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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: APRIL 23, 2015 SUIT NO: NICN/LA/227/2014 BETWEEN Miss. Olufolake Tejuoso - Claimant AND 1. Lagos State Board of Internal Revenue 2. Lagos State Internal Revenue Service - Defendants REPRESENTATION A. Labi-Lawal for the Claimant. Femi Asekun for the Defendants. JUDGMENT The Claimant on 21/5/14 by Form 1 approached this Court for certain reliefs against the Defendants. Now by her Amended Statement of Facts filed on 17/11/14, the Claimant sought the following reliefs against the Defendants - a. A Declaration that the Defendants failed to comply with the procedure laid down in the Lagos State Revenue Administration Law of 2006 and the Nigerian Labour Act Cap. 198 Laws of the Federation of Nigeria 1990 and Staff Policy Hand Book for the disengagement of the Claimant from the service of the Defendants. b. A Declaration that the Claimant is still in the employment of the Lagos State Internal Revenue Service (LSIRS) c. Monthly payment of =N=60,000.00 (Sixty Thousand Naira) by the Defendants to the Claimant being her gross monthly remuneration from March 2014 till judgment is delivered in this suit. d. 21% interest per annum on the above sum from March 2014 until the sum is paid in totality. e. Perpetual Injunction retraining the Defendants from subsequent interference with the Claimant’s employment with the Defendants. f. Cost in the sum of =N=550,000.00 (Five Hundred and Fifty Thousand Naira) being the cost of prosecuting this suit. Alternative to Reliefs b-e above c. A declaration that the purported termination of the Claimant’s appointment by the Defendants without regard to the provisions of the relevant Laws, is a breach of contract of employment between the Claimant and the Defendants. d. Damages in the sum of N20,880,000.00 (Twenty Million Eight Hundred and Eighty Thousand Naira) being the Claimant’s gross remuneration of N720,000.00 (Seven Hundred and Twenty Thousand Naira) per annum for the next 29 years when the Claimant is expected to retire from service of the Defendants. The Form 1 was accompanied by all the requisite processes as mandated by the Rules of Court. On 3/6/14, the Defendants filed their Memorandum of Appearance, Statement of Defence, Defendants' list of witness, Defendants' list of documents as well as Defendants' witness statement on oath and copies of documents to be relied on at trial. The trial of this case commenced on 22/9/14 when the Claimant testified as CW1, adopted her statement on oath dated 20/5/14 as her evidence in chief and tendered 5 documents as exhibits. The 5 documents were admitted without objection and marked as Exh. C1-Exh. C5. The case for the Claimant as deducible from the pleadings filed is that sometime in year 2009, the Claimant was offered an appointment by the Defendants as an Assistant Revenue Supervisor via a letter dated January 19, 2009; that it was contained in the offer letter that the other terms and conditions of the Claimant’s employment are as contained in the staff Handbook which will be made available to the Claimant on a later date; that the terms of the Claimant’s employment are also subject to the relevant provisions of the Lagos State Revenue Administration Law of 2006 and the Nigerian Labour Act Cap. 198 Laws of the Federation of Nigeria 1990; that the Claimant accepted the offer and was employed as an Assistant Revenue Supervisor on a gross remuneration of N720,000.00 (Seven Hundred and Twenty Thousand Naira) per annum payable monthly in arrears in the sum of N60,000.00 (Sixty Thousand Naira) and that the Claimant is a holder of a public office with legal status in the established pensionable cadre of the public service of Lagos State and is entitled to be in office until she reaches the retirement age or is properly removed from service in accordance with the relevant provisions of the Lagos State Revenue Administration Law of 2006 and any other applicable Law in existence. The Claimant averred that in flagrant disregard of the relevant provisions of Lagos State Revenue Administration Law of 2006 and the Nigerian Labour Act Cap. 198 Laws of the Federation of Nigeria 1990, the Defendants terminated the appointment of the Claimant via a letter dated March 10, 2014, and the termination was to take effect on March 11, 2014; that the Claimant was not given the required statutory notice of intention to terminate her employment before her employment was terminated by the Defendants; that sequel to the termination of the Claimant’s employment, the Defendants credited the Claimant’s account with the sum of N18,000.00 (Eighteen Thousand Naira) purportedly as