IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: MARCH 20, 2019 SUIT NO. NICN/LA/239/2012
BETWEEN
1. Jimoh Adisa
2. Samson Aniedi
3. Kike Shorunke
4. Ugochi Nwachukwu
5. Saheed Jaiyeola – Claimants
AND
Stallion Plastic Industries Ltd – Defendant
REPRESENTATION
Kolade Akanle, for the claimants.
B. A. Ayeni, with Miss A. T. Fayokun, for the defendant.
JUDGMENT
1. The claimants instituted this action on 5th June 2012 vide their general form of complaint and statement of facts. When the claimants commenced this suit, they were 7 in number. On 12th February 2013, the then counsel for the claimants filed a motion praying amongst others for: the name of the 2nd claimant (Jonah Ekwere, now deceased) to be struck out; and granting leave for the 7th claimant (Habeeb Oladele) to discontinue the suit. This motion of 12th February 2013 was moved and granted on 21st March 2013; hence the 5 claimants presently on record. The 5 claimants on record are thus claiming for the following reliefs:
(a) A declaration that the purported termination of the claimants’ appointment by the defendant, by merely pasting the claimants’ names on the defendant’s outer fence and the continued locking out of the claimants from the defendant’s premises ever since, without more, is invalid, ineffectual, null and void, as same violates the claimants’ terms of contract of employment with the defendant.
(b) An order setting aside, nullifying and/or voiding the said purported termination of the claimants’ appointment in the defendant, and AN ORDER mandating and compelling the defendant to pay all the backlog of the claimants’ salaries and other entitlements, rights and privileges attached to their individual positions since March, 2012 till date.
(c) An order directing the defendant to pay One Million Naira (N1,000,000.00) each to each of the claimants as general and exemplary damages for wrongful termination of the claimants’ appointments and the pains the claimants had been compelled to go through as a result of the wrongful termination of their employment by the defendant.
2. The defendant, in reaction, filed its statement of defence dated 25th July 2012 but filed on 26th July 2012. The claimants did not file any reply to the defendant’s statement of defence.
3. At the trial, each of the claimants testified (respectively as CW1, CW2, CW3, CW4 and CW5); and the claimants tendered series of documents admitted and marked as Exhibits C1 to C18. During the testimony of CW2, the Court suo motu ordered CW2 to sign his signature at three different places on a sheet of paper given to him and which he did and the Court admitted same and marked it as Exhibit C19. The Court then ordered parties to address it on the regularity or otherwise of the signature of CW2. Upon the closure of the claimants’ case, the defendant opened its defence by calling its sole witness, Mr Saka Akinbode, who testified as DW, and identified the defendant’s documents already admitted and marked as Exhibits D1 to D7. At the close of trial, parties filed and served their respective final written addresses. The defendant’s final written address was filed on 12th July 2018, while the claimants’ was filed on 14th December 2018. The defendant’s reply on points of law was filed on 31st January 2019.
THE CASE BEFORE THE COURT
4. The claimants were employed by the defendant on separate terms and conditions and issued with individual letters of employment and confirmation letters. By virtue of their respective terms of employment, the contract of employment can be terminated by either parties giving one (1) month notice or payment in lieu thereof. The employment of the claimants with the defendant was also governed by the “Employee Handbook” (Exhibit C4) negotiated collectively. Sometime in 2008, the defendant’s production, sales and profit margin was reduced drastically due to the global financial melt-down and a freeze in credit lines from local banks as well as international suppliers. This development, which necessitated a slash in operation cost, was brought to the attention of the claimants and other employees. In November 2008, a decision was reached by Management of the defendant to temporarily shut down the factory as a result of escalating operational cost and a distortion in the budget of the defendant. Efforts to convey and discuss the matter amicably with the National and Local executives of National Union of Chemical, Footwear, Rubber, Leather and Non-Metallic Products Employees (NUCFRLANPE) were scuttled as a result of breakdown of confidence by the defendant’s workers with their local union representative led by the 1st claimant (the Chairman) on one hand and the National Union with the local union on the other hand. In order to preserve law and order, the meeting was postponed indefinitely and skeletal operations resumed. The term of office of the 1st claimant and other executives of the local union expired in September 2011. In March 2012, the entire workers of the defendant passed a vote of no confidence on the 1st claimant being the Chairman of the local union and one Ekwere Jonah who was the Secretary, denouncing them as leaders of the local union of NUCFRLANPE. The letter from the workers copied to Management of the defendant is Exhibit D1.
5. The defendant eventually decided to scale down production and reduce its workforce due to the recurrent loss. This decision was duly communicated to the National Union of Chemical, Footwear, Rubber, Leather and Non-metallic Products Employees (NUCFRLANPE). On 5th April 2012, the defendant terminated the employment of the claimants and 86 other workers. The Internal Memo placed on the defendant’s Notice Board informing the claimants and the other 86 former workers affected by the restructuring exercise is Exhibit C13. The claimants strongly argue that no restructuring took place in the defendant. All the remaining 86 workers affected by the restructuring exercise proceeded to the Accountant and received their individual terminal benefits and emoluments as directed. The final entitlements of all the claimants and other workers affected by the restructuring exercise carried out by the defendant were calculated in accordance with the terms of employment, agreement and relevant laws.
Some of the records of the 86 workers who received their emoluments are collectively marked as Exhibit D2. However, the claimants refused to collect their own termination letters and all other entitlements due to them even though the claimants had due notice of the termination. Copies of the claimants’ letters of termination and calculation of final entitlement which they refused to collect are Exhibits D3 to D7. Aggrieved, the claimants filed this suit seeking the reliefs already outlined.
