IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE:WEDNESDAY 18th DECEMBER, 2019
Suit No: NICN/YEN/47/2017
BETWEEN:
- MR. OKORO OTTO
- MR. IZONEBI HEZRON IWORIKUMO
- MR. GABRIEL COLLINS
- MR. ASIMA TRUST CLAIMANTS
- MR. AKPAGRA URIOADE
- MR. AZIBALUA WONGO
- MRS. EVELYN JONAH
(For themselves and as representing 64
Members (Employees) of Bayelsa Palm
Limited)
AND
BAYELSA PALM LTD …………….DEFENDANT
REPRESENTATION
Mr. J.E. Amity Esq for the Claimants.
G.N. Ajuwa (Senior State Counsel) for the Defendant.
JUDGMENT
INTRODUCTION AND CLAIMS
This judgment is the consequence of the proceeding which was initiated by a Writ of Summons dated and filed on the 29th day of March, 2017. The Writ of Summons, which was taken out by the Counsel for the Claimants, Amity Josiah Enegesi Esq of A.G.O Agorodi& Co., No. 1, NIIT Road, Etegwe, Yenagoa, Bayelsa State, on behalf of the Claimants; but which was subsequently amended, prayed this Court for the following reliefs:
- A DECLARATION that the Claimants’ employment with the Defendant is still valid and subsisting.
- AN ORDER for the Defendant to pay the Claimants all salaries and entitlement from the month of July, 2016 till the determination of this suit.
- N300,000,000.00 (Three Hundred Million) as cost of litigation.
- N25 percentage interest till full liquidation of the payment
- And for such further order or orders as this Court may deem fit to make in the circumstance.
In reaction to the originating process, the Defendant, through its Counsel from the Office of the Solicitor-General of Bayelsa State, filed a Statement of Defence dated 8th day of June, 2018 but filed on the 14th of June, 2018.
When this case came up for definite trial on the 10th of July, 2018, Counsel for the Claimants proceeded to call WongoAzibalua (the 6th Claimant) as his first witness. Mr.Wongo was accordingly sworn in as CW1 wherein he confirmed in this Court that this matter was brought in a representative capacity. CW1 adopted his Witness Statement on Oath and tendered several documents which were admitted and marked as EXHIBITS CW1 BP 001 – CW1 BP 005. He was cross-examined on his evidence by Counsel for the Defendant. The 1st Claimant testified as CW2 on a later date and was also cross-examined by the Defendant’s Counsel. CW2 substantially restated the same facts which CW1 had earlier testified of.
The Defendant opened its case on 14th of January, 2019 with one Mr.Omodu Happy Pere-Ela of the Bayelsa State Ministry of Agriculture testifying as its sole witness (DW1). DW1 adopted his Witness Statement on Oath and tendered 3 documents which were admitted and marked as EXHIBITS DW1 BP 001-003. He was cross-examined by Counsel for the Claimants on the same day after which the Defendant closed its case. Parties were thereafter ordered by this Court to file and serve on themselves their respective Final Written Addresses, which same were filed and adopted by this court.
CLAIMANTS’ CASE IN BRIEF
The facts relevant to the Claimants’ case are that they were offered employment into various positions by the Defendant and were subsequently issued confirmation letters confirming their appointments. However sometime in June, 2016, they were paid salaries for May and June, 2016 but have not been paid any other salaries since then. That despite their letter to the Defendant demanding for their unpaid salaries, the Defendant did not respond nor pay them. According to the Claimants, their employment with the Defendant is still valid and subsisting.
On being cross-examined by the Defence Counsel, CW1 confirmed that he has the consent of all the Claimants listed in the Statement of Fact to represent them in Court. The Witness went on to say that he was not aware that some of the Claimants, particularly the 5th, 17th, 25th and 63rd Claimants were still in the employment of the Defendant. He believes that the Defendant was under the direct management of the Bayelsa State government as at the time of their employments but is not aware that the government had handed over management to another entity. CW1 insisted that he was not aware of any memo by the Defendant that served as notice of disengagement of the Claimants due the alleged change of management. He confirms that either the Claimants or the Defendant could decide to terminate the contract of employment between the Parties.