payment in lieu of the required notice; that immediately the Claimant’s account was credited by the Defendant with the said sum, the Claimant withdrew the money and passed same on to her Solicitors with an instruction to return the money to the Defendants. It was the case of the Claimant that her Solicitor duly returned the said sum to the Defendants via an Access Bank Cheque dated April 10, 2014 which was enclosed in a letter dated May 5, 2014; that the Claimant is entitled to the notice of intention to terminate her contract and she insists on her right to same; that the dismissal or disengagement of a staff of the Claimant’s status in the employment of the Defendants is regulated by the provisions of the Lagos State Revenue Administration Law of 2006 and the Labour Act Cap. 198 Laws of the Federation of Nigeria 1990; that the failure of the Defendants to comply with the procedure laid down in the Lagos State Revenue Administration Law of 2006 and the Labour Act Cap. 198 LFN 1990 before the disengagement of the Claimant makes the act of the Defendants against the Claimant null and void; that the Defendants are mandated to act within, and not outside, the provisions of the statute which created them; that by acting contrary to the provisions of the Statute which created them, the Defendants have acted ultra vires the said enabling statute and that the Claimant believes that her disengagement is unfair, unlawful and ought to be set aside. Under cross examination, CW1 testified that she was referred by Alhaja Afolabi to 2nd Defendant; that she did not go through the Civil Service; that she signed and acknowledged Exhibit C1; that she agreed to the terms of Exhibit C1; that she worked for 5 years with 2nd Defendant; that she is still in the employment of 2nd Defendant; that she sat for promotion examinations; that she was given a 2nd attempt at promotion examination; that she did not pass the examination; that she was not the only person who sat for the promotion examination and that throughout her work with the 2nd Defendant she was never disciplined. In their defence, the Defendants called one Omobola Oguntimehin as their sole witness. DW1 adopted her witness statement on oath dated 3/6/14 as her evidence in chief and tendered 5 documents as exhibits. The documents were admitted as exhibits without objection and marked as Exh. D1-Exh. D5. The case of the Defendant is that the Claimant was offered employment in the service of Lagos State Internal Revenue Service via employment letter dated 19th January, 2009 and was accepted by the Claimant on 4th February, 2009; that by accepting the appointment the Claimant agreed to comply strictly with all terms, conditions, rules and regulations from time to time as stated in the Lagos State Internal Revenue Service Handbook and all internal memos of the Lagos State Internal Revenue; that part of the mandate given to Lagos State Inland Revenue Service in the administration process is the regulation of termination and appointment of its employees; that subject to the provisions of the law the Board may make staff regulations relating generally to the conditions of service of staff and in particular the appointment, promotion, termination, dismissal and disciplinary control of staff or employees of the Internal Revenue Service; that on July 9th 2013, a notice was sent to the Claimant informing her of a poor performance of 24% at the promotion examination exercise conducted by the Lagos State Board of Internal Revenue and advising her on the need to improve her performance; that on 9th of December, 2013 another notice was served on and acknowledged by the Claimant informing her of her poor performance at the re-sit of the promotional examination in which Management registered its displeasure and made it clear that where she failed on the third attempt to improve on the current poor performance of 35%, Management would be left with no other option than to review her appointment and that on the 10th of March, 2014 the Claimant was informed of the disengagement of her services from the agency as Management found the Claimant unsuitable to cope with the demands in discharge of duties and responsibilities to the organization, especially the Claimant’s inability to meet the minimal acceptable pass mark of 40% after three attempts at the evaluation exercise conducted. The Defendant averred further that contrary to the Claimant’s statement of facts the position given is totally misconceived as she was properly disengaged even under the Law; that the Claimant was given notices of the Defendant’s intention before her appointment at the Lagos State Internal Revenue Service was disengaged for poor performance