EKWU KINGSLEY EKWU & 4 Ors -VS- GREAT FAITH VENTURES LTD

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALBAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE HIS LORDSHIP: HON. JUSTICE M. N. ESOWE

DATE: 7^TH MARCH, 2019 SUIT NO: NICN/CA/22/2017

BETWEEN

EKWU KINGSLEY EKWU
OGBOR UNO IYEMI
SUNDAY DAVID ABAM CLAIMANTS
FRANK UKAM ONETTE
EKPEYONG ASUQUO EKPENNYONG

AND

GREAT FAITH VENTURES LTD … DEFENDANT

REPRESENTATIONS

MBA O. MBA Esq with J.E UKPAI Esq, J.F UDOFIA Esq for the Claimants

CHRISTOPHER UTU-BAKU Esq for the Defendant

JUDGMENT

INTRODUCTION

This suit was instituted by the Claimant vide a General Form of Complaint filed 18^th April, 2017 asking for the following reliefs:

A DECLARATION that the termination of the Claimants’ appointment on the 1^st day of March, 2017 by the Defendant without recourse to the relevant labour laws and their terms of employment with the Defendant is unlawful

AN ORDER directing the Defendant to forthwith reinstate the Claimants to their various posts in the Defendant company

AN ORDER directing the Defendant to pay to the Claimants their full salaries from the date their employment was terminated till when this case will be finally determined.

AN ORDER directing the Defendant to forthwith pay general damages in the sum of Five Million Naira (N5,000,000.00) to each of the Claimants which amounts to Twenty Million Naira (N20,000,000.00) for the pains, embarrassment, hardship and sufferings caused to the Claimants by the unlawful termination of their employment by the Defendant

SUMMARY OF FACTS

The Claimants, as can be gleaned from their statement of facts, were variously employed at different times by the Defendant as packers. On the 6^th of January, 2017, Claimants loaded a truck load of 600 bags of flour product which was accordingly cleared and confirmed by the security in the company as 600 bags of flour product. Sometime in February, 2017, the Claimants were invited by the Chief Security Officer of Niger Mills Ltd, where the Defendant Company is situated, on overloading the truck earlier referred to with two bags of flour. This was denied by the Claimants that they overloaded the truck with two bags. Subsequently, without warning or query, Claimants had their employment terminated on the 1^st of March, 2017. This termination has given birth to the nature of reliefs sought in this suit.

On their part, the Defendant, as can be gleaned from their statement of defence, stated that Claimant were in their employment until their employment termination in March, 2017. However, the termination has nothing to do with overloading a truck with two bags of flour but that the Defendant was contracted by another company, Niger Mills Company, to provide unskilled workers for her. The said Niger Mills Company was no longer producing at full capacity and this led to the gradual reduction in the number of unskilled workers which reduction affected the 1^st – 4^th Claimant in March, 2017. With regards to the 5^th Claimant, the Defendant never terminated his employment but he did himself without putting the Defendant on notice. It is the case of the Defendant that they are willing to pay the 1^st – 4^th Claimants a month salary in lieu of notice provided the 1^st – 4^th Claimants surrender the property of the Defendant in their possession.

On receipt of Defendant’s Statement of Defence, Claimants filed a Reply dated and filed 9^th May, 2017 to which they stated among other things that their termination was premeditated before the actual termination as five persons were employed on the 1^st day of March, 2017 to replace them. That it is not true Defendant was no longer producing at full capacity.

COMMENCEMENT OF HEARING

Hearing in this suit commenced on the 6^th of July, 2017 to which Ekwu Kingsley Ekwu, Ogbor Uno Iyemi and Frank Ukam Onette testified as CW1, CW2 and CW3 respectively. They adopted their witnesses statement on oath, tendered exhibits and were cross examined accordingly. Thereafter, Claimants closed their case on 7^th March, 2018

On their part, Defendant opened their defence on 18^th October, 2018 by calling one Jacinta Oko as DW1 who adopted her written Witness Statement on Oath and testified accordingly. She tendered documents as exhibits and she was cross examined. Thereafter, Defendant closed their case.

At the close of hearing, the case was adjourned to enable parties file, exchange and adopt their final written addresses.