THE SUBMISSIONS OF THE DEFENDANT
6. The defendant submitted two issues for determination, namely:
(a) Whether considering the fact, circumstances and evidence adduced in this case, the claimants have discharged the requisite burden of proof to justify their claims against defendant.
(b) Whether the claimants are entitled to the reliefs sought against the defendant.
7. The defendant argued the two issues together. To the defendant, the claimants in the instant case failed to discharge the requisite burden of proof to justify their entitlement to the declaratory relief sought against the defendant herein and are, therefore, not entitled to the reliefs. That the main relief of the claimants is declaratory in nature; for in relief (a), the claimants are urging this Court to make a declaration that the termination of their employment is invalid, ineffectual null and void. And in relief (b), the claimants are also seeking for an order reinstating them back to their respective positions and also asking the Court to grant them backlog of salaries, entitlements and promotion from March 2017 “till date”. That the claimants’ alternative claims before this Court are for declaration that the termination of their employment is invalid, ineffectual, null and void and that the Court should award One Million Naira to each of them as special and exemplary damages.
8. The defendant then submitted that where the claimant’s claim is founded on contract of service and he seeks declaratory reliefs, such as in the instant case, the law requires him on the basis of the relief claimed, to plead and prove his claim to the satisfaction of the Court. That the burden of proof imposed by law on the claimants to establish the declaratory reliefs to the satisfaction of the Court is quite heavy, as declaratory reliefs are never granted even on admission by the defendant, citing Bukar Modu Aji v. Chad Basin Development Authority & anor [2015] 16 NWLR (Pt. 1486) 554. That in considering whether the claimants are entitled to the declaratory and other reliefs sought, this Court will first have to consider whether the claimants have discharged the burden of proof imposed on them by law. That the claimants are duty bound to prove all the material allegations of facts made by them. In other words, the defendant who is an employer does not have any duty to prove any of the facts, especially where the claimants are seeking declaratory reliefs, citing Nigeria Gas Company Ltd v. Dudusola [2005] 18 NWLR (Pt. 958) 292. That it is interesting to note that out of the five claimants in this matter, only the 1st and 2nd claimants tendered their letters of employment during trial (Exhibits C1 and 14 respectively); the 3rd, 4th and 5th defendants did not tender their letters of employment and there is no evidence of the date in which they were employed and the duties they were employed to perform in the employment of the defendant.
9. To the defendant, it is a settled fact that the claimants’ employments were terminated with effect from 5th April 2012 when the Internal Memo notifying the claimants of the termination of their employment was pasted on the Notice Board. That the claimants merely alleged that the pasting of the Internal Memo terminating their employment on the outer fence renders the termination invalid, ineffectual null and void. However, that the claimants did not plead or prove the way and manner in which their employment ought to have been terminated, so as to establish that the termination of their employment was done in a manner contrary to the terms and conditions of their employment. On the contrary, that the defendant joined issues with the claimants on the allegations of lockout and pasting of the Internal Memo on the outer fence. In paragraph 2(k) of the statement of defence, the defendant averred that the Internal Memo notifying the claimants and some other employees of the restructuring exercise was pasted on the Notice Board. The salient question is whether the claimants succeeded in proving that the Internal Memo was pasted on the outer fence of the defendant and that they were indeed locked out. The defendant then submitted that upon a careful consideration of Exhibits C13 and C4 as well as the oral evidence adduced by the parties in this suit, this Court will come to an irresistible conclusion that the claimant failed to prove the allegations that the Internal Memo was pasted on the outer fence of the defendant and that the claimants were locked out as alleged. Exhibit C13 is the Internal Memo notifying the claimants and some other workers that their employment has been terminated. It also contains the information directing the claimants to proceed to the Accountant for their full and final benefits. That the defendant pleaded and also adduced copious evidence showing that all other employees affected by the restructuring exercise proceeded to the Accountant and collected their full and final entitlements as directed. Only the claimants refused to proceed to the Accountant to collect their entitlement, despite the clear directives as contained in Exhibit C13. Exhibit D2 series tendered by the defendant are pieces of evidence showing that other employees who were equally affected by the restructuring exercise proceeded to the Accountant and collected their final entitlements. That in line with the pleadings of the defendant, DW, Mr. Saka Akinbode, testified both in his evidence-in chief and during cross-examination that Exhibit C13 was pasted on the Notice Board located within the factory of the defendant. He also testified during cross-examination that there was no lockout and that nobody stopped the claimants from entering into the defendant’s factory.
10. To the defendant, having joined issues with the claimants on the allegations of lockout and pasting of the Internal Memo on the outer fence, the claimants have the onerous burden to prove the veracity of the allegations, which they failed to do, citing section 131(1) and (2) of the Evidence Act 2011. That beyond the bare assertions of the Claimants, which were challenged by the defendant, no single photographic or any other documentary evidence was adduced by the claimants to convince the Court that the Internal Memo notifying the claimants of the termination of their employment was pasted on the outer gate and that they were locked out by the defendant as alleged. That Exhibit C10, the letter dated 4th April 2012 written to the defendant and signed by the 1st claimant, is shown to have been received by the defendant on 5th April 2012 (the same day the claimants’ employments were terminated). That if the claimants were indeed locked out, they would not have been able to deliver the letter to the defendant. Again, Exhibit C11, the letter dated 10th April 2012 written to the National Union of the claimants and signed by the 1st claimant, never mentioned anything about lockout or pasting of the restructuring notice on the outer fence. In fact, that the entire evidence before the Court established the fact that Exhibit C13 was pasted on the Notice Board which is within the premises in the factory of the defendant and not on the outer gate as alleged by the claimants. For instance, the Employees Handbook admitted and marked as Exhibit C4 clearly makes provision for Notice Board. Item 11-11 of Exhibit C4 is headed “Notice Board” and provides that “All employees are required to keep themselves acquainted with such Management instructions and Notices as may be exhibited from time to time on Notice Boards provided for the purpose”. That the evidence of DW, Mr. Saka Akinbode was corroborated by the evidence of the 3rd and 4th claimants, who testified as CW3 and CW5 respectively. CW3 admitted under cross-examination that Exhibit C13 was pasted on the Notice Board and CW5 also admitted under cross-examination that the Notice Board is inside the premises at the factory of defendant.
