OGUNJIMI v. THE INCORPORATED TRUSTEESTY DANJUMA FOUNDATION & ANOR

CITATION: (2018) LPELR-45274(CA)

In the Court of AppealIn the Abuja Judicial Division

Holden at Abuja

ON MONDAY, 4TH JUNE, 2018Suit No: CA/A/763/2015

Before Their Lordships:

ABDU ABOKI Justice, Court of AppealPETER OLABISI IGE Justice, Court of AppealMOHAMMED MUSTAPHA Justice, Court of Appeal

BetweenSNOW ENIOLA OGUNJIMI - Appellant(s)

And1. THE INCORPORATED TRUSTEES TY DANJUMAFOUNDATION2. THELMA EKIYOR (MS)

- Respondent(s)

RATIO DECIDENDI1. APPEAL - REPLY BRIEF: Whether a reply brief is meant to re-argue the case of the appellant

"The Appellant's Reply Brief on the arguments of Respondent's on the two issues formulated is a reharsh of themain Brief while the main brief is 25 pages, the reply Brief runs into fifteen pages. Reply brief is not an opportunityor gateway to another bite, at the cherry. By Order 19 Rule 5 (1) of Court of Appeal Rules, 2016 a Reply Brief is onlyto be filed to deal with new points arising from Respondent's Brief. The Appellant's Reply Brief is herebydiscountenanced."Per IGE, J.C.A. (P. 22, Paras. D-F) - read in context

2. APPEAL - GROUND(S) OF APPEAL: Whether a ground of appeal must be related to the ratio decidendi of thejudgment appealed against"I agree with the learned Counsel to the Respondents that there is nowhere in the judgment of lower Court touchingor raising any issue of garnishee proceedings. It is also not shown that the garnishee application was arguedsimultaneously with the final written addresses. The ground(s) of appeal in this matter relating to garnisheeproceedings do not flow from the judgment appealed against by the Appellant. The judgment has no bearing withgarnishee proceedings. Ground or grounds of appeal must always relate to and challenge the ratio decidendi of ajudgment and not issue or matters extraneous to what the judgment of a Court decides. The Appellant's argumentson Garnishee application is hereby discountenanced."Per IGE, J.C.A. (Pp. 60-61, Paras. E-B) - read in context

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3. CONTRACT - TERMS OF CONTRACT: Whether court and parties are bound by the terms of a contract"The whole essence and or sanctity of contract is for parties to operate within the confines of their contractualagreement for the mutual benefits of the parties to the contract which in this ease is Master and Servantrelationship. The parties are not entitled to seek for external influence or aid in the interpretation of the contractbetween them. The Court will not be swayed by any arm-twisting tactics or antics of any of the parties to thecontract so as to escape the true intention of the parties. The parties are strictly bound by the terms or conditionsembodied in the contract. It is not the business of the Court to re-write the contract for them.1. GABRIEL ADEKUNLE OGUNDEPO & ANOR VS THOMAS ENIYAN OLUMESAN (2011) 8 NWLR (PART 1278) 54 AT 70C-D per FABIYI, JSC who held:I need to still point out at this stage that it is not the business of a Court to re-write parties contract for them. Theduty of the Court is to interpret the contract as contained in the instrument made by the parties on their own freevolition. A Court of record should never accede to the importation of unrelated 'grey' areas of the law by a party toprop what is not contained in the instrument made by the parties. See: Jadesimi v. Egbe (2003) 10 NWLR (Pt. 827) 1at 30, Isiyaku v. Zwingina (2003) 6 NWLR (Pt. 817) 560 at 576."2. B. M. AJI VS CBDA & ANOR (2015) 16 NWLR (PART 1486) 554 AT 574 per OKORO, JSC who said:-"It has to be understood that as the contract of service is the bedrock upon which an aggrieved employee mustfound his case he succeeds or fails upon the term thereof. Therefore, in a written or documented contract ofservice, the Court will not look outside the term stipulated or agreed therein in deciding the rights and obligationsof the parties. See Western Nigeria Development Corporation v Abimbola (1966) NSCC 172(1966)2 SCNLP 21;Olaniyan v University of Lagos (1985) 9 NWLR (Pt. 9) 599.3. B.O. LEWIS vs UNITED BANK FOR AFRICA PLC (2016) 6 NWLR (PART 1508) 329 AT 351H per KEKERE-EKUN JSCwho said:"In the construction of a contract, the meaning to be placed on it is that which is the plain, clear and obvious resultof the terms used. A contract or document is to be construed in its ordinary meaning when the language of acontract is not only plain but admits by one meaning, the task of interpretation is negligible..."Per IGE, J.C.A. (Pp.47-49, Paras. E-D) - read in context

4. COURT - DUTY OF COURT: Duty of court to consider all issues raised by a party; effect of failure of same"The law is settled that a Court is under obligation to properly consider and pronounce on all issues properly raisedby the parties for determination of their matter or forming part of the pleadings to avoid miscarriage of justice anddenial of fair hearing to the parties or any of them. See:-1. FCDA V. SULE (1994) 3 NWLR (PART 332) 257.2. CHIEF BROWN UZUDA VS MR EZEKIEL EBIGAH & ORS (2009) 15 NWLR (PART 1163) 1 AT 22 B - E per MUNTAKA-COOMASSIE, JSC who said:"The right to a fair hearing in a suit is not only a common requirement in Nigeria but also a statutory andconstitutional requirement. This principle is fundamental to all Court procedure and proceedings. Thus when a partysubmits an issue to a Court for determination that Court must consider and make pronouncement on it unless ifsuch amounts to hypothetical or academic issue: Where such issues amount to mere hypothetical and academic theCourt would not have jurisdiction to hear it. In the case of Opuiyo v. Omoniwari (2007) 6 SCNJ 131: (2007) 16 NWLR(Pt. 1060) recently decided by this Court it was held thus:"As a matter of law, a Court has the duty to consider the issues submitted to it for adjudication. Where a Court failsto consider and adjudicate on such issues it is usually an error of law because the omission constitutes a denial tothe party complaining of his right to fair hearing as enshrined in the constitution." Per Oguntade, JSC at p. 138."3. OGED OVUNWO & ANOR VS IHEANYICHUKWU & ORS(2011) 7 5CM 209 AT 223 - 224 A-D per CHUKWUMAH-ENEH, JSC who said:I therefore, stand on the above premises to restate the principle that it is a Court's duty to pronounce on everyissue properly place before it for consideration and determination before arriving at a decision and where it hasfailed to do so, it leads to a miscarriage of justice apart from as in the instant case breaching the right of theappellants to fair, hearing. See: Dawodu v. National Population Commission (2000) 6 WRN 116 at 118. This point ofa Court's duty to pronounce on every issue raised before it is fundamental to resolving the instant questions raisedin this appeal and is sustainable as per this Court's decision in Brawal Shipping (Nig.) Ltd. v. Onwadike Co. Ltd. &Anors. (supra), wherein Uwaifo, JSC held as follows:It is no longer in doubt that this Court demands of, and admonishes, the lower Courts to pronounce; as a generalrule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not torisk the possibility that the only issue or issues decided by them could be faulted on appeal. See. Oyeridan v. Anise(1970) 1 ANLR 313 at 317, Ojogbue v. Nnubia (1972) 6 SC 27, Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511 at 539,Okonji v. Njokanma (1991) 7 NWLR (Pt. 202) 131 at 150-152 and Katto v. CBN (1991) 9 NWLR (Pt. 214) 126 at 149.A deliberate failure to do so has been characterized as amounting to a failure to perform its statutory duty."Per IGE,J.C.A. (Pp. 57-60, Paras. D-A) - read in context

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5. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden and standard of proof in civil cases"Pursuant to Section 131-134 of the Evidence Act 2011, the burden of proof initially rests on the Claimant to lead orintroduce credible, cogent or believable evidence in line with his pleadings to enable him sustain and win his caseagainst the Defendant. The onus which oscillates between the Claimant and the Defendant will not shift until theClaimant whose principal relief before the Court is declaratory has made out a prima facie case. The burden of proofcan be achieved on either side on the balance of probabilities. See:-1. MR. MELFORD AGALA & ORS VS. CHIEF BENJAMIN OKUSUN & ORS (2010) 5 5CM 22 AT 371 per MUKHTAR, JSClater CJN Rtd., who said:-"Civil cases are determined on preponderance of evidence and balance of probabilities and so he who asserts a factmust prove that fact with credible evidence that is relevant to the matter in controversy, not evidence that isirrelevant and inconsequential to the success of the claim."2. ALHAJI ADEBAYO AKANDE VS JIMOH ADISA & ANOR (2012) 15 NWLR (PART 1324) 538 AT 558 A - G per I. T.MUHAMMAD, JSC who said:-"I think my spring board in starting the consideration of this appeal is to have recourse to the provisions of Sections135 -137 of the Evidence Act, Cap 112 LFIV, 1990 (Now Cap. E14 LFN, 2004). "135. (1) whoever desires any Courtto give judgment as to any legal right or liability dependent on the existence of facts which he asserts must provethat those facts exist.136. the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were givenon either side.137 (1) in civil cases the burden of first proving the existence or non-existence of a fact lies on the party againstwhom the judgment of the Court would be given if no evidence were produced on either side, regard being had toany presumption that may arise on the pleadings."By the above provisions therefore, it is the requirement of the law that he who asserts, must prove. In all civilmatters, the proof rests squarely on the person who approaches the Court (plaintiff) praying that his legal right,which he claims from somebody (defendant) should be restored to him. In our adversarial system of adjudication, itis the practice and the law that the plaintiff should first lay his complaints before the Court by filing his pleadings.Next is that, where issues have been joined with him by the defendant, then he shall go ahead to call evidence toestablish each and every one of the averments and the evidence must tally. They go together. They are inseparabletwins. They either survive together or perish together. Where there is an averment which has no correspondingevidence, it is deemed abandoned. Where there is evidence but there is no supporting averments, it is a worthlessevidence. See: Bamgbegbin v. Oriare (2009) 13 NWLR (Pt. 1158) 370; Ojukwu v. Yar `adua (2009) 12 NWLR (Pt.1154) 50; Oseni v. Bajulu (2009) 18 NWLR (Pt. 1172) 164."Per IGE, J.C.A. (Pp. 23-25, Paras. A-D) - read in context