at three (3) consecutive promotion examinations conducted by the Lagos State Board of Internal Revenue; that it is a policy that employees who have spent more than four years in the same grade but not considered suitable for promotion will have their appointments reviewed by the Management of Lagos State Internal Revenue Service; that the sum of Eighteen Thousand Naira (N18,000.00) being one month’s basic salary was paid to the Claimant in lieu of notice to terminate her employment with the Defendant in line with the Lagos State Internal Revenue Service Policy Handbook; that the services of the Claimant were no longer required and the cheque sent by the Claimant’s Solicitor must have been sent in error as the Claimant was already disengaged having failed to meet up to the requirement and standard of the organisation as a result of her poor performances; that the Claimant’s basic salary was paid in lieu of notice in accordance with the Lagos State Internal Revenue Service policy, due to her poor performance which Management found unsuitable for the responsibilities in the discharge of her duties to the organisation; that the Claimant's disengagement of service was duly communicated to her via letter dated 10th March, 2014 which was also acknowledged; that the Defendants returned the Access Bank Cheque No. 15573804 dated the 10th day of April, 2014 in the sum of Eighteen Thousand Naira (N18,000.00), via a letter dated 28th May, 2014 with proof of delivery dated 30th May, 2014 to the Claimant's Solicitor informing him that Ms. Olufolake Tejuoso’s appointment was disengaged as far back as the 10th of March, 2014; that notices of the defendants intention to disengage her was communicated to her via letters dated 29th July, 2013 and 9th December 2013 and that despite the fact that the Claimant’s appointment is regulated by the provisions of the law, it has followed due process within the law in terms of the Claimant’s disengagement from the organisation and also given the Claimant three chances to improve on her poor performance three (3) consecutive promotion examinations conducted by the Lagos State Board of Internal Revenue. Under cross examination, DW1 testified that the Claimant was given notice of intention to terminate her appointment; that the N18,000 credited to Claimant’s account was her one month basic salary in lieu of notice; that when a staff fails promotion examination on 2nd attempt the Defendant would remind the staff of the policy in place of failure to make 40% at the 3rd attempt that the appointment will be reviewed; that Exhibit D3 is the notice of intention to terminate the Claimant’s appointment; that Claimant’s appointment was terminated as a result of poor performance at the promotion examinations; that in the Defendant's term, termination of Claimant’s appointment was not a disciplinary measure; that disciplinary measures are stated in the Defendant's Handbook; that poor performance should be in 2nd Defendant’s Handbook; that she did not give any query to the Claimant; that she did check the content of her file at the station; that the Claimant was not referred to any disciplinary committee because Claimant’s case was different and that it was not necessary to seek the approval of the Governor before terminating Claimant’s appointment. At the conclusion of trial, learned Counsel on either side were directed by the Court to file their final written addresses for adoption. The Defendant's final written address dated 14/10/14 was filed on 16/10/14. In it learned Counsel raised a lone issue for determination as follows - Whether the Defendants have followed due process of law in the termination of the Claimant's appointment. Arguing this issue, learned Counsel submitted that the relationship between master/servant or an employer/employee is a contractual one and governed by the terms and conditions of the contract between them, citing Nwaubani v. Golden Guinea Breweries Plc (1995)6 NWLR (Pt. 400) 184 at 188; that a contract of employment can be brought to an end by a proper or reasonable notice given by either party, citing Section 11 (1), Labour Act or agreed payment made in lieu of such notice citing Odiase v. Auchi Polytechnic, Auchi (1998)4 NWLR (Pt. 546) 477 and that the mere fact that the contract of employment is expressed to be pensionable or that it fixes the age at which the employee can retire does not mean that the employee has thereby secured an employment for life or that the employment cannot be terminated by reasonable notice, citing Abukogbo v. African Timber & Plywood Limited (1996)2 All NLR 87. Counsel submitted that by virtue of the Handbook which the Claimant by her letter of