11. The defendant went on that the claimants did not deny that the remaining 86 employees who were equally affected by the restructuring exercise proceeded to the Accountant to collect their full and final entitlements in line with the instructions contained in Exhibit C13. That CW3 further admitted under cross-examination that the office of the Accountant is not outside the gate but inside the premises. That it, therefore, stands to reason that if the claimants and the remaining 86 employees of the defendant, who were affected by the restructuring exercise, were locked-out by the defendant as alleged, then the remaining 86 employees would not have had access to the Accountant to collect their full and final entitlements, referring to Exhibit D2 series. the defendant then submitted that the allegations by the claimants that they were locked out by the defendant and that the Internal Memo was pasted on the outer gate of the defendant is unsubstantiated and remains a subterfuge designed as a smoke screen to becloud the sense of justice of this Court, urging the Court to so hold.
12. To the defendant, having established that the claimants failed to substantiate their allegation that they were locked out by the defendant and that the notice of their termination was pasted on the outer gate, the salient question is whether the claimants have justified their claim that the termination of their employment was illegal, ineffectual, null and void as alleged. That it is trite that where an employee is suing for wrongful termination of his employment, the fact of the employment and the terms and conditions of the employment must be pleaded and proved by evidence, before a determination of the wrongful nature of his termination can be considered by the Court, citing Bukar Modu Aji v. Chad Basin Development Authority & anor [2015] 16 NWLR (Pt. 1486) 554 at 568.
13. That this takes us to the issue as to whether the claimants are entitled to the reliefs sought before this Court, citing Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5-6 SC (Pt. II) 47, where the Supreme Court held that a claimant’s case would necessarily be circumscribed by the reliefs claimed. That the implication is that a claimant’s pleadings must support the reliefs prayed for. On the contrary, that there is no link between the claims of the claimants in this case and the avalanche of documents tendered by the claimants. That the claimants’ letters of confirmation of employment admitted in evidence as Exhibits C2, C15, C16, C17 and C18 as well as the Employees Handbook marked as Exhibit C4 clearly provide that either party can terminate the employment by giving one month’s notice or one month’s salary in lieu of notice. That the claimants did not plead any fact to show any breach by the defendant of the terms and conditions of employment, either as it relates to redundancy or termination of employment. That having failed to see the Accountant for their full and final entitlement in compliance with the directives contained in Exhibit C13, the claimants cannot turn around to claim a declaration that the termination of their employment is in violation of the terms and conditions of their employment, urging the Court to so hold.
14. That the reliefs sought by the claimants are unobtainable in law, pursuant to the facts and circumstances of this case. For instance, in relief (b), the claimants are asking the Court to nullify the termination of their employment and re-instate them back to their respective positions, with all their benefits paid with effect from “March 2007 till date”. That it is clear from the pleadings of the parties that the claimants’ employments were terminated with effect from 5th April 2012. That there is no pleading or evidence showing that the claimants were owed any areas of salaries or entitlements before their employments were terminated. Therefore, claiming payment with effect from “March 2007 till date” is baseless and ridiculous, to say the least, urging the Court to so hold. More so, the claimants are not entitled to reinstatement, since they have not shown that their employment is one with statutory flavor, citing Evans Bros (Nig.) Pub. Ltd v. Falaiye [2003] 13 NWLR (Pt. 838) 564 at 589.
15. The defendant continued that in their alternative relief, the claimants are asked for N1 Million each as special and exemplary damages. That assuming, without conceding, that the claimants’ employments were wrongfully terminated, the claim for N1 Million each by the claimants is against the established principles of law relating to the measure of damages for wrongful termination of employment, which is what would be earned over the notice period, citing Nigerian Society of Engineers v. Ozah [2015] 6 NWLR (Pt. 1454) 76 at 100.
16. Worse still, that the claimants did not plead or prove any fact showing their salaries and entitlement as at the time their employments were terminated. They are only asking the Court to award N1 Million in their favour, without justifying how they became entitled to the sum. That this Court will not embark on the voyage of discovery on behalf of the claimants, citing Mr Suraju Rufai v Bureau of Public Enterprises & ors unreported Suit No. NICN/LA/18/2013, the judgment of which was delivered on 4th June 2018, in which this Court held that in labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he/she came by the quantum of the sums; and proof of entitlement is often by reference to an instrument or document that grants it, not the oral testimony of the claimant except if corroborated by some other credible evidence. And that in Mr Mohammed Dungus & ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39, this Court was quite specific that a claimant who makes no attempt whatsoever to indicate to the Court the exact provisions of the document they frontloaded that grants them the entitlements they claim, merely frontloading same and saying that a right inures from it without indicating the clause, section, article or paragraph that grants the right, is bound to fail; and counsel should not expect that it is the Court that will shop for the relevant article that substantiates the claim of his/her client. Relying on these authorities, the defendant submitted that the claimants must fail as the state of their pleadings does not in any way support the relief sought before this Court. The defendant then urged the Court to resolve the two issues it formulated in favour of the defendant by dismissing the claimants’ claims in their entirety.