The cross-examination of CW2 was substantially similar to that of CW1. He also stated that he was not aware of the change in management of the Defendant or the fact that some of the Claimants were still working for the Defendant. When questioned about the memo containing the termination of their employment, CW2 informed this Court that he was unaware of the existence of any memo and he has not received any letter of termination from the Defendant. He told this Court that he has been going to work but has always been stopped by the security men at the gate of the Defendant company. According to the Witness, the employer can only terminate his employment in line with the contract of service.
THE CASE OF THE DEFENDANT
In its defence, the Defendant states that it ceased to be the employer of the Claimants from the day the Claimants’ employment were terminated. The Defendant confirmed from its Statement of Defence that some of the Claimants were still in its employment. That the Claimants were duly notified of the termination of their appointments through Exhibit DW1-BP-003 (the internal memo) dated 4th July, 2016 and the Claimants were paid their salaries for the months of May and June, 2016.
According to the Defendant, the termination of the Claimants’ appointments was due to the fact that most workers had become redundant as well as due to the change of management to a third party under a Concession Agreement. That the Claimants are not entitled to any other salary, save for those who are still working for it.
Mr.Omodu Happy Pere-Ela who testified as DW1 when placed under cross-examination, identified himself as being a former staff of the Defendant having been co-opted as a member of the Board of Director of the Defendant. He confirmed that the Claimants were staff of the Defendant but not staff of the Bayelsa State government. DW1 admitted to this Court that the internal memo (Exhibit DW1-BP-003) was not served on the Claimants individually but rather it was placed on the notice board and same was circulated. He stated further that the list containing the names of the affected staff was attached to the internal memo, although the said list was not brought before this Court. DW1 informed this Court that the Bayelsa State Ministry of Agriculture has the record showing that it did offset the debts it owed to the Claimants but he does not have the records in Court. He also stated that he does not have the records in Court showing that the issue of redundancy was discussed in a meeting of 11th May, 2016 called by the Defendant to inform the Claimants of the termination of their appointments. He admits that a written notice in lieu of termination of appointment was not issued to the Claimants but they were orally notified. That the Defendant company was actually transferred to a third party on the 4th of July, 2016, when the Concession Agreement was signed.
THE SUBMISSIONS OF THE DEFENDANT
Counsel for the Defendant in his Final Written Address for the Defendant formulated three (3) issues for determination to wit:
- Whether the Claimants can maintain a joint action when each of them have a separate and distinct contract of employment.
- Whether the Claimants’ claim for interest can be sustained
iii. Whether the Claimants are entitled to the reliefs sought
Learned Counsel began by submitting that the Claimants cannot maintain this action jointly against the Defendant. He based his submission on the fact that the Claimants were appointed into various positions in the Defendant company at different dates with individual letters of appointments. According to the Learned Counsel, the condition of service of each of the Claimants is personal to each of them. He contends that on the face of it, the action of the Claimants is a joint action that is aimed towards a collective remedy applicable to the Claimants as a common right. He argued that the case of the Claimants is bad for misjoinder of Parties and causes of action. He argued on the premise that based on the provisions of Order 13, Rule 1 of the Rules of this Court, there is nothing which confers rights on the Claimants as constituted, to commence this suit. Counsel placed reliance on the authority of HYSON NIGERIA LIMITED v IJEOMA & 12 ORS (2008) 11 NWLR (PT.1097) P.1 where it was observed by my Learned Brothers in the Court of Appeal that where the cause or causes are different, distinct and personal to each Plaintiff against a common Defendant, the joinder of such Claimants which is tantamount to joinder of causes of action will be improper.
Counsel therefore submitted that the contract of employment between the Claimants and the Defendant is personal to each of them and not collective, consequently a common suit cannot be sustained. Learned Counsel also relied on the case of C.C.B (NIG.) LIMITED v ROSE (1998) 4 NWLR (PT. 544) 37, to buttress his argument that the Claimants can only succeed if they institute separate actions and not a joint action. He concluded his argument on this issue by stating that the suit as presently constituted is bad for misjoinder of parties and causes of action, hence this Court lacks the jurisdiction to hear and determine this matter.