6. LABOUR LAW - WRONGFUL TERMINATION OF EMPLOYMENT: What a claimant must establish in provingwrongful termination of employment"The duty placed on the Appellant is to plead the letters or documents or correspondences encapsulating thecontract of service or employment between her and the 1st Respondent and she must have led evidence showingpointedly that the 1st Respondent breached the employment contract between the parties. The letter terminatingthe appointment or dismissing the employee must also be pleaded and tendered in evidence.These are the major documents that are to be examined and interpreted in order to decipher if there is any breachof contract on the part of the 1st Respondent. The Court must also bear it in mind and take cognizance of thecategories of contracts of employment. See:-1. PATRICK ZIIDEEH V5 R.S.C.S.C. (2007) 3 NWLR (PART 1022) 554 AT 570 A - D per MOHAMMED, JSC who said:"This is because it has been firmly established that when an employee complains that his employment has beenwrongfully terminated he has the onus:(a) To place before the Court the terms of the contract of employment and;(b) To prove in what manner the said terms were breached by the employer. The law is that it is not the duty of theemployer as a defendant in an action brought by the employee to prove any of these facts."2. CBN V5 MRS AGNES M. IGWILLO (2007) 14 NWLR (PART 1054) 393 AT 419A - 420A-C per AKINTAN, JSC who said:"The law is settled that there are now roughly three categories of contracts of employment, viz (a) those regardedas purely master and servant; (b) those where a servant is said to hold an office at the pleasure of the employer;and (c) those where the employment is regulated or governed by statute, often referred to as having statutoryflavour. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599. An employment is said to have a statutoryflavour when the appointment is protected by statute or laid down regulations made to govern the procedure foremployment and discipline of an employee. Any other employment outside that category is governed by the termsunder which the parties agreed to be master and servant. See Olaniyan v. University of Lagos, supra; Ogunke v.National Steel Development Authority (1974) NAILR 128; Fakuade v. 0. A. U. T. H. (1993) 5 NWLR (Pt. 291) 47; Idehv. University of Ilorin (1994) 3 NWLR (Pt. 330) 81; Shitta-Bey v. The Federal Public Service Commission (1981) 1 5.C. 40; Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303; and Udo v. Cross River State Newspaper Corporation (2001)14 NWLR (Pt. 732) 116."3. ADAMS O. IDUFEKO VS PFIZER PRODUCTS LTD & ANOR (2014) 12 NWLR (PART 1420) 96 AT 115 C - D per GALADIMA, JSC who said:-In determining the rights and obligations of the parties to a contract, the Court must respect the sanctity of contractmade by them. Exhibit 'A' tendered by the appellant is the evidence of contract entered by the parties. They arebound by the terms thereof; and the Court will not allow a term on which there is no agreement to be read into if.See Ibama v. S.P.D.C. (Nig) Ltd.(2005) 10 sc 74 PP. 75-76; (2005) 17 WLR (Pt. 954) 364; Ihekwoaba v. A.C.B Ltd.(1998) 10 NWLR (Pt. 571) 590 at 621, Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) 492 at 514 and Baba v.N.C.A.T.C. (1991) 5 NWLR (Pt- 192) 388."Per IGE, J.C.A. (Pp. 25-28, Paras. E-B) - read in context

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7. LABOUR LAW - CONTRACT FOR FIXED TERM: Effect of termination of contract before the agreed term"The contract here is for three years and the Appellant is entitled to claim her salaries and other entitlementscovered by Exhibit "B" for breach of contract on the part of the 1st Respondent. The 1st Respondent is liable to paythe Appellant the said salaries up to 2 June, 2013. See:-1. SHENA SECURITY CO. LTD V AFROPAK (NIG) LTD & ORS (2008) 18 NWLR (PART 1118) 77 AT 102 G - H TO 103 A -G per I. T. MUHAMMAD, JSC who said:-"Where a contract of services provides for termination by either party giving a specified and pre-agreed period ofnotice this poses no problem at all as to how the contract comes to an end when either party exercises his right togive notice of Intention to bring the contractual relationship to an end. This in fact tallies with the stipulation ofSection 11 (1) of the Labour Act. Cap. 198 LFN. 1990 which states.(1) Either party to a contract of employment may terminate the Contract on the expiration given by him to theother party of his intention to do so,(2) The notice to be given or the purposes of subsection (1) above shall be:(a) one day, where the contract has continued for a period of three months, or less:(b) one week, where the contract has continued for more than three months but less than two years;(c) two weeks where the contract has continued for a period of two years but less than five years: and(d) one month where the contract has continued for five years or more."The above provision, it should be noted is without prejudice to the common law right of an employer to dismisswithout notice for certain gross misconduct of the employee.The 2nd situation is where the contract of service is for a fixed term. This is where the term of service is pre-determined at the commencement of the Contract. Notice may or may not be in the contemplation of the parties.The proposition here is that in such a contract the employee cannot be removed during the period of the termcontracted except for misconduct or where the employer dies. See: Igbe v. Governor of Bendel State (1983) 2 SC.14: (1983) 1 SCNLR 73. Where the contract of an employee is determined before the expiration of the term agreed,the employer shall be made to pay the employee the full salary he would have earned for the unexpired period ofhis fixed contractual term. See: Swiss Nigeria Wood Industries Ltd.v. Bogo (1970) NCLR 423. Thus, this kind ofcontract also poses no problem although the trial Court may consider taking into consideration some factors indetermining the amount to be paid, such as the fact that the money is being paid in bulk and in advance and theemployee has the Opportunity of investing it. See: Haidar v. Berini Bank Ltd. (1961) All NLR 40: Ganabedian vTamakani (1961) 1 ALL NLR 177; Orasanye v. Electricity Corporation of Nigeria (1969) NSCC, Vol. 6. 128."(underlined mine)2 SWISS NIGERIA WOOD INDUSTRIES LTD. V. BOGO (1970) NIGERIA COMMERCIAL LAW REPORTS 423 AT 434 - 435per COKER J5C who said:-"The Plaintiff has established that the defendants were in breach of their contract with him and, prima facie, he isentitled to damages. The plaintiff has also proved that had the contract continued to its natural expiry he wouldhave received so much as salary, and the Court should have received so much as salary, and the Court should haverewarded him the damages to which he was legally entitled. In the case of Haidar V. Berini Bank Ltd. (4), theFederal Supreme Court took the view that the measure of damages should be the plaintiff's remuneration for a totalperiod of twelve months allowing for the duration of the ease, the time for deciding on and filing his appeal and thetime thereafter that it would likely take him to find alternative employment. He was a bank official and wasemployed by the bank in Lebanon and sent out to work in Lagos. In the present case the plaintiff was described asholding a diploma in business administration, and there is uncontroverted evidence on the record that the plaintiffon being offered employment by the defendants sold out his confectionery factory in Switzerland at a loss. Hisappointment, which commenced in January 1969, was determined in April 1969, and his salary for the month ofApril, we are now told, had been paid him. He instituted the present action in May 1969 and judgment was given inthe High at the end of November 1969, so that the action lasted for a period of seven months. We think that in theparticular circumstances of this case the plaintiff is entitled to be indemnified for all that period during which thecase was pending. We think also that he would require some time, say a month, to decide on his appeal and filesame. On his return to Switzerland, he would have to start all over again, but he must seek alternative employmentand not organise his life on the basis that the Lagos contract, which was breached and determined, however andwrongly, was still in operation. We consider that a period of six months from the time of his return to his countryshould be adequate for him to re-settle down to another business, on the whole. We consider that he will be entitledto damages measured by his loss for a total of 14 months beginning from and including the month of May, 1969 i.e.a total amount of L4, 200 using his monthly salary of L300 as a basis. If the total amount of L1, 600 which we aretold had been already received by the plaintiff it then taken into consideration, as indeed it should be, he wouldnow be entitled to the difference between his total entitlement of L4,200 and that amount, that is, L2,000."The Appellant is entitled to the sum of N12,162,566.00 (Twelve Million, One Hundred and Sixty Two Thousand, FiveHundred and Sixty-Six Naira only being entitlements and benefits due to the Appellant from 1st of March, 2010 -2nd March, 2013 against the 1st Respondent. Judgment is hereby entered in favour of the Appellant in the aforesaidsum of N12,162,566.00 only against the 1st Defendant now 1st Respondent being salaries and benefits due to theAppellant under Exhibit "B" from 1st of March, 2010 to 2nd March, 2013 with interest on the said sum at the rate of8% per annum from 30th day of May, 2013 until the judgment debt is totally liquidated."Per IGE, J.C.A. (Pp. 52-57,Paras. A-B) - read in context

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PETER OLABISI IGE, J.C.A. (Delivering the Leading

Judgment): The Appellant was employed on 1st of June,

2010 as a Programme Officer by 1st Respondent for a term

of three years namely from 3rd of June, 2010 to 3rd June,

2013. The appointment of the Appellant was however

terminated March 1, 2011 for alleged breach of the 1st

Respondent's Foundations Human Policy Manual.

The Appellant as CLAIMANT had approached the National

Industrial Court of Nigeria Abuja Division on 29th day of

November, 2011 claiming against the Respondents as

Defendants the following reliefs:-

"WHEREOF the Claimant claims against the

Defendants jointly and severally as follows;

1. A DECLARATION that the termination of the

claimant's employment by the defendants was

wrongful, unfair and therefore null and void.

2. The sum of N12, .162,566,000 (sic) (Twelve Million,

One Hundred and Sixty- two thousand, Five Hundred

and sixty-six naira only being entitlements and

benefits due the Claimant from the 1st of March,

2010 - 3rd June, 2013 against the 1st Defendant and

interest on the said sum at

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the rate of 25% per annum till judgment is given and

8% thereafter till the entire sum is fully liquidated.

3. The sum of N100,000,000.00 (One Hundred

Million) naira only against the Defendant for

assaulting the Claimant at her work place.

4. AN ORDER compelling the Defendants to forthwith

release all the Claimant's properties in their

possession."

The Respondents filed their Amended Statement of Defence

and Counter Claim dated 6th February, 2013. The Counter

Claim of the Defendants now Respondents is as follows:-

"COUNTER CLAIM

39. The Defendants repeats and affirms paragraphs

1-38 herein above.

40. The Defendants especially avers that they have

suffered damages/losses occasioned by the gross

incompetence, insubordination and breach of

contractual terms by the Complainant as stated

herein above.

WHEREOF the Defendants counter-claim against the

Complainant as follows:-

1. A DECLARATION that the termination of

Complainant's employment by the Defendants on the

of March, 2011 was lawful, fair and in compliance

with provision as contained in the Contract of

Employment and the TYDF Staff Policy Manual that is

binding on all parties to this suit.

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2. The sum of N5,000,000.00 (Five Million Naira) only

being cost of this suit.

3. The sum of N50, 000.000 (Fifty Million Naira) only

as general damages for serious breaches of the

contractual terms binding on the parties to this suit.

4. Any other orders this Honorable Court may deem

fit to make in the circumstance."

The matter proceeded to trial. At the end of the trial the

learned trial Judge gave a considered judgment on 30th

May, 2013. The lower Court found that the Defendant was

not right in dismissing the Claimant without giving her a

fair hearing and that the Appellant was assaulted by DW2.