THE SUBMISSIONS OF THE CLAIMANTS
17. The claimants first drew the Court’s attention to the fact that the date in relief (b) had been corrected to read “March 2012”, and not “March 2007” that was erroneously indicated. This naturally knocks off the defendant’s argument to the effect that the claimants’ claim for payment with effect from “March 2007 till date” is baseless and ridiculous.
18. On the issue of the signature(s) of CW2 (Exhibit C19), the claimants referred to section 97 of the Evidence Act 2011, which states thus: “The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested”. That CW2 had during his examination-in-chief confirmed and admitted before this Court that the deposition just shown to him was signed by him. The claimants then urged the Court to so admit the written deposition and other signatures of CW2 his signatures.
19. On the issue of restructuring, the claimants pointed out that during cross-examination DW, he was asked to read out Exhibit D3 tagged, “RE-ORGANIZATION” dated 10th April 2012, which DW did. That DW was further asked during cross-examination whether Exhibits D3, D4, D5, D6 and D7 were handed over to the claimants and DW answered that they were handed over to the appropriate claimants on 10th April 2012. The claimants’ counsel then asked whether there was any endorsement of receipt of Exhibit D3, D4, D5, D6 and D7 and in response DW confirmed that there was no endorsement of receipt of Exhibits D3 to D7 by the recipients. That the impeachment of the testimony of DW could not be disproved in evidence by neither DW nor by the defendant’s counsel during re-examination. That the Court suo motu asked DW as to the where about of the reorganization letters of all those workers listed as Exhibit D2 as given and found on Exhibits D3 to D7. To the question from the Court, DW “Kept Mute”. To the claimants, it was crystal clear during cross-examination of DW that reorganization contained or attached as Exhibits D3, D4, D5, D6 and D7 to the defendant’s statement of defence was only prepared as an afterthought for the purpose of joining the 1st, 2nd, 3rd, 4th and 5th claimants in Court because it was evidently clear that all the other 21 workers contained in Exhibit D2 do not have the reorganization letters attached to their individual calculation of entitlements as frontloaded before this Court by the defendant. That this casts a very serious doubt as to the truthfulness and sincerity of purpose of the reorganization the defendant claimed he had embarked upon because the sectional approach of issuing reorganization letter to just the 5 claimants and same not issued or attached to the final calculation of the other employees in Exhibit D2 has evidently shown that no restructuring or reorganization ever took place in the defendant but a clear bias and deliberate ploy by the defendant to unlawfully terminate the claimants’ appointment for no justified reason and making the claimants a sacred cow for challenging the illegalities and wrongful termination of their appointment by the defendant. That this conclusion is further deducible and confirmed by paragraph 2c of the defence and paragraph 6q of the defendant’s witness’s written deposition where he stated that: “The Defendant did not go ahead with the planned closure of its office at 439/445, Apapa Oshodi Expressway, but rather reduced production and its workforce”. That this clearly shows that the defendant still exists and no restructuring or reorganization ever took place; rather the defendant only deliberately victimized and served the claimants with re-organization letters in other to punish them while other employees in Exhibit D2 were not served with any reorganization letter. Accordingly, that the defendant has not proved to the satisfaction of this Court that any restructuring or re-organization ever took place.
20. Furthermore, as to the defendant’s non issuance of reorganization letters and attachment of same to Exhibit C2, the claimants urged the Court to note that Exhibits D3, D4 D5, D6 and D7, the reorganization letters issued to the 1st, 2nd, 3rd, 4th and 5th claimants, were dated the same date 10th April 2012 while the defence witness had admitted in his paragraph 6k of his written deposition on oath and (as well as paragraph 2k of the defendant’s statement of defence) that: “On 5th April 2012 the Defendant terminated the employment of the claimants and 86 other employees. A copy of the memo placed on the claimants and the other 86 former staff affected by the restructuring exercise will be relied upon at the trial”. That contrary to the expression quoted above, the RE-ORGANIZATION letter contained in Exhibits D3, D4, D5, D6 and D7 issued and attached by the defendant to the 1st, 2nd, 3rd, 4th and 5th claimants’ witnesses’ calculation of their entitlement was dated 10/4/2012 clearly five (5) days after 5th April 2012 when the purported termination of all the 5 claimants with other employees was pasted on the Board as admitted by DW. That this is a material contradiction that goes to the root of this case. That it is evident that since DW had admitted in his deposition that the employments of the claimants herein was terminated on 5th April 2012, the defendant cannot turn around to contradict itself that it issued a letter of RE-ORGANIZATION which it dated 10/4/2012 addressing the same issues and again terminating all the claimants’ appointment which it had earlier terminated on 5th April 2012.
21. The claimants then submitted three issues for determination, namely:
(i) Whether from the totality of the evidence adduced before this Honourable Court the claimants have established and discharged the burden of proof upon them that there existed a contract of employment between the claimants and the defendant.
(ii) Whether from the totality of the evidence led by the defendant’s witness the defendant has substantiated the reason stated for terminating the employment of the claimants to the satisfaction of the Honourable Court.
