THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
Before His Lordship:-
HON. JUSTICE E.D. E ISELE – JUDGE
DATE: 5TH FEBRUARY, 2016 NICN/ABJ/202/2013
BETWEEN
IBRAHIM MUSLIM AYOADE CLAIMANT
AND
NIGERIA BOTTLING COMPANY LTD DEFENDANT
REPRESENTATION:Claimant present. Respondent absent. Egang Agabi holds the brief of Morris Odey for the Claimant. Amuwa Olatunde for the Defendant with Abraham Ayobami.
JUDGMENT
This action was commenced by a general form of complaint dated 1st August 2013. The Claimant seeks the following against the Defendant:
- A Declaration that the Claimant’s termination of appointment based on the query of 14th May, 2012 is null, void and of no effect whatsoever.
- A Declaration that the Claimant’s employment is subsisting and he is therefore entitled to all his monthly salaries from the date of his purported termination and all benefits arising from his employment till the date of judgment and beyond.
- An Order directing the Defendant to reinstate the Claimant to his position and pay him all his monthly salary and benefits from 25th September 2012 till date.
Alternatively
- An Order directing the defendant to pay the Claimant his total entitlement and terminal benefit as at the date of termination in the sum of N15,075,065.84
- An Order directing the Defendant to pay the Claimant the sum of N200,000.00 (Two Hundred Million) as general damages for truncatinghis career, psychological trauma, shame and distorting of his record and plans.
The complaint was accompanied by a Statement of Claim, a Witness Statements to be relied upon at the trial.
The Defendant entered appearance and filed its processes and issues were joined and the case proceeded to hearing.
The following documents were admitted as exhibits:
Exhibit DA is a letter dated 6th May 2013 – Re Appeal Against the Disciplinary Action: Termination of Appointment.
Exhibit DA1 to DA2; Termination of Appointment dated 25th September 2013 in two pages.
Exhibit DB to DB4: 5 page document headed Nigerian Bottling Company Plc hearing process form; management staff.
Exhibit DC and DC1 is a two page document headed memorandum of agreement made on 13th of November 2007.
Exhibit DD is a document headed acknowledgment.
Exhibit DE to DE 5 is a 6 page document dated 7th January, 2013 headed transfer of funds- NBC staff final entitlement
Exhibit DF is a UBA United Bank for Africa letter dated March 24 2014 headed confirmation of transfer in favour of Ibrahim Muslim.
Exhibit DF1 is a UBA document headed transaction inquiry Transaction date being 10th January 2013
These were the documents tendered by the Defendant.
Exhibit A is the Claimants staff identification ID card
Exhibit A1 is the letter of Appointment dated 9th August, 1999.
Exhibit A2 is a letter dated 20th June 1999 headed Bottling Operative Trainee
Exhibit A3 is a letter dated 13th November, 2007 headed Re: Promotion
Exhibit A5 is a letter dated 12th August, 2008 headed Re-Confirmation of Appointment.
Exhibit A6 is a letter dated 11th April 2011 headed Re-Confirmation of Appointment.
Exhibit is B to B4 is a letter dated 10th December 2012 headed Re-Comminique issued at etcetc for is 5 pages.
Exhibit C to C8 is a food beverage and tobacco Senior Staff Association letter headed collective agreement on salaries and wage benefits for its 9 pages dated 21st January, 2013.
Exhibit D is a pay slip for August, 2012
Exhibit E & E1 is a copy of an NBC Plc memorandum to the Claimant, dated 14th May, 2012 with the subject as query for its 2 pages.
Exhibit F and F1 is the letter headed termination of Appointment of September 25th 2012 for its 2 pages.
Exhibit F2 and F3 is a letter headed letter of Appeal in two pages dated 5th October 2012.
Exhibit F4 to F7 represent four pages of computer printout dated 23rdJune 2013 for F4, 22nd April 2013 4.48pm for F5, 23rd June, 2013 for both F6 and F7
Exhibit F8 and F9 is a letter from Morris Odeh & Co Legal Practitioners dated 20th May 2013 headed Re: Termination of Appointment of Ibrahim Muslim Ayoade.
Exhibit G to G18 is the NBC Plc Senior Staff Handbook.
Exhibit H to H 53 is the NBC Plc code of conduct and grievance procedure.
Exhibit J and J1 2 pages NBC Plc memorandum of agreement between the Claimant and Defendant dated 13th November 2007.
(NB this is part of the Defendant exhibits).