appointment agreed to abide, any staff who fails promotional examinations for three times consecutively is regarded as unproductive and employment liable to be terminated, referring to Exh. D2 and Exh. D3. Learned Counsel further submitted that the available documents before the Court are Letter of Appointment, 2nd Defendant's Staff Policy Handbook, and the Lagos State Revenue Administration Law of 2006 and that the Claimant has failed to establish that the procedures under these documents were breached by the Defendants. Submitting further, learned Counsel stated that the Defendants have the right and power under the law to hire and fire; that in its administration process, it is not the procedure to seek the consent of the Governor of the State in such matters especially pertaining to termination of employment and that the Claimant's appointment was duly terminated under the law with utmost consideration of all relevant laws governing employment in the Lagos State Internal Revenue Service. Regarding issue of Injunction, Counsel submitted that the general principle is that specific performance will not be ordered in respect of obligation to perform personal services as the Courts are very unwilling to compel the continuance of master/servant relations lest they should turn to contracts of slavery, citing In De Francesco Baarman (1880)45 Ch. D 430. With respect to claim for Damages, Counsel submitted that Damages of whatever kind are a function of liability and that where the Claimant fails to establish the liability of the Defendant, then such claim will fail citing Tsokwa Oil Marketing Co. v. B.O.N Limited (2002)11 NWLR (Pt. 777). Counsel submitted that the Claimant has failed to advance any evidence in support of her claim. Counsel urged the Court to so hold. It was the argument of the Defendants that the Claimant's employment does not have statutory flavour and hence Claimant cannot complain about the termination of her appointment; that the Claimant did not commit any offence or misconduct during her term of employment which would warrant disciplinary action and that matters which are to be referred for disciplinary action are spelt out in the Lagos State Inland Revenue Service Policy Handbook and that this suit is not a matter of misconduct or one in which a procedure for disciplinary action should be considered. Learned Counsel urged the Court to hold that the claims sought are not properly grounded in law but misconceived and that the Court should uphold the contract of appointment and dismiss the suit with substantial cost. The Claimant's final written address was dated and filed 17/11/14. In it, learned Counsel set down 2 issues for determination as follows- 1. Whether the Defendants complied with the procedures laid down in the Lagos State Revenue Administration Law 2006, Nigeria Labour Act, 1990 and the Lagos State Internal Revenue Service Staff Hand Book Policies and Procedure Manual before the termination of the Claimant's employment with the Defendants. 2. Whether the Claimant is not entitled to an order of reinstatement to the position she was with the 2nd Defendant before the wrongful termination of her employment. Before proceeding to argue these issues, learned Counsel raised what he called a preliminary point on the competency of the Defendants' pleadings before the Court upon which evidence can stand against the Claimant's case. Counsel submitted that learned Counsel to the Defendants - Mrs. M. A. Olukolu who signed and franked the defence processes is the Director, Legal Services in the 2nd Defendant's office and that by Rule 8(1) of the Rules of Professional Conduct made pursuant to the Legal Practitioners' Act,1990 she has no competence to so sign and frank those processes. Rule 8(1) of the Rules of Professional Conduct states as follows - ''A lawyer, whilst a servant or in a salaried employment, shall not prepare, sign, or frank pleadings, applications, instruments, agreement, contract, deeds, letter, memoranda, reports, legal opinion or similar instrument or processes or file any such document for his employer''. On the basis of the above provision, learned Counsel urged the Court to discountenance the processes filed by the Defendant Counsel as being in violation of the Rules of Professional Conduct made pursuant to the Legal Practitioners' Act, 1990. Learned Counsel therefore prayed the Court, citing Omoregbe v. Lawani (1980)3-4 SC 70, to hold that Claimant's evidence remain unchallenged and thus find for the Claimant. Now, arguing issue 1, learned Counsel submitted that the Defendants are creation of the Lagos State Revenue Administration Law C. 166, Laws of Lagos State of Nigeria. Counsel referred