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MOJOYINOLA JOLAADE LANA VS TURMERIC LTD & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD

DATE:  TUESDAY 4TH DECEMBER 2018

SUIT NO. NICN/LA/185/2017

 

BETWEEN:

MOJOYINOLA JOLAADE LANA

                                                           

CLAIMANT

AND

  1. TURMERIC LTD
  2. IDOWU A. TOLU

                                                                                   

DEFENDANTS

Representation:

Micheal F. Lana with Banjo Akinwarinde appear for the Claimant

Rebecca Umoh appears for the Defendants.

JUDGMENT

The Claimant commenced this action against the Defendants by a General Form of Compliant dated and filed on 19th April 2017, together with the Statement of Facts, List of Claimant’s witnesses, the Claimant’s Witness Statement on Oath, List of Documents; all dated the 13th April 2017 and copies of all the documents to be relied on at the trial of the suit. The Claimant claims the following reliefs against the Defendants:

  1. A DECLARATION that the Defendant’s letter dated 21st February, 2017 suspending the Claimant indefinitely is in breach of the terms of the employment contract between the Claimant and the 1st Defendant and is unknown to or in breach of the Labour Law or international best practices and therefore null and void.
  2. A DECLARATION that the resignation letter submitted by the Claimant was induced by the unlawful acts of the Defendants.

iii.                A DECLARATION that the Letter of Acceptance dated 3rd April, 2017 written by the Defendants was written maliciously and made for the purpose of preventing the Claimant from getting another employment in Nigeria.

  1. AN ORDER directing the Defendants to withdraw the said letter of acceptance and issue a proper one without derogatory or defamatory words.
  2. DAMAGES for loss of or anticipated earnings in the sum of N150,000.00 (One Hundred and Fifty Thousand Naira Only) per month from 18th March, 2017 till date of Judgment and thereafter at the rate of N150,000.00 (One Hundred and Fifty Thousand Naira Only) per month till date the Defendants issue a proper letter of acceptance and a further N450,000.00k (Four Hundred and Fifty Thousand Naira Only) per annum being the minimum amount accruable for a Retainership on the use of the Claimant’s License.
  3. General Damages in the sum of N100 Million for defamation.

vii.              An Order of Injunction restraining the Defendants by themselves their agents, servant, privies or any person however called from further using such or any derogatory words against the Claimant in any reference letter or otherwise.

In response to the claim, the Defendants entered appearance and filed their joint Statement of Defence on 12th June 2017 together with a List of Defendants’ Witnesses and Defendants’ Witnesses Statement on Oath, List of Documents and copies of the documents to be relied on at the trial. Defendant counter-claimed as follows:

  1. The sum of N260,000,000 (Two Hundred and Sixty Thousand Naira only) as two months’ salary in lieu of notice of disengagement.
  2. The sum of N20,000,000.00 (Twenty Million Naira only) as General damages for loss of contract to be secured by the defendant save for the claimant’s Negligence.
  3. The sum of N5,000,000.00 (Five Million Naira only) as cost of this action

Trial commenced in the suit on 23rd May 2018 and ended on same day.  The Claimant gave evidence for herself by adopting her Statements on Oath.  During the examination in chief, the Claimant tendered in evidence the following documents:

  1. Exhibit C1 – Letter of offer dated 27th July, 2015.
  2. Exhibit C2 – Letter of undertaking dated 27th July, 2017.
  3. Exhibit C3 – Letter of suspension dated 21st February, 2017.
  4. Exhibit C4 – Claimant’s letter dated 1st March 2017.
  5. Exhibit C5 – Letter of resignation.
  6. Exhibit C6 – Letter of Acceptance dated 3rd April, 2017.
  7. Exhibit C7 – Retainership Agreement.
  8. Exhibit C8 – Code of Ethics.

The Claimant was thereafter cross-examined. The Defendants’ Witness, Idowu A. Tolulape gave evidence by adopting his Witness Statement on Oath deposed to on 19th April 2018 and was cross-examined accordingly. The Defendant tendered in evidence the following document:

  1. Exhibit D1 – Email of 9th May 2019 headed ‘Fwd: Leave’.
  2. Exhibit D2 – Email of 9th May 2019 headed ‘Query’
  3. Exhibit D3 – Email of 9th May 2019 headed ‘Lana’s Report‘

At the end of trial, the Court ordered the parties to file their respective final written addresses and adjourned for adoption of the Final Written Addresses on 13th July 2018.  On the date set for adoption of Final Written Addresses, Defendant came up with a motion for extension of time to file their final written address; which application was granted.  The suit was thereafter further adjourned to 14th of August 2018, 25th September 2018 but was eventually adopted on 1st November 2018.

 