It was his case that he was employed as a Junior Staff (Technician) by the Nigeria Bottling Company the (Defendant) Ikeja Plant on the 9th of August 1999 and further underwent basic induction programme successfully and was issued a letter to that effect. He was confirmed on the 24th of February 2000.
He avers that as a result of his loyalty and dedication he never received a query for the period of 8 years he worked as a junior staff with the defendant.
The Claimant avers that he was promoted to a senior cadre as a senior staff position as Assistant Manager II (AM2) grade on 1st November 2007 and later to Assistant Manager (AM I) in 2008, based on his commitment to duty. He avers also that he was promoted to the position of a line manager at the grade of middle manager (MM3) in 2011 due to his consistent performance leading to improvement in the plant. The Claimant avers that on the 2nd day of December 2011, the appointments of plant and production managers were terminated.
Consequently the supervision of the day to day activities of the plant rested on the shoulder of the regional supply chain Director by name Ayo Ajomale through the Regional Engineering Manager.
He avers that he was surprised to receive a query on the basis of production bothering on what he had no responsibility to direct or engineer as he only had control over and only on production on line 3.
He avers that production planning and daily programs were being dictated, directed and approved by Ayo Ajomale through the Regional Engineering Manager. Engr. Ibrahim Lawal. And the volume and quantity of production was only on the basis of a clear declaration by Ayo based on which the quality Assurance Manager Mrs. Kemi Amole made provision for the casual analyst who in turn sent the figures of production to the Head Office in Lagos.
He avers that he is neither the manufacturing Analyst, nor the production manager charged with the responsibilities of the production nor the plant manager.
He further avers that the query issued to him was improper and contrary to the settled procedure and practice of the Defendant as query was issued by a director of human resource in the head office in Lagos instead of his immediate boss or head of department who were in the know of what transpired in Kaduna Plant. He further avers that he was not the manager of production line 2 which query issued to him to answer bothers on. And he says it was not his duty to forward figures on the production to the head office but that of the manufacturing Analyst.
He avers that other managers lines 1 & 2 of production and director who passed the instruction for production and the manufacturing Analyst whose responsibility is to send the correct figures of production to Lagos were all not queried therefore he says query was issued out of malice intended to deny and deprive him of his next promotion.
However he avers to have replied the query issued and explained that he was only a manager in charge of line 3 and was neither a production nor line manager in charge of line 2. However he averredthat a panel committee to hear and decide on accusation initiated by the query was set up by the Defendant and the membership included Mr. Tunde who issued him with the query. He avers that the decision reached by the panel was unfair and they were against him since his responsibility does not extend to line 2 of the plant. Despite evidences adduced by him during the hearing session to prove his innocence and information given by his witnesses that the query and the accusations were misdirected as he is only in charge of line 3.
The Claimant also avers that he was handed a letter of termination dated 25th September, 2012 based on the query and the biased and unfair decision of the panel. He also averred tohave forwarded a letter of Appeal to the supply chain director on the 5th day of October 2012 which ought to have been replied within seven days as mandatorily provided by the code of conduct grievance procedure which has not been replied till date.
He further avers that the Food Beverages & Tobacco Senior Staff Association unanimously demanded an immediate reinstatement of his appointment by way of communiqué on the 13th October 2012 when the baseless termination of his appointment got to their knowledge. The Defendant did not oblige the demand of their association up till date.
He avers that he was called by the Managing Director on the 2nd May 2013 to explain the circumstances that led to his termination. After explanation the Managing Directorpromised to get back to him soonest but never did until he sent an sms to him which he replied that he was still consulting with the other parties and later he sent the mail declining the appeal.
The Claimant further avers that Mr. Ayo sent him an sms pleading for forgiveness after his purported termination. He further avers that his relationship with the Defendant is regulated in the defendants condition of service (staff handbook) code of conduct and grievance procedure and the collective agreement, which he be relied upon at the trial. The Claimant avers that the defendant has violated the express provisions and jettisoned the settled principles contained in the condition of service and grievance procedure by issuing the Claimant query that led to his termination.
He furthermore avers that Defendant failed to honour its condition of service by refusing to pay his terminal benefits as at the date of purported termination.
He gave the following particulars:
- Unpaid gratuity plus earned interest N2,247,098.29- N3,428,889.09 = N5,675,987.09 for 13 years
- Unpaid Junior Staff Provident Scheme plus earned interest = N281,000 =N521,000=N800,000.78 for 8 years
- Unpaid Senior Staff provident Scheme plus earned interest = N(1,500,000.00= N2, 342,965.98)= N3,847,768.98 for 13 years
- Unpaid entitlement in lieu of annual leave =N1,000,000.00
- Unpaid annual leave allowance for the year 2012 at the rate of 10% of annual basic salary = N777,750.00
- Unpaid 13th month pay for 2012 = N593,563.99 total unpaid terminal benefit = N15,075,065.84.