The learned trial Judge concluded as follows:-

"The Court must state here that "Assault" connote a

situation where the person visits another with

physical harm or behaves in a manner which the

other will reasonably be apprehensive and believes

that the assailant will hurt her physically. It does not

matter if eventually he does not!

The Court holds that what the Claimant encountered

from the DW2 is an assault.

It is the Claimants case is that as a result of that

assault,

1. She became traumatized.

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2. She was unable to play her role as wife and mother.

3. She lost her self confidence.

4. She suffered stress and anxiety.

Agreed that the Claimant may have been really scared

at the time; that should be a momentary feeling! To

accede that the shouting had all those results on

Claimant would be an 'over-kill':

The Court believes that DW2 being a normal human

being must have been out of her element to have

allegedly behaved in that manner. The Court frowns

at any one would constitute a threat to the freedom of

workers in the office and elsewhere. For that reason,

the court shall award against the DW2, the sum of

N80, 000 (eighty thousand naira) only in favour of the

Claimant, and it shall be fully paid up before 30 days

from this day of judgment.

"Issue 4 has been submitted by the above

On the Defendant COUNTER CLAIMED which are as

follows:-

1. A DECLARATION that the termination of

Complainant's employment by the Defendants on the

1st of March, 2011 was lawful, fair and in Compliance

with provision as contained in the Contract of

Employment and the TYDF Staff Policy Manual that is

binding on all parties to this suit.

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2. The sum of N5,000,000.00 (Five Million Naira) only

being cost of this suit.

3. The sum of N50, 000.000 (Five Million Naira) only

as general damages for serious breaches of the

contractual terms binding on the parties to this suit.

The Court is unable to grant them. The 3rd relief is

one which the counter claimant proved and which

they are stopped from getting, having terminated the

Claimant's employment for that reason without giving

her the chance to defend it. See the case of AGBO vs.

CBN (supra), judgment is entered accordingly.

The Claimant is awarded the sum of N50,000 (Fifty

Thousand naira) only as costs of this suit."

The Appellant was aggrieved by the judgment and has by

his Notice of Appeal dated and filed on the 14th day of July,

2015 appealed to this Court on six grounds which without

their particulars are as follows:-

"2. PART OF THE JUDGMENT APPEALED AGAINST

The part of the judgment wherein the learned trial 2,

3 and 4 of the Judge failed to grant reliefs of dated

28th November, 2011.

GROUNDS OF APPEAL

GROUND ONE

The learned trial Judge erred in law and breached the

Appellant’s fundamental and

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constitutional right to fair hearing when the Court

failed to consider or determine the reliefs put forward

by the Appellant and thereby occasioned a

miscarriage of justice

GROUND TWO

The learned trial Judge erred when he held as follows:

“On this issue too; as in the case of Fair hearing, we

must confine ourselves to Exit D, para 16 to the end,

since the Contract of service is for years. The contract

of service is the Claimant bedrock. The Court cannot

punch in its own terms in a contract between parties.

So the Court is unable to award to the Claimant more

than the employer would have paid her during the

period of Notice i.e her salary and all other

emoluments for the months.

GROUND THREE

The learned trial Judge erred when he failed in his

duty to comply with the well established doctrine of

state decisis.

GROUND FOUR

The judgment of the lower-Court as it affects reliefs

2, 3, & 4 or the Appellant's claims at the lower Court

is perverse.

GROUND FIVE

The refusal of the learned trial Judge to rule or make

any pronouncement on the garnishee application filed

by the Appellant dated 2nd July, 2013 for the sum

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of N12,242, 566.00 (Twelve Million, Two Hundred andForty-Two Thousand, Five Hundred and Sixty-SixNaira) was improper and a breach of the Appellant'sFundamental Right to fair hearing.GROUND SIXThe Judgment as it affects reliefs 2, 3 & 4 is againstthe weight of evidence.RELIEFS SOUGHT1 AN ORDER of this Court granting relief 2,3 & 4 ofthe Appellant Statement of Fact dated the 28th ofNovember 20112. AN ORDER of this Court granting the applicationfor garnishee order nisi dated 2nd July, 2013.”

The Appellant's Brief of Argument dated the 18th dayof February, 2016 was filed on 24th March, 2016 while theRespondent’s Brief of Argument was dated and filed the 9thNovember, 2017 but deemed filed same on 9th November,2017. The Appellant's Reply Brief dated the 7th day ofDecember, 2017 was filed on 11th December, 2017 butdeemed duly filed on 12th day of March, 2018.

The appeal was heard on 12th March, 2018 when thelearned Counsel to the parties adopted their Briefs ofArgument. The learned Counsel to the Appellant distilledtwo issues for determination as follows:-

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i. WHETHER HAVING REGARDS TO EXHIBIT B ANDTHE FACT THAT THE CONTRACT BETWEEN THEPARTIES WAS FOR A FIXED TERM OF THREE (3)YEARS THE LEARNED TRIAL JUDGE OUGHT NOT TOHAVE GRANTED TO THE APPELLANT HER FULLSALARY AND ENTITLEMENT SHE WOULD HAVEEARNED FOR UNEXPIRED TERM OF THE FIXEDTERM CONTRACT (GROUNDS 2 AND 3).ii. WHETHER THE FAILURE OF THE LEARNED TRIALJUDGE TO CONSIDER AND PRONOUNCE ON ALLTHE ISSUES PUT FORWARD BY THE APPELLANTBREACHED THE RIGHT OF THE APPELLANT ANDTHEREBY OCCASIONED A SERIOUS MISCARRIAGEOF JUSTICE. (GROUNDS 1, 4, 5 AND 6).

The learned Counsel to the Respondents adopted the twoissues formulated by the Appellant and the appeal will beconsidered on the two issues which I will take together.I. WHETHER HAVING REGARDS TO EXHIBIT B ANDTHE FACT THAT THE CONTRACT BETWEEN THEPARTIES WAS FOR A FIXED TERM OF THREE (3)YEARS THE LEARNED TRIAL JUDGE OUGHT NOT TOHAVE GRANTED TO THE APPELLANT HER FULLSALARY AND ENTITLEMENT SHE WOULD HAVEEARNED FOR UNEXPIRED TERM OF THE FIXEDTERM CONTRACT (GROUNDS 2 AND 3).ii. WHETHER THE FAILURE OF THE LEARNED TRIALJUDGE TO CONSIDER AND PRONOUNCE ON ALLTHE ISSUES PUT FORWARD BY THE

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APPELLANT BREACHED THE RIGHT OF THE

APPELLANT AND THEREBY OCCASIONED A

SERIOUS MISCARRIAGE OF JUSTICE. (GROUNDS 1,

4, 5 AND 6).

The learned Counsel to the Appellant ANTHONY

OMAGHOMI, E5Q stated the case of the Appellant at the

Court below as being in the sum of N12,242,566.00 (Twelve

Million, Two Hundred and Forty-Two Thousand, Five

Hundred and Sixty-Six Naira) for breach of three years

c o n t r a c t o f e m p l o y m e n t b e t w e e n h e r a n d

the 15th Respondent. This principal relief and the ancillary

reliefs were refused but the learned trial Judge granted or

awarded her N50000 as salary in lieu of Notice. The sum of

N80,000 was also awarded as damages against the

Respondents Pages 600 - 601 of record were referred to as

to as containing the reasoning of the trial Judge. That the

trial Judge in trying to justify his decision interpreted

Exhibit "B" paragraph 16 thereof but misinterpreted same

thereby came to a wrong conclusion. He reproduced the

term and duration of the contract which was stated to be

for a fixed term of three years. That instead for the Court to

interpret Clause of the Agreement, the lower Court was

influenced by Clause 16.1 of the said Agreement Exh. B.

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That the case of AFRIBANK NIGERIA LTD V OSISANYA

(2000) 1 NWLR (PART 642) 592 relied upon by the

learned trial Judge is completely inapplicable as it was not

a case of fixed term contract. That that case dealt with

Master/Servant Contract of Employment simpliciter. He

stated the three categories of employment contract viz:-

i. Employment with Statutory flavour;

ii. Ordinary Master Servant Contract;

iii. Contract for fixed Term Period.

That measure of damages recoverable for a breach of an

employer of contract of employment would depend on

nature of employment. That where it is a contract for a

fixed term, the measure of damage the employee is entitled

to claim is for the unexpired residue of the contract. He

relied on the case of C.O.E. EKIADOLOR V OSANYANDE

(2010) 6 NWLR (PT. 1191) 423 AT 449. That the

intention of Exhibit B, Clause 2.1 thereof was that the

employment is for three years certain and that this is

fundamental to the relationship of the parties. That

emphasis should be placed on 2.1, 16.1 and 16.4 of Exhibit

B. That Clause 2 pre-determined the term of the contract to

be three (3) years certain. That Clauses 16.1 and

16.4 provide for termination.

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That while Clause 16.1 gives either party the right to

terminate by giving of one month notice from either side or

one month salary in lieu of notice Clause 16.4 only gives 1st

Respondent right to dismiss by complying with the clauses.

That this categorization of Clauses 2.1 and 16.4 is very

important because the rights or obligations exercisable

under any of these terms determines the measure of

damages accruable to the Appellant. He relied on the case

of BRITISH AIRWAYS V MAKANJUOLA (1993) 8

NWLR (PT. 311) 276 per UBAEZONU, JCA where

according to Appellant's learned Counsel it was held that

the contract must be construed strictly against the

employer and proceeded to award two years salary as

damages for wrongful termination. That the contract

between Appellant and 1st Respondent can only lawfully

come to an end with or without notice where there is

evidence of misconduct or where the Appellant dies and

NOT in any other circumstances showing the reason for

determination is not on ground of misconduct and that the

measure of damage would be as a result of either party's

failure to give required notice.

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That Clause 2.1 becomes relevant and applicable where as

in this case the termination was on ground of misconduct.

That the contract provides the employee would be entitled

to two months notice.

That in respect of Appellant's case bearing in mind Clause

2.1 of Exhibit B the compensation which the Appellant is

entitled is salary and entitlements for the unexpired residue

of the contract. That Clause 16.1 cannot apply in that:-

(1) The right conferred upon the parties must be read

within the context of Clause 2.1.

(ii) The 1st Respondent did not exercise its right under

Clause 16.1 to dismiss Appellant and as such issue of one

month salary in lieu of notice is irrelevant.

(iii) The Respondents dismissed the Appellant pursuant to

Clause 16.4 of Exhibit B without notice or payment of

salary in lieu of notice.

That the issue is that Appellant was denied fair hearing and

the alleged misconduct she was accused was unproved and

that the issue is not one of complaint of failure to issue

notice.