(iii) Whether the defendant’s non compliance with the terms and conditions of employment of the claimants by merely pasting their names on the board without formal notice of one (l) month or payment in lieu to the claimants as prescribed by their terms and condition of employment contained in the claimants’ individual confirmation of employments letters, Exhibits C2, C15, C16, C17 and C18 and Part IV-6 of Exhibit C4 and Exhibit C3 in its paragraph 12(i) and (ii), which provides for three (3) months notice or pay in lieu of notice in cases of redundancy, does not amount to wrongful termination of their employments as to entitle them to their claims and reliefs before this Court.
22. On issue (i), the claimants submitted that all the five (5) claimants testified before this Court and have by their individual written depositions confirmed that they have at all time material to this suit been employees of the defendant; the five (5) claimants buttressed their assertion by pleading their individual confirmation of employment letter, which was marked as Exhibit C2 being the 1st claimant’s confirmation of employment letter as “Supervisor” in the defendant. Exhibit C15 is the 2nd claimant’s confirmation of employment as “Store Supply” in the defendant. Exhibit C16 is the 3rd claimant’s confirmation of employment letter in the defendant’s Sales Department as “Sale Representative”. Exhibit C17 is the 4th claimant’s confirmation of employment letter as “Sale Officer” in the defendant and Exhibit C18 is the 5th claimant’s confirmation of employment letter as “Machine Operator” in the defendant. Equally, that the claimants pleaded the Employees Handbook of the defendant which was given to them upon their employments by the defendant. The said Employees Handbook of the defendant is Exhibit C4. Exhibit C4 states in Part IV-4 that it is management prerogative to confirm the appointment or extend the period of probation of the appointment of employees as per NJIC based on satisfactory performance and conduct. Confirmation in service, extension of probation or termination of appointment will be “written”. That all the five (5) claimants witnesses were duly confirmed pursuant to above terms while the 1st and 2nd claimants equally attached their offer of employment marked as Exhibits C1 and C14 respectively. Also, that paragraph 1 of the individual claimants’ confirmation of appointment specifically made reference to the offer of appointment earlier granted to all the claimants, which is an admission of the defendant that the claimants are its employees.
23. Furthermore, that by paragraph 2C of the defendant’s statement of defence, the defendant admitted that the employment of the claimants with the defendant was also governed by the “Employee Handbook” negotiated collectively. Also, by paragraph 6a of the defendant’s witness written deposition the defendant had admitted in the paragraph that the claimants were employed individually and separately by defendant and issued with individual letters of employment and confirmation issued to the claimants are the documents referred to as Annexure A in the list of documents to be relied upon during trial. The defendant further referred to paragraph 2k of the statement of defence as well as paragraph 6k of the written deposition on oath of the defendant’s witness dated the 26th day of July 2012 where the defendant had admitted that on 5th April 2012 the defendant terminated the employment of the claimants and 86 others. That all of this show that there existed a contract of employment between the claimants and the defendant which clearly discharge the burden of proof placed upon the claimants, citing FMF Ltd v. Ekpo [2004] 2 NWLR (Pt. 856) – no page supplied; Ogwule Ankpa Agatu Cooperative Group Farming Society v. Nigeria Agricultural and Cooperative Bank [1999] 2 NWLR (Pt. 590) 234 and Gateway Bank of Nig Plc v. Abosede [2001] FWLR (Pt. 79) 1.
24, For issue (ii), the claimants submitted that where an employer gives a reason for terminating the employment of an employee, the onus is on the employer to justify the said reason, referring to Shell Petroleum Development Co. Ltd v. Chief Victor Sunday Olarewaju [2008] 18 NWLR (incomplete citation) and Olatunbosun v. NISER Council [1988] 3 NWLR (Pt. 80) 25. That the defendant in this instant case has not discharged the duty imposed on it by establishing to the satisfaction of the Court the reason or cause for terminating the appointments of the claimants. That this conclusion is supported by the testimony of DW during cross-examination when this Court suo motu demanded for the reorganization letter contained in Exhibit D2 and the defendant’s witness remained mute and could not confirm to the Court why the letter of reorganization attached to the calculation of the final entitlement purportedly meant for the five (5) claimants in Exhibits D3, D4, D5, D6 and D7 was not equally filed alongside the calculation of the final entitlement of all the employees who the defendant had presented to the Court as having received their entitlement in Exhibit D2. That even the acknowledgement/receipt copy of those 2 employees contained in Exhibit D2 of their letters of reorganization was not pleaded to establish to the Court that there really existed any restructuring or reorganization as claimed by the defendant.
25. The claimants urged the Court to take a critical look at the purported reorganization letters attached by the defendant and marked as Exhibits D3, D4, D5, D6 and D7. That the Court would observe that the insurance of the said letters was only an afterthought because Exhibits D3, D4, D5, D6 and D7 were all dated 10/4/2012 clearly issued five (5) days after 5th April 2012 when the purported termination of all the 5 claimants with other employees was pasted on the Board as admitted by DW in paragraph 6k of the written deposition on oath that: “On 5th April, 2012 the Defendant terminated the employment of the claimants and 86 other employees. A copy of the memo placed on the defendants Notice board informing the claimants and the other 86 former staff affected by the restructuring exercise is the document referred to as Annexure D in the list of documents to be relied upon during trial”. That in utter contradiction of the defendant’s admission of the facts in paragraph 2k of its statement of defence and paragraph 6k of DW’s written deposition on oath, the defendant changed its gear and confirmed in paragraph 2Q of its statement of defence that the “Defendant did not go ahead with the planned closure of its office at 439/445, Apapa Oshodi Expressway, but rather reduced production and its workforce”. That in another breath, the reorganization letter purportedly issued and frontloaded before this Court, which was only served on the five claimants alongside the calculation of their gratuities, was fraudulently dated 10th April 2012 in total contradiction to the date admitted by the defendant to have terminated the employments of the claimants, which the defendant earlier claimed was 5th April 2012.
