IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT IKOYI – LAGOS
BEFORE HON. JUSTICE K.I.AMADI
DATED: October 25, 2018 Suit No.: NICN/LA/535/2016
BETWEEN
OGBONNA AZUBUIKE CLAIMANT
AND
1.) TONY GANGER INVST CO. LTD
2.) CHIEF TONY OZOR DEFENDANTS
REPRESENTATIONS:
Ugo S. Osuji with H. N. Onyeukwu for the Claimant
Fred A. Okwesa for the Defendants
JUDGMENT
INTRODUCTION
The Claimant commenced this action against the Defendants vide a General Form of complaint with statement of facts and other front loaded documents dated 17th day of August, 2017.
In response, the Defendants filed a joint statement of Defence on the 16th day of September, 2017, of which the Claimant filed a reply to the Defendants’ statement of Defence with further Claimant‘s witness statement on Oath.
BRIEF STATEMENT OF FACTS
The facts of this case according to the Claimant are that he (Claimant) was employed by the Defendants as the Marketing / Accounts Manager vide a letter of appointment dated 14th day of August, 2006 and subsequently posted to the Defendants’ branch office at No. 9, Oluwole Street, Mushin – Lagos. The Claimant pleaded his letter of appointment which was admitted by the Court and marked as Exhibit CA.
That his appointment with the Defendants was confirmed on the 21st day of May, 2007 vide a letter dated 21st day of May, 2007. After the probationary period, the Claimant appointment was confirmed by the defendants; the Claimant confirmation letter was admitted in evidence and marked as exhibit CB.
That he (Claimant) resumed duty on February 19, 2016, he could not access his office / shop and he consequently contacted Mr. Tony Ozor the second Defendant and Managing Director of the first Defendant, who said he did not see anyone to give the keys. He never accessed this office until his eventual termination. The letter of termination dated 7th day of July, 2016 was admitted in evidence and marked with Exhibit CD. That there was no explanation for his termination and was never paid any money in lieu of notice and also was not allowed to go on leave neither was he paid any money as leave allowance hence this suit.
The Defendant on the other hand, admitted the facts of the employment of the Claimant and stated that his termination was in accordance with his terms of employment and that the claimant was not entitled to go on leave and neither was he entitled to be paid any leave allowance.
TRIAL
Trial commenced on the 27th day of March 2017. The Claimant testified for himself as CWI he tendered some documents in evidence as Exhibits and they were admitted and marked accordingly. The Defendants also called a sole witness who testified for them and tendered some documents which were admitted and marked accordingly. At the end of trial, parties closed their cases and filed their respective final written addresses.The parties adopted their final written addresses on the 17th day of May 2018, this judgment could not be delivered within the 90days window allowed for delivery of judgments for the reasons which I have stated in my letter to the Chief Justice of Nigeria in that regard.
ADDRESSES OF THE PARTIES
In his final written address the learned counsel for the Defendant raised a sole issue for determination thus:
Whether the Claimant has proved his case to be entitled to judgment.
In summary the Learned Counsel submitted that the Claimant failed to prove his case and Counsel urged the Court to dismiss this case.
The Learned Counsel for the Claimant in his own final written address raised two issues for determination as follows:
i.) Whether the termination of the Claimant by the Defendant was unlawful and wrongful in the circumstances of the case.
ii.) If the Defendant’s termination of the Claimant from its employment was unlawful and wrongful, what are the remedies available for the Claimant?
In summary, Counsel argued that an employer can terminate the contract with his employee at any time and for any reason at all. If however the termination is carried out in a manner which is contrary to the terms of the agreement between the parties, the employer must pay damages for the breach of the agreement between the parties, Counsel submitted that the termination of the employment of the claimant in this instance is wrongful, counsel referred to the case of E. A.Garba v Kwara Investment Co. Ltd. (2005) 1 Sc. (Pt. 11) 80 E. A.Garba v Kwara Investment Co. Ltd. (2005) 1 Sc. (Pt. 11) 80 and urged the Court to grant the reliefs sought in this case.
COURT’S DECISION
I have read all the processes filed by the parties in this suit. The final written addresses of the parties including the reply of the Defendant to the final written address of the Claimant are hereby incorporated into this judgment and specific reference shall further be made to them where necessary. In my view, the sole issue raised by the Learned Counsel for the defendant captured the real issues in controversy in this case. I therefore adopt it as mine and shall treat that sole issue in the resolution of this case by treating the claims seriatim as follows:
There are two sets of claims in this case; the first set is as claimed on the writ,that is; on the originating complaint. And the second claim is as set on the statement of facts. Since it is trite that the claim on the statement of claim (statement of facts) over rides the claim on the writ, I hereby discountenance the claims on the writ. I shall therefore resolve the claims on the statement of facts.
The first claim deals with the justification for the termination of the claimant by the Defendant. The law recognizes the employer’s power to hire and fire his employee in a contract of pure master and servant relationship as in this case. Provided that the act of the employer is in consonance with the terms or conditions of service, see the case of Longe v FBN Plc (2006) 3 NWLR (Pt. 967) 228, see also Section 11 (1) b of the Interpretation Act, LFN 2004 which states in effect that where there is a power to appoint, there is also a power to remove.
In this case the terms of service requires the service of one month’s notice of termination or payment of salary in lieu of notice thereof. The Defendant admitted that no notice was served on the Claimant and further stated that the payment in lieu of notice was equally withheld pending the hand over note and surrendering of his identity card to the Defendant, I therefore hold that the termination of the employment of the Claimant is wrongful in that no notice was served on him and no payment in lieu of notice paid contemporaneously with his termination. He is entitled to the payment of one month salary in lieu of notice in the sum of N65, 000.00 which I hereby granted.
The second claim deals with leave allowance for the Claimant. The terms of employment did not provide for leave or leave allowance for the Claimant. The Defendant under cross examination stated that the Claimant was not allowed to go on leave. It is trite and generally accepted both locally and internationally that an employee shall be entitled to an annual period and payment thereof. I find and hold that the denial of annual leave and non-payment of leave allowance for ten years that the Claimant worked for the Defendant amounts to unfair labour practice. I therefore hold that he is entitled payment of annual leave allowances for the period he worked for the Defendant. However, section 14 of the National Industrial Court Act 2006 provides that the Court shall in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided.
Also Section 19(d) of the National Industrial Court Act 2006 provides that the Court may in all cases and where necessary make any appropriate order, including- an award of compensation or damages in any circumstances contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear.
In view of the foregoing, I award N35, 000 as leave allowance per annum for the ten years of service to the claimant.
The claim for general damages is refused.
In sum, I make the following orders:
- The Defendant shall pay the Claimant the sum of N65, 000 being his one month salary in lieu of notice.
- The Defendant shall pay the Claimant the sum of N350, 000 being his leave allowance for ten years.
iii. The Defendant shall pay the Claimant the sum of N150, 000 being the cost of this suit.
- All monetary awards in this judgment shall be paid on or before 30 days hence failing which they shall attract 20% interest per annum until fully liquidated.
Judgment is entered accordingly.
…………………………………..
Hon. Justice K. I. Amadi, Ph.D.
Judge