That in all, the permissible measure of damages due to

Appellant was the unpaid salaries and entitlements from

1st March, 2010 to 5/6/2013 which was the unexpired

residue

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of the term of the contract having regard to Clauses 2.1

and 16.4 of Exhibit B. He relied on the case of S.C. Co LTD

V AFROPARK (NIG) (PT. 1118) 2008 (NWLR) 77. That

the lower Court fell into grave error in the interpretation of

Exhibit B. That the lower Court also failed to properly

evaluate Exhibit B or properly interpret it. He relied on the

cases of JIMOH V AKANDE (2009) 5 NWLR (PT. 1135)

594 and FASHANU V ADEKOYA (1974) 6 SC 83. That

this Court will in such a case interfere and reevaluate the

evidence relying on the case of OYEWOLE V AKANDE 15

NWLR (PT. 1163) HCA - 148 -149HCB (sic) and

DAVID-OSUAGWU VS A.G. ANAMBRA (1993) 4 NWLR

(PT. 285) 13 AT 45. That damages awarded must be what

were in the contemplation of both parties at the time the

contract was made. He cited OKONGWU V NNPC (1989)

4 NWLR (PT. 115) 296 AT 306.

That the Appellant ought to be restituted into the position

she would have been if her earnings were paid up to 1st

March, 2013. That the strict position of the law ought to be

brought to bear in this case. That the Appellant is entitled

to the reliefs claimed. He relied on BRITISH AIRWAYS V

MAKANJUOLA SUPRA (1993) 8 NWLR (PART 311)

276

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AT 289E-D in urging the Court to resolve the issue 1 in

Appellant's favour.

Under Issue 2, it is that submission of the Appellant's

learned Counsel that the lower Court completely ignored

the reliefs and issues set up by the Appellant for

consideration of the lower Court. That no pronouncement

was made on relief IV by the trial Court. The relief reads:-

"An Order compelling the Defendants to forthwith

release all the Claimant's properties in their

possession."

He relied on paragraph 20 (IX) of the Appellant Witnesses

Statement on Oath on page 20 of the record. That the

learned trial Judge did not rule on the garnishee application

filed and argued by the Appellant's learned Counsel. He

relied on pages 689-691 of the record. That from the

judgment the learned trial Judge did not advert to the

Appellant's relief II which was for N100,000,000.00 (One

Hundred Million Naira) and that this made the lower Court

to award a party sum of N80,000 because the lower Court

thought it was a claim for N100,000.

That the decision of the learned trial Judge was lacking in

clarity as the Appellant did not know the entitlement of

Appellant as per the judgment of lower Court.

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That merely finding that the Appellant was unlawfully

dismissed does not amount to a judgment as it affects

reliefs 2, 3 and 4 which the Appellant claimed before the

lower Court. That the judgment lacks clarity and it is

ambiguous.

That the Appellant's application for Garnishee proceedings

was adjourned many times from date of filing until it was

heard on 30/10/13 and adjourned for Ruling several times

until was finally adjourned sine die on 17/12/2013. That the

judgment of the lower Court is perverse pertaining to

reliefs 2, 3 and 4 being claimed by the Appellant. He relied

on the case of ATOLAGBE V SHORUN (1985) 1 NWLR

(PT. 2) 360 AT 375 A per OPUTA, JSC. That the

Appellant has for five years now been worse off because of

the ambiguous judgment given in favour of the Appellant.

That a Court must pronounce upon and consider all issues

raised before it by parties. He relied on the case of

KOLAWOLE V FOLUSO (2009) 8 NWLR (PT. 1143)

338 AT 382 and the case of FMH V CSA (2009) 9 NWLR

(PT. 1145) 193 AT 220 - 221.

That the failure of the learned trial Judge to pronounce on

all issues has led to miscarriage of justice in that:-

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i. The Judge did not specifically pronounce on monetary

damages due to the Appellant as a result of unlawful

termination of contract which was breached of fair hearing.

ii. No pronouncement on Issue IV

iii. Refusal of lower Court to rule on garnishee application

which learned Counsel to Appellant states amounts to a

breach of fair hearing.

That once issue of fair hearing is resolved in favour of party

complaining the entire proceeding becomes a nullity. He

urged the Court to invoke Section 15 of the Court of Appeal

Act and go into all issues rather than send the case back for

trial de novo. He urged the Court to uphold the appeal.

In response to submissions of Appellant under Issue 1

AUDU ANUGA, ESQ for Respondents stated that the case

before the trial Court was not whether or not the

Appellant's acts can be regarded as one of misconduct but

whether the Appellant's employment was wrongfully

terminated in accordance with the terms of Exhibit B.

That concerning the allegation against the lower Court that

it did not award Appellant all her entitlements and earnings

for unexpired residue of the contract of service, the

learned

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Respondent's Counsel stated that the position of the law is

clear on the remedies available to the employee in a Master

and Servant relationship whose employment was

terminated wrongfully. That the position of the Appellant is

that Exhibit B should be interpreted as giving the Appellant

the right to claim salaries for unexpired term of the three

years contract of service but that the position is not

supported by law. That Exhibit B has nothing to do with the

amount of damages the Appellant is entitled. He relied on

the cases of:-

1. ADENIRAN V NEPA (2002) 14 NWLR (PT. 786) 30

AT 48 B -C and

2. OLANREWAJU V AFRIBANK (NIG) PLC (2001) 13

NWLR (PART 731) 691 AT 705 B - G.

That once employment without statutory flavour is

terminated for misconduct, all that the aggrieved employee

is entitled is damages. That the termination of employment

is at the pleasure of employer. He submitted that Exhibit 'B'

which is on page 32 of Volume I of the record clause 16

thereof makes provisions for the manner of bringing the

contract of service Exhibit B to an end. The Respondents'

learned Counsel submitted on page 6 paragraphs 2.14, 2.15

and 2.16 of Respondent's Brief of Argument as follows:-

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"2.14 We humbly submit that a look at Clause 16.4

mentioned above and the letter of termination found

on page 62 of the Record of Appeal would show that

the terms of the contract of employment was

complied with and therefore there was no breach of

contract.

2.15 The trial Court found that though the Appellant

was dismissed following acts of misconduct, she was

not accorded fair hearing and therefore the said

termination was wrongful.

2.16 The question of fair hearing being accorded the

Appellant was held by OLANRENWAJU V. AFRIBANK

(NIG) PLC (supra) to not even be necessary. We urge

this Honourable Court to so hold."

The learned Counsel to the Respondents contended that the

case of EKIADOLOR V OSAYANDE supra relied upon by

Appellant is inapplicable.

That absence of fair hearing does not automatically mean

that the acts of misconduct were unproved. That the

Appellant's employment has no statutory flavour. That the

trial Court held that the dismissal was in breach of fair

hearing and consequently her entitlement to damages does

not mean that the damages would be assessed based on the

salaries and emoluments for the

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unexpired residue of the term of employment as stated in

clause 2.1 of Exhibit B. That the case of BRITISH

AIRWAYS V MAKANJUOLA supra is also not on same

facts as stated in clause 2.1 of Exhibit B. That the case of

BRITISH AIRWAYS V MAKANJUOLA supra is not

applicable. That a total consideration of clauses 2.1, 16.1,

16.2 and 16.4 would show that the intention of the parties

was that the employment would last for 3 years at the first

instance but that notwithstanding, either party was at

liberty to terminate the agreement by giving a one month

notice to the other in accordance with Clauses 16.1 and

16.2 of Exhibit B and that the Employer terminated in

accordance with Clause 16.4 on grounds of misconduct.

That the intention of parties was clearly for them to be

bound by all the terms of Exhibit "B". That where a contract

of employment is wrongfully terminated, the employee is

entitled only to damages.

That ratio of decision in DAVID OSUAGWU V A.G.

ANAMBRA (1993) 4 NWLR (PT. 285) 13 AT 45 relied

upon by the Appellant is not relevant as according to the

Respondent, the Appellant relied on obiter portion of the

judgment.

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That there can be no resitutio in integrum in simple

contracts where specific performance can be ordered. He

urged that issued 1 be resolved against the Appellant.

On Issue 2 as to whether the trial Court failed to rule on

Garnishee application, the learned Counsel to the

Respondent is of the view that such complaint cannot form

part of the instant appeal in that a ground of appeal must

flow from the decision of the lower Court. He relied on the

case of OLONADE & ANOR VS SOWEMIMO (2014)

LPELR 22914 P. 19 - 20 C - B.

That issue of Garnishee proceedings was not raised in the

judgment of the lower Court. That ground of appeal on the

point is incompetent and should be struck out.

On the award of N80,000 to the Appellant by the lower

Court, the Respondents submitted that there is nothing in

the judgment showing that the award of N80,000.00

(Eighty Thousand Naira) was a direct deduction from the

initial claim of N100,000,000. That the trial Court clearly

stated that the sum of N80,000 was awarded on the basis

that the said sum was commensurate with the feelings of

the Appellant at the point of confrontation with the 2nd

Respondent. He relied on page 953 of Volume two of the

record.

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That the N80,000 was awarded for the threat constituted

by the acts of the 2nd Respondent in the work environment.

On the complaint of Appellant that the decision of the trial

Court is not clear as to the monetary award, the

Respondents relied on pages 953-4 of Volume II which

learned Counsel to 2, 3 and 4 Respondents stated

contained the resolutions of issues before the trial Court

and the consequential monetary awards to wit, one month's

salary in lieu of notice, N80,000 as general damages and

N50,000 costs in favour of the Appellant. That the

complaint of Appellant that the monetary award is unclear

from the judgment is not right.

On whether the judgment was perverse the learned

Counsel to the Respondent submitted that the judgment is

not perverse as relevant facts and evidence were taken into

consideration before the trial Judge arrived at his

conclusion.

On whether there was failure on the part of learned trial

Judge to pronounce on all issues submitted by Appellant

the learned Counsel to the Respondents contended that the

failure of the learned trial Judge to specifically pronounce

on relief IV does not translate to failure

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off pronounce on all the issues. That relief IV is not one of

the core substance of this appeal concerning issue of

wrongful termination which is the core issue in this appeal.

That Appellant's argument is of no moment. That the

Appellant never complained that he was not heard on the

Garnishee proceedings/application or the relief IV claimed,

that Appellant's specific complaint is on the failure of the

Court to pronounce on the Garnishee and reliefs IV. That

failure of pronouncement on all issues will not translate to

denial of fair hearing ipso facto unless it leads to

miscarriage of justice. He cited and relied on FIRST BANK

& ANOR VS. FCMB (2016) LPELR - 42217. He finally

urge the Court to resolve the two issues against the

Appellant.

The Appellant's Reply Brief on the arguments of

Respondent's on the two issues formulated is a reharsh of

the main Brief while the main brief is 25 pages, the reply

Brief runs into fifteen pages. Reply brief is not an

opportunity or gateway to another bite, at the cherry. By

Order 19 Rule 5 (1) of Court of Appeal Rules, 2016 a Reply

Brief is only to be filed to deal with new points arising from

Respondent's Brief. The Appellant's Reply Brief is hereby

discountenanced.