DEFENDANT’S FINAL WRITTEN ADDRESS

In Defendant’s final written address dated 26^th October, 2018 and filed same day, Learned Counsel on behalf of Defendant formulated three (3) issues for determination, that is:

Whether the 1^st – 4^th Claimants have proved that their employment was terminated in violation of the terms and conditions of their employment
Whether the 5^th Claimant has proved that his employment was wrongfully terminated by the Defendant

Whether the Claimants are entitled to the reliefs they are seeking against the Defendant in this suit

ARGUMENT

ON ISSUE 1: Whether the 1^st – 4^th Claimants have proved that their employment was terminated in violation of the terms and conditions of their employment

Learned Counsel submitted that the 1^st to 4^th Claimants are praying this court to declare that the termination of their employment was unlawful because of an alleged
breach by the Defendant of the procedure provided in the contract of
employment between them and the Defendant. In this situation the
Court will simply consider the terms of the contract to determine
whether the procedure for terminating the Claimants’ employment as
provided therein was duly complied with. In Chief Tamunoemi Idioniboye-Obu V.Nigerian National Petroleum Corporation (2003) LPELR-1426, the Supreme Court per Uwaifor JSC stated thus –

A servant who complains that his employment has been brought to an end must found his claim on the contract of service and show in what manner the wrong was done.

In discharging this burden, the 1^st Claimant tendered Exhibit Cl
which is the contract of employment between the 1^st Claimant and
the Defendant. The other Claimants are relying on Exhibit Cl as
evidence of the terms of their employment with the Defendant. Learned Counsel submitted however that the failure of the 2^nd to 5^th Claimants to tender the
letter containing the terms of their employment is fatal to their case.
He relied on Aji V. C.B.D.A. (2015) All FWLR (Pt. 784) 148 where the Supreme Court, per Okoro JSC, held:

It is trite law that when an employee complains that his employment has been wrongfully terminated, he has the onus, first to place before the court, the terms of the contract of employment and second, to prove in what manner the said terms were breached by the employer. It is not in principle for the employer who is a defendant to an action brought by the employee to prove any of these issues… Failure to plead and prove the conditions of service by a plaintiff seeking to challenge his dismissal is fatal to his case. In fact this failure completely knocks the substratum of his case. (P. 166 Paras. D-H and P. 167 Paras. A)

Learned Counsel to Defendant submitted further that the claimants have not been able to prove that their appointments were terminated in violation of the terms of
employment contained in Exhibit Cl. According to the claimants their
employment was terminated due to an unproven allegation that they
overloaded a distribution truck. But throughout the trial they could
not adduce any evidence to support that fact. Even their termination
letters, Exhibit C2 and D4, do not show that they were terminated for
overloading a truck or for any other misconduct. Furthermore, there was no complaint of misconduct against the Claimants, there was no need to issue a query or warning to that effect to them. In the circumstance the Claimant’s contention that their employments was unlawfully terminated for overloading the distribution trucks is totally unfounded. It is speculative and it is trite law that a Court cannot rest its judgment upon a mere speculation. Thus in Agip (Nig. Ltd V. Agip Petroli International (2010) All FWLR (Pt. 520) 1198 at 1249 paras A – C the Supreme Court, per Adekeye JSC, held –

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 …

It is the submission of Learned Counsel that from the evidence adduced before this Honourable Court, the termination of the appointment of the Claimants is based on the fact that on being informed by Niger Mills Defendant that they did not need as many unskilled laborers as they used to, the Defendant had no choice but to reduce its labour force. In effect, the termination of the 1^st to 4^th Claimants’ employment by the Defendant was a result of an economic expediency. In Iwuoha V. Mobile Producing (Nig) UNLtd (2013) All FWLR (Pt. 664) 144 at 151 paras A – B. the Court rightly held that –

Where no other reasons is stated for the termination of a party’s appointment except that his services were no longer required, the court cannot go outside the said letter to discover the reasons for termination.

Flowing from the foregoing, Learned Counsel submitted that the termination of the 1^st to 4^th Claimant’s employment was in strict adherence to the terms and conditions of their employment, lawful and valid.

