiveness and victimization, as is the case in the instant suit, then the equitable jurisdiction of the Court, which enjoins this Court to do away with the rigidity of common law in preference for the rules of equity [see section 15 of the National Industrial Court Act 2006], must necessarily be called to aid and assuage the hapless employee. In specifically giving this Court jurisdiction over unfair labour practices, section 254C [1] of the 1999 Constitution enjoins this Court to take a closer look at the labour practices of employers [even if they are internal] in order to ascertain the fairness or otherwise of those practices. And once found to be unfair, the expectation of the law is that the labour practice in question must then be remedied as may be just under the law. In this wise, the recognition of exceptions to the rule of judicial non-interference when it comes to the issue of, say, promotion at workplace by other common law jurisdictions such as India commends itself to this Court over unfair labour practices. Like I noted earlier, the essence of this Court is not just “the enforcement of mere contractual rights but for preventing labour practices regarded as unfair [for which a vindictive suspension and a vindictive denial or refusal of promotion are but examples] and for restoring industrial peace” at the workplace. This Court when adjudicating must determine the ‘rights’ and ‘wrong’ of a claim made; and in doing so, the Court is undoubtedly free to apply the principles of justice, equity and good conscience. The justice of the instant case, to my mind, requires that the defendants be held responsible for their acts against the claimant; and I so hold. [Underlining mine for emphasis] Though talking specifically on the issues of unfair suspension and wrongful denial of promotion, the principles are the same with those of unfair termination of employment: both are species of unfair labour practice. The principle or rule of unfair labour practice, I think, with the current state of industrial relations law in Nigeria, has assumed the status of such notoriety that this Court, being a labour Court, can take judicial notice of it – see section 122 [a] & [l] of the Evidence Act, 2011 in conjunction with section 254C [1] [f] of the 1999 Constitution [as altered]. This Court is also eminently qualified to look at what obtains in other jurisdictions when it comes to compensations for victims of unfair labour practices in Nigeria. Being a new concept in the firmament of employment jurisprudence in Nigeria, persuasive guidance must necessarily be taken from jurisdiction where this has been in existence for some time. For this reason, I quote, once again, the following passage from Steven Anderman, “Termination of Employment: Whose Property Rights?” in The Future of Labour Law [supra] p. 122, wherein it is stated that: The labour laws of a number of fellow European states have devised doctrines and remedies that are more invasive of the supposed ‘property’ rights of employers in respect of unfair dismissals and these are applied by the judges, on the whole, in a manner consistent with the purposes of the legislation. This can be seen in the standard of substantive unfair dismissal test that invariably allows the courts, often the labour courts, to apply a test of proportionality to the employer’s decision to dismiss. The European approach is also characterized by a greater willingness to insist upon a more effective remedy of reinstatement for unfair dismissals. A good example is offered by the Italian Statuto di Lavoratori, Article 18, which provides that if an employee claims that he or she has been unfairly dismissed, there is a right to interim relief until the tribunal pronounces upon the fairness or unfairness of the dismissal in accordance with the Individual Dismissal Law of 1996. Moreover, there is a minimum penalty for unfair dismissal of five month’s pay which applies even if the employee is back at work in less than five months. Although, the Nigerian Constitution, [section 254C [1] [f] of the 1999 Constitution] did not specifically provide the award of minimum of five months salaries in case of unfair dismissals. But being that it is a constitutional provision that confers on the Court the powers to look into issues of unfair labour practices and grant appropriate remedies even if not claimed by virtue of section 254D [2] of the 1999 Constitution [as altered] and sections 14 & 19 [d] of the National Industrial Court Act 2006, this Court is eminently empowered to grant damages as a relief for unfair labour practice of unfair dismissal. And the Court can clearly take guidance from the more elaborate provisions of foreign statutes as to what remedies would be appropriate when a proof of unfair dismissal, a species of unfair labour practice, is established. The law is that a constitutional provisions must be construed broadly in order to breathe life into it and enable it achieve its purposes – see Obih v. Mbakwe [1984] LPELR – 2172 [SC] pp. 16 – 17, paras. C – A: The attitude of this Court towards the proper interpretation of the 1979 Constitution was set in proper perspective in the case of Rabiu v. The State [1980] 8 – 11 S.C. 130 by Sir