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Pursuant to Section 131-134 of the Evidence Act 2011, the

burden of proof initially rests on the Claimant to lead or

introduce credible, cogent or believable evidence in line

with his pleadings to enable him sustain and win his case

against the Defendant. The onus which oscillates between

the Claimant and the Defendant will not shift until the

Claimant whose principal relief before the Court is

declaratory has made out a prima facie case. The burden of

proof can be achieved on either side on the balance of

probabilities. See:-

1. MR. MELFORD AGALA & ORS VS. CHIEF

BENJAMIN OKUSUN & ORS (2010) 5 5CM 22 AT 371

per MUKHTAR, JSC later CJN Rtd., who said:-

"Civil cases are determined on preponderance of

evidence and balance of probabilities and so he who

asserts a fact must prove that fact with credible

evidence that is relevant to the matter in controversy,

not evidence that is irrelevant and inconsequential to

the success of the claim."

2. ALHAJI ADEBAYO AKANDE VS JIMOH ADISA &

ANOR (2012) 15 NWLR (PART 1324) 538 AT 558 A - G

per I. T. MUHAMMAD, JSC who said:-

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"I think my spring board in starting the consideration

of this appeal is to have recourse to the provisions of

Sections 135 -137 of the Evidence Act, Cap 112 LFIV,

1990 (Now Cap. E14 LFN, 2004). "135. (1) whoever

desires any Court to give judgment as to any legal

right or liability dependent on the existence of facts

which he asserts must prove that those facts exist.

136. the burden of proof in a suit or proceeding lies

on that person who would fail if no evidence at all

were given on either side.

137 (1) in civil cases the burden of first proving the

existence or non-existence of a fact lies on the party

against whom the judgment of the Court would be

given if no evidence were produced on either side,

regard being had to any presumption that may arise

on the pleadings."

By the above provisions therefore, it is the

requirement of the law that he who asserts, must

prove. In all civil matters, the proof rests squarely on

the person who approaches the Court (plaintiff)

praying that his legal right, which he claims from

somebody (defendant) should be restored to him. In

our adversarial system of adjudication, it is the

practice and the law that the

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plaintiff should first lay his complaints before the

Court by filing his pleadings. Next is that, where

issues have been joined with him by the defendant,

then he shall go ahead to call evidence to establish

each and every one of the averments and the evidence

must tally. They go together. They are inseparable

twins. They either survive together or perish together.

Where there is an averment which has no

corresponding evidence, it is deemed abandoned.

Where there is evidence but there is no supporting

averments, it is a worthless evidence. See:

Bamgbegbin v. Oriare (2009) 13 NWLR (Pt. 1158)

370; Ojukwu v. Yar `adua (2009) 12 NWLR (Pt. 1154)

50; Oseni v. Bajulu (2009) 18 NWLR (Pt. 1172) 164."

The duty placed on the Appellant is to plead the letters or

documents or correspondences encapsulating the contract

of service or employment between her and the 1st

Respondent and she must have led evidence showing

pointedly that the 1st Respondent breached the

employment contract between the parties. The letter

terminating the appointment or dismissing the employee

must also be pleaded and tendered in evidence.

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These are the major documents that are to be examined

and interpreted in order to decipher if there is any breach

of contract on the part of the 1st Respondent. The Court

must also bear it in mind and take cognizance of the

categories of contracts of employment. See:-

1. PATRICK ZIIDEEH V5 R.S.C.S.C. (2007) 3 NWLR

(PART 1022) 554 AT 570 A - D per MOHAMMED, JSC

who said:

"This is because it has been firmly established that

when an employee complains that his employment

has been wrongfully terminated he has the onus:

(a) To place before the Court the terms of the

contract of employment and;

(b) To prove in what manner the said terms were

breached by the employer. The law is that it is not the

duty of the employer as a defendant in an action

brought by the employee to prove any of these facts."

2. CBN V5 MRS AGNES M. IGWILLO (2007) 14 NWLR

(PART 1054) 393 AT 419A - 420A-C per AKINTAN,

JSC who said:

"The law is settled that there are now roughly three

categories of contracts of employment, viz (a) those

regarded as purely master and servant; (b) those

where a servant is said to hold an office at the

pleasure of the employer; and (c) those where the

employment is regulated or governed by

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statute, often referred to as having statutory flavour.

See Olaniyan v. University of Lagos (1985) 2 NWLR

(Pt. 9) 599. An employment is said to have a statutory

flavour when the appointment is protected by statute

or laid down regulations made to govern the

procedure for employment and discipline of an

employee. Any other employment outside that

category is governed by the terms under which the

parties agreed to be master and servant. See Olaniyan

v. University of Lagos, supra; Ogunke v. National

Steel Development Authority (1974) NAILR 128;

Fakuade v. 0. A. U. T. H. (1993) 5 NWLR (Pt. 291) 47;

Ideh v. University of Ilorin (1994) 3 NWLR (Pt. 330)

81; Shitta-Bey v. The Federal Public Service

Commission (1981) 1 5. C. 40; Imoloame v. WAEC

(1992) 9 NWLR (Pt. 265) 303; and Udo v. Cross River

State Newspaper Corporation (2001) 14 NWLR (Pt.

732) 116."

3. ADAMS O. IDUFUEKO VS PFIZER PRODUCTS LTD

& ANOR (2014) 12 NWLR (PART 1420) 96 AT 115 C -

D per GALADIMA, JSC who said:-

In determining the rights and obligations of the

parties to a contract, the Court must respect the

sanctity of contract made by them. Exhibit 'A'

tendered by the appellant is

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the evidence of contract entered by the parties. They

are bound by the terms thereof; and the Court will not

allow a term on which there is no agreement to be

read into if. See Ibama v. S.P.D.C. (Nig) Ltd.(2005) 10

sc 74 PP. 75-76; (2005) 17 WLR (Pt. 954) 364;

Ihekwoaba v. A.C.B Ltd. (1998) 10 NWLR (Pt. 571)

590 at 621, Koiki v. Magnusson (1999) 8 NWLR (Pt.

615) 492 at 514 and Baba v. N.C.A.T.C. (1991) 5

NWLR (Pt- 192) 388."

Now the contract of Employment of the Appellant from 1st

Respondent contained on pages 30 - 46 of the record is

titled:-

"TY DANJUMA FOUNDATION STAFF CONTRACT FOR

ENIOLA SNOW OGUNJIMI.”

Pages 3 - 12 of the contract employment are as follows:-

“ S T A F F E M P L O Y M E N T C O N T R A C T A N D

CONFIDENTIALITY AGREEMENT

DATE

3 JUNE 2010

PARTIES

TY DANJUMA FOUNDATION (hereinafter referred to

as "TYDF" or "the EMPLOYER")

The Employer offers and the Employee accept

employment with the Employer subject to the terms,

conditions and stipulations set out in this Agreement.

AND

ENIOLA SNOW OGIJMTIMI (hereinafter referred to as

"the EMPLOYEE')

1. INTRODUCTION

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1..1 This contract and its attached schedules

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constitute the entire agreement between the parties

and supersedes all previous representations,

negotiations, commitments and communications,

whether oral or in writing, between the parties.

1.2 In signing this agreement, the Employee accepts

all terms and conditions of employment as contained

in this agreement. It is a condition that the Employee

produces within one (1) month of the effective date of

this contract, a medical certificate at Employer's

expense that she is in good health.

2. TERM/DURATION

2.1 The term of this Agreement shall be for a duration

of THREE YEARS (3) YEARS, commencing from 3

JUNE, 2010 through 2 JUNE, 2013 (hereinafter to as

"the Term"). Said Term may -be extended by the

mutual consent of the parties to this Agreement, with

such consent to be reached not later than 1

FEBRUARY, 2013.

3. POSITION

3.1 The Position shall be Programme Officer, Women

and Youth Initiative, with TYDF.

3.2 There shall be a probation period for three (3)

months.

Where the Employee does not meet the standards

required by the Employer during the period of the

probation referred to in 3.2 above, the Employer may

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extend the period of probation for another 3 months.

The Employee shall be informed in writing or in the

alternative the employer shall proceed to terminate

the employment and the Employee shall be informed

in writing. Whichever option so applied shall be

exercised at the discretion of the Employer.

1.4 When the Employer is satisfied with the

Employee's performance during the period of

probation, his employment shall be confirmed in

writing.

1 .5 The Employee 's pos i t ion , dut ies and

responsibilities have been agreed with the

attachment, and include the terms as otherwise set

out in this contract.

1.6 The Employee agrees to perform all duties as

required of the position, and will fulfill duties within

his capabilities. The Employee also agrees to perform

any other duties associated with the position that

TYDF request to be performed and such other duties

as the Employer may assign to you from time to time.

1.7. TYDF may, from time to time make reasonable

changes to the particulars of the position and/or the

duties and responsibilities/of the position of the

Employee and shall inform him accordingly. Where

substantial changes are made to the

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particulars of the position or the duties or

responsibilities of the Employee then the Employee

must first agree to such substantial changes

4. DUTIES AND RESPONSIBILITIES

4.1. TYDF shall be a fair and reasonable employer and

will treat the Employee with dignity and respect in all

aspects of employment.

4.2 The Employee agrees to act in a manner

conducive to good relationships with TYDF's clients

and in a manner that is consistent with the highest

standards of professional conduct and integrity.

4.3: The Employee agrees to adhere to any policies

and standards that TYDF brings to his attention from

time to time.

REMUNERATION

5.1 The Employee's remuneration will be calculated

and paid as set out in Annex A.

The Employee’s salary will be reviewed at least

annually but not necessarily adjusted.

5.2 Salary and wages will be paid 'monthly' in arrears

by the 25th day of month or as soon as practical after

that time. Salary and wages will be paid by direct

credit into a bank account nominated by the

Employee.

5.3 In signing this agreement, the Employee gives

written consent to TYDF to deduct from any

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remuneration or other monies owed to TYDP by the

Employee on termination of employment.

5.4 On the production of authentic receipts, TYDF will

reimburse the Employee for all reasonable, just and

lawful expenses incurred in undertaking the duties

and responsibilities under this contract.

6 WORKING HOURS

6.1 TYDF is opened Monday through Friday from 8:00

a.m. to 5:00 p.m. A one (1) hour lunch is included in

your daily work schedule of 9 hours.

6.2 The Employee agrees to work additional hours

which may be required from time to time.

6.3 The remuneration contained in Annex A is in full

compensation for the performance of all duties

related to this employment. No overtime rates or

additional amounts shall be paid for any hours

worked in excess of the employee's ordinary hours

except with the express prior approval of

management or the Employee's immediate supervisor.