In arguing his issue two, Learned Counsel for the Defendant submitted that the Claimants cannot sustain the relief for interest as it was never a part of the employment agreement. Counsel maintains that no court has the powers to award interest, simple or compound, for the payment of debt where such is not contained in any agreement or statutory provisions specifying the payment of such interest. According to him, the contract of employment of the Claimants (that is, their letters of appointment) do not contain any provisions for the payment of interest and this court cannot import into contract a term or clause not agreed upon by the Parties. Counsel relied on the decisions in the cases of ITB PLC v KHC LTD (citation provided) and RCC (NIG) LTD v RPC LTD (citation provided). He therefore urged the Court to dismiss the Claimants’ claim for interest.
Arguing issue three, Learned Counsel for the Defendant seemed to reiterate his arguments on the fact that the conditions of employment of the Claimants are personal to each of them. He went further to argue that the Defendant did pay the Claimants two months salaries in lieu of the notice of termination to the Claimants, which he contends that the Claimants did receive. Hence, having received salary in lieu of notice, the Claimants termination has been validated and as such this Court cannot grant them the reliefs which they sought.
Counsel went on to submit that the relationship between the Parties is a master and servant relationship, which any of the Parties was entitled to terminate at any time and since the Claimants have failed to prove otherwise, they should have their case dismissed. Learned Counsel referred to several cases including the case of OBANYE v UNION BANK (2018) LPELR-44702 (SC).
SUBMISSION OF THE CLAIMANTS
The Claimants’ Counsel, in his Final Written Address, adopted the issues raised by the Defendant’s Counsel, with the addition of a fourth issue, to wit:
Whether the Defendant have (sic) proved before this court any payment in lieu of termination of the Claimants’ employment and whether the Defendant has proved before this Court that the Plaintiff’s contract of employment with the Defendant has been duly terminated.
On the issue one, Learned Counsel for the Claimants began by responding in the affirmative stating that though the Claimants have separate and distinct contracts of employments, the cause of action in this instant suit is one which borders on the non-payment of salaries and entitlements, and the termination of the employment of the Claimants, both of which form a common grievance against the Defendant and from which the Claimants are entitled to the common reliefs sought by the Claimants. Counsel placed reliance in Paragraph 14 of the Claimants’ Witness (CW1) statement on oath and Order 13(1) of the Civil Procedure Rules of this Court.
He maintains further that if this Court should hold that the cause of action is different; this Court can still determine this action or will make the proper order in the circumstance. It was also Counsel’s argument that two or more persons may be joined in one action as Claimants or Defendants to prosecute their common or personal claims to prevent multiplicity of action and reduction of cost and time of trial. He cited the cases of AYANKOYA v OLUKOYA; ADEDIRAN v INTERLAND TRANSPORT LTD (citations provided).
It was Counsel’s argument too that misjoinder of parties or causes of action are matters of mere irregularities, which can be waived especially where the Defendant has taken steps in the proceedings without raising objections timeously. According to him, the Defendant ought to have raised the issue before taking steps in the proceedings. That the said misjoinder raised by the Defendant is not substantial to defeat the present cause of action. Counsel rounded off this issue by stating that it is permissible to join all the Claimants in this suit since the cause of action arose out of the same transaction.
On issue two, Learned Counsel submits that the position of the law regarding payment of interest only when there is an express provision in an agreement or statute, is not sacrosanct because as it stands, interest will be payable even if there were no express agreement to that effect or if it is not claimed as of right. He maintains that the Defendant has deprived the Claimants of their salaries for a long period and ought to compensate the Claimants for the deprivation. He asked the Court to look at the case of INTERNATIONAL OFFSHORE CONSTRUCTION LTD v S.I.N LTD (2003) 16 NWLR (PT.845) P.157, RATIO 5; HABIB BANK NIG LTD v OCHETE (2001) 3 NWLR (PT.699) P.114
Learned Counsel on issue three submits that the Claimants have shown that they have a common interest and common grievance and that the Claimants gave express authority to the 1stClaimants on record to represent them. He also argued that the reliefs sought by the Claimants are all beneficial to all the Claimants. He cited several authorities to buttress his argument. He contends that the Defendant did not plead the fact that the 5th, 17th, 25th and 63rd Claimants are still in the employment of the Defendant; hence the evidence led on that fact goes to no issue.
Counsel further submits that if the said Claimants still work for the Defendant, they have not come out to dissociate themselves from the suit. Lastly on this issue, Counsel urged the Court to rely on the provisions of Order 13, Rule 14(1) of the Rules of this Court to discountenance the arguments of the Defendant on the issue.