ON ISSUE 2: Whether the 5^th Claimant has proved that his employment was wrongfully terminated by the Defendant

Learned Counsel submitted that in this case, the 5^th Claimant did not testify or tender any exhibit to support of his claim in this suit. He reiterated therefore that the
failure of the 5^th claimant to tender the letter containing the terms of
his employment with the Defendant is fatal to his case. He relied on Aji V. C.B.D.A. (supra). That, without prejudice to the foregoing, the 5^th Claimant’s employment was not terminated by the Defendant. The 5^th Claimant stopped coming to work on his own with effect from March, 2017. Therefore, it was the 5^th Claimant who terminated his own employment by refusing to report for work after collecting his last salary in February 2017. By Clause 1 and 2 of Exhibit Cl, an employee such as the 5^th Claimant is entitled to terminate his own employment by giving his employer, the Defendant, due notice of his intention to do so. The 5^th Claimant gave that notice through his conduct by refusing to report to work since March 2017. He cannot therefore be heard to complain that his employment was wrongfully terminated by the Defendant. He relied on the Court of Appeal’s decision in Raji V. University of Ilorin (2007) All FWLR (Pt. 345) 325 at 343 para A-B, per Ikongbeh (JCA), where the Court held:

It is clear that the Appellant’s appointment was deemed terminated by him on his failure to report back to his duty post.

Learned Counsel therefore urged this Court to hold that it was the 5^th Claimant who terminated his own employment.

ON ISSUE 3: Whether the Claimants are entitled to the reliefs they are seeking against the Defendant in this suit

Learned Counsel submitted that from the facts and circumstances of this case, Claimants are not entitled to the reliefs sought in this suit.

On salary in lieu of notice, Learned Counsel submitted that the 1 – 4^th Claimants are only entitled to their one month salary in lieu of notice when they have returned the Defendants’ properties in their possession. The 5^th Claimant is not however entitled to one month’s salary in lieu of notice as he terminated the employment himself.

Learned Counsel therefore urged this Court to dismiss this suit with cost against the Claimants.

CLAIMANTS’ FINAL WRITTEN ADDRESS

In Claimants’ final written address dated 26^th November, 2018 and filed 7^th December, 2018, Learned Counsel on behalf of Claimants formulated two (2) issues for determination, that is:

Whether the termination of the Claimants’ employment by the Defendant without recourse to the terms contained in their letter of employment is right in law

Whether the Claimants are not entitled to all the reliefs claimed in their statement of facts in view of Exhibit 1

ARGUMENT

ON ISSUE 1: Whether the termination of the Claimants’ employment by the Defendant without recourse to the terms contained in their letter of employment is right in law

Learned Counsel submitted that the termination of Claimants’
employment by the Defendant without recourse to Exhibit 1 particularly
paragraph 1 thereof is grossly against the law. Paragraph 1 of Exhibit 1 is
clear and unambiguous. It is stated therein that:

(1) The first Six (6) months of your employment will be probationary. During this period, your employment may be terminated by either side by giving two weeks’ notice or payment in lieu thereof.

The Claimants herein were not given notice before the termination of their appointment nor were they paid in lieu of notice.

Learned Counsel submitted that the Defendant violated the terms of the employment of the Claimants the way and manner their employment was terminated.

Learned Counsel submitted further that in the case of Ansambe V. B. O. N. (2005) 8 NWLR (Pt. 928) 650 it was held thus:

A Plaintiff who alleges that his employment was wrongly terminated has a strict burden placed upon him to establish the following material facts:

a)That he is an employee of the Defendant.
b)The terms and conditions of his employment.
c)The way and manner by which he can be removed.

In the instant case, the Claimants and the Defendant are ad idem that the Claimants were employees of the Defendant, and on their terms of employment. The Claimants have been able to discharge the onus placed on them to prove that their termination from the employment of the Defendant was wrongful. Also, the Claimants pleaded in their statement of facts that their terms of service with the Defendant is contained in their letter of employment issued to them by the Defendant upon resumption of work at the Defendant’s company.

It is the submission of Learned Counsel that the Defendant failed to adhere to the laid rules in the termination of the employment of the Claimants. He therefore urged this Honourable Court to resolve this issue in favour of the Claimants.