CASE OF THE CLAIMANT

The case of the Claimant is that the 1st Defendant is a Pharmaceutical company registered under the laws of the Federal Republic of Nigeria; while the 2nd Defendant is the Chief Executive Officer and the alter ego of the 1st Defendant. The Defendants by letter dated 27th July, 2015 employed the Claimant as Superintendent Pharmacist and was posted to Opebi, Ikeja Branch. It is Claimant’s case that under the terms of the said contract, there was no provision for suspension. By another letter dated 27th July, 2015, the Defendants gave an undertaken to give the Claimant a free hand to perform her roles as the Superintendent Pharmacist of Turmeric Pharmacy according to the ethics of the profession.  By a separate Retainership Agreement dated 30th July, 2015 the Defendant agreed to pay the Claimant the sum of N480,000.00k (Four Hundred and Eighty Thousand Naira Only) per year for the use of her License.  On 20th February 2017, one Mr Yusuf an officer of the 1st Defendant called the Claimant at 9:10am and told her to attend a programme taking place at 9.0clock at a venue the caller was not sure how to get to. Claimant told Mr Yusuf that he ought to have given her a prior notice of the Programme so she could make proper arrangements to attend and arrange for the running of the branch which she was heading. Nevertheless she agreed to attend though the programme would have started even before she was informed. The Claimant was about to leave for the programme when her assistant reminded her she had earlier fixed a meeting with one Mr Efe Williams, a Representative of the Society for Family Health (SF H) and their Consultant Evaluator who was coming from the United Kingdom for the said meeting. The meeting was in the interest of the Defendants as to how the Defendants could benefit from a new product that was to be introduced into the Nigerian market. The Claimant in her discretion viewed the meeting with the foreign guest more important than a programme, the theme of which she was not told and the venue of which was not readily known. Consequently, as the Superintendent Pharmacist she decided that she would stay and hold the meeting with Mr Efe Williams and the British and she sent her Assistant Technician to search for the venue and attend the programme. The Assistant Technician went for the programme while the Claimant held the meeting which was very successful. Claimant received, through her telephone, a letter dated 21st February, 2017 putting her on an indefinite suspension with immediate effect. The Claimant went to meet the 2nd Defendant to know which act of hers constituted “unprofessional actions” for which she suspended and she was told that it was her failure to go for the above mentioned programme. It is Claimant’s case that the suspension on the basis of the exercise of her discretion is a breach of the Undertaken given to her by the 2nd Defendant.  The Claimant waited till 1st March, 2017 for her to recalled and when this was not done she wrote a letter dated that day to the Defendants stating the events of 20th February, 2017 and claiming that if any person was to be blamed, it was not her but Mr Yusuf who notified her late and of course she had a right under her terms of employment and undertaking to exercise her discretion un fettered. The Claimant states that it is the rule and practice of the Pharmacy Council of Nigeria that Superintendent Pharmacist submits the use of her License to his/her employer which is used to register the branch he/she is heading. Under that rule, when a Pharmacist leaves a place of employment the Council requires the employer to give the employee a letter of acceptance of resignation which letter will be submitted before the employee gets employed by another company otherwise he/she would not be able to use his/her license for any prospective employer and therefore incapable of getting another employment. After her letter of 1st March 2017, the Defendants paid her salary for February 2017 on 10th March 2017 which she actually worked for but refused to recall her or make any formal allegation against her or make her face any disciplinary panel. The Claimant’s case is that after being idle for some time with no end in sight to her suspension, and with many employers seeking her services, she decided to resign her appointment which she did by letter dated 17th March 2017.  The Claimant states that the Defendants maliciously wrote the letter of Acceptance dated 3rd April, 2017 in a derogatory and defamatory manner so as to prejudice or destroy the Claimant’s career and prevent her from getting any employment anywhere else.

CASE OF THE DEFENDANTS

It is Defendants’ case that the Claimant was in the employment of the 1st Defendant from 3rd August 2015 to 17th March, 2017 when she resigned of her own volition and without any pressure from the Defendants. Defendants state that prior to the incident culminating into the institution of this suit, the Claimant had over time exhibited nonchalant attitude, negligence and remise to work which had attracted verbal warnings, admonitions and queries in the cause of her employment. The attitude of the Claimant referred to above was displayed on several occasions which the Defendants narrate as follows:

  1. Barely Four months after the Claimant resumed work, she applied for leave sometimes in December 2015 on the ground that she needed to take an examination in the United Kingdom; even though it was contrary to the standard operating procedure of the 1st Defendant and it was untypical of the Management to grant leave to a staff who had barely spent 4 months, the leave which spanned from 28th December 2015 to 11th January, 2016 was nonetheless approved because the Claimant claimed that flight ticket had been booked and the examination fee was fully paid for.
  2. Claimant again came up with another 5 days leave application in August 2016 on the claim that she had to take care of her sick cousin; the management was totally against it but the leave was again granted on the strict condition that the Claimant make a well organised and adequate provisions for the smooth running of the business she was employed to oversee.
  3. Contrary to the condition for her leave and to the Management’s displeasure, the Claimant failed to make any tangible complementary plan with her colleague or submit any handover note to the Locum Pharmacist, Mr Obembe; she totally failed to make adequate arrangement with any other pharmacist within the organization who would take up her roles and attend to her responsibilities while she was away.
  4. While Claimant was yet on the undeserved 5 days leave, the Claimant sent an e-mail informing the 2nd Defendant of her decision to take additional 5 days off work and thereafter proceeded without even waiting for an approval on same and again without arrangement to secure the business she was employed to supervise.
  5. Not only did the Claimant take the additional 5 days, but Claimant took yet another two days extra off work without informing the management about same and apparently without approval.
  6. As a result of her unjustified absence from work within the period of 5th – 22nd August, 2016 the day to day operation of the pharmacy outlet was greatly troubled; the absence adversely affected the 1st Defendant’s sales, client based business like Health Management Organization (HMO) clients, pharmaceutical care provision which could have been estimated to well over a Million Naira.
  7. The Claimant thus having been absent from the period of 5th – 22nd August 2016 received a query note from the Human Resource Department of the Defendants upon her resumption.

The Defendants state that the Claimant had displayed high level of non-professionalism and negligence in the management of the activities committed to her care as follows:

  1. On the 1st October, 2016, there was a fire outbreak at the 1st Defendant’s outlet under the supervision of the Claimant which outbreak the Claimant failed and neglected to disclose to the Defendants; the Defendants however got to know of the incident on the 2nd October 2016 a period well over 23 hours after the incident occurred, when the Claimant’s assistant Mr Obembe who was not around when the incident occurred returned to work and discovered that the fire had destroyed some of the Defendants properties, electrical cables and electronic prepaid metres.
  2. As a result of the incident, the defendant also received a call from the Landlord to the outlet mentioning the fire incident and threatening to evict the Defendant should a similar incident recur.
  3. Further enquiry revealed that the incident had started a day earlier when the Claimant and a support staff were around; the Management was extremely disturbed as to why an incident of that magnitude was not brought to its attention.
  4. Even though, the magnitude of the fire incident was such that it grounded the operation of the Defendants the following day, the Claimant refused to report same until she was eventually summoned to the head office to give an account of what happened.
  5. The Claimant gave an excuse that she presumed she could handle the situation until it went out of control; her excuse as to why same was not brought to the management’s attention was largely untenable and she was strictly cautioned that any subsequent act will lead to serious disciplinary action being taken against her which may include the termination of her appointment with the 1st Defendant.

Defendants aver that the series of the Claimant’s episode of negligence and nonchalant attitude to work, disobedience to authority, lying to cover up flaws, absence from work without permission, insubordination to authority and lack of team spirit as a superintendent pharmacist are attitudes unbecoming of a professional of her ilk.