26. To the claimants, the purport of above comparison of material contradictions of the evidence of the defendant before this Court is to elicit a singular fact from all the defendant’s contradictory statements vis-a-vis DW’s inability to speak but rather remain mute when asked by this Court why the letter of reorganization of those employees the defendant had pleaded in Exhibit D2 was not attached to their final entitlement but attached to the 1st, 2nd, 3rd, 4th and 5th claimants’ entitlements only. That it is clear from these contradictory information of the averment and evidence of the defendant as contrasted above and the inability of DW to present any proof to the Court that the letter of REORGANIZATION of all other employees in Exhibit D2 were actually served on them since it was not pleaded neither was the acknowledgment copy ever pleaded or frontloaded before this Court. That it, therefore, goes to show that there was no reorganization or restructuring that was ever carried out by the defendant and it further revealed to this Court that the REORGANIZATION letters attached to the calculation of the claimants’ final entitlements were specifically issued mala fide for only the claimants in preparation for this case should the claimants contest the wrongful termination of their employments by the defendant in Court as in the instant case.
27. The claimants referred to page 20 of Part IV-23 of Exhibit C4 (the Employee’s Handbook), which makes provisions for REDUNDANCY as raised by the defendant in its pleadings. That Exhibit C4 directed all employees to Exhibit C3 by stating that the content of Exhibit C3 shall govern the affairs of the defendant and the claimants on issues bothering on redundancy particularly page 3, paragraph 12(i) where Exhibit C3 states thus:
Redundancy benefits shall be paid to the affected employees as follows:
(i) 3 months Notice or pay in lieu of Notice
(ii) In addition to (i) above, 5 weeks pay for each completed year of service shall be paid.
That this quoted exhibit was not complied with at all by the defendant; rather the defendant unlawfully derailed from Exhibit C3 and wrongfully terminated the appointments of the claimants, urging the Court to hold that from the totality of the evidence led by DW and the pleadings of the defendant, the defendant has NOT substantiated the reason stated for terminating the employment of the claimants.
28 Regarding issue (iii), the claimant referred to UBN v. Chinyere [2010] 10 NWLR (Pt. 1203) 453-668, which held that an employment can only be said to have been wrongfully terminated if it was done contrary to the conditions governing the particular contract of service or in a manner not contemplated by the stipulations in the condition of service. Also referred to are: Registered Trustees of Planned Parenthood Federation of Nigeria & anor v. Dr Jimmy Shogbola [2004] 11 NWLR (Pt. 883) 1-222 and Bernard Ojeifo Longe v. First bank of Nigeria Plc [2010] 6 NWLR (Pt. 1189) 1-206. That from the totality of evidence placed before the Court, it is clear that Exhibits C2, C15, C16, C17 and C18 which are the 1st to 5th claimants’ confirmation of appointment letters clearly contained in individual paragraphs ‘7’ the notice of 1 (one) month or payment in lieu and other terms which was not complied with by the defendant before its sudden wrongful termination of the claimants’ employment on 5th April 2012 by merely pasting their names on the defendant’s board even after DW had admitted in paragraph 6B of his written deposition on oath that: “by virtue of the terms of employment the contract of employment can be terminated by either parties giving one (1) month notice or payment in lieu thereof”. Furthermore, that Exhibit C4 (the Employees Handbook) makes provisions for redundancy as raised by the defendant in its pleadings as per NJIC, which directs all employees of the defendant that Exhibit C3 shall govern and regulate its relationship with the claimants with respect to redundancy particularly at page 3, paragraph 12(i). That the defendant clearly ran foul of this laid down procedure and departed completely from same before its eventual wrongful termination of the 1st, 2nd, 3rd, 4th and 5th claimants’ employment. To the claimants, it is evident that the defendant is in clear breach of the contract of its employment of the 1st, 2nd, 3rd, 4th and 5th claimants and it deserves to face the corresponding consequence of its breach of contract, citing Registered Trustees of Planned Parenthood Federation of Nigeria & anor v. Dr Jimmy Shogbola (supra). In conclusion, the claimants urged the Court to grant all their prayers and claims as well as award Two Million Naira (N2,000,000,00) as cost of instituting this action.
THE DEFENDANT’S REPLY ON POINTS OF LAW
29. In replying on points of law, the defendant first adopted all its earlier arguments in its final written address. To the defendant, the decision in Shell Petroleum Development Co. Ltd v. Chief Victor Sunday Olanrewaju [2008] 18 NWLR referred to by the claimants does not apply to the facts and circumstances of the instant case and is clearly distinguishable. This is because the instant case is concerned with termination of employment, while Shell Petroleum Development Co. Ltd v. Chief Victor Sunday Olanrewaju deals with dismissal on grounds of gross misconduct. What is more, that the reason given by the defendant in this case for terminating the claimants’ employment as shown in paragraph 2(d) of the statement of defence is global financial meltdown, a fact of common knowledge that needs not be proved, citing section 124(1)(a) of the Evidence Act 2011, which provides that proof shall not be required of a fact the knowledge of which is not reasonably open to question and which is common knowledge in the locality in which the proceeding is being held, or generally.