7. ANNUAL LEAVE

7.1 Upon completion of one (1) year of service, the

Employee shall be entitled to twenty (20) working

days paid annual leave.

7.2 All leave shall accrue in accordance with and

same may be modified or amended from time to time

by

32

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8) LP

ELR-45

274(

CA)

TYDF in its discretion without notice to the Employee.

7.3 Leave may be taken in advance up to a maximum

of five days, but this shall be at the sole discretion of

TYDF. The Employee agrees that if the employment is

terminated and leave has been taken in advance, then

TYDF shall deduct the value of such leave from the

Employee's final pay. If the final pay is less than the

value of the leave in advance then me Employee shall

refund the outstanding amount to TYDF as soon as is

practicable.

7.4 Annual Leave shall be used within the period of 12

months as and when due. If the Employee desires to

accumulate annual leave for a certain purpose, it

must be approved by TYDF and shall not exceed five

(5) working days.

7.5 Upon separation, TYDF shall pay the Employee for

properly accrued but unused leave period for any one

year provided the days due could not be taken during

the term for a reason known and approved by TYDF

and shall not refer to or include period for casual

leave and maternity leave.

8. SICK LEAVE

8.1 The employee may take sick leave in situations

where it has been medically recommended to stay

away from work for a prolonged period

33

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8) LP

ELR-45

274(

CA)

exceeding normal excuse duty period in the event of

illness will be granted the following sick leave not

exceeding 1 month for permanent staff.

8.2 After the expiry of the prescribed full pay sick

leave period, the employee will be required to take his

outstanding annual leave, if any, also with full pay.

After the annual leave, he will then be placed on half

pay as shown herein.

8.3 On the expiry of the period of paid sick leave as

above, the supervisor or Executive Director shall after

consult the Doctor, and make a recommendation to

continue leave or take additional appropriate steps.

8.4 This policy will not cover staff who have self-

inflicted injuries or illness arising of the employee's

own fault or negligence e.g. alcoholism, or use of

narcotics, veneral diseases etc the employee as

accumulate a total of 3 months sick leave certificates

in a given 12 months period will be compelled to take

a medical test by management to determine his

suitability for continued employment.

9. CASUAL LEAVE

9.1 Casual leave is not an entitlement but a privilege.

Employees would be entitled to a maximum of 5

working days casual leave in a year.

34

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8) LP

ELR-45

274(

CA)

Such leave would be granted in emergency case and

would be deducted from the employee's accrued

annual leave or future annual leave.

10 MATERNITY/PATERNITY LEAVE

10.1 Pregnant employees will be entitled to full

maternity leave with pay of six weeks prior to the

expected date of delivery and 6 weeks after normal

delivery or miscarriage. Such employee will not

however, be entitled to annual leave for the year, but

she may take her normal vacation leave for the year

separately at least s ix months before the

commencement of her maternity leave.

10.2 Any period of maternity leave in excess of 12

weeks may be taken only with the permission in

discussion with the Administrative Officer, supervisor

and the Executive Director.

Male employees may be granted 1 month paternity

leave in the event that the i r reg i s tered

partner, delivers, Paternity leave may be granted

based on written evidence from accredited Medical

officer.

11. PUBLIC HOLIDAYS

11.1 The Employee shall also receive paid national

holidays based on the calendar of the Federal

Republic of Nigeria.

12. CONFIDENTIALITY

35

(201

8) LP

ELR-45

274(

CA)

1 2 . 1 . I n t h i s a g r e e m e n t , c o n f i d e n t i a l

information means information about TYDF, its

operations, management and trustees which

information has not been made public by the

Foundation including, without limitation, research

and proposals; business and marketing plans;

information received from third party under

confidential conditions; compensation, information

policies, financial records and related information,

means of gaining access to the Foundation.

12. 2 The Employee agrees to abide by the principles

of confidentiality as outlined in this clause and any

other approved by TYDF.

12. 3 In summary, those principles include, but are

not limited to the following:

a) The Employee agrees not to disclose either directly

or indirectly to any unauthorized person or third

party either during or after employment with TYDF,

any confidential information acquired during the

course of employment with TYDF.

b) The Employee shall during and after the

subsistence of his employment endeavor to prevent

the publication or disclosure of any information or

knowledge acquired, concerning the business affairs,

customers, clients, associates and other employees.

36

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8) LP

ELR-45

274(

CA)

c) Upon terminat ion of employment , the

Employee agrees to return to TYDF all confidential

information held by the Employee, regardless of the

form in which it exists. This includes but not limited

to all records, files, notebooks, correspondence,

papers, documents, disks, diskettes and any other

form or means of recording and/or storage of such

information together with any copies thereof

13. HEALTH AND SAFETY

13..1 The Employee is entit led to medical

insurance for self, spouse or and a maximum of

THREE (3) children up to 21 years of age. This shall

however be subject to requirements laid down by the

insurance policy.

13.2 The Employer agrees to take all practicable steps

to ensure:

a) The Employee's safety while at work; and

b) That no action, inaction of the Employee while at

work causes harm to any other person.

13.3 The Employee agrees to abide by all instructions

and all policies given by TYDF regarding health and

safety whether written or oral. This includes

providing any relevant health information, which

TYDF may be require to provide to our insurer.

13.4 The Employee agrees to notify TYDF as soon as

practicable of anything in the place of employment

that

37

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8) LP

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274(

CA)

may endanger the health and safety of the Employeeof TYDF or any other person.14. OTHER EMPLOYMENT14.1 The Employee shall NOT undertake any otheremployment, which in TYDF's opinion conflicts withthe Employee's performance and obligations underthis contract and shall; in any event, obtainpermission in writing from TYDF before undertakingother employment. Failure to abide by this obligationshall be regarded as a serious misconduct and shallresult in the Employee's dismissal.15: ABANDONMENT OF EMPLOYMENT OR ABSENCEFROM DUTY WITHOUT AUTHORISATION15.1 An Employee who absents him/herself from workfor a continuous period exceeding three working dayswithout notification to TYDP or authorization by TYDFshall be deemed to have abandoned the employmentwithout notice.15.2 TYDF shall contact or make a diligent effort tocontact the Employee during the period of absencewithout notice or authorization to ascertain thereason for such absence and reserves the right toarrive at its decision concerning the Employee16. TERMINATION OF EMPLOYMENT16.1 Either party may terminate tills Agreement bygiven a one (1) month notice

38(2

018)

LPELR

-4527

4(CA)

or paying one (1) month salary in lieu of notice or as

otherwise stated in this Agreement.

16.2 Where a party seeks termination of this

Agreement during the period of probation he/she

shall give two (2) weeks notice to the other or shall

pay two (2) week salary

16.3 Where the Employee fails to provide the

requisite notice as provided for in this Agreement for

termination, the Employee shall be surcharged with

the appropriate amount as provided for and the

Employer shall be at liberty to take such steps as may

be necessary to recoup the amount that is

outstanding

16.4 In the event of serious misconduct, the Employee

will be dismissed without, following an appropriate

investigation. Serious misconduct includes, but is not

limited to:

• Breach of the confidentiality rules and/or

independence declaration

• Serious breach of TYDF’s policies or procedures

• Knowingly falsifying or suppressing the records of

TYDF (or a client of TYDF), statement or any other

document or knowingly abetting a similar action by

another employee

• Unauthorized possession, fraud or dishonesty,

whether within TYDF, any other

39

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8) LP

ELR-45

274(

CA)

TYDF in the course of employment with TYDF, or

otherwise during the currency of this contract

• Insubordination following a reasonable instruction

from TYDF

• Sexual harassment

• Breach of Contract

16.5 In the event of less serious misconduct,

incomplete or non-performance and after the

appropriate procedure has been followed, the

Employee will be given one (1) month notice of

dismissal. TYDF may elect to pay all or part of the

salary in lieu of notice of termination of this contract.

Examples of less serious misconduct could include,

but are not limited to the following:

• Showing an unacceptable standard of behavior e.g.

uncooperative manner and insubordination;

• Indulging in any type of conduct which disrupts the

efficient working of TYDF or is detrimental to it, its

property, its employees, clients or members of the

public;

• failure to achieve an acceptable minimum standard

of work performance.

16.6 Upon termination of employment, the Employee

shall return all properties of TYDF, the value of any

property or equipment not returned or damaged shall

be deducted from any final payment owed to the

Employee.

40

(201

8) LP

ELR-45

274(

CA)

16.7 Upon termination of employment, the Employer

will pay the Employee all outstanding annual leave

pay and any other entitlements excluding any unused

sick leave that the Employee has accrued as at the

date of termination, regardless of the grounds upon

which the Employee's employment is terminated.

17.1 TERMINATION ON MEDICAL GROUNDS

In the event that the Employee is unable to perform

her work or functions by reason of illness/injury for a

period of 90 continuous days, he shall be required to

produce a medical certificate advising the Employer

to withhold termination for another 90 continuous -

days in one year then the Employer can terminate the

employment. It is provided however that the Employer

may terminate the employment earlier than this

should the circumstances warrant it.

17.2 Before taking any such action, TYDF may require

the Employee to undergo a medical examination by a

registered medical practitioner, selected by and at

the expense of TYDF. TYDF will take into account any

reports or recommendations made available as a

result of that examination and any other relevant

41

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8) LP

ELR-45

274(

CA)

medical reports or recommendations, which TYDF

might receive, or which may be tendered to TYDF by

or on behalf of the Employee.

17.3 If the Employee elects not to undergo a medical

examination, TYDP shall have the right to make a

decision on the information available.

17.4 If in TYDF's opinion, it becomes essential to

terminate the Employee's employment due to

incapacity because of illness, the Employee will be

given one (1) month's written notice, TYDF reserves

the right to pay all or part of the one (1) month's

salary in lieu of notice. TYDP has the discretion to

waive or shorten the period of notice.

17.5 TYDF may, after consultation with the Employee

and taking account of such medical or other

information as may be available concerning the likely

return to work date and capacity to resume full and

normal duties, decide to terminate the Employee's

employment clue to incapacity, sickness or injury

notwithstanding the fact that the Employee has not

used all of the sick leave he was entitled to under the

contract.

18. TERMINATION ON NOTICE

18.1 Where the Employee's employment is terminated

in accordance with clauses 13, 15 or 16, TYDF

42

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8) LP

ELR-45

274(

CA)

may in its entire discretion require the Employee;

a) to work out the entire notice period. The Employee

may be required to continue to perform the

Employee's duties at the workplace; or

b) not to attend work for the whole or part of the

notice period but remain employed by TYDF, on full

pay for the notice period; or

c) to leave the workplace and terminate the

employment relationship immediately without notice

and with no payment of in lieu of notice. That applies

in case of termination for cause.

19. REDUNDANCY

19.1 In the event that TYDF proposes to declare the

Employee's position redundant TYDF will give the

Employee a one (1) month notice of termination or

pay in lieu thereof.