It is the case of the defendant that the Claimant was the acting production manager of Kaduna Plant and was part of management staff and knew what to do but failed to do it as he was in charge of production. TheDefendant denied the fact that the day to day of management of the plant rested on the shoulder of the Claimant.
The Defendant avers that there was no mail from any quarter thereby denying paragraph 11 of the claim.
Furthermore the defendant denies paragraph 12 and 14, the defendant states that the claimant was the production manager with full responsibility to oversee the production processes in Kaduna Plant as the claimant controls all production lines.
Defendant also denies paragraphs 15 16 and 17 of the claim and put the claimant to strict proof of same, even though admits paragraph 18 19 and 20.
They avers that though claimant was queried but the panel was fair all the way.
The Defendant denies paragraph 27 and 29 claiming not to have violated any disciplinary process saying termination was done with recommendation of all involved parties. Defendant also avers that it replied the letter of appeal by claimant on 6th may 2013.
Defendant further denies paragraph 30 of claim and requiredstrict proof of same. They avers that the termination was done in accordance with the condition of service as claimant signed additional memorandum of Agreement between him and the defendant on the 13th of November 2007 with a clause that either party is at liberty to terminate the relationship with a month notice. Defendant avers that claimant is not entitled to the money calculated in the said paragraph as the claimants terminal benefit was calculated and paid to him.
The Defendant denies paragraph 31, 32 33 and 34 and shall require strict proof. The Defendants also denies paragraph 36.
In all the defendants called one witness who was cross examined, at the close of hearing by both parties, both parties adopted their written addresses.
In the written address of the defendants they formulated the following issues for determination
- Whether or not the termination of the claimant was lawful
- Whether or not the Claimant is entitled to the reliefs sought or ALTERNATIVELY
- Whether or not the claimant has proved his case on the balance of probability to be entitled to the reliefs sought in this Honourable Court.
On the part of the claimant, he formulated the following issues for determination:
(1) Whether the defendant has properly terminated the appointment of the claimant in accordance with the applicable rules of procedure of the defendant?
(2) Whether the claimant is not entitled to succeed on the balance of probabilities for the payment of all entitlements as due and provided for in the condition of service?
In the argument in support of the 1st issue formulated by the defendant for determination. The defendant in their paragraph 4.01 the argument in support of this issue is that the claimants’ termination was proper based on the memorandum of agreement dated 13th of November 2007 which was signed by the claimant. He cited the case of Kwara State polytechnic v. Adetica (2008) ALL FWLR. Furthermore in paragraph 4.03 defendant states that a master can terminate the contract of employment with his servant at any time for any reason and for no reason at all provided the terms of contract of service between them were complied with. He cited the case of Taiwo v. Kingsway Stores Ltd (1950) NLR 122 Olarewaju v. Afribank Plc (2001) FWLR (pt. 72) 2008 ratio 5.
On issue 2, in paragraph 5.02 the defendant states that claimant collected all his entitlements carefully calculated and worked out by the Finance and Human Resources Department which claimant did not sue on how such huge sum was paid but rather choose to sue defendants 7 months after collecting his entitlement. Defendant previously emphasized in Exhibit I which is the statement of Account of the claimant from UBA Plc, Exhibits DE-DE5 transfer of funds NBC Plc stafffinal entitlement Exhibit DF1 confirming the payment of transfer of N1,866,838,009 to the account of the claimant which he admitted to have collected.
Furthermore defendants in paragraph 5.04 stated that is trite law that an unwilling employer will not be compelled to keep an employee he no longer wants. They cited cases of OYEDEZE V. IFE U.T.H (1990) 6 NWLR (pt. 155) 194 C.A IBADAN; WUCHUKWU V. NWOSE (1994) 7 NWLR pt. (357) p. 379, SAVANNAH BANK PLC V. FAKOKUN (2002) 1 NWLR ( PT. 749) 544RATIO 9 W1. A Court cannot foist on an employer an employee in whom he has lost confidence.
Defendants urged that the claimant claim of general damages of N200,000,000.00 for truncating his career, physiological trauma, shame and distorting of his record is none in termination case and must be dismissed.
In the address of the claimant two issues were raised for determination:
- Whether the defendant has properly terminated the appointment of the claimant in accordance with the applicable rules of procedure of the defendant.