ON ISSUE 2: Whether the Claimants are not entitled to all the reliefs claimed in their statement of facts in view of Exhibit 1

Learned Counsel submitted that where a contract of employment is terminable on notice, the damages which can be considered to be the natural and probable consequence of terminating the employment without the requisite notice cannot be more than what the employee could have earned during the period of notice. He relied on Katto V. Central Bank of Nigeria (1999) 6 NWLR (Pt. 607) 390, (2001) FWLR (Pt. 53) 188) at page 1236 para. C. Also in the case of Dornier Aviation Nig. Ayep Ltd. V. Captain Tunde Oluwadare (2007) 7 NWLR (Pt. 1033) 336 at page 359, paras. B – D, it was held thus:

Where condition of service exists between an employer and an employee, the provisions contained therein are binding on them. Any disciplinary measures taken by the employer against the employee upon an allegation of misconduct such as termination of employment or dismissal must be in accordance with the laid down procedures as provided by the conditions of service.

In the instant case, the provisions of Exhibit 1 particularly paragraph 1 binds the parties herein.

He therefore urged the Court to resolve this issue in favour of the Claimants.

DEFENDANT’S REPLY ON POINT OF LAW

On receipt of Claimants’ final written address, Defendant filed a rejoinder on point of law dated and filed 10^th December, 2018 to which the Defendant replied to the submissions of Counsel to Claimants on point of law as well as adumbrated further on their earlier submissions in their final written address.

COURT

Having gone through the Claimant’s case, Defendants’ defence, evidence adduced at trial and the final written submissions of Counsel to the Claimant as well as Counsel to Defendants, this Court hereby distils a sole issue for determination, to wit:

Whether the Claimants have proved their case to be entitled to the reliefs sought.

Generally, there are three categories of employment – (i) Employment with statutory flavour, (ii) Contract of service and (iii) Master – Servant employment. With regards to terminating an employment with statutory flavour, the trite law is that it must be terminated in accordance with laid down procedure. In the event that the employment is terminated without regards to the laid down procedure, the Court can nullify the termination and order reinstatement. See Richard Omidiora & Anor V. Federal Civil Service Commission & Ors (2001) 14 NWLR (Pt.1053) 17. See also U.N.T.H.M.B V. Nnoli (1994) (Pt. 363)379

With regards to contract of service, the terms and conditions of the contract are usually stated in a document which among other things specify the manner and way the employment can be terminated. Most service contracts are for a specified period and usually, after the end of the specified period, the contract of service naturally comes to an end based on the principle of effluxion of time. The contract can be renewed again for a specified term. Whenever there is a breach in contract of service, depending on the circumstances, the Court can order specific performance if services have been paid for but yet to be rendered or services were paid for but never rendered; the Court can also award damages for breach of contract, depending on the circumstances. With regards to Master-Servant employment, this category of workers is regulated by the common law and as such, when there is termination of a contract under this category, the Court cannot order reinstatement but award damages depending on the injury suffered by the employee as a result of the wrongful termination of appointment. See Osinsanya V. Afribank (2000) 1NWLR (Pt.642) Pg.598 @ 601 where the Court of Appeal held:

The termination of a contract of service, even if unlawful, brings to an end the relationship of master and servant. The employee cannot be reinstated because the law leans against imposing a willing employee on an unwilling master especially where, as in the instant case, the confidence between the two has sunk to a lower ebb with the allegation of dishonesty against the Respondent.

From the foregoing, it is apparent that in master-servant relationship, the employment comes to an end the moment the employer (master) terminates the employment and the issue of reinstatement does not arise as it is something the Court cannot grant but can only grant in employment with statutory flavour. So the distinction between employment with statutory flavour and employment of Master-Servant is that Court can grant reinstatement in an employment with statutory flavour where the Court finds the termination to be wrong and unlawful while in the other, employment of master-servant, the Court cannot grant reinstatement even when it finds that the termination of the employment was wrongful.

From the facts and circumstances of this case, it is obvious that the employment relationship is master-servant. In this light, even if the Court finds that the termination of the employment was wrongful, it cannot order reinstatement but payment of damages. See Imoloame v. WAEC (1992)9NWLR (pt. 265) 303.

Another factor the Court will like to consider is that in master-servant, the law is trite that the master can fire at any time with or without reasons. See Obaje V. N.A.M.A (2014) All FWLR (Pt.732) l811 whereby it was held thus:

An employer can also terminate the contract of employment with his employee at any time and for any reason or for no reason at all, provided the terms of the contract are complied with.

