IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP, HON. JUSTICE I.J. ESSIEN Ph.D
DATE: 20TH JULY, 2018.
SUIT NO.: NICN/EN/35/2017
BETWEEN:
- BASSEY AGWU CLAIMANT
AND
ENUGU ELECTRICITY DISTRIBUTION COMPANY DEFENDANTS
REPRESENTATION:
- S. Nnamani Esq. for the Claimant
- A. Nwankwo Esq. for the Defendant
JUDGMENT
The claimant in this suit filed a complaint on the 15th June, 2017 wherein he claimed the following:
- A DECLARATION that the retirement from Service of the claimant by the defendant was wrongful and mala fide and the purported retirement letter be declared null and void and of no effect whatsoever.
- A DECLARATION that the claimant’s contract of employment with the defendant is still valid and subsisting haven not been lawfully and properly determined.
- A DECLARATION that the purported retirement from service of the claimant by the defendant within one month of his employment without due regard to the terms of his employment, his work efficiency, punctuality and/or any previous query offends international best practices on labour.
- A DECLARATION that the failure and refusal to allow the claimant access to his office upon receipt of retirement letter from the defendant amounts to victimization and unlawful withholding of the claimant’s personal belongings.
- A DECLARATION that failure to pay the claimant all his salaries and accruing benefits as stated in the offer letter of his employment amounts to breach of contract.
- AN ORDER FOR SPECIFIC PERFORMANCE to pay the Claimant all his unpaid salaries, benefits and allowances with 10% (Ten percent) monthly interest from 19th day of May 2014 until the determination of this suit.
- AN ORDER that the claimant be reinstated to status quo ante and be paid all his salaries, benefits and entitlements accruing under his contract of employment with the defendant from the date of the purported retirement from service on the 19th day of May, 2014.
- AN ORDER OF INJUNCTION perpetually restraining the defendant, its board, agents, workers and servants from henceforth acting adversely towards the claimant in the cause of his employment or otherwise victimizing and unlawfully terminating the claimant’s contract of employment.
- IN ALTERNATIVE TO RELIEFS (f), (g) and (h) above, AN ORDER compelling the defendant to start paying the claimant his pension due to him from the date of retirement being 19th day of May 2014 until death.
- AN ORDER compelling the defendant to allow the claimant to enter his former office and collect his personal properties and the sum of N400,000.00 (Four Hundred Thousand Naira) only which were denied from him at the date of his purported retirement.
- And should the said properties in (j) above be found missing, AN ORDER for special damages in the sum of N775,000.00 (Seven Hundred and Seventy Five Thousand Naira) only. The items are as follows:
- Sum left in the drawer …………………………….. N400,000.00
- HP Laptop …………………………………………. N150,000.00
iii. A set of tea cups ……………………………….…… N6,000.00
- 2 food flasks ……………………………………….……N4,000.00
- 4 drinking glasses …………………………..…………N5,000.00
- Recording midget …………………………….………N10,000.00
vii. Ghana-must-go bad with personal documents. N200,000.00
Total ………………………………………………………….N775,000.00
- THE SUM OF N10,000,000 (Ten Million Naira)only as general aggravated and exemplary damages for wrongly retirement, breach of contract, lost of job prospects and having been unexpectedly trust into job seeking mode and trauma occasioned by his victimization.
- THE COST of this suit at N300,000.00 (Three Hundred Thousand Naira) only.
The claimant filed along his statement of facts and a witness statement on oath, as well as a list of documents and witness. The defendant filed their statement of defence and a witness statement on oath on the 1st August, 2017. The defendant latter filed an amended statement of facts and an amended witness statement on oath on the 25th October, 2017. The defendant filed a further witness statement on oath on the 5th February, 2018.
BRIEF STATEMENT OF FACTS
The facts which are relevant here are that the claimant was offered appointment via a letter dated 14th April, 2014 on a probationary period of 6 months. However on the 19th May 2014, the claimant was relieved of his appointment via a letter dated 19th May, 2014 titled “Retirement from service” The claimant disputes the retirement contending that the defendant did not comply with the defendant employee handbook in retiring him from service. The claimant further alleges that he was not allowed to remove his personal belongings from the defendant’s office. The defendant on the other hand contends that the claimant was properly retired having attained the age of 50 years and further that the defendant had the unfettered right to terminate an employee under probation without giving any reason. The defendant also contends that the claimant was given all the necessary access to his former office to remove his personal belongings.