19.2 If the employment of the Employee is terminated

as a result of the amalgamation, division or other

reconstruction of TYDF or as a result of the sale or

other disposal of any significant business or

businesses carried on by TYDF, and there is an offer

of employment made within the new organization on

terms and conditions substantially the same as tills

contract, then the position of the Employee shall not

be regarded as having being

43

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8) LP

ELR-45

274(

CA)

made redundant and no redundancy compensationwill be payable.19.3 If due to restructure an Employee is redeployedto another position within TYDF on substantially thesame terms and conditions the Employee shall not bepayable.20. PERSONAL GRIEVANCE AND DISPUTERESOLUTION20.1 Where the Employee is aggrieved by any matterin relation to this employment including disciplinaryaction taken by the Employer, he shall state hisgrievances in writing addressed to his immediatesuperior (or to the latter's supervisor in case theconflict is with her/him) who shall, within forty-eighthours, submit the same to the Employee's ExecutiveDirector for necessary consideration who shall withinone (I) week of receipt make a determination andconvey her/his decision to the Employee.21. WHOLE AGREEMENTThis Agreement with its schedules constitutes theentire Agreement between the Employee and TYDPwith respect to your employment arrangements withTYDF. The Employee acknowledges not to rely on anyrepresentations of TYDF except as set forth in thisAgreement.IN WITNESS whereof the parties have set their namesand hands to this Agreement on the date first writtenabove.

44

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8) LP

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274(

CA)

SIGNED FOR AND ON BEHALF OF THE EMPLOYER

BY NAME: Ms Thelma Ekiyor

OCCUPATION/POSITION: TYDF, CEO/Executive

Director.

sGD

SIGNATURE

DATE

SIGNED FOR AND ON BEHALF OF THE EMPLOYEE

BY

NAME: ENIOLA SNOW OGUNJIMI

OCCUPATION/POSITION: PROGRAMME OFFICE,

WOMEN AND YOUTH

INITIATIVE

SGD

SIGNATURE DATE

Annex A: SALARY cf REMUNERATION DETAILS

Salary: Your salary will be N4.2 Million gross per

annum, with on annual increase of 10%.

Other benefits: You will receive the following

benefits: -

Basic Salary: N3,589,000.00/annum

Housing: N150, 000.00/ annum

Leave Allowance: N420, 000.00/annum

Meal Allowance: N5, 000.00/annum

Utility Allowance: N10,000.00/annum

Entertainment Allowance: N6,000.00/annum

Transport Allowance: N20, 000.00/annum

Medical insurance that will cover yourself and 3

dependents Pension contributions: The Foundation

will cover 50% of the costs of your pension."

(201

8) LP

ELR-45

274(

CA)

The 1st Respondent confirmed the Appellant's appointment

vide a letter dated 23rd August, 2010. The letter reads:-

"Dear Snow Ogunjimi

45

(201

8) LP

ELR-45

274(

CA)

CONFIRMATION OF APPOINTMENT

We are pleased to confirm your appointment as a

Programme Officer, Women and Youth Initiative at

the TY Danjuma Foundation. This will take effect

from 1 September, 2010.

Salary: Your Salary is increased to N4.36M gross per

annum.

We hope this will spur you to greater productivity.

Accept our warmth congratulations.

Yours faithfully,

Thelma Ekiyor

sgd

Executive Director."

However by a letter dated March 1, 2011 the employment

of the Appellant with the 1st Respondent was terminated.

The letter reads on page 62 of the record thus:-

"Mach 1, 2011

Snow Ogunjimi,

TERMINATION OF EMPLOYMENT

This is to inform you that your services are no longer

required by the Foundation with effect from March 1

2011; this is as a result of gross insubordination to

the Executive Director as stated in the Foundations

human policy manual. You are to submit the entire

Foundation's property (ID card, Laptop and

starcomms moderm) in your possession to the HR and

Admin Officer.

Yours faithfully,

For T. Y Danjuma Foundation

(201

8) LP

ELR-45

274(

CA)

Sgd

Nengi Brai

HR and ADMIN Officer."

46

(201

8) LP

ELR-45

274(

CA)

The major contention of the Appellant is that having found

that her termination was wrongful the trial Judge ought to

have considered all her claims particularly her salaries and

allowances for three years since, according to the

Appellant, her contract with the 1st Respondent is for a

fixed period or term of three years. The Respondents

contended the contrary and strongly submitted that the

relationship between Appellant and the Respondent was

merely that of ordinary Master and Servant relationship

that could be terminated at the will of either party to the

contract as according to them it is governed by common

law and the agreement between the parties which provided

modes of termination of the contract. That the agreement

was not for three years certain.

The whole essence and or sanctity of contract is for parties

to operate within the confines of their contractual

agreement for the mutual benefits of the parties to the

contract which in this ease is Master and Servant

relationship. The parties are not entitled to seek for

external influence or aid in the interpretation of the

contract between them.

47

(201

8) LP

ELR-45

274(

CA)

The Court will not be swayed by any arm-twisting tactics or

antics of any of the parties to the contract so as to escape

the true intention of the parties. The parties are strictly

bound by the terms or conditions embodied in the

contract. It is not the business of the Court to re-write the

contract for them.

1. GABRIEL ADEKUNLE OGUNDEPO & ANOR VS

THOMAS ENIYAN OLUMESAN (2011) 8 NWLR (PART

1278) 54 AT 70 C-D per FABIYI, JSC who held:

I need to still point out at this stage that it is not the

business of a Court to re-write parties contract for

them. The duty of the Court is to interpret the

contract as contained in the instrument made by the

parties on their own free volition. A Court of record

should never accede to the importation of unrelated

'grey' areas of the law by a party to prop what is not

contained in the instrument made by the parties. See:

Jadesimi v. Egbe (2003) 10 NWLR (Pt. 827) .1 at 30,

Isiyaku v. Zwingina (2003) 6 NWLR (Pt. 817) 560 at

576."

2. B. M. AJI VS CBDA & ANOR (2015) 16 NWLR (PART

1486) 554 AT 574 per OKORO, JSC who said:-

"It has to be understood that as the contract of

service is the bedrock upon which an aggrieved

employee

48

(201

8) LP

ELR-45

274(

CA)

must found his case he succeeds or fails upon theterm thereof. Therefore, in a written or documentedcontract of service, the Court will not look outside theterm stipulated or agreed therein in deciding therights and obligations of the parties. See WesternNigeria Development Corporation v Abimbola (1966)NSCC 172,(1966)2 SCNLP 21; Olaniyan v University ofLagos (1985) 9 NWLR (Pt. 9) 599.3. B.O. LEWIS vs UNITED BANK FOR AFRICA PLC(2016) 6 NWLR (PART 1508) 329 AT 351H perKEKERE-EKUN JSC who said:“In the construction of a contract, the meaning to beplaced on it is that which is the plain, clear andobvious result of the terms used. A contract ordocument is to be construed in its ordinary meaningwhen the language of a contract is not only plain butadmits by one meaning, the task of interpretation isnegligible..."

I have already reproduced the salient parts of Exhibit "B"the Agreement of Employment or Contract for Servicebetween the Appellant and 1st Respondent and I am of thesolemn and firm view that Clouse 2.1 makes it clear thatthe employment of the Appellant would be for three years(3) certain.

49 (201

8) LP

ELR-45

274(

CA)

For ease of reference Clause 2 provides:-2. TERM/DURATION2.1 The term of this Agreement shall be for a durationof THREE (3) YEARS, commencing from 3 JUNE, 2010through 2 JUNE, 2013 (hereinafter to as "the Term').Said Term may be extended by the mutual consent ofthe parties to this Agreement, with such consent to bereached not later than 1 FEBRUARY, 2013."

The 1st Respondent highlighted the three years to furtheremphasize the importance or significance of the fact thatthe contract of service would be for three years certain.

The reasons for termination of the fixed contract of servicebetween the parties as stated by the 1st Respondent is as aresult of gross insubordination to the Executive Director".By Clause 16.4 of the Exhibit "B" the contract document,Appellant was purportedly relieved of her employment videTermination of Employment for "serious misconduct". Theinsubordination bordering on serious misconduct must beproved by the 1st Respondent to be "Insurbodinationfollowing a reasonable instruction from TYDF" ascontained in Exhibit "C" - Letter of Termination ofAppointment dated March 1, 2011.

50 (201

8) LP

ELR-45

274(

CA)

There is no scintilla of evidence from the Respondent to

justify the termination of employment of the Appellant on

ground of gross insubordination to the Executive Director.

No Executive Director gave evidence of gross

insubordination by the Appellant and those who testified as

DW1 and DW2 did not establish any insubordination to the

said Executive Director. For DW2 she was not conversant

with the reasons for Appellant's termination. 2nd

Defendant, the Executive Director did not give evidence.

The learned trial Judge found on page 599 -600 of the

record that the termination of appointment of Appellant

was not in line with paragraphs 16.1, 16.2 of Exhibit "B"

and that the principle of audi alteram partem was breached

by the 1st Respondent. That the defendant was not right in

dismissing her without giving her a fair hearing. I am of the

view that the learned trial Judge findings cannot be faulted.

The termination of the Appellant's employment was also in

breach of Clause 16.4 of the said Agreement Exhibit "B".

The learned trial Judge however failed and this is a fatal

error in refusing to award to the Appellant her salaries and

emoluments for the remainder of her term of three years

certain.

51

(201

8) LP

ELR-45

274(

CA)

The contract here is for three years and the Appellant is

entitled to claim her salaries and other entitlements

covered by Exhibit "B" for breach of contract on the part of

the 1st Respondent. The 1st Respondent is liable to pay the

Appellant the said salaries up to 2 June, 2013. See:-

1. SHENA SECURITY CO. LTD V AFROPAK (NIG) LTD

& ORS (2008) 18 NWLR (PART 1118) 77 AT 102 G - H

TO 103 A - G per I. T. MUHAMMAD, JSC who said:-

"Where a contract of services provides for

termination by either party giving a specified and pre-

agreed period of notice this poses no problem at all as

to how the contract comes to an end when either

party exercises his right to give notice of Intention to

bring the contractual relationship to an end. This in

fact tallies with the stipulation of Section 11 (1) of

the Labour Act. Cap. 198 LFN. 1990 which states.

(1) Either party to a contract of employment may

terminate the Contract on the expiration given by him

to the other party of his intention to do so

(2) The notice to be given or the purposes of

subsection (1) above shall be:

(a) one day, where the contract has continued for a

period of three months, or less:

52

(201

8) LP

ELR-45

274(

CA)

(b) one week, where the contract has continued for

more than three months but less than two years;

(c) two weeks where the contract has continued for a

period of two years but less than five years: and

(d) one month where the contract has continued for

five years or more."