When the master fires with reasons, the Court is bound to look at the reasons if they are justifiable. In the case herein, from the termination letters tendered by the Claimants, no reason other than service no longer required was given. Granted, in Claimants’ pleadings, they pleaded in such a way that they tried to link the termination of their appointment with the allegation of overloading a truck with two bags of flour on the 6^th day of January, 2017. Be that as it may, there is no evidence before me that the termination of the Claimants’ employment has something to do with the allegation of overloading a truck with 2 bags of flour. For all it is worth, pleadings are not evidence. Pleadings must be supported by evidence. See Skye Bank plc & Anor V. Chief Moses Bolanle Akinpelu (2010) 9 NWLR (Pt. 1198) p.179 @186 where the Court held:

Pleadings are not tantamount to evidence. It must be supported by evidence

In this light, as well as in the absence of evidence to support the pleadings of the Claimants linking the termination of their appointment to overloading, the Court cannot speculate that the termination is linked to the allegation of overloading a truck with two bags of flour on the 6^th of January, 2017, and I so hold. Therefore, the Court will limit itself to the letters of termination before it. It is apposite to state here and now that you cannot drag a job with the owner of the job. It is either he wants you to work for him or he doesn’t want you to work for him. If the going is smooth, enjoy it while it lasts but when the situation goes south, then you should also know it is time to move on. Why will the Court not foist a willing employer on an unwilling employee in master-servant relationship? It is because the Court does not want a continuous and unbreakable subjection of the employee to degrading and distasteful circumstances by the unwilling employer who no longer wants the employee. The key word is that what is done is done and there is no remedy in undoing it but in awarding damages.

With regards to notice or salary in lieu of notice, in UBN Plc V. Emmanuel A. Soares (2012) 11NWLR (Pt.1312) 550 the Court of Appeal, Lagos Division, held:

The measure of damages where the employer terminates the employee’s employment without notice is one month salary in lieu of notice including all his benefits accruable within the period. Where an employee is dismissed and the Court finds the dismissal to be wrongful, then the employee is entitled to one month’s salary. Where an employee is rightly and justifiable dismissed by his employer, no damages would be awarded.

From the foregoing, the Court of Appeal reinstated the settled law that when the wrongful termination complained of is failure to give notice, what the Claimant is entitled to is what he would have earned as salary for the period of the notice required. As a result, being that in this case, the period of notice required is one month, the Claimants are only entitled to their one month salaries in lieu of notice and I so hold. On the part of the Defendant, she seems not to be contesting payment of a month’s salary in lieu of notice. However, the position of the Defendant is that in the case of the 1^st – 4^th Claimants, they are willing to pay the one month salary in lieu of notice provided the Claimants return the company’s property in their possession. On the part of the 5^th Claimant, the position of the Defendant is that they never terminated the appointment of the 5^th Claimant but he terminated his appointment himself. I have perused the documents tendered in this case as letters of termination, I do not see any letter terminating the employment of the 5^th Claimant. No reason was proffered by the 5^th Claimant for failure to tender his termination letter before this Court. In any event, the settled law is as stated in University of Ilorin V. Rasheedat Adesina (2010) 9NWLR (Pt.1199) p.331 @351 thus:

No matter how impressive a party’s pleadings may be, it is of no consequence if not supported by concrete and credible evidence in proof thereof. Where no evidence is adduced in support of averments in pleadings, such averments are deemed abandoned.

In the case herein, while deeming the averments of the Claimants on the termination of the employment of the 5^th Claimant as abandoned, I cannot agree more with the position of the Defendant that she did not terminate the employment of the 5^th Claimant but the 5^th Claimant terminated his employment himself, and I so hold.

From all that have been said above, the Claim of the Claimants succeeds only to the extent that the termination was wrong for failure to give one month notice before termination as touching on the 1^st – 4^th Claimant. In this light, the 1^st – 4^th Claimants are entitled to one month salary each in lieu of notice. With regards to the Defendant, the Court cannot make any other in her favour as there is no counter-claim before the Court.

Flowing from the above as well as based on the power of the Court to make ancillary and consequential order, the hereby declares/orders as follows:

THE COURT HEREBY DECLARES that the termination of the Claimants’ appointment on the 1^st day of March, 2017 by the Defendant without recourse to the relevant labour laws and their terms of employment on one month notice is unlawful

THE COURT HEREBY ORDERS the Defendant to immediately pay the 1^st – 4^th Claimants one month’s salary each in lieu of notice.

Judgment is hereby entered accordingly.

…………………………………..

HON. JUSTICE M.N. ESOWE

Presiding Judge