to section 11(1), (2) & (5) of the Law which gives the Board the power to make regulation relating to its staff etc and submitted that pursuant to section 11(1)(a) of the Law, the Board made the Staff Policy Hand Book (Exh. C2). According to learned Counsel, the law is that where terms and conditions of a contract of employment or service are specifically provided for by statute or regulations made there under, it is said to be a contract protected by statute and the employee therefore enjoys special legal status over and above that of the ordinary common law master and servant relationship citing Imoloame v. WAEC (1992) NWLR (Pt. 265) 303 where the Court held as follows - 'it is now accepted that where the contract of service is governed by the provisions of statute or where the conditions of service are contained in regulations derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of master and servant. They accordingly enjoy statutory flavour'. Counsel further cited Olaniyan v. University of Lagos (1985) NWLR (Pt. 9) 599, Eperokun v. University of Lagos (1986)4 NWLR (Pt. 34) 162, Bamgboye v. Univeristy of Ilorin (1999)10 NWLR (Pt. 622) 290, Univeristy of Maiduguri Teaching Hospital Management Board v. Dawa (2007)16 NWLR (Pt. 739) 424 and Oloruntoba-Oju v. Abdul-Raheem (2009)13 NWLR (Pt. 1157) 83. According to learned Counsel, Claimant's letter of employment clearly stated that - 'The terms of employment stated herein are without prejudice to the relevant provisions of the Lagos State Revenue Administration Law, 2006, a copy of which is enclosed for your information' and that by this , the Claimant automatically becomes a holder of public office in the public service of Lagos State whose appointment and condition of service is then regulated by the Nigerian Labour Act Cap. 19, Lagos State Revenue Administration Law C.166, 2006 and the Regulations made there under which are contained in Exh. C2 and form the basis of employment with statutory flavour; that that being the case the only method for terminating an appointment with statutory flavour is by compliance with the procedure laid down in the relevant statutes of the agency in question. Learned Counsel argued that the reason given for terminating the appointment of the Claimant i.e her inability to pass promotion examinations after three consecutive attempts was not in compliance with the procedure laid down by the statute. Counsel cited Bamgboye v. University of Ilorin (Supra); that neither the Letter of Appointment- Exh. C1 nor the Staff Hand Book - Exh. C2 provided for such a reason for the termination of Claimant's appointment and that indeed the Defendants have no power to organise the said promotion examination for staff since Exh. C2 already provided for the criteria, conditions and procedure for promotion which s contained on page 37 under the heading Eligibility for Promotion; that it is ultra vires the power of the Defendants to terminate Claimant's appointment because she did not pass the said examination because there is no place in the regulations and the appointment letter where such penalty is stated for such an offence. Arguing further learned Counsel submitted that it is also on record that although section 11(1)(2)(d) of the Labour Act requires requisite notices to be given prior to termination of appointment, the Defendants in this case did not give notice as stipulated and hence the action of the Defendants is illegal, null, void and ought to be set aside. Counsel urged the Court to so hold. Issue 2 as stated is whether the Claimant is not entitled to an order of reinstatement to the position she was with the 2nd Defendant before the termination of her employment. Arguing this issue, learned Counsel cited Iderima v. Rivers State Civil Service Commission (2005)16 NWLR (Pt. 951) 378 at 403 and Abdulraheem v. Olufeagba (2006)17 NWLR (Pt. 1008) 280 for the proposition that where employment with statutory flavour is found unlawfully terminated and set aside, the employee will be entitled to an order of reinstatement. Learned Counsel prayed the Court to so hold, enter judgment in favour of the Claimant and order her reinstatement. On 27/11/14, the Defendants filed a 5-page Reply on Points of Law to the Claimant's written address. Learned Counsel submitted that the provision of Rule 8(2) of the Rules of Professional Conduct made pursuant to the Legal Practitioners Act, 1990 must be read in conjunction with Rule 8(1) of the same Rules; that by Rule 8(1) a Lawyer whilst a servant or in a salaried employment of any kind shall not appear as advocate in a court or judicial tribunal for his employer except where the Lawyer is employed as a Legal Officer in a