The above provision, it should be noted is without

prejudice to the common law right of an employer to

dismiss without notice for certain gross misconduct

of the employee.

The 2nd situation is where the contract of service is

for a fixed term. This is where the term of service is

pre-determined at the commencement of the

Contract. Notice may or may not be in the

contemplation of the parties. The proposition here is

that in such a contract the employee cannot be

removed during the period of the term contracted

except for misconduct or where the employer dies.

See: Igbe v. Governor of Bendel State (1983) 2 SC .14:

(1983) 1 SCNLR 73. Where the contract of an

employee is determined before the expiration of the

term agreed, the employer shall be made to pay the

employee the full salary he would have earned for the

unexpired period of his fixed contractual

53

(201

8) LP

ELR-45

274(

CA)

term. See: Swiss Nigeria Wood Industries Ltd.v. Bogo(1970) NCLR 423. Thus, this kind of contract alsoposes no problem although the trial Court mayconsider taking into consideration some factors indetermining the amount to be paid, such as the factthat the money is being paid in bulk and in advanceand the employee has the Opportunity of investing it.See: Haidar v. Berini Bank Ltd. (1961) All NLR 40:Ganabedian v Tamakani (1961) 1 ALL NLR 177;Orasanye v. Electricity Corporation of Nigeria (1969)NSCC, Vol. 6. 128." (underlined mine)2 SWISS NIGERIA WOOD INDUSTRIES LTD. V. BOGO(1970) NIGERIA COMMERCIAL LAW REPORTS 423AT 434 - 435 per COKER J5C who said:-"The Plaintiff has established that the defendantswere in breach of their contract with him and, primafacie, he is entitled to damages. The plaintiff has alsoproved that had the contract continued to its naturalexpiry he would have received so much as salary, andthe Court should have received so much as salary, andthe Court should have rewarded him the damages towhich he was legally entitled. In the case of Haidar V.Berini Bank Ltd. (4), the Federal Supreme Court tookthe view that the

54 (201

8) LP

ELR-45

274(

CA)

measure of damages should be the plaintiff's

remuneration for a total period of twelve months

allowing for the duration of the ease, the time for

deciding on and filing his appeal and the time

thereafter that it would likely take him to find

alternative employment. He was a bank official and

was employed by the bank in Lebanon and sent out to

work in Lagos. In the present case the plaintiff was

described as holding a diploma in business

administration, and there is uncontroverted evidence

on the record that the plaintiff on being offered

employment by the defendants sold out his

confectionery factory in Switzerland at a loss. His

appointment, which commenced in January 1969, was

determined in April 1969, and his salary for the

month of April, we are now told, had been paid him.

He instituted the present action in May 1969 and

judgment was given in the High at the end of

November 1969, so that the action lasted for a period

of seven months. We think that in the particular

circumstances of this case the plaintiff is entitled to

be indemnified for all that period during which the

case was pending. We think also that he would

require some time, say a month, to

55

(201

8) LP

ELR-45

274(

CA)

decide on his appeal and file same. On his return to

Switzerland, he would have to start all over again, but

he must seek alternative employment and not

organise his life on the basis that the Lagos contract,

which was breached and determined, however and

wrongly, was still in operation. We consider that a

period of six months from the time of his return to his

country should be adequate for him to re-settle down

to another business, on the whole. We consider that

he will be entitled to damages measured by his loss

for a total of 14 months beginning from and including

the month of May, 1969 i.e. a total amount of L4, 200

using his monthly salary of L300 as a basis. If the

total amount of L1, 600 which we are told had been

already received by the plaintiff it then taken into

consideration, as indeed it should be, he would now

be entitled to the difference between his total

entitlement of L4,200 and that amount, that is,

L2,000."

The Appellant is entitled to the sum of N12,162,566.00

(Twelve Million, One Hundred and Sixty Two Thousand,

Five Hundred and Sixty-Six Naira only being entitlements

and benefits due to the Appellant from 1st of March, 2010 -

2nd March, 2013 against the 1st Respondent.

56

(201

8) LP

ELR-45

274(

CA)

Judgment is hereby entered in favour of the Appellant in

the aforesaid sum of N12,162,566.00 only against the 1st

Defendant now 1st Respondent being salaries and benefits

due to the Appellant under Exhibit "B" from 1st of March,

2010 to 2nd March, 2013 with interest on the said sum at

the rate of 8% per annum from 30th day of May, 2013 until

the judgment debt is totally liquidated.

Issue 1 is thus resolved in favour of the Appellant.

The complaints of the Appellant under Issue 2 is that the

lower Court failed to consider and pronounce on all issues

put forward before the lower Court and that it occasioned a

miscarriage of justice against the Appellant.

The law is settled that a Court is under obligation to

properly consider and pronounce on all issues properly

raised by the parties for determination of their matter or

forming part of the pleadings to avoid miscarriage of justice

and denial of fair hearing to the parties or any of them.

See:-

1. FCDA V. SULE (1994) 3 NWLR (PART 332) 257.

2. CHIEF BROWN UZUDA VS MR EZEKIEL EBIGAH &

ORS (2009) 15 NWLR (PART 1163) 1 AT 22 B - E

per MUNTAKA-COOMASSIE, JSC who said:

57

(201

8) LP

ELR-45

274(

CA)

"The right to a fair hearing in a suit is not only a

common requirement in Nigeria but also a statutory

and constitutional requirement. This principle is

fundamental to all Court procedure and proceedings.

Thus when a party submits an issue to a Court for

determination that Court must consider and make

pronouncement on it unless if such amounts to

hypothetical or academic issue: Where such issues

amount to mere hypothetical and academic the Court

would not have jurisdiction to hear it. In the case of

Opuiyo v. Omoniwari (2007) 6 SCNJ 131: (2007) 16

NWLR (Pt. 1060) recently decided by this Court it was

held thus:

"As a matter of law, a Court has the duty to consider

the issues submitted to it for adjudication. Where a

Court fails to consider and adjudicate on such issues

it is usually an error of law because the omission

constitutes a denial to the party complaining of his

right to fair hearing as enshrined in the constitution."

Per Oguntade, JSC at p. 138."

3. OGED OVUNWO & ANOR VS IHEANYICHUKWU &

ORS

( 2 0 1 1 ) 7 5 C M 2 0 9 A T 2 2 3 - 2 2 4 A - D p e r

CHUKWUMAH-ENEH, JSC who said:

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I therefore, stand on the above premises to restate

the principle that it is a Court's duty to pronounce on

every issue properly place before it for consideration

and determination before arriving at a decision and

where it has failed to do so, it leads to a miscarriage

of justice apart from as in the instant case breaching

the right of the appellants to fair, hearing. See:

Dawodu v. National Population Commission (2000) 6

WRN 116 at 118. This point of a Court's duty to

pronounce on every issue raised before it is

fundamental to resolving the instant questions raised

in this appeal and is sustainable as per this Court's

decision in Brawal Shipping (Nig.) Ltd. v. Onwadike

Co. Ltd. & Anor. (supra), wherein Uwaifo, JSC held as

follows:

It is no longer in doubt that this Court demands

of, and admonishes, the lower Courts to pronounce;

as a general rule, on all issues properly placed before

them for determination in order, apart from the issue

of fair hearing, not to risk the possibility that the only

issue or issues decided by them could be faulted on

appeal. See. Oyeridan v. Anise (1970) 1 ANLR 313 at

317, Ojogbue v. Nnubia (1972) 6 SC 27, Atanda v.

Ajani (1989) 3 NWLR

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(Pt. 111) 511 at 539, Okonji v. Njokanma (1991)

7 NWLR (Pt. 202) 131 at 150-152 and Katto v. CBN

(1991) 9 NWLR (Pt. 214) 126 at 149. A deliberate

failure to do so has been characterized as amounting

to a failure to perform its statutory duty."

I have read the record of appeal and in particular the

pleadings of the parties and judgment delivered by the

lower Court. Apart from merely claiming for "release of all

the Claimant's properties in their possession" no single

particular item was given as to the items the Appellant was

claiming as her properties in the reliefs claimed in

paragraph 33 of the statement of claim (page 12 of the

record) and in the witness statement on oath of the

Appellant. The Appellant also claimed that he filed a

Garnishee application before the lower Court and no

pronouncement was made on the Garnishee application.

I agree with the learned Counsel to the Respondents that

there is nowhere in the judgment of lower Court touching

or raising any issue of garnishee proceedings. It is also not

shown that the garnishee application was argued

simultaneously with the final written addresses. The

ground(s) of appeal in this matter relating to

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garnishee proceedings do not flow from the judgment

appealed against by the Appellant. The judgment has no

bearing with garnishee proceedings. Ground or grounds of

appeal must always relate to and challenge the ratio

decidendi of a judgment and not issue or matters

extraneous to what the judgment of a Court decides. The

Appellant's arguments on Garnishee application is hereby

discountenanced.

On the Claim of N100,000,000.00 (One Hundred Million

Naira) as damages for assault which the lower Court

referred to as claim for N100,000, I cannot see any

miscarriage of justice in the award of N80,000 (Eighty

Thousand Naira) in favour of the Appellant.

The Courts seldom award damages for emotional

sentiments.

Issue 2 is resolved against the Appellant.

In the end, the appeal succeeds in part. For avoidance of

doubt, Appellant's appeal succeeds on Issue one and

judgment is entered in favour of the Appellant in the sum of

N12,162,566.00 (Twelve Million, One Hundred and Sixty

Two Thousand, Five Hundred and Sixty-Six Naira) only

against the 1st Respondent being salaries and other

benefits due to the Appellant under the Agreement Exhibit

"B" which is

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the Contract of Service between the 1st Defendant (now 1st

Respondent) and the Appellant with 8% (eight) interest on

the aforesaid sum in favour of Appellant.

The Appellant is entitled to Costs assessed at N30,000

(Thirty Thousand Naira) against the 1st Respondent in

favour of the Appellant.

ABDU ABOKI, J.C.A.: I have had the privilege of reading

before now the lead judgment just delivered by my Learned

Brother PETER OLABISI IGE, JCA. His Lordship has

adroitly dealt with the issues distilled for determination. I

adopt as mine, the reasoning and conclusions reached

therein I also abide by the consequential orders as

contained in the lead judgment.

MOHAMMED MUSTAPHA, J.C.A.: I read the draft

judgment just delivered by my learned brother; Peter

Olabisi Ige, JCA. I adopt his reasoning and conclusion in

allowing the appeal in part. I endorse the consequential

orders made in the lead judgment.

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Appearances:

A. T. OMAGHOMI, ESQ. with him, K. E.AKPORAYE-ARAH, ESQ. For Appellant(s)

AUDU ANUGE, ESQ. with him, FESTUS JUMBO,ESQ., PATRICK OKOH, ESQ. and RAYMONDASHIKENI, ESQ. For Respondent(s)

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