Udo Udoma at pages 148 – 149 in the following words: “The function of the Constitution is to establish a framework and principles of government, braod and general in terms, intended to apply to the varying conditions which the development of our several communities must involve, our being a plural, dynamic society, and therefore, mere technical rules or interpretation of statutes are to some extent inadmissible in a way as to defeat the principles of government enshrined in the Constitution. And where the question is whether the Constitution has used an expression in the wider or the narrower sense, in my view, this Court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless, there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution. I make haste to cite yet another authority of the Supreme Court on this same issue of how a constitutional provision is to be interpreted. In Bronik Motorts Ltd v. Wema Bank Ltd [1983] LPELR – 808 [SC] pp. 45 – 46, paras. B – A, the Supreme Court admirably held: It has also been accepted by all our courts that a broad and liberal spirit should prevail in interpreting the provisions of our Constitution although one has constantly to bear in mind the object, which such provisions were intended to serve. Sir Udo Udoma J.S.C. very aptly stated this in Nafiu Rabiu v. The State [1980] 8 – 11 S.C. 130 at 148 where the learned Justice said: “My Lords, it is my view that the approach of this Court to the construction of the Constitution should be and so it has been, one of liberalism, probably a variation of the theme of the general maxim ut res magis valeat quam perea. I do not conceive it to be the duty of this Court so to construe any provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accordance and consistent with the words and sense of such provisions will serve to enforce and protect such ends”. In this instance, section 254C [1] [f] of the 1999 Constitution [as altered] creates an entirely new concept and right of “unfair labour practice”, which is both at the same time foreign to the common law concept of master and servant relationship and the industrial relations jurisprudence hitherto existing in Nigeria. This new right, when infringed, it is naturally and logically expected that there must be a remedy; or else, the whole purpose of creating the right would have been defeated. If no specific remedy is directly created by the Constitution, the Court is bound to inquire into what obtains from the jurisdiction where this concept has been borrowed and introduced into Nigeria as guidance. The Court is therefore bound to give the provision a broad interpretation that construes it as both accommodative of granting a right and imposing a remedy for its breach. And in line with the ratio of the Supreme Court in Amaechi v. INEC [2008] LPELR – 446 [SC] p. 96, paras. C – G, this Court is duty bound to improvise a remedy: On the principle of ubi jus ibi remedium, if the court is satisfied that a person has suffered a legal injury, it will surely provide a remedy irrespective of the fact that no remedy is provided either at common law or by statutes. In Oyekanmi v. NEPA [2000] 15 NWLR [Pt. 690] 414 this Court per Onu J.S.C. said p. 444: “On the principle of ubi jus ibi remedium” in Bello and 13 Others v. A.-G., Oyo State [1986] 5 NWLR [Pt. 45] 828 at 890 this Court per Oputa, J.S.C. held that if from the facts available before the Court it is satisfied: (i) that the defendant is under a duty to the plaintiff; (ii) that there was a breach of that duty; (iii) that the defendant [sic] suffered legal injury; (iv) that the injury was not too remote, it will surely provide a remedy i.e. create one irrespective of the fact that no remedy is provided either at common law or by statutes”. Arising from all that have been said on this issue, I therefore find and hold that the claimant herein is entitled to general damages as relief for unfair termination, in addition to payment in lieu of notice, to which he is ordinarily entitled, where he proves wrongful termination simplicity. Before rounding up on this issue, I must not fail to address the argument of the defence counsel that the claimant is not even entitled to payment in lieu of notice, even though conceded by the defendants, simply because the claimant did not ask for same in his reliefs. Counsel submitted that the Court not being a Father Christmas, is not competent to grant a relief not claimed. Let me quickly say, without wasting much time on this, that this submission is grossly erroneous. The right to payment in lieu of notice is a right granted by the terms of contract between the parties and not one to be formally accessed by the person whose appointment is terminated. It is fixed by law. The claimant automatically becomes entitled to it once his appointment is declared to have been wrongfully terminated; such that if it was not even claimed, the Court has the duty to award it, either in replacement of the wrong relief claimed or in addition to such relief, depending on the circumstances of the case. It is, in short, a consequential relief [a matter of course], flowing from the prayer in the principal relief, of declaration of wrongful dismissal. Once a claimant