government department or legal firm/chamber; that Mrs. M. A. Olukolu was employed as a Legal Officer by the Civil Service Commission where she rose to become a Director under the Civil Service of Lagos State and that she is a State Counsel answerable to the Honourable-Attorney General of Lagos State. Secondly, learned Counsel stated that by section 10 of the Lagos State Revenue Administration Law, the Board is autonomous in its day to day running of the technical, professional and administrative affairs of the Internal Revenue; that review of employment may be made upwards or downwards depending on the economy, policies of the organisation and performance of employee; that in the case of the Claimant, her employment was reviewed downward due to her poor performances in the examinations and that the appointment of the Claimant has no statutory flavour. Counsel urged the Court to so hold. This Judgment was initially slated for delivery on 9/4/15. Although it was ready on that day, it could not be delivered due to Easter Vacation which commenced from 25/3/15 - 15/4/15. Hence Hearing Notices were issued and served on parties and learned Counsel to attend Court today 23/4/15 for this Judgment. I have read all the processes filed by learned Counsel on either side and understood all. I watched the demeanour of the witnesses while testifying in course of trial and reviewed all the exhibits tendered and admitted. In addition, I listened with understanding to the oral submission of learned Counsel for either side. Having done all this, I have come to narrow the issues for the just determination of this case down to 3 as follows - 1. Whether the employment of the Claimant in this case is one with statutory flavour. 2. Whether the termination of the appointment of the Claimant is wrongful and unlawful. 3. Whether the Claimant is entitled to any or all the reliefs sought. On issue 1, it is correct to state that employment may be one of master/servant or one governed by statute often referred to as having statutory flavour. Different considerations and incidences apply to each of them. With respect to employment with statutory flavour Adekeye JSC in Dr. Taiwo Oloruntoba-Oju & Ors. v. Prof. Shuaibu O. Abdul-Raheem & Ors. (2009) LPELR-2596 (SC) put the position of the law as follows - '... where the terms and conditions of a contract of employment or service are specifically provided for by statute or regulations made there under - it is said to be a contract protected by statute or in other words an employment with statutory flavour''. His lordship went further to state that the question of whether a contract of employment is governed by statute or not depends on the construction of the contract itself or the relevant statute and that the duty to construe the contract or the relevant statute is the exclusive preserve of the Courts. Without much ado, it is trite to state, perhaps for clarity, that for an employment to be one with statutory flavour, it must meet one of two conditions. One, the terms and conditions applicable to that particular employment must have been specifically provided for by a particular statute. Or in the alternative, the regulation which contains the applicable terms and conditions of the particular employment must have been made pursuant to or in the exercise of power conferred by a statute. It is also correct to add that it is not just sufficient that a statute confers power to make such regulations and the regulations are made. The making of such regulations must certainly be expressed to be in pursuance of the power so conferred to make same. Now, what are the relevant contract documents in this case or the statute said to be applicable to the Claimant in this case? Exh. C1 is the Offer of Appointment as Assistant Revenue Supervisor. It was dated 19/1/09. Clauses 10, 13 and 15 are relevant to the resolution of this issue. I reproduce them as follows - '' 10. In any case, LIRS may terminate your appointment without notice or payment in lieu where you have been engaged in serious or persistent misconduct such as to cause a major breach of LIRS disciplinary rules''. ''13. Other terms and condition of your employment are as contained in the staff handbook which will be made available to you by the Board Secretary''. ''15. The terms of employment stated herein are without prejudice to relevant provisions of the Lagos State Revenue Administration Law 2006, a copy of which is enclosed for your information''. Clause 15 above refers to the Lagos State Revenue Administration Law, 2006. The relevant provision there is section 11 of that Law. The section provides as follows - ''11. (1). Subject to the provision of this Law, the