Hearing in this suit commenced on the 19th March, 2018. The claimant testified as CW1, adopted his witness deposition and tendered the following documents in prove of his claims.
1) Letter of appointment dated 14th April, 2014 as Exhibit C1.
2) Letter of disengagement from service dated 21st October, 2013 Exhibit C2
3) Letter of offer of six months contract of employment dated 21st October, 2013 Exhibit C3
4) Letter titled Notice of Expiration of contract of employment dated 1st April, 2014, Exhibit C4
5) Letter of Retirement from service dated 19th May, 2014 Exhibit C5
6) First bank statement of Account Exhibit C6
7) Letter of request for access to claimant office dated 2nd May, 2017 Exhibit C7
8) E.E.D.C employment handbook Exhibit C8.
The claimant closed his case on the 19th March, 2018.
The defendant opened his case on the 20th March, 2018. DW1 Ogbona Alozie a staff of the defendant human resources department testified as the sole witness. He adopted his witness deposition and tendered the following exhibits
1) A letter of reply to claimant solicitor letter of 2nd May, 2017 which is dated 23rd June, 2017, marked as Exhibit D1.
2) Document payroll & Personnel Automated system, marked as Exhibit D2.
Counsel also relied on Exhibit C8 already tendered by the claimant.
The defendant closed their case on the 20th March, 2018.
From the state of pleadings and the evidence adduced in this suit, this court is entrusted with the responsibility of determining whether the retirement of the claimant by the defendant was consistent with the terms of the contract of employment and if not whether this court can grant the relieves sought by the claimant in this suit.
First I must point out that Exhibits C2, C3 and C4 tendered by the claimant in this suit has not relevance whatsoever to the issue in contention and would therefore not be considered in this judgment they relate to a state of affairs which has past and does not relate to the present issue in contention.
In prove of his claim of wrongful retirement the claimant tendered Exhibit C1 the letter of offer of appointment dated 14th April, 2014, the letter of retirement from service dated 19th May, 2014, Exhibit C5 and the Exhibit C8. The Enugu Electricity Distribution Company Employee handbook. I have carefully examined these exhibits. It is not in dispute that the defendant was the successor company to the PHCN the erstwhile employer of the claimant. The claimant admitted during cross examination that when he exited PHCN he was paid his entitlements and benefits. The Exhibit C1 was a new contract which terms are very clear. Under the heading Employment period the claimant was placed on a 6 month probation period subject to confirmation after 6 months, the clause reads.
This employment will commence on May 1, 2014 and is subject to a confirmation period of 6 months after which your position will be confirmed, if your performance has been satisfactory and the company is satisfied with the result of your back ground check.
Apart from the above clause Article 3 (d) of Exhibit C8 states that:
(d) Without prejudice to the foregoing, either party may at any time during the probationary period terminate the employment by giving two weeks notice or two weeks basic salary in lieu of notice.
(e) During the probationary period a background check shall be conducted for each new hire. The company shall consider the result of the background check before confirmation of appointment.
The effect of the clauses in these two exhibits is that the defendant had an unfettered right to disengage the claimant during the probationary period. This the defendant did when they issued and served Exhibit C5 on the claimant.
The law is settled and as held in a plethora of case that in the termination of an employee under probation no procedure need be followed provided that appropriate notice or salary in lieu of notice is offered. See Alhassan V. Hhmadu Bello University & Ors. [2009] LPELR 8138 (CA). see also Baba V. Nigerian Civil Aviation Training Centre Zaria & Anor [1991] 7SCNJ, 1 at 13. I am satisfied that the claimant was properly terminated of his employment by the defendant in this suit. It is irrelevant that in doing so the defendant titled Exhibit C5 “Retirement from Service” This has the same effect as if the word termination was used.
I have carefully also considered the fact that in terminating the claimant via Exhibit C5 the defendant paid to the claimant one month salary in lieu of notice in addition to his May salary as evidenced in Exhibit D2 in the sum of N767,276.77k. This amount was reflected in the claimant’s statement of account Exhibit C6 in the entry of 5th June, 2014. On the strength of this state of evidence I hereby hold that the defendant complied with the terms of employment of the claimant.
The claimant has also argued that there was no compliance with Article 26 (1) of the Exhibit C8 ie the employees handbook. I am unable to agree with the claimant that his contract of employment was regulated by this article. For all intent and purpose.
Article 26(1) of Exhibit 18 only regulates employees whose appointment has been confirmed and who have worked to the age of retirement and does not relate to employees of the defendant who are under probation. This is because an employee who is under probation cannot be retired neither can he take any benefit of retirement no matter how the contract of employment is worded.
The claimant also claims an order of re-instatement back into the defendant company. The claimant seems to misconceive the nature of the employment relationship between him and the defendant. The employment between the claimant and the defent fall under the master servant type of employment.
This employment is not one that enjoys statutory flavor the law is settled and the law is that it is only in cases of contract with statutory flavour that re-instatement can be ordered in deserving cases. See Alhassan V. Ahmadu Bello University, Zaria & Ors. [2009] LPELR – 8138.
The order of re-instatement cannot in any circumstances be ordered with respect of a probationary appointment it cannot also be ordered in private employment. In Kunle Osisanya V. Afribank Nig. Plc. [2007] LPELR – 2809(SC) the Supreme Court held.
“It is also settled that the court cannot impose a servant on an unwilling master”
For the above reasoning the relief of re-instatement is misconceived and it is hereby refused.
On the whole the claimants relieves in paragraph 17 a, b, c, d, e, f, g, h, I, L and m are hereby refused as the claimant has woefully failed to prove his entitlement to those relieves. They are hereby accordingly dismissed.
As regards relief number J and K.
The claimant testified in his witness deposition that upon his being served with the letter of retirement Exhibit C5, he informed the defendant’s managing director that he needed to remove his personal belongings from the defendant’s office, that the defendant’s managing director informed him that soldiers have been directed to arrest him at sight and that he would be called to pick his belongings later. That he has waited for two years without hearing from the defendant. The claimant tendered Exhibit C7 a letter written by the claimant’s solicitors requesting for access to the former office of the claimant to remove his personal belongings. The defendant testified that the claimant was given access to enable him remove his personal belongs from the defendant’s office. The defendant tendered Exhibit D1 which dated 23rd June, 2017 a letter being a reply to C7. This letter being a letter written “without prejudice” and which is not tendered in proof of any compromise on the part of the defendant who tendered same is admissible in evidence. See the case of Resurrection Power Investment Company Ltd. V. Union Bank of Nigeria Plc. [2013] LPELR – 21262 (CA). In this letter Exhibit C7. The defendant stated that the claimant personal effect were not in the office when the office was assigned to another person.
I have carefully considered the evidence adduced on this point, I cannot understand why it took the claimant 2 years to formally demand to have access to his office to remove his personal belongings, furthermore, I find the story of the claimant that the Managing Director of the defendant told the claimant that soldiers had been instructed to arrest the claimant at sight unbelievable. The defendant as a private company is not an establishment which can be authorized to use soldiers in its operation, let alone for the arrest of an unarmed civilian as the claimant. The claimant has also not shown this court any attempt to visit the defendant office to retrieve his personal belongings and he was refused or denied the right to do so I am convinced that there are no belongs of the claimant with the defendant.
The claimant in his claims also claimed in the alternative the value of the items put at N775,000.00. This the claimant intends to claim as special damages. Throughout the evidence adduced by the claimant he never offered strict proof of the evidence of the value of the items as required by law. The law is selted and as held in IBWA Ltd. (NOW AFRIBANK PLC) V. HOTEL METROPOLITAN INTERNATIONAL LTD. & ANOR [2010] LPELR – 4272 (CA).
Unlike general damages, special damages must be specifically and strictly proved and the court is not entitled to make its own estimate of the same.
In the absence of the receipt evidencing the value of the items, the court cannot speculate on the value of the items claimed.
In the circumstances this court refuses to make any order in the alternative awarding the sum of N775,000.00 as the value of the items.
The claim of N10,000,000 as general damages and the claim of cost in the sum of N300,000.00 fails and are hereby dismissed.
On the whole this suit fails and is hereby dismissed in it’s entirely.