30. The defendant continued that the claimants’ counsel made a heavy weather of the fact that the defendant did not prove the reason for terminating the claimants’ employment. That assuming, without conceding that the defendant is required to prove the reason, the claimants can only succeed on the strength of their case and are not allowed by law to rely on the weakness of the defence, citing Faleye v. Dada [2016] 15 NWLR (Pt. 1534) 80 at 123 to 124.
31. On issue (iii) formulated by the claimants, the claimants’ counsel had submitted that the defendant did not comply with the terms and conditions of employment in terminating the claimants’ employment. To the defendant, the claimants did not plead any particular term or condition that was not complied with. That the fact of redundancy was neither pleaded nor proved by the claimants. That the contract of employment between the claimants and the defendant requires that either party can terminate the employment by giving one month notice or payment in lieu. That it is trite that parties are bound by their agreement. That there is copious evidence before the Court showing that the claimants were notified of the termination of their employment and were required to collect their terminal benefit, including the payment in lieu from the Accountant. That having failed to follow the instructions requiring them to collect their payments from the Accountant, the claimants cannot turn around and allege that the defendant did not comply with the terms and conditions of employment. In conclusion, the defendant submitted that it has shown that there is no legal or factual justification for all the reliefs sought by the claimants in this suit, urging the Court to discountenance all the submissions of the claimants and dismiss the suit accordingly.
COURT’S DECISION
32. I have carefully considered the processes filed and the submissions of the parties. I start off with the issue of Exhibit C19, on which the Court had asked parties to address it on the regularity or otherwise of the signature of CW2. Only the claimants did; to which the defendant did not even react. The claimants cited section 97 of the Evidence Act 2011 and urged that since CW2 owned up to his deposition, the Court should treat it as such. Since the defendant did not react to the claimants’ submission I have no other reason than to treat CW2’s deposition as valid for purposes of this case. I so hold.
33. The law is that once an employer gives a reason for terminating or dismissing an employee, the burden lies with him to justify the said reason. See Angel Shipping & Dyeing Ltd v. Ajah [2000] 13 NWLR (Pt. 685) 551 CA. In Institute of Health ABU Hospital Management Board v. Mrs Jummai R. I. Anyip [2011] LPELR-1517(SC), the Supreme Court held that “although it is trite that an employer is not obliged to give any reason for firing his servant all the same it is settled law that where he has preferred any reason at all it is obliged to satisfactorily prove the same as the onus is on him in that regard, otherwise the termination/dismissal may constitute a wrongful dismissal without more”. See also George Abomeli v. Nigerian Railway Corporation [1995] 1 NWLR (Pt. 372) 451, Ogunsanmi v. C. F. Furniture (WA) Co. Ltd [1961] 1 All NLR 224 and Mr. Kunle Osisanya v. Afribank Nigeria Plc [2007] All FWLR (Pt. 360) 1480 SC at 1491; [2007] 1 – 2 SC 317. The attempt by the defendant in its reply on points of law to make a distinction between termination and dismissal in reacting to “Shell Petroleum Development Co. Ltd v. Chief Victor Sunday Olanrewaju [2008] 18 NWLR” cited by the claimants is accordingly untenable. The law applies here to both termination and dismissal.
34. The defendant gave the reason for terminating the employment of the claimants as the global meltdown of 2008. The final written address and the reply on points of law of the defendant alluded to this fact. In the words of the defendant:
Sometime in 2008, the defendant’s production, sales and profit margin was reduced drastically due to the global financial melt-down and a freeze in credit lines from local banks as well as international suppliers. This development, which necessitated a slash in operation cost, was brought to the attention of the claimants and other employees. In November 2008, a decision was reached by Management of the defendant to temporarily shut down the factory as a result of escalating operational cost and a distortion in the budget of the defendant…
The claimants’ respective employments were, however, terminated on 5th April 2012. Between 2008 and 2012 when the claimants’ employment was terminated, there is a difference of 4 years. Accordingly, could the global meltdown of 2008 be the reason for the termination of 2012? The defendant must be joking to think and hence adduce this as a reason.
35. The defendant claims that the claimants and 86 others were laid off in 2012 because of the global meltdown of 2008. In proof of their defence, the defendant attached to Exhibits D3 to D7 (the claimants’ termination letters all dated 10th April 2012 and titled, “Re-Organisation”). Meanwhile, the defendant frontloaded Exhibit D2 (21 copies in all) as the termination letters of the other 86 employees whose employments were terminated along with the claimants. This Court asked DW why the reorganization letters of the said 86 employees were not attached to Exhibit D2 just as the claimants’ were attached to Exhibits D3 to D7. DW gave no answer to this Court, keeping mute. There is the additional point that the final entitlements papers attached to each of Exhibits D3 to D7 were not dated. What I can deduce from all of this, like pointed out by the claimants, is that there was no reorganization at all by the defendant at the time the claimants’ employments were terminated. The defendant made up the reorganization story, an afterthought as the claimants put, just so as to provide a defence to this suit. The fact that the attached final entitlements papers were not dated is thus a case in point. This being the case, the defendant did not justify the termination of the claimants’ employment as required by law. I so find and hold. In consequence, I hold that the termination of the employment of the claimants having not been justified by the defendant, is thereby wrongful.