Board may make staff regulations relating generally to the conditions of service of the staff and, in particular such regulations may provide for - (a). the appointment, promotion, termination, dismissal and disciplinary control of staff or employees of the Internal Revenue service; and (b). appeals by staff or employees against dismissal or other disciplinary measures, and until such regulations are made, any instrument relating to conditions of service in the public sector of the State shall be applicable, with such modifications as may be necessary; to the employees of the Service. (2). The staff regulations made under subsection (1) of this Section shall not have effect until approved by the Governor, and when so approved they must be published in the State Gazette but the Internal Revenue Service shall cause a notice of the staff regulations to be issued to all affected staff in such manner as the Internal Revenue Service may, from time to time, determine.'' Exh. C2 is the Lagos State Internal Revenue Service Staff Policy Hand Book - Policies and Procedure Manual. It is a 62-page document with a Foreword written by one Tunde Fowler as Executive Chairman. It has no date. It was the argument of the learned Counsel to the Claimant that by this exhibit together with the Lagos State Revenue Administration Law C. 166, Laws of Lagos State the employment of the Claimant has statutory protection. I read the whole 62-page Exh. C2. I found nothing stated anywhere in it to the effect that it was made pursuant to or in the exercise of any statutory power. Indeed paragraph 3 of the Foreword by the Executive Chairman is instructive. There, the Executive Chairman had said, talking about Exh. C2 - ''It defines the rights, obligations, responsibilities and liabilities of everyone in the agency thereby increasing harmonious working relationship and allowing for a thorough understanding and correct interpretation of the agency's human resources policies and procedures. The terms of employment should be read in conjunction with the employees' ethics and code of conduct which complements the contents of the manual''. My understanding of Exh. C2 is that it was made not as a result of any power derived from any statute; that it was made by an independent agency of the Lagos State Government and that in the determination of the rights, obligations, responsibilities and liabilities of the staff of the Agency reference may only be made to the employees' ethics and code of conduct only and nothing else. The bottom line of the foregoing is my finding and holding that the employment of the Claimant is not one with statutory flavour but rather one of Master/Servant and regulated by the terms and conditions of service as contained in the letter of employment and the Lagos State Internal Revenue Staff Policy Hand Book. I so find and hold. The second issue for determination is whether the termination of the appointment of the Claimant is wrongful and unlawful. Having held that the relationship between the Claimant and the Defendant is one of master/servant, what then is the procedure for bringing such a relationship to an end? The position of the law is that either party in a master/servant relationship may bring the relationship to an end subject to giving the requisite notice or making necessary payment in lieu of notice under the terms of the contract. See Akinfe v. U.B.A Plc (2007)10 NWLR (Pt. 1041) 185. Once either of these is done, a servant cannot complain of wrongfulness in the termination of his employment. It is also trite that the position in relation to this point in this country today is that a master may hire and fire at any time without giving any reason at all. See Ajayi v. Texaco Nigeria Limited (1987)3 NWLR (Pt. 62) 577. I may add, albeit in the passing, that the situation is no longer the same under the best international labour practices which indeed this Court is empowered to take cognizance and recognition of in pursuance of Section 254, Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2010. See Kola-Olalere J in Shadrack Iheanacho Duru v. Skye Bank Plc Suit No: NICN/PHC/83/2013 delivered on 20/2/15. Where however, a master offers reason for terminating the employment of his servant, he is certainly under an obligation to prove that reason. See Afribank (Nig.) Plc v. Osisanya (2000)1 NWLR (Pt. 642) 592. Now, Exh. C3 is the letter terminating the employment of the Claimant. It was dated 10/3/14 to be effective on 11/3/14. By paragraph 3 of that exhibit Claimant was informed that her account would be credited with a month's salary in lieu of notice. I have evidence before me that the Claimant's account was so credited with her