asks for a declarative relief of wrongful dismissal or termination, as the case may be, and the court grants same, he becomes automatically entitled to the consequential relief of payment in lieu of notice, in cases of master/servant relationship, where the contract provides for payment for termination in lieu of notice. See Ativie v. Kabelmetal Nig. Ltd [2008] LPELR – 591 [SC] pp. 13 – 14, paras. F – A [supra]: It has been settled in a long line of authorities that cases of ordinary contract of employment where the terms provide for a specific period of notice before termination or salary in lieu thereof, the only remedy available to an employee who is wrongfully terminated is the award of salary for the period of the notice and other legitimate entitlements due to him at the time the employment was brought to an end... See also Ameachi v. INEC & Ors. [2008] LPELR – 446 [SC] p. 113, paras. A – C: It is the law even where a person has not specifically asked for a relief from a court, the court has the power to grant such relief as a consequential relief. A consequential order must be one made giving effect to the judgment which it follows. Besides, the National Industrial Court has the discretion to grant any appropriate relief or remedy to a party to which he seemed entitled, even if not claimed, by virtue sections 14 & 19 [d] of the National Industrial Court Act 2006 [NICA]. I therefore hold that the claimant is eminently entitled to one month salary in lieu of notice. Furthermore, based on SPDC V. Olatunbosun [supra] & Industrial Cartons Ltd v. NUPAPPW [supra] and sections 254C [1] [f] of the 1999 Constitution [as altered], 14 & 19 [d] of the NICA; and the principles of unfair labour practice, which are now parts of the Nigerian industrial relations jurisprudence, I also hold that one month’s salary in lieu of notice would not be enough in the particular instance of this case. It follows that issue No. 2 is also resolved against the defendants and in favour of the claimant. I now come to the third issue: claim for the cost of litigation. The claim for cost of the action is put at one million. I observe that no argument is urged in respect of it in the final written address. I therefore do not have the assistance of authorities from the counsel. I am therefore limited to the authorities yielded by my personal research. In accordance with Amosun v. INEC [2010] LPELR – 4943 [CA] pp. 57 – 58, paras. G – C, it would seem that, the fact that the issue was not raised in the final address of counsel to the claimant, does not mean abandonment of the claim or relief thereof. I am therefore bound to consider it. I have therefore carefully considered same. On the authorities of GUINESS NIG. PLC V. EMMANUEL NWOKE [2000] LPELR – 6845 [CA] 1 AT 23 -24, PARAS. A – A and SPDC NIG. V. OKONEDO [2008] 9 NWLR [PT. 1091] 85 AT 122 – 123, PARAS. H –D, 122 – 123 PARAS. D – C; it seems that the type of cost being urged here, which is in respect of fees paid to counsel as revealed in Exhibits CW8, CW9 & CW10, seems, by the current state of law in Nigeria, un-awardable. I therefore find and hold that counsel fees of one million naira only depicted on Exhibits CLW8 – 10, is not recoverable in law. However, the peculiar circumstances of this case call for the award of cost in favour of the claimant. For, the flagrant disregard of due process by the defendants has necessitated the need for the claimant to approach the Court, thus dissipating his resources in prosecuting a case that would not have been necessary in the first instance, had the right thing been done by the defendants. If the cost incurred in terms of fees paid to counsel is not recoverable or awardable, at least, on the authority of Haco Ltd. v. Brown [1973] LPELR – 1347 [SC] pp. 8 – 9, paras. F – A, a successful litigant, is, by right, entitled to other costs of litigation; which I agree, the claimant herein is entitled to. I therefore assess the costs at N100, 000 naira only. I also find that the claimant is entitled to post-judgment interest on the judgment sum from the date of this judgment until the judgment sum is fully liquidated by the defendants, on the authority of Diamond Bank Ltd. v. Partnership Investment Co. Ltd. & Anor [2009] LPELR – 939 [SC] p. 31, paras. A – C, wherein the Supreme Court clearly laid down the principle that: The general rule, is that monetary judgment, attracts appropriate interest even where none is claimed. Flowing from the above, I also award to the claimant, a post-judgment interest at the rates of 10% per annum, from the date of this judgment, until the judgment debt is fully and finally liquidated. Consequently, I grant the following reliefs: 1. The termination of the appointment of the claimant is declared wrongful; 2. The claimant is awarded one month salary in lieu of notice; 3. The claimant is awarded 5 months salaries as general damages; 4. The claimant is awarded the costs of N100, 000 naira; and 5. The judgment sum shall attract 10% interest rates, per annum, from the date of this judgment until the judgment debt is fully liquidated. ……………………………………. Hon. Justice B. A. Adejumo, OFR MCI.Arb, GFSM, CFIARN, FCIArb, FNILS President, National Industrial Court of Nigeria.