36. There is the issue of posting the notice of the termination of the claimants’ employment (Exhibit C13) on the notice board. Relief (a) talks of “pasting the claimants’ names on the defendant’s outer fence” The claimants argued that “pasting” of the notice of termination of their employment was not notice as required under the law. CW2 under cross-examination testified that the notice was posted on the gate. CW3, however, testified that it was posted on the notice board. CW4 on her part testified under cross-examination that the notice board was inside the premises of the defendant. DW under cross-examination testified that the notice was posted on the notice board and the notice board is inside the premisses of the defendant. From all of these pieces of evidence, it is overwhelming that the notice of termination (Exhibit C13) was posted on the notice board, not the defendant’s gate, and the notice board is inside the premises of the defendant. I so find and hold. This means that relief (a) to the extent that it talks of “pasting the claimants’ names on the defendant’s outer fence” cannot be granted since by Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47, a claim is circumscribed by the reliefs claimed.
37. However, there is the question whether posting of a notice of termination on the notice board as was done in the instant case meets the sting of the law. The law is that termination of employment must be in writing. See section 11(3) of the Labour Act Cap L1 LFN 2004. Did Exhibit C13 meet this requirement of being in writing? The answer to this question depends on the interpretation of subsections (1) and (5) of section 11 of the Labour Act. Section 11(1) of the Labour Act Cap L1 LFN 2004 provides that “either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so”. And by section 11(5), “nothing in this section affects any right of either party to a contract to treat the contract as terminable without notice by reason of such conduct by the other party as would have enabled him so to treat it before the making of this Act”. The phrase “notice given by him to the other party” in section 11(1) suggests that the notice must be addressed and given personally to the receiving party, each of the claimants in the instant case. Section 11(5), however, allows the receiving party to dispense with the requirement of the notice of termination. Did any of the claimants evince any intention of dispensing with the requirement of notice? The answer is NO. In this sense, posting of the notice of termination on the notice board did not meet the requirement of notice to the employee as enjoined by section 11(1) of the Labour Act. I so find and hold. This means that the said termination of the claimants’ employment vide Exhibit C13 being posted on a notice board was wrong. I so hold.
38. The second limb of relief (a) talks of the claimants being locked out without more; and relief (b) seeks for an order “setting aside, nullifying and/or voiding” of the termination and “mandating and compelling the defendant to pay all the backlog of the claimants’ salaries and other entitlements, rights and privileges attached to their individual positions since March, 2012 till date”. These reliefs approximate to a relief that seeks reinstatement. Since I held that posting of the notice of termination on the notice board is wrong, the termination of the claimants’ employment was also wrong, but not null and void as to warrant the remedy of reinstatement. The authorities make a distinction between wrongful termination/dismissal, where the remedy would then be damages and null and void termination/dismissal, where the remedy would be reinstatement. See BCC Plc v. Ager [2010] 9 NWLR (Pt. 1199) 292 SC. This means that to the extent that reliefs (a) and (b) seek for the termination of the claimants’ employment to be declared null and void and backlog of salaries paid, they cannot be granted. The said termination is only wrongful. I so find and hold.
39. There is however the point that the claimants’ termination took effect from 5th April 2012. In relief (b), the claimants seek for backlog of salary from March 2012. By this relief, the claimant is saying that his salary was not paid for the period 1st March 2012 to at least 5th April 2012. Honika Sawmill (Nig.) Ltd v. Holf [1992] 4 NWLR (Pt. 238) 673 CA held that as between an employer and an employee, the onus is on the employee to prove that the employer employed him on a stipulated salary and that he worked for the employer during the relevant period; and it is for the employer to prove not only that he paid the employee his salary for work done by the employee in the relevant period but also how much the salary that he paid the employee was. In the instant case, the defendant did not prove to this Court that it paid the claimants their respective salaries for the period 1st March 2012 to 5th April 2012. The claimants are accordingly entitled to their salaries for this period. I so find and hold.
40. The authorities are, however, clear that a finding that a termination of employment or dismissal is wrongful leads to only damages, and the measure of damages is what is payable by reference to the notice period. Attempts by this Court, given the Third Alteration to the 1999 Constitution and the National Industrial Court (NIC) Act 2006, to discountenance this strict and harsh common law rule has not met with appellate approval. See, for instance, Oak Pensions Ltd v. Olayinka [2017] LEPLR-43207(CA); [2018] 12 ACELR 85 and Peter Onteachonam Obanye v. Union Bank of Nigeria Plc LER [2018] SC. 569/2015; [2018] 14 ACELR 1 decided on Friday, June 8, 2018. As of today, the harsh common law position remains the law. See Mr Adebayo Gbolahan Adepoju v. Coscharis Group unreported Suit No. NICN/LA/409/2014 decided on 16th February 2018 and Clement Abayomi Onitiju v. Lekki Concession Company Limited unreported Suit No. NICN/LA/130/2011, the judgment of which was delivered on 11th December 2018. The claim as per relief (c) for One Million Naira (N1,000,000.00) to each of the claimants as general and exemplary damages for wrongful termination is thus uncalled for. The claimants are entitled to only what is payable for the period of notice, which in the instant case is one month’s salary in lieu of notice since the notice period is one month.
41. In all, the claimants’ case succeeds in part and only in terms of the following declarations and orders:
(1) It is hereby declared that the termination of the employment of the claimants having not been justified by the defendant, is wrongful.
(2) It is declared that posting of the notice of termination on the notice board did not meet the requirement of notice to the employee as enjoined by section 11(1) of the Labour Act. Accordingly, the termination of the claimants’ employment vide Exhibit C13 being posted on a notice board was wrong.
(3) It is hereby ordered that the defendant shall pay to the claimants their respective salaries for the period 1st March 2012 to 5th April 2012.
(4) The defendant shall also pay to the claimants their respective one month’s salary in lieu of notice.
42. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