one month salary in lieu of notice. Under cross examination, the Claimant confirmed that a month salary was paid to her account but that she instructed her Solicitor to return same to the Defendants. The only comment I need make regarding this at this point is that the Defendants did all that they were required to do both under the law and their terms of engagement. See Clause 9 of Exh. C1. Also under the subhead Voluntary Termination of Appointment Exh. C2 on page 50 states thus - 'An appointment may be terminated by the Agency or an employee upon giving statutory notice of one month (Trainee Revenue Assistants - Deputy Revenue Manager) or three months (Revenue Manager - Executive Chairman) notice in writing or payment of a commensurate (basic remuneration) sum in lieu of notice by either party''. Although, ordinarily the Defendants are not obliged to give reason for disengaging the Claimant, yet reason for that step was stated in Exh. C3. In paragraph 2 of that exhibit, the Executive Chairman of the 2nd Defendant wrote thus - ''Management has found you not suitable to cope with the demands expected of you in the discharge of your responsibilities, especially your inability to meet the minimal acceptable pass mark of 40% after 3 attempts of the evaluation exercises conducted for officers of your calibre''. Claimant admitted this much in her testimony under cross examination on 22/9/14 It is suffice for me to hold as the law also allows that once admitted that singular fact requires no further proof. See Oguanuhu & Ors. v. Chiegboka (2013) LPELR-SC 68/2004 per Galadima JSC. Learned Counsel to the Claimant had submitted before me that indeed the Defendants had no power to terminate the appointment of the Claimant for the reason stated. According to Counsel, the Defendants had no such power conferred on them. I reject learned Counsel's submission that Defendants are not so empowered to terminate Claimant's appointment for the reason stated as no such reason is contained in the letter of employment or even the Handbook. I have found and held in this Judgment that Exh. C2, tendered by the Claimant, forms part of the terms and conditions of service. Exh. C2 on page 37 under 'Eligibility for Promotion' states that ''Employees who have spent more than four (4) years in the same grade but not considered suitable for promotion will have their appointments reviewed''. In any event, the provision of Exh. C2 on 'Staff Evaluation' on page 36 is to the effect that ''Staff performance shall be evaluated bi-annually to determine their efficiency and effectiveness on assigned job and to keep the Board informed about the competence and skill level of the staff. Such evaluation is also to assist the Board and the evaluating supervisor to determine the training or skills gap of individual staff''. The submission of learned Counsel on the power of the Defendants to terminate the appointment of the Claimant as they did is certainly off the point. I find and hold that the power to do as they did is sufficiently contained in Exh. C2. Where an employee is found incompetent and unable to fit in to or meet the expectation of the employer in spite of opportunities to improve, what are the options available to the employer? Should the employer continue to retain the services of such an employee? If the power to evaluate a staff for the purpose of assessing performance does not include or encompass organizing examination toward achieving the same end, one wonders then how a staff is to be evaluated. In the circumstances therefore, I find and hold that the termination employment of the Claimant was neither wrongful nor illegal. Having so held, reliefs (a) & (b) sought are refused and dismissed accordingly there being no basis for them. The third issue for determination as set down is whether the Claimant is entitled to any or all the reliefs sought. The entitlement of an employee to any relief sought in a matter of this nature is usually predicated on finding by the Court or a declaration that the termination of employment of the Claimant is wrongful and unlawful. Where it is found that the termination is not wrongful and/or unlawful, as in the instant case, then no relief will be granted. Having found that the termination of the employment of the Claimant is not wrongful or unlawful, I further find and hold that all the reliefs sought are misconceived, refused and dismissed accordingly there being no basis for a grant of any of them. Finally and for the avoidance of doubt, I refuse all the claims prayed for by the Claimant and dismiss all of them accordingly. I make no order as to cost. Judgment is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge