IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON.JUSTICE SALISU HAMISU DANJIDDA
SUIT NO. NICN/YEN/64/2016
DATE: 20/7/2018
BETWEEN:
MR. MONDAY ABAJI EKE…………CLAIMANT
AND
1. SUDELETTRA NIGERIA LIMITED
2. MR. RAJEST MATANDI………………DEFENDANTS
REPRESENTATION:
EKELEDINICHUKWU ORDU FOR THE CLAIMANT
PATRICK O. EKEANYANWU FOR THE DEFENDANTS
JUDGMENT
The Claimant filed this suit by way of complaint dated 31/3/2016. He accompanied it by other originating processes and claimed for the following reliefs;
“1. An order of court directing/compelling the Defendants to pay the Claimant the salaries of May, 2013 to August, 2014 at # 80,000 (Eighty Thousand Naira) per month; his appointment having been wrongly terminated.
2. General damages and cost of #5,000,000.00 (Five Million Naira).”
The defendants on the other hand filed a memorandum of appearance dated 29/4/2016, a notice of Preliminary objection and a joint statement of defence filed on 6/5/2016. Defendants’ notice of Preliminary objection dated and filed on the 6/5/2016 was withdrawn by the defendants and it was consequent upon that struck out on the 9/2/2018. Claimant also filed a reply to the statement of defence on the 27/5/2016.
The Claimant in proof of his case testified as CW1 and tendererd 5 Exhibits while the Defendants also called a lone witness.
CASE OF THE CLAIMANT’
Claimant as CW1 adopted his two statements on oath dated 31/3/2016 and 27/5/2016 respectively. He testified that on 10/9/2012, the defendants employed him as a procurement officer and the Condition of service was signed by him while one Mr. T. E. Twinge, the personnel/Admin. Manager signed for the 1st defendant.
The said condition of the Claimant’s service was admitted in evidence as Exhibit 5. Claimant stated that by the provisions of section 1 of Exhibit 5, he was to work for 6 months on probation and after successful crossing of the period, his employment would remain for two uninterrupted years commencing from the date of the probation period unless the provisions of section 16(¡v) of Exhibit 5 is contravened. It was the testimony of the Claimant that having been offered employment on the 10/9/2012, the 6 months probationary period commenced on the said date and lasted on the last day of February, 2013 or 9/3/2013 as the case may be. That the claimant crossed the probationary period without query or any form of problems with the defendants and that automatically gained him two years employment with the defendants which ought not to be disrupted. However to the chagrin and dismay of the Claimant, the 2nd defendant instructed the personnel/Admin Manager to terminate the his employment contrary to the provisions of Exhibit 5. That following the said development, Claimant’s Solicitors wrote exhibit 3c to 3e to the 1st defendant complaining about the Claimant’s wrongful termination and requested for compensation while the defendants replied the Claimant by Exhibit 2a to 2e. Claimant’ Solicitors also wrote Exhibit 3a to 3b as renoinder to the defendants. Claimants further testified that he did not at any time sign any form of undertaking to discharge the defendants of any liability with relation to his wrongful termination. He claimed that Exhibit 2c was a forgery concocted by the defendants. Claimant swore to an affidavit which was admitted as Exhibit 1 refuting exhibit 2c. Claimant stated that if not for the wrongful termination, he would have worked with the defendants for two good years which would have lasted till August, 2014, but the termination made him work for only eight months losing the whole of sixteen months. That since the termination of his employment, the defendants have done nothing to remedy the wrong which has caused him and his entire family untold hardship, pain and anguish.
It was the evidence of the Claimant that the 2nd defendant instigated his wrongful termination because he was in charge of employment.
Under cross-examination, Claimant stated that Exhibit 5 is his contract of employment and apart from exhibit 5, he did not sign any contract of employment. That his complaint is that having completed the probationary period of six months, he was automatically entitled to period of two years employment notwithstanding clause 1 in Exhibit 5. That none of the parties has right to terminate the contract by giving each other two weeks notice or payment of two weeks salary in lieu of notice. Claimant was referred to clauses 1 and 16(2) of Exhibit 5. Claimant further stated that Exhibit 4 is the letter terminating his appointment without reason. He stated that his salary was #80,000 at the time exhibit 4 was issued. He answered that #40,000 would be half of 80,000 which is two weeks salary. He said that the money he received when his employment was terminated was his April, 2013 salary. He said that his appointment was terminated on 25/4/2013 and upon his termination, he was paid the sum of #189,650. Claimant said that he did not sign exhibit 2c while collecting the #189,650, but he only signed a pay slip. He said that he sued the 2nd defendant because he championed his termination.
CASE OF THE DEFENDANTS
The defendants in their defense called one Thank God Emenike Nwinye as their witness (hereinafter referred to as DW1). He testified that the 1st defendant did not give the Claimant a guaranteed two year tenure employment. That the two year tenure employment is granted at the pleasure and discretion of the 1st defendant and there was no such two year tenure offer made to the Claimant before his appointment was terminated. That Exhibit 5 embodied a procedure for the termination of contract in clause 16 and the procedure was observed when the Claimant’s contract was terminated on 25/4/2016. The 2nd defendant denied instigating the termination of the Claimant’s appointment but the 1st defendant dully exercised its powers without giving any reason. DW1 testified that the 1st defendant did not receive Exhibit 3a and b. Defendants denied that Exhibit 2c is a forgery. That the signing of Exhibit 2c is a standard practice in the 1st defendant company and a condition precedent to the payment of any staff’s terminal benefits. The Claimant signed exhibit 2c and his signature looks similar to the one he signed on the 1st defendant’s payment voucher dated 29/4/2013. That the 1st defendant saw exhibit 1 for the 1st time when it received the complaint. That there is no provision for a guaranteed two year tenure employment under the 1st defendant’s employment policy and the 1st defendant terminated the Claimant’s appointment by complying with clause 16 of Exhibit 5 and even paid the Claimant more than his entitlement as a measure of goodwill. That the 1st defendant does not owe the Claimant nor his family any further obligation. That the 2nd defendant is not privy to the contract of employment between the claimant and the 1st defendant. It was the evidence of Dw1 under cross-examination that the relationship between the parties is governed by Exhibit 5 and there is no where it is contained in Exhibit 5 that an employee who is leaving the company would make an undertaking absorbing the company from any liability. That it is not correct that the defendants did not give the Claimant two weeks notice for the termination of his appointment. That Exhibit 2e is the severance terminal benefit of the Claimant where the 1st defendant paid him one month’s salary instead of two weeks salary. That Claimant’s one month’s salary was #80,000 and two weeks salary should have been #40,000. Dw1 also stated that Exhibit 4 did not contain any crime committed by the Claimant. That clause 16 is talking about dismissal and misconduct. That the claimant is not still working with the 1st defendant because he was terminated.
SUBMISSION OF THE DEFENDANTS
The defendants filed their final written address on the 3/4/2018 wherein they raised the following issues for determination:-
“1- Whether the Claimant was automatically entitled to an assured two year tenure of employment after the probationary period under Exhibit 5?”
“2- Whether the 2nd defendant is a necessary party in Suit No.NICN/YEN/64/2016?”
“3- Whether motive is relevant in ascertaining the validity of the termination of the Claimant’s appointment?”
Defendants contended that notwithstanding the Claimant’s completion of his probationary period he had no automatic right to a two year contract of employment because the Claimant was not offered a position of employment with the defendants for two years from the date of joining the company as per the terms and conditions of employment and the contract of employment was determinable by either party giving the other a two weeks notice or paying two weeks salary in lieu of notice.
Defendants further contended that going by clauses 1 and 16(¡) (¡¡) of Exhibit 5, the Claimant’s contract of employment could be determined by the issuance of notice or payment of salary in lieu of notice. That it is evident that the Claimant upon the termination of his appointment was paid and acknowledged the sum of #189,640 as contained in Exhibit 2d and 2e.
It is the submission of the defendants that a party is bound by the terms of agreement he freely enters into. Neither such a party nor even a court of law can change the terms of such agreement. Defendants referred to the cases of Chief Ramunoemi Idoniboye-Obi V NNPC (2003) FWLR (Pt. 146) 959 SC and Prince Oil Limited V. Guaranty Trust Bank Plc (2016) ALL FWLR (Pt. 841) 1450
In arguing their issue No. 2, defendants’ Counsel submitted that involvement of the 2nd defendant in this suit raises an issue of law as to whether the 2nd defendant is a necessary party to this suit. Counsel submitted that the contract of employment was between the claimant and the 1st defendant not the 2nd defendant. It is the submission of counsel that under the doctrine of privity of contract, a contract cannot confer rights or impose obligations arising there from on any person except parties to it. A stranger cannot acquire a right or incur obligations arising from a contract to which he is not a party. Defendants relied on the case of Urs Reichie V Nigeria Bank for Commerce and Industry (2016) ALL FWLR (Pt.832) 1664 and urged the Court to strike out the name of the 2nd Defendant as his joinder in the suit was improper..
On their 3rd issue, defendants argued that in terminating a contract of employment by notice, the law does not require that any reason be stated. Motive behind such termination is absolutely irrelevant in any consideration of the wrongfulness or other wise of the termination. Defendants relied on the following cases; Gilbert Grunizky V ITT (Nigeria) Limited (1981) 2 PLR 25,
Ajayi V Texaco Nigeria Limited (1987) NWLR (Pt. )577.
Defendants finally argued that although the Claimant contended that Exhibit 2c is a forgery and that he did not sign same but a close examination of his signatures on Exhibit 5 and his written statements on oath shows that Exhibit 2c was signed by the Claimant and it binds him. It was further argued by the defendants that an allegation of forgery or fraud is a special plea which has to be accompanied by particulars but the Claimant has in this case failed to do so.
SUBMISSION OF THE CLAIMANT
Claimant filed his written address on the 2/5/2018 wherein he raised one issue for determination. The issue reads thus;-
“Whether by the provisions of clause 1 of Exhibit 5, the Claimant was entitled to at least two years employment with the 1st defendant having scaled through the probationary period of six months and if that is so, whether the defendants complied with the provisions of clause 16 in terminating the Claimant’s employment with the 1st defendant?”
It is the argument of the Claimant that he was an employee of the 1st defendant and both parties signed terms and conditions of contract of employment for the position of a procurement officer for which his monthly salary was #80,000.00. Claimant contended that by clause 1 of the Condition of service they signed, once he scaled through the six months probationary period without being sacked, he would have automatically gained two years employment with the 1st defendant and for him to be sacked, the 1st defendant must comply with clause 16 of the Condition of service.
Claimant submitted that it is conceded that in an employment without statutory flavor, an employer is at liberty to hire and fire his employee with or without reason and where reason is given, then the law imposes on him a duty to establish the reason to the satisfaction of the court. Claimant relied on the case of Ekunola V CBN (2013) 54 NSCQR (Pt. 2) 1207.
Claimant further submitted that where the parties as in the case on hand have voluntarily reduced their condition of service into writing, it becomes a binding agreement on them and they are bound to comply with every term specified therein and the court is bound to give effect to that agreement and not to write a new agreement for them. Claimant cited the case of Aminu Ishola Investment Limited V Afribank Nigeria Plc (2013) 54 NSCQR (2) 717.
Claimant argued that going by the provisions of clause 1 of Exhibit 5, the Claimant was entitled to at least two years employment with the 1st defendant having scaled through the six months probationary period. Claimant referred the court to clause 1 of Exhibit 5.
It is the argument of the Claimant that clause 1 of Exhibit 5 is not ambiguous and should be given its literal meaning. That where a document is clear, the operative word should be given its simple and grammatical meaning unless that would lead to absurdity. Claimant in support of this referred to the following cases;
Egwunewu V Ejeagwu (2009) ALL FWLR (Pt. 324) 1893.
Ugwu V Ararume (2009) 37 NSCQR 1192.
Claimant further argued that since he scaled through the six months probationary period, then he would be entitled to two years employment before his appointment can be terminated. Claimant contended that Exhibit 4 which is the document terminating his appointment was made and took effect on 25/4/2013 and what the Claimant received in May, 2013 was his terminal benefit not salary in lieu of notice because salary in lieu of notice must be paid before and not after termination of the appointment.
DEFENDANTS’ REPLY ON POINTS OF LAW
In their reply on points of law, defendants submitted that Exhibit 5 should be read conjunctively and not distinctively. That the claimant cannot pick those provisions in Exhibit 5 that seem to favor him and ignore those that do not as the provisions of clause 1 of Exhibit 5 are subject to the provisions of clause 16(¡¡) of the said Exhibit.
It was also the submission of the defendants that failure of the Claimant to join issue with the defendants in his written address with regards to the issue of joinder and forgery of Exhibit 2c amounts to concession of that issue by the Claimant.
Defendants finally argued that the proposition made by the Claimant that salary in lieu of notice is paid before termination of appointment is untenable and not supported by any law.
COURT’S DECISION
I have dully considered the processes filed in this case, the formulations and the submissions of counsel to the parties and I am of the opinion that the issue to resolve is whether the Claimant is entitled to the grant of the reliefs sought.
Before dwelling in to above issue, I think I need to resolve the preliminary issue raised by the defendants on whether the 2nd defendant is a necessary party to this suit.
A necessary party is someone whose presence is necessary as a party. What makes a person necessary party is not of course merely that he has relevant evidence to give on some of the questions involved or that he merely has an interest in the correct solution of some questions involved and has thought of some relevant arguments to advance and is afraid that the existing party may not advance them adequately, the only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party. See Emmanuel Babayeju V Elijah Ayo Ashamu (1998) Legalpedia SC MCY3. Anabaptist V Nwakaihe (1997) NWLR (Pt.482)
It is an elementary procedure in civil claims that parties against whom complaints are made in an action must be parties to such action and failure to join all parties necessary to come to court for the invocation of the judicial powers so as to give the court jurisdiction to grant the reliefs sought may render the suit incompetent. See Awoniyi V Amorc (2000) W.R.N. 1
It was held by the Court of appeal in Ubom V Anaka (1999) NWLR (Pt. 605) 99 that since there was no evidence that the appellant actually committed any of the electoral malpractices complained of, and no evidence that any of the INEC officers who actually conducted the election was his agent, there was therefore no cause of action against the appellant.
A look at the reliefs sought by the Claimant will reveal that there is no any declaration specifically sought against the 2nd defendant. The Claimant made a complaint against the 2nd defendant in his paragraph 5 of the statement of facts which states as follows;-
“Surprisingly, to the chagrin and dismay of the Claimant, and to the flagrant non compliance with the provisions of the terms and condition of employment signed by both parties, on the 25th day of April, 2013, without any reason whether good or bad, MR. RAJET MATANDI the 2nd Defendant orders MR. T. E. NWINYE the personnel/Admin Manager to write to the Claimant to terminate his employment and he complied forthwith. The letter wrongfully terminating the employment of the Claimant with the 1st Defendant dated 25th April, 2013 is pleaded and shall be relied upon at the trial.”
In paragraphs 2 and 3 of the Claimant’s reply to the statement of defence, the Claimant also stated that his termination was on the instructions of the 2nd defendant who was in charge of employment.
However in the said letter which was admitted as Exhibit ‘4’ there was no mention of the 2nd defendant and the letter did not also suggest that the termination was as a result of the instruction of the 2nd defendant. Further to this, throughout the pleadings of the Claimant, there is no fact that states or links the 2nd defendant with the 1st defendant either as Chairman, Managing Director or Chief Executive Officer of the 1st defendant. Claimant did not make full description of the position and connection of the 2nd defendant with the 1st defendant and Mr. T. E. Nwinye who signed Exhibit 4 and 5. The only evidence that is before the court is the testimony of the Claimant under cross-examination where he said that it was the 2nd defendant who championed his termination as his Material Manager Procurement. It is trite that evidence on facts not pleaded goes to no issue as parties normally join issues on the facts pleaded. See Prince Kilani Adekeye V Prince Summonu Adesina (2010) NWLR (Pt.1225) 449 SC.
From the foregoing facts and position of the law in the instant case, the mere allegation that it was the 2nd defendant who ordered for the termination of the Claimant without more does not indicate that the question to be settled in this case between the parties cannot effectually and completely be settled unless the 2nd defendant is made a party. I am of the opinion therefore that there is no evidence that the 2nd defendant has actually committed any wrong against the Claimant that will constitute a cause of action against the 2nd defendant. In the circumstances, the issue raised by the defendants that the 2nd defendant is not a necessary party is sustained.
Coming to the main issue, I think it is pertinent to point out that the complaint of the Claimant against defendants is that his employment was wrongfully terminated because he was entitled to a guaranteed two year tenure of employment with the 1st defendant after completing the probationary period of six months. To determine this, I believe it will be apposite to refer to Exhibit 5 which contains the terms and conditions of the Claimant’s employment, more particularly clauses 1 and 16(¡) and (¡¡) which state as follows;-
Clause 1- PROBATIONARY PERIOD
“The Employee will be on six months probation from the date of joining the company. During the probationary period, if the employee is not found suitable or if the employee’s performance or conduct is not satisfactory, the company can terminate the services of the employee without notice or compensation. On satisfactory completion of the probationary period, the employee may be offered a position of “Employee” with the company for two years from the date of joining, as per the terms and conditions set in herewith, subject to company’s policy in force.”
Clause 16. TERMINATION OF EMPLOYMENT
“¡. During the first six months of employment with the company or during the probation period, no notice of termination of employment is required of either party or pay in lieu of notice.
¡¡. After the 1st six months of employment the period of notice required of either party will be two weeks or two weeks payment in lieu of notice.”
¡¡¡…………”
It is also important to refer to Exhibit 4 which is the letter of termination of the Claimant’s appointment.
It reads as follows;-
“25th April, 2013
Mr. Monday Abaji Eke
Sudelettra Nigeria Limited
Km 16 PH/Aba Expressway
Port Harcourt
Dear Sir,
TERMINATION OF APPOINTMENT
With reference to our letter of employment dated 10th September 2012, we regret to inform you that your services as PROCUREMENT OFFICER are no longer required with effect from 25th April, 2013. Consequently, your salary and allowances will be paid up to 25th April, 2013, less statutory deductions/indebtedness.
Please surrender all company property in your possession,including your Staff/THT identification Cards, etc to Administration Department before you leave.
Yours Faithfully,
For Sudelettra Nigeria Limited
T.E. NWINYE
PERSONNEL ADMIN. MANAGER
Cc: Financial Controller…for necessary action”
There is no dispute that going by Exhibits 4 and 5, Claimant’s appointment commenced on the 10/9/2012 and terminated on the 25/4/2013. Thus the Claimant has satisfactorily completed his probationary period of six months and his appointment cannot therefore according to clauses 1 and 16(¡) of Exhibit 5 be terminated without notice. However, after satisfactory completion of the six months probationary period, the requirement of notice in the Claimant’s case is provided by clause 16(¡¡) of Exhibit 5 which is either two weeks or two weeks payment in lieu of notice.
Although, the Claimant vehemently argued that he was entitled to a guaranteed two year employment having satisfactorily completed his six months probationary period, but clause 1 of Exhibit 5 employs the use of the word “May” which means that the two years employment is not automatic. It is trite and settled principle that where the words in a statute or contract are plain, clear and unambiguous,they must be given their ordinary meaning as there is nothing in effect to be interpreted. See PDP V CPC (2011) Legalpedia SC K4DJ.
I am of the opinion that the use of the word “May” especially in contract of employment where the court will not impose an employee on an unwilling employer means that it is not mandatory but rather directory. It is the law that much as the Court cannot impose an employee on an employer, so also an employer cannot prevent an employee from resigning from his employment to seek greener pastures elsewhere. See NNPC V Idoniboye-Obu (1996) NWLR (Pt.427) 655.
Going by the plain, clear and unambiguous meaning of clause 1 in Exhibit 5, the Claimant is not entitled to a two year employment after completing the six months probationary period but he is only entitled to two weeks notice or two weeks payment in lieu of notice.
This brings me to the question whether Exhibit 4 whose content is stated above qualifies as adequate notice as provided by clause 16(¡¡). Exhibit 4 States that the salary and allowances of the Claimant will be paid up to the date of his termination less statutory deductions. The salary of the Claimant as stated in clause 3 of Exhibit 5 is #80,000 and Exhibit 2e shows that the Claimant received the sum of #189, 650.00 as his total entitlement. #80,000 was shown to have been received by the Claimant in one of the columns in Exhibit 2e as “one month in lieu”. Although the Claimant said under cross-examination that the money he received when his employment was terminated was his April salary, but in the face of Exhibit 2c and clause 3 of Exhibit 5 , I do not believe the Claimant that the total amount he received was his April salary. Since the Claimant said under cross-examination that his salary was #80, 000 at the time his appointment was terminated then he cannot turn round and say the sum of #189 650.00 he received was his April salary. The Claimant was only entitled to two weeks salary in lieu of two weeks notice but not even one month’s salary in lieu. At any rate he cannot blow hot and cold from the breath. He cannot eat his cake and have it. It was held in Morohunfola V Kwara Tech. (1990) NWLR (Pt.145) 506 SC, that where an employee accepts salary in lieu of notice of termination of his appointment, he cannot be heard to complain later that his contract of employment was not validly and properly determined. Such a conduct renders the determination mutual.
On the whole, the reliefs sought by the Claimant against the defendants are refused and the Claimant’s suit is dismissed in its entirety for lacking in merit.
Judgment is entered accordingly. I make no order as to cost.
HON. JUSTICE SALISU H. DANJIDDA
JUDGE