It is Defendants case that the agreement to give the Claimant free hand to perform her duty as a Superintendent Pharmacist does not include lack of accountability and disobedience to directives of superiors and the Management of the 1st Defendant. On the incidence of 20th February 2017, the 1st Defendant’s Administrative Manager, Mr. Oseni Yusuf called the Claimant informing her of the directive of the Defendant to attend a crucial workshop/training designed for superintendent pharmacists scheduled for that day and sponsored by a foreign multinational company at the cost of One Hundred and Fifty Thousand Naira, to train the Defendant’s superintendent pharmacist and subordinate staff. The said workshop was also aimed at providing the Defendants with vital information that would assist the Defendants to secure a contract of the worth of about Twenty Million Naira if the Claimant had been in attendance alone. Upon being directed to attend the training the Claimant was reluctant, claiming that she was not familiar with the venue of the training and the defendant’s administrative manager told her that the training was to hold at Golden Tulip Hotel, Airport Road, Ikeja. Claimant further made excuse that her car was faulty and getting to the venue might prove difficult; she however consented to taking a cab on the condition that the first Defendant take responsibility of the cost incurred. The Defendants agreed to take responsibility of any cost of transportation to the venue of the training, given the benefits of the seminar to the Defendants and also to the Claimant since the seminar was equally meant to boost her knowledge as well as her effectiveness in the management of the 1st Defendant’s pharmacy which she heads at Ikeja, Lagos State. Defendants knew of no beneficial meeting to be held by the Claimant with any other person at the expense of the workshop which she was specifically informed of and directed to attend. That although the defendant gave the Claimant the liberty to secure contracts on behalf of the Defendants but same was never agreed to be at the expense of the Defendants’ directives. That Claimant’s performance of her duty in free hand did not include insubordination to the directives of the Defendants. Claimant did not revert to the Defendants’ administrative manager to inform him of her inability to attend the seminar when she knew she could not attend the seminar but instead made representation to the Defendants with the intent to deceive the former that she attended the training. The next morning the 2nd Defendant received an SMS (text message) from the Claimant on a summary report of the training dated the 20th February 2017, thereby putting the Defendants under the impression that she attended same.  On the 22nd February while the 2nd Defendant was in a discussion with one of his former staff who was equally sponsored for that workshop by his new employer, it was revealed that the 1st Defendant was not represented by any superintendent pharmacist in the workshop on the 20th February, 2017·   The 2nd Defendant upon further enquiry found that the 1st Defendant was merely represented by a sales girl at the outlet in a workshop meant for Superintendent Pharmacist while the Claimant pretended all along to have attended same, given the report submitted by the Claimant that the workshop was duly attended by her.  When confronted with the issue, the Claimant at first denied the allegation that she did not attend but subsequently stated that she intended to inform the administrative manager that she would be unable to attend the training but he was unreachable on phone.  Defendants state that when Claimant was confronted with her lies and cover ups she showed no remorse but instead continued to make unreasonable justification for her refusal to attend the workshop, hence the need for the suspension. Defendants’ state that the Claimant lost nothing in the cause of the suspension because the management approved the payment of her salary and same was paid and received by her on the 10th March 2017; a positive gesture confirming to her that she was still in the employment of the Defendant. Defendants’ further state that they did not in any way induce Claimant’s resignation as it was the later that decided to resign her employment with the 1st Defendant without any notice.  Defendants state that the suspension was necessitated not only because of the deceitful attitude of Claimant in making representation to the defendant that she attended the seminar but also for the wilful disobedience of the Claimant to constituted authority which at that time cost the Defendants pharmacy the opportunity of securing a contract worth over 20Million Naira. The Defendants state that the inactions of the Claimant has not been in honour and dignity of the profession and that her wilful deceitful acts is unbecoming of a respectable employee and more importantly of a pharmacist since a pharmacists is not only expected to be found worthy in learning but also in character; a condition upon which a pharmacist is admitted as a member of the profession by the Pharmacists council of Nigeria. Defendants state that they intended no defamation and indeed committed none by simply stating the true position of things between the Defendant and the Claimant. Defendants state that if there was any grievance in respect of the letter of acceptance, the Claimant did not in any way display same or any form of protest and the Defendants were unaware of any until the date that they were served with the Court summons. That the Claimant did not inform the Defendants of any new job opportunity for which any letter of acceptance of resignation is required, the Claimant merely requested that her resignation be accepted and the Defendant did accept same.

Defendants state that in breach of the retainership agreement, the Claimant failed to give the required notice of disengagement to the Defendant; neither did she make payment of salary in lieu of same before disengaging herself by a letter of resignation. That they suffered damages based on the ill attitude of the Claimant to work and failure to attend the training scheduled for 20th February, 2017.

CLAIMANT’S REPLY TO DEFENDANTS’ STATEMENT OF DEFENCE AND DEFENCE TO COUNTER CLAIM

In Reply to Defendants Statement of Defence and in Defence to the Counter-Claim, Claimant states that at no time was she ever warned, admonished or queried by the Defendants.   That each time she travelled abroad she got permission from the Defendants who never for once showed any displeasure over such travels. That there was never a fire outbreak in her place of work, rather there was time the electric meter box sparked and light went off and as the officer in charge she ensured it was taken care off without delay and caused no disruption of her services or operation of the shop; and that the Defendants are estopped from challenging the notice of termination having accepted the letter which they forced the Claimant by their conduct to write.

SUBMISSION ON BEHALF OF THE DEFENDANTS

The Defendants in their Final Written Address raised the following three issues for determination:

  1. Whether upon the application of the principles governing employment, the Honourable Court can grant reliefs 1, 2 and 3 sought by the Claimant.
  2. Whether the Honourable Court has jurisdiction to adjudicate on claims embodied in reliefs 4, 6 and 7
  3. Whether the Claimant is entitled to claims for damages as contained in relief 5.

On Issue one, it is Defendants arguement that for the Claimant to be entitled to reliefs 1, 2 and 3, the Claimant’s claims must be in tandem with the current position of law on the issues raised in her complaint. By the Claimant first three prayers in addition to assertions in the Statement of fact, the Defendants argument considers three allegations by the Claimant, to wit, that her suspension was illegal, her resignation was induced and her letter of acceptance maliciously issued.

Defendants argue that an employee has no right to vary any part of the lawful instructions of his/her employer to suit his/her purpose or convenience without prior approval of the employer. They refer to the case of Eze v. Spring Bank PLC (2011) 12 S.C (PT. 1) 173 that an employee’s variation of lawful instruction of an employer without prior approval is disobedience of a lawful order, which is an act of misconduct. They argue that where therefore an employee has made an error of judgment or committed misconduct, the employer has the right to discipline such employee. They submit that the Defendant who is the Claimant’s employer took steps to discipline the Claimant by placing her on immediate suspension, and that the suspension was valid and cognizable within the bounds of law.

Defendants noted that an employer can only exercise his right to suspend an employee without pay where there is an express or contractual right to do so – Olafimihan v. Nora LAU-Tech Nig. Ltd [1998] 4 NWLR [PT 547] 608 where it was held that an indefinite suspension without pay with restriction of the employee from entering the premises of the employer company is a clear intention of the Respondent to dispense with the service of the employee; and submit that this is not the case in this suit where the Claimant was paid her full salary and was not restricted or denied access to the working premises.  Defendants argue that a three weeks suspension with payment of full salary cannot be construed to have possibly induced the resignation of the Claimant.  They submit that the circumstance of this case does not support the Claimant’s suspension as being illegal or that her letter of resignation was induced by the Defendants.

On relief 3, Defendants argue that Claimant’s letter of acceptance was not maliciously written but was written in good faith and with no intention to prevent the Claimant from getting another employment in Nigeria. They argue that the Claimant has not established that the Defendants has committed a wrongful and illegal act by issuing an acceptance letter to the Claimant consequent upon her resignation, disclosing the circumstance surrounding her termination of the contractual relationship. Defendants also submit that the Claimant has failed to establish her claim before this Court as the Defendants never induced the Claimant’s resignation and the tendering of her resignation was voluntary.

 

On Issue 2, whether this Court has the Jurisdiction to adjudicate on claims embodied in reliefs 4, 6 and 7; Defendants argue that the combined effects of section 7 of the National Industrial Court Act 2006 and Section 254C (1) of the 1999 Constitution as amended restrict the jurisdiction of this Honourable Court to “labour and other labour related matters”. They referred to the case of Osim v. Ojogu [2013] 35 NLLR P. 514, Paras E- F where it was held that where the claim of the Applicant and the issues to be determined therein by the Court are outside the realm of employment law, the Applicant will be deemed not to have made out a case for the National Industrial Court of Nigeria to exercise Jurisdiction over the claims. The Court will therefore lack Jurisdiction to entertain such matter. They contend that a careful perusal of the Claimant’s reliefs 4 and 6 on defamation shows that the issue raised does not fall within the Jurisdiction of the Court to entertain and determine the relief sought as contained in section 254C[1][ a] and K of the 1999 constitution as amended.

On Issue 3; whether the Claimant is entitled to claims for damages as contained in relief 5, Defendants submit that the Claimant is not entitled to damages for loss of anticipated earnings as the letter of acceptance issued was in line with the Pharmaceutical Council of Nigeria (PCN).  They referred to In WAEC V. Oshionebo (2006) 12 NWLR (Pt.994) 258, where it was held that a notice of resignation is effective not from the date of the letter or from the date of any purported acceptance, but from the date on which the letter was received by the employer or his agent and that tendering of a letter of resignation by an employee carries with it the right to leave the service automatically without any benefit. Thus, once an employee tenders his resignation he ceases henceforth to be an employee. The contend that in the instant case, the Defendants did not reject the resignation of the Claimant and was never indebted to the Claimant at any time and that there was no evidence before the Honourable Court evidencing that the letter of acceptance did deprive the Claimant of other employments.

Defendants also state that the Claimant resigned, in breach of the retainership agreement between her and the Defendant without giving the requisite notice.

 

SUBMISSION ON BEHALF OF THE CLAIMANT

The Claimant in her Final Written Address raised the following five issues for determination:

  1. Whether the Claimant’s suspension was justifiable under the terms of contract between the parties.
  2. Whether the Claimant’s resignation was not induced by the breach of the Contract between the parties.
  3. Whether the letter of Acceptance was not libellous and maliciously written to prevent the Claimant from seeking further employment elsewhere.
  4. If the answer to the above issue is in the affirmative, whether tile Claimant is not entitled to damages.
  5. Whether the objection to reliefs 4, 6 and 7 is competent.

On Issue 1, Claimant argues that the relationship between the Claimant and the Defendants is not an ordinary master-servant relationship but strictly a professional contract of employment. She argues that none of the documents constituting her terms of employment raised the issue of suspension or disciplinary action. She further argues that where the words in a contract document are clear, the duty of the Court is to enforce the agreement which is binding between the parties and the contract document is to be construed in its ordinary meaning – Total Nig. Plc v. Chief A.N.Morkah [2002], 9 NWLR [PT.773] 492; OMPADEC v. Dalek Nig. Ltd [2002] 112 NWLR [PT.781] 384. She also argues that the fact that exhibit C2 provides that Claimant is to be given ‘freehand’, meant, she was not to be under the control or directive of either the 2nd  Defendant or Mr Yusuf that directed her to go for an impromptu programme and it was entirely within her discretionary right to go or not to go; and that, the Defendants were in breach of the contract when they penalised her by suspending her indefinitely.

On Issue 2, whether the Claimant’s resignation was not induced by the breach of the Contract between the parties, Claimant submits that she put in her letter of Resignation because she was made redundant by the unlawful indefinite suspension.

On Issues 3 & 4, whether the Letter of Acceptance was not maliciously written to prevent the Claimant from seeking further employment elsewhere and if the answer to the above issue is in the affirmative, whether the Claimant is not entitled to damages. Claimant argues that the letter of acceptance of resignation is sine qua non to further employment in the pharmacy industry and profession, and that the letter issued by the Defendants was maliciously written, defamatory and incapable of being used to secure further employment. She submits that since the 2nd Defendant’s secretary types all his letters including the letter of acceptance, the content of the letter had been published to at least to one person.

DEFENDANTS REPLY ON POINT OF LAW

 

In Reply, Defendant addressed the issue of freehand and disobedience to lawful order.  Defendant questioned whether an agreement to allow an employee the latitude to do her job without unnecessary interference meant that an employee was not under the control of his or her employer as to obey lawful and reasonable instructions. They referred to the case of Emmanel Nwobosi v. African Continental Bank Ltd (1995) LPELR-SC.91/1991 where the Court stated the rule that that wilful disobedience of a lawful and reasonable order of an employer by an employee is of a definite act of misconduct which, at common law, attracts the penalty of summary dismissal since such wilful disobedience is a reflection of a total disregard of an essential condition of a contract of service.

On the nature of Claimant’s employment not being master and servant but professional, Defendant argues that of the three major forms of employment, the one that conveniently fits the relationship between the Defendants and the Claimant is the master servant relationship.

Defendant argues that by virtue of the relationship between the parties, it is presumed the employer has the right to discipline an erring employee regardless of the fact that it is not expressly stated.

On Claimant’s argument that Defendant’s letter of acceptance was written to prevent further employment, Defendants submit that the Claimant is calling on the Court to speculate without providing any evidence to establish her assertion.

On the issue of redundancy, Defendant urged the Court to discountenance any issue surrounding redundancy as this was not contained in the Claimant’s pleadings before the Court.

 

 

 

COURT’S DECISION

 

I have carefully considered the processes filed, the evidence led, the written submissions and authorities cited in the final addresses.  I also heard the evidence of the two witnesses called at the trial as well as watched their demeanour.  In addition, I evaluated all the exhibits tendered and admitted.  Having done all this, I set the following issues down for determination:

  • Whether the Claimant is entitled to her Claim.
  • Whether the Defendant is entitled to its Counter-Claim.

Claimant’s first Relief is for a Declaration that the Defendant’s letter dated 21st February, 2017 suspending the Claimant indefinitely is in breach of the terms of the employment contract between the Claimant and the 1st Defendant and is unknown to or in breach of the Labour Law or international best practices and therefore null and void.

Suspension in contracts of employment operates to suspend the contract rather than terminate the contractual obligation of the parties. It is a step taken in the interest of the employers business when certain issues of misconduct are being looked at – see Adekunle v. UBA PLC (2016) LPELR-41124(CA).  See   Longe v. FBN. Plc (2010) 6 NWLR (Pt. 1189) 1 S.C. where the Supreme Court held that:

… It is a state of affairs which exists while there is a contract in force between the employer and the employee, but while there is neither work being done in pursuance of it nor remuneration being paid. Suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other.” Per ADEKEYE, JSC (Pp. 80-81, paras. G-B)

The Courts have consistently recognised the Employers right to suspend an erring staff.  In the case of Union Bank v. Salaudeen (2017) LPELR-43415(CA), the Court of Appeal held that:

In law, an employer has the power to exercise disciplinary action over his employee. Such disciplinary powers include suspension, interdiction, termination or dismissal. The power of an employer to discipline his employee cannot therefore be taken away by the Court. It is therefore trite that, he who hires can also fire. However, in the exercise of such power to discipline such employee, an employer must observe and adhere to the terms and conditions under which he entered into the contract of employment or hired the employee. Where the employer determines the employment of an employee in breach of such terms and conditions, the employer is ipso facto liable for unlawful termination of the services of the employee.

It is trite that he who approaches the Court has the burden of proving the entitlement to the reliefs sought. Both case law and the statute support this proposition. See Chairman, EFCC & Anor. v. Littlechild & Anor (2015) LPELR-25199 (CA) & Section 131(1) & (2), Evidence Act, 2011. Except in relation to express and unambiguous admission, the burden of proof remains on he who asserts.  Also, by the principles in Oloruntoba-Oju v. Lawal (2001) FWLR(Pt. 72) 2029 at 2033 and Okomu Oil Palm vs. Iserhienrhien (2001) 5 NSCQR 802, where an employee complains that his employment has been wrongfully terminated, he has the onus to place before the Court the terms of the employment and to prove in what manner the said terms were breached by the employer.

As held in Adegbite v. State, (2017) LPELR-42585(SC), it is trite principle also that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculation. See Ohue v. NEPA (1998) 7 NWLR (Pt.557) 187; Oguanzee V. State (1998) 5 NWLR (Pt.551) 521; Animashaun v. UCH (1996) 10 NWLR (Pt.476) 65; Adefulu v. Okulaja (1996) 9 NWLR (Pt.475) 668.” Per GALINJE, J.S.C. (Pp. 13-14, Paras. C-B.

Claimant did not lead evidence to establish which term of her employment was breached.  The Relief also seeks a Declaration that the suspension is unknown to or in breach of the Labour law or international best practices. However, Claimant failed to cite or refer to the provisions of the labour law violated or the international best practices breached.  Order 23 Rule 7 of the NICN Rules provides that:

Where a party to a suit prays the Court to apply any International Best Practice(s) or International Labour Standards in determining or doing justice in the matter before it, the party shall state the particular principle(s) and/or authority of International Best Practices or extant International Labour Standards the party is praying the Court to apply.

I do not find evidence establishing the Relief one sought in this case.  I therefore find that this Relief fails.

Relief two seeks a Declaration that the resignation letter submitted by the Claimant was induced by the unlawful acts of the Defendants.  I presume that this Relief is premised upon a finding that the acts of the Defendant in suspending the Claimant or any other act of the Defendant is unlawful.  Having found that the Claimant has not established Relief 1, Relief 2 cannot stand.

As held in the case of Mobil Producing Nig. Unlt & Anor. v. Udo (2008) LPELR-8440(CA)

…The primary question to be determined now is, “what is the status of an employee during suspension”? For proper perception of the issue, I would, refer to Orojo’s Book on Nigeria Commercial Law and Practice Vol. 1 p. 552 paragraph 171 where he stated that subject to agreement, a contract subsists until determination. He cited the case of Adekunle v. Western Region Finance Corporation (1963) NWLR where the Plaintiff was suspended from work on allegation that he was responsible for the loss of some money belonging to the Defendant. He was subsequently charged with criminal offences relating to the loss but was discharged and acquitted for lack of sufficient evidence. The Defendant then purported to dismiss the Plaintiff with retrospective effect from the date of his suspension. The Plaintiff claimed the salary for the period of suspension and succeeded …

…Whether the employer has the power to suspend the employee for misconduct depends upon the terms of the particular contract of employment. Suspension will be wrongful on the part of the employer if there is no power to suspend given by the contract; in such a case the employee-may sue for wages he has lost by being suspended.

The cases cited above show that an employee on suspension, without more, continues to be a staff of the employer.  It is in evidence that upon being suspended, Defendant continued to pay Claimant her salary and did not restrict her access to the 1st Defendant’s premises.  The Claimant was suspended with effect from 21st February 2017; and she resigned on 17th March 2017.  There is no evidence to show the further acts of the Defendant that induced Claimant’s resignation.  In fact, Defendant paid Claimant’s salary for the month of February 2017.  Claimant’s resignation letter stated:

                        LETTER OF RESIGNATION

Kindly refer to your letter dated February 21st 2017 and my subsequent letter dated March 1st 2017 and be informed that rather than idling and wasting both the Company’s and my time, it is better to terminate this appointment with immediate effect.

I must however put it on record that I appreciate the opportunity given to me to serve this great company and I pray for its continual growth and expansion.  Though I am leaving, I shall be forever grateful to you and will always be proud to have been associated with your company.

I shall be grateful if I can be given a letter of acceptance soonest so I can move on with my career.  I wish you all the best as the company continues to grow.

Yours faithfully,

Lana Mojoyinola J.

Superintendent Pharmacist

In my view, this letter does not express any form of induction to resign or disaffection.  In addition, I do not find any evidence of the acts of the Defendants that would have induced the resignation.  Having held that Claimant has not established that the Defendant breached their contract or any labour law or international best practices, and not finding any acts capable of inducing the resignation of the Claimant, I hold that this Relief also fails.

Relief three seeks a Declaration that the Letter of Acceptance dated 3rd April, 2017 written by the Defendants was written maliciously and made for the purpose of preventing the Claimant from getting another employment in Nigeria. I have considered the letter of acceptance from the Defendant to the Claimant; and find that it does more than accept the resignation

Malice in its general sense means ‘spite or ill-will’, but in law, malice means more than that.  See Bakare v. Ibrahim (1973) All N.L.R 653; (1973) 6 S.C. 147.  In Dickson v. Earl of Wilton (1859) 1 F. & F. 419 at page 427, Lord Campbell said: “any indirect motive, other than a sense of duty, is what the law calls ‘malice’. In Turnbull v. Bird (1861) 2 F. & F. 508 at p. 524, Erie C. J. put it thus:-“Malice means any corrupt motive, any wrong motive, or any departure from duty.” Also in Brown v. Dunn, (1893) 6 R. 67 at p. 72, Lord Herschell said: “Malice means making use of the occasion for some indirect purpose.” Again, in Stuart v. Bell [1891] 2 Q.B. 341 at p. 351, the point was stated by Lindley L.J. as follows: “Malice, in fact, is not confined to personal spite and ill-will, but includes every unjustifiable intention to inflict injury on the person defamed.” Per IBEKWE AG., J.S.C. (Pp.14-15, paras. D-A).

The said letter of acceptance reads as follows:

Sequel to the notification of indefinite suspension handed over to you on the 21st of February 2017 for your unprofessional conduct and subsequent resignation of your appointment on the 1st of march 2017, we hereby accept your letter of resignation.

We wish you good luck in your future endeavour.

The Notification of Indefinite Suspension (exhibit C3) also refers to unprofessional actions carried out between Monday the 20th of February 2017 and 21st of February 2017 as the basis for the suspension.  Though this Court has found that the Claimant was unable to establish the laws and practices breached in the act of suspension, the Defendant, in asserting unprofessional conduct did not cite the codes of the profession breached, which would warrant the allusion in the letter of acceptance.  On that basis, I find that the reference of unproven unprofessional conduct in the letter of acceptance was not necessary and reeks of an ulterior motive.

Exhibit C8 (Code of Ethics for Pharmacists) tendered by Claimant without objection provides under section III paragraph 4 provides that:

A pharmacist should at all times be ready to help other pharmacists in providing efficient pharmaceutical services.  He should not condemn or run down the services offered by other pharmacists in an attempt to have advantage over his professional colleagues.

I find the text of the acceptance letter one that runs afoul of the above provision as not only does it not help the Claimant; it has the capacity of running down the Claimant and affecting her future career.  This is despite the fact that I have found that the Claimant has not proved that her suspension was wrongful or unlawful.   In the same way, the alleged unprofessional conduct has not been proved by reference to the professional Code of Ethics of the profession.  I therefore find that the words used in the acceptance letter shows that the Defendant may have been motivated by other considerations rather than the duty to ‘accept the resignation.’ I therefore declare that the Letter of Acceptance dated 3rd April, 2017 written by the Defendants was written maliciously and one likely to prevent the Claimant from getting another employment in Nigeria

Relief 4 is for an Order directing the Defendants to withdraw the said letter of acceptance and issue a proper one without derogatory or defamatory words.  Based on the findings on Relief 3 above, I find the need to order as prayed in Relief 4.  Defendants are hereby ordered to withdraw the letter of acceptance and issue one devoid of any derogatory words.

Relief 5 seeks for damages for loss of or anticipated earnings in the sum of N150,000.00 (One Hundred and Fifty Thousand Naira Only) per month from 18th March, 2017 till date of Judgment and thereafter at the rate of N150,000.00 (One Hundred and Fifty Thousand Naira Only) per month till date the Defendants issue a proper letter of acceptance and a further N450,000.00k (Four Hundred and Fifty Thousand Naira Only) per annum being the minimum amount accruable for a Retainership on the use of the Claimant’s License. Evidence before this Court shows that Claimant resigned her employment.  In WAEC v. Oshionebo (2006) 12 NWLR (Pt.994) pg.258 the Court stated the implication of resignation as follows:

Tendering of a letter of resignation carries with it the right to leave the service automatically without any benefit subject to his paying any of his indebtedness to his employer. While giving notice of retirement carries with it the right to be paid a pension or gratuity; but it does not confer the right to withdraw from the service immediately and automatically. See (1) Benson v. Onitiri (1960) 5 ES.C. 69, (2) Osu v. PA.N. Ltd. (2001) 13 NWLR (Pt.731) 627 and (3) Yesufu v. Gov. of Edo State & Ors. (2001) 13 NWLR (Pt.731) 517.” Per ADEREMI, J.C.A. (Pp.17-18, Paras.F-A)

The law is that a notice of resignation is effective not from the date of the letter, nor from the date of any purported acceptance, but from the date on which the letter was received by the employer or his agent. Per ADEREMI, J.C.A. (P.17, Paras.D-F) – WAEC v. Oshionebo (supra).  The Claimant having resigned on the 17th of March ceased to be an employee of the Defendant or to be entitled to further benefits.  I therefore assume that this Relief is founded on the premise that the Court finds that the Claimant was compelled by the Defendant’s action to resign.  Having not made such finding, I find that the Claimant is not entitled to this Relief; I so hold.

Relief 6 is for General Damages in the sum of N100 Million for defamation.  In relation to this Relief, Defendant argues that the combined effects of Section 7 of the National Industrial Court Act 2006 and Section 254C (1) of the 1999 Constitution as amended restrict the jurisdiction of this Honourable Court to “labour and other labour related matters”, and that it is trite law that the jurisdiction of a Court is very central in the adjudicative process in respect of issues brought before her. They referred to the case of Omomeji v. Kolawole [2008] 14 NWLR (Pt. 1106) 180, where the Court stated that the issue of Jurisdiction by whatever guise or colouration, can be raised at any point in time or stage of the proceedings.

A Court is competent and has jurisdiction in a case if inter alia the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction. See Madukolu v. Nkemdilim [1962] 2 SCNLR 341 and Mwana v. UBN Plc [2003] 16 NWLR (Pt. 846) 218. The question then is whether the claimant’s claim for general damages for defamation come within the purview of section 7(1)(a) of the National Industrial Court Act 2006 and section 254C(1) of the CFRN 1999.  Is it a claim in relation to labour or matters incidental to labour as conferred on the Court?

In determining the extent of a Court’s jurisdiction, it is now settled that the proper place to look is the enabling law setting up the Court and conferring it with jurisdiction – Umaru V Aliyu (2011) (Pt. 1241) Pg. 600.  In the case of the NIC, the appropriate place to look in ascertaining the extent of its jurisdiction is Section 254C of the 1999 Constitution (as amended) and Section 7 of the NIC Act 2006. Section 254C (1)(a)confers an expansive jurisdiction on the Court to adjudicate on any matter arising from the workplace. The section provides that the jurisdiction of the NIC shall extend to all matters-

Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matter incidental thereto or connected therewith”

Borrowing the words of Oputa JSC in UTC v. Pamotei (1989) 2 NWLR (Pt. 103) pg. 244 @ Pg. 303 paras. A-B,  “it is now a settled principle of construction of statutes that the legislator does not use any words in vain”. In this light, the repetitive use of the words “connected with”, “related to”, “pertaining to”, “arising from”, “incidental thereto” or “connected therewith” appearing in Section 254C is not a vain use of words by the drafters of the Constitution but is meant to include matters that arise within and are so connected to the employment situation that it should fall within the jurisdiction of the same Court hearing the main reliefs founded on the employment relationship.  This is in line with the Supreme Court decision in Tukur v. Government of Gongola State (1989) 4NWLR (Pt.117) Pg. 517 wherein Oputa JSC declared that in civil adjudication, an accessory or ancillary claim must necessarily follow the principal claim to its forum competens. In Gafar V Government of Kwara State (2007)4NWLR (Pt. 1024) Pg. 375 the Supreme Court adumbrated on this principle and stated that it would only apply where the determination of such ancillary claim or reliefs must necessarily involve a consideration or determination of the principal claims, in which case the ancillary claims are inexorably linked with the principal claims and should therefore be litigated at the same judicial forum ex debitio justicae.

In Jacinta Nwosu v. First City Monument Bank Plc. & Others  Suit No: NICN/ABJ/155/2013 Ruling of which was delivered on 12th March 2015 per P O Lifu J, had cause to consider a claim for defamation in the context it appears in this suit.  The Court held that:

A thorough perusal of the entire gamut of the third alteration Act 2010 from which section 254 (I) (C) of the constitution is a derivative clearly accommodates the entire reliefs of the claimants in this suit; this is so because (1) There is an established contract of employment between the claimant and the first defendants (2) The contracts has terms and condition governing the engagement. (3) The claimant is alleging the breach of those terms. (4) Other ancillary reliefs of the claimants bordering on damages, interest, and injunction are normally derived from the main claim of breach of contract of employment. The Court should not at these stage decide this issues in limine but provide a level playing ground for litigants to ventilate their grievances by calling evidence in a full scale trial; see Attorney General of River State Vs. AG. Bayelsa State; 2013 Pt. 1340 NWLR. I hold that the claim of the claimant are properly located within the subject matter jurisdiction of this Court.

Applying the premises stated above, What then is the claim before this Court?  The first five reliefs of the claimant read as follows:

  1. A Declaration that the Defendant’s letter dated 21st February, 2017 suspending the Claimant indefinitely is in breach of the terms of the employment contract between the Claimant and the 1st Defendant and is unknown to or in breach of the Labour Law or international best practices and therefore null and void.
  2. A Declaration that the resignation letter submitted by the Claimant was induced by the unlawful acts of the Defendants.
  3. A Declaration that the Letter of Acceptance dated 3rd April, 2017 written by th Defendants was written maliciously and made for the purpose of preventing the Clamant from getting another employment in Nigeria.
  4. An Order directing the Defendants to withdraw the said letter of acceptance and issue a proper one without derogatory or defamatory words.
  5. Damages for loss of or anticipated earnings in the sum of N150,000.00 (One Hndred and Fifty Thousand Naira Only) per month from 18th March, 2017 till date of Judgment and thereafter at the rate of N150,000.00 (One Hundred and Fifty Thousand Naira Only) per month till date the Defendants issue a proper letter of acceptance and a further N450,000.00k (Four Hundred and Fifty Thousand Naira Only) per annum being the minimum amount accruable for a Retainership on the use of the Claimant’s License.

The 6th and 7th Reliefs seek:

  1. General Damages in the sum of N100 Million for defamation.
  2. An Order of Injunction restraining the Defendants by themselves their agents, servant, privies or any person however called from further using such or any derogatory words against the Claimant in any reference letter or otherwise.

It is my finding that by the provision of section 254 (C) (I) of the 1999 Constitution as amended, and the grant of exclusive jurisdiction to this Court on matters, amongst others: (a) Relating to, or connecting with any labour, employment, trade unions, industrial relation and matters arising from workplace, the conditions of service including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith (f) ‘relating to or connected with unfair labour practice; clearly accommodates the entire reliefs of the Claimant in this suit; including Relief 6 for general damages for defamation which arose and is incidental to the employment relationship under dispute.

Having thus found, I now proceed to consider if the pleadings as well as the evidence before this Court has established defamation within the context of the breach of employment terms in dispute.  I have considered the ingredients of the tort of defamation, as stated in Ologe & ors. v. New Africa Holdings Limited (2013) LPELR-20181(SC), and do not find that the tort of defamation has been established by the Claimant.  See Iloabuchie v. Iloabuchie (2005) 13 NWLR (pt.943) 695 SC; Concord Press (Nig.) Ltd. v. Olutola (1999) 9 NWLR (pt. 620) 578.” Per NGWUTA, J.S.C (P. 19, paras. A-D).  I therefore hold that the Claimant is not entitled to Relief 6.

Relief 7 is for an Order of injunction restraining the Defendants by themselves their agents, servant, privies or any person however called from further using such or any derogatory words against the Claimant in any reference letter or otherwise. Having under Relief 5 found that the letter of resignation was written with other intentions other than to accept the resignation, and ordered that a new letter of acceptance be written devoid of any defamatory words, I find that it takes care of this Relief.

On the Counter-Claim, the first Relief seeks the sum of N260,000,000 (Two Hundred and Sixty Thousand Naira only) as two months’ salary in lieu of notice of disengagement. In University of Benin v. Andrew Erinmwionren (2001) 17 NWLR (Pt. 743) 548 @ 563 it was held that “it is well settled that where there is a contract of service, there is an implied term that the contract of employment can be terminated by notice”.  In proof of the entitlement to notice of termination, the Defendant in evidence stated that in breach of the retainership agreement, the claimant failed to give the required notice of disengagement to the defendant; neither did she make payment of salary in lieu of same before disengaging herself by a letter of resignation. In Response, the Claimant stated that the Defendants are estopped from challenging the notice of termination having accepted the letter of resignation.

Estopell by conduct was defined in SDV (NIG) LTD v. OJO & ANOR (2016) LPELR-40323(CA) as:

Estoppel by conduct simply means where a party has by, his word or conduct willfully made a representation of a state of facts to another and thereby induced that other to believe that the state of things were as represented by that person and that other took him by his words and acted upon that representation either by himself or his representative in interest.

He cannot now turn around to say or behave as if the state of things were not as he presented them. He is estopped from asserting the contrary, see Okonkwo & Ors v. Kpajie & Ors (1992) LPELR – 2483 (SC).” Per NIMPAR, J.C.A. (P. 23, Paras. A-D

In the old case of S. Nassar & Sons (Nigeria) Limited v. Lagos Executive Dev. Board 1959 4 F.S.C. the Supreme Court had held that If a person is led to act to his own peril or detriment as a result of the conduct of another person who knew and intended it to be so, this other person is estopped from denying that the peril or detriment was intended.  I have gone through the letter of acceptance and the exhibits and do not find that Defendant, in any manner, represented a waiver of their right to notice of the termination.  I do not find that the acceptance of the letter of resignation implied a waiver of the right to the notice stated in the Retainership agreement.  In any case, resignation has been held to be effective upon receipt and is not dependent on its acceptance – WAEC v. Oshionebo (2006) 12 NWLR (Pt.994) pg.258.  I do not therefore see how the acceptance of the resignation caused Claimant to vary the state of things between the parties.  I also note that it is the same letter which the Claimant seeks the Court to order its withdrawal that the Claimant relies on in her argument on estoppel by conduct.

The Retainership Agreement (Exhibit C7) provides that parties shall determine the agreement by giving to each other two (2) calendar months Written Notice of their intention to terminate same.  The Resignation letter already reproduced in the earlier part of this judgment states that the “termination of this appointment with immediate effect”.  It is clear that the requirement of two months’ notice was not complied with.  I therefore find that the Claimant breached the term of her agreement in failing to give the required two months’ notice.  Exhibit C7 shows Claimant’s salary to be N130, 000.00 per month.  I hold that Defendant is entitled as claimed to the sum of N260, 000.00 representing Claimant’s two months’ salary in lieu of notice.

On Defendant’s second Relief, which is the sum of N20, 000,000.00 (Twenty Million Naira only) as General damages for loss of contract to be secured by the defendant save for the claimant’s negligence. I do not find evidence of the said loss of contract that would have been secured by the Defendant.  I therefore decline this Relief.   I also decline the 3rd Relief for the sum of N5,000,000.00 (Five Million Naira only) as cost of this action.  Parties are each to bear their cost.

 

Finally, for the avoidance of doubt and for all the reasons as stated in this Judgment, this Court holds as follows:

  1. Reliefs 1 and 2 fail.
  2. Relief 3 succeeds.  It is hereby declared that the Letter of Acceptance dated 3rd April, 2017 written by the Defendants was written maliciously and one likely to prevent the Claimant from getting another employment in Nigeria
  3. Relief 4 succeeds.  Defendant is ordered to withdraw the letter of acceptance and issue a proper one without derogatory or defamatory words.
  4. Relief 5 and 6 fails.
  5. Relief 7 is accommodated by Relief 3.
  6. Relief 1 of the Counter-Claim succeeds.  Claimant is ordered to pay to the Defendant the sum of N260, 000.00 representing Claimant’s two months’ salary in lieu of notice.
  7. Reliefs 2 and 3 of the Counter-Claim fail.
  8. Defendants are to comply with the Order in Relief 4 above not later than 48 hours, after receipt of the N260, 000.00 representing Claimant’s two months’ salary in lieu of notice.

Judgment is entered accordingly.

                                              …………………………………….

Hon. Justice Elizabeth A. Oji PhD

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