His arguments on issue four began with his proposition that the Claimants’ employment was not that of a master and servant relationship but one coated with statutory flavour. Consequently, Counsel argued that the Claimants ought to be reinstated to their offices for being wrongfully terminated.
Furthermore, Learned Counsel contends that the Defendant did not lead any evidence to show that the alleged two months’ salary was paid in lieu of termination of the Claimants’ employment as what existed was mere speculation. In fact, Learned Claimants’ Counsel preferred to term the entire evidence of DW1 as hearsay evidence or documentary hearsay, which he urged this Court to discard. He referred the Court to the cases of ABDULMALIK v TIJANI (2012) 12 NWLR (PT.1452) P.461, amongst others.
It was also the submission of Counsel for the Claimants that although the law is that an employer is not bound to give reasons for the termination of the employment of his employee, where he obliges a reason or cause for terminating the employment of his employee, the law imposes a duty on such employer to establish the reason to the satisfaction of the Court.
On the question of notice in lieu, Counsel argues that the Defendant failed to prove that the Claimants were given the required minimum period of notice before the termination of their employment having worked for a period not less than two years. Counsel submits that since the Claimants have worked for that long, any notice of termination ought to be in writing and the purported internal memo was merely issued without personally notifying any of the Claimants. It was his submission therefore that the internal memo fell short of the requirement of the law and should be discountenance.
DEFENDANT’S REPLY
Learned Counsel started his argument in reply to the Claimants’ final written address by reiterating his earlier submission that the Claimants cannot maintain a joint action against the Defendant since the relationship that existed between them was a master and servant relationship. Counsel provided more authorities to buttress his argument and even tried to differentiate between the cases. He contended that the reliefs sought by the Claimants were different. He placed further reliance on the case of DURBAR HOTEL PLC v ITYOUGH (2011) 9 NWLR (PT.1251) P.41 AT 46.
Counsel further submitted that the provisions of Order 13, Rule 1 of the Rules of this Court do not confer the right on the Claimants to commence this instant suit, especially as it has been judicially interpreted in the case of HYSON NIG LIMITED v IJEOMA (supra). He contends that the cause of the Claimants’ action is for an alleged breach of contract, holding the view that the Claimants knew that their employments with the Defendants had been terminated before they instituted the present action. He submits that non-payment of salaries will only become a cause of action where the servant remains in his employment and is still performing his duties and the master fails or refuses to pay his salaries.
It is also the Defendant’s Counsel’s reply that the internal memo meets the requirements of the law as notice of termination could be oral or written provided parties are not misled as to the information. Counsel placed reliance on the case of IFETA v SPDC (2006) ALL FWLR (PT.3140) P.305.
Counsel maintained that the relationship between the Parties is master and servant and not statutory flavoured. He submits that the Defendant is registered under the Companies and Allied Matters Act, consequently the Claimants’ employment was not a creation of statute. He relied on the case of ADEGOKE v OSUN STATE COLLEGE OF EDUCATION (2010) (citation provided).
In response to the evidence of DW1 being hearsay evidence, Learned Counsel for the Defendant submits that the fact the witness was not the maker of the document does not make the document a documentary hearsay. He maintains that the document is a public document which was duly certified and could even be tendered from the bar.
He concludes his reply on the premise that the issue of jurisdiction can be raised at any point as there is no lateness in raising the issue of jurisdiction. He urged the Court to resolve all the issues in favour of the Defendant.
COURT’S DECISION
After a careful analysis and x-raying of the entire proceedings and the processes filed and/or admitted in this Court as well as a thorough observation of the actions, inactions, arguments and attitudes of the Parties and their Counsel all through the trial, I will adopted the issues raised by the Parties in their final arguments and address them seriatim.
Now before I examine the cardinal issue that has reared its head in this trial, it is relevant that I first touch on some questions that are impossible to ignore and which are remarkably important.
I must first comment on the threshold issue of jurisdiction, which argument was set in motion by the Defendant’s Counsel. It is an elementary principle of law that Jurisdiction is the lifeblood of any adjudication, hence, whenever it is challenged, the general rule is that the objection is taken first to resolve the challenge before taking any step in the substantive matter. See OLUTOLA v UNILORIN (2004) 18 NWLR (PT.905) P.416; OGBORU & ANOR v UDUAGHAN & ORS (2012) 2-3 SC, P.66; A.G. LAGOS STATE v DOSUMU (1989) 3 NWLR (PT.111) P.552. It will indeed be futile and a lack of wisdom for a court to embark on the journey of determination of the substantive matter without first seeking direction as to its jurisdictional competence.
Learned Counsel for the Defendant made submissions on this subject on the grounds that the Claimants’ action is bad for misjoinder of parties and causes of action. The Counsel for the Defendant points out that the Claimants’ action was incompetent because the contract of employment between the Claimants and the Defendant is personal to each of the Claimant, hence a joint suit to enforce the alleged grievance against the Defendant is defective.
Now the term ‘cause of action’ has been defined severally by the Courts as ‘the entire set of circumstances giving rise to an enforceable claim. It is a fact or combination of facts which when proved would entitle the claimant to a remedy against the defendant’. In determining whether a cause of action exists in a case, the court has to look at and consider the facts as pleaded in the statement of claim filed by the Claimants on which the claims made are predicated. The facts must be such that prima facie, they show a right in the Claimant which has been violated or infringed upon by the acts of the Defendant that would entitle the Claimant to approach the court for remedy. AYABODE v BALOGUN (1990) 5 NWLR (pt.151) P.392; SPDC LTD v NWAKA (2003) FWLR (PT.144) P.506; SEAGULL OIL LTD & ORS v MONI PULO LTD & ORS (2011) 15 NWLR (PT.1271) P.525.
Whatever the case, the law is trite that the Court has to look at the Statement of Claim to determine any question regarding cause or causes of action. From the Amended Statement of Facts filed before this Court, the Claimants averred that they were employed by the Defendant, and which said employment was confirmed as per Exhibits CW1-BP-003. They further stated that after the payment of their salaries sometime in June, 2016, they have not received any other payment from the Defendant. They aver too that they had written to the Defendant without reply. They are aggrieved by these incidents and they have come to Court seeking certain reliefs. These are alleged claims against the Defendant made by the Claimants. By these averments, I have no doubt that there exist a cause of action by the individual Claimant against the Defendant.
I have endeavoured not to dwell a lot on the definition of cause of action, since the gamut of the Defendant’s Counsel’s argument is the alleged joining of several causes of action. It must be noted at this point that it is also the position of this Court as observed by the Defendant’s Counsel in the case of CCB (NIG) LIMITED v ROSE (1998) 4 NWLR, (PT.544) PG.37; that in the realm of master and servant relationship, even though more than one of the Claimants are employed on the same day and under the same terms and condition, their contract of employment is personal and domestic to each of them. They possess no collective right to sue or be represented in a suit.
Firstly, however, by the Rules of this Court, the joinder of Claimants (or Defendants, as the case may be) is permissible provided they can show that they possess a common grievance against the Defendant for which they are entitled to reliefs, whether jointly or severally. The real object of seeking to join Claimants in an action is to facilitate the trial of the claim or claims against the Defendant. This is clearly brought out by the provisions of Order 13, Rule 1 of the NICN Civil Procedure Rules, which provides to the effect that:
“All persons may be joined in one action as Claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such Claimant(s) as may be found to be entitled to relief and for such relief as the Claimant may be entitled to without any amendment”.
It is crystal from the provisions above that a proper joinder in accordance with the Rules requires all the persons joined as Claimants to show the existence of a common grievance or common interest as well as a right to relief or reliefs against a common Defendant or Defendants, so that judgment may be given in their favour jointly, severally or in the alternative without any amendment. The inference is that the Claimants must make a common claim against the Defendant which must have accrued to the Claimants jointly at the same time as a result of which they seek particular relief(s) from the said Defendant.
Secondly, Order 13, Rule 11(1) of the NICN (Civil Procedure) Rules allows for the joining of causes of action where the various persons involved as Claimants have the same interest in the suit. Hence, one or more of such Claimants may sue on behalf of or for the benefit of all persons so interested.
A cursory look at the facts of the case reveals that the cause of action which gave rise to this suit accrued to the Claimants jointly and at the same time. This was also captured from the evidence of the DW1 who testified under oath that the internal memo (Exhibit DW-BP-003) was pasted on the notice board with the names of the workers affected attached to it, notifying them of the termination of their employment. This obviously gives rise to a common interest, which could lead a group of persons, the Claimants on record in this case, to sue on behalf of all the mentioned Claimants to institute this suit.
The object of the provisions of the NICN Rules afore-cited therefore, is to prevent a multiplicity of actions against the Defendant whom the Claimants allege they are entitled to obtain the same relief from. This is also to prevent the flooding of our Courts with similar or related claims which can easily be dispensed in a single action.
What is more, I do not agree less with the Counsel for the Claimants that an application challenging misjoinder or non-joinder, as in this present case, ought to be brought timeously. Raising it at the time of final addresses when the Defendant, who brought a Preliminary Objection earlier in the suit, and also had the opportunity of raising this issue but failed to do so, amounts to beating the drums of technicality a little too hard. In fact, the Supreme Court in the case of IFEANYI CHUKWU OSONDU CO. LIMITED v SOLEH BONEH (NIG) LIMITED (2000) 5 NWLR (PT.656) PG.322 has laid to rest the effect of misjoinder or non-joinder of Parties. It held in effect that “no cause or matter shall be defeated by reason of misjoinder or non-joinder of Parties and the Parties may in every cause or matter deal with the matter in controversy so far as regards the rights and the interests of the Parties actually before it”.
The cases of HYSON (NIG) LIMITED v IJEOMA & 12 ORS and CCB (NIG) LIMITED v ROSE (citations provided) relied upon by the Defendant’s Counsel cannot support the case of the Defendant. Learned Counsel’s further reliance on the case of DURBAR HOTEL PLC v ITYOUGH (2011) 9 NWLR (PT.1251) PG.41 rather gives weight to the position of this Court on the issue.
There is no doubt in my mind that the Defendant’s Counsel seeks to complain about the fact that the Claimants brought this action in a representative capacity. Whether or not this is inferred from Learned Counsel for the Defendant’s argument, I will also endeavour to address the issue. When a group or class of persons sought to be represented in a suit are easily identifiable and have common purpose as in this instant case, they can institute a suit in a representative capacity to seek remedy in a court of law. The CW1 in his evidence stated that the matter is brought in a representative capacity and that he has a letter to that effect (Exhibit CW1-BP-001). The position of the law on this issue has been long settled by the Courts that the opposition which can justify the challenge of an authority of the representation of a group to sue or defend in a particular capacity must be an opposition coming from a section of the group itself. It must be an intra-dissention within the group and not inter-dissention between two groups which have diametrically opposed interests in the matter before the court. See ELF PETROLEUM NIGERIA LIMITED v UMAH & ORS (2018) LPELR-43600 (SC).Let me state here that none of the Claimants herein or those represented is opposed to the Claimants’ capacity or authority to represent them.
The Defendant argued that some of the Claimants on record were still in its employment yet it did not lead any evidence nor call any of the said workers to challenge the authority of the Claimants to represent them or dissociate themselves from the group. The contention put forward by the Learned Counsel for the Defendant are mere speculations and cannot sustain their case, and I so hold. I note that the Claimants in this suit are properly joined in this suit and have the required capacity to represent the other Claimants by virtue of Exhibit CW1-BP-001.
Now let us return to the material issue in this case. Unlike the contention of both Parties that the crux of the dispute resulting to this action is the non-payment of salaries, the real question that arises here is whether the employment of the Claimants were terminated properly, that is, in accordance with the terms and conditions as contained in the contract of employment.
Before delving into the issue of termination, it is pertinent that this Court determine the type of employment relationship that exists between the Parties. Without mincing words, it is clear from the evidence before me that the relationship between the Claimants and the Defendant was one of a master and servant relationship and not one clothed with statutory flavour. Ordinarily, a master in such kind of relationship is entitled to dismiss his servant from his employment for good or bad reasons or for no reason at all, yet the principle of sanctity of contracts must be maintained. It is trite that termination of a contract of service, even if unlawful, brings to an end the relationship of master and servant, employer and employee. This rule is based on the principle of confidentiality between master and servant which cannot continue in the absence of mutuality. It is a well-established principle of labour law, however that ordinarily while we agree that the master has the right to hire and fire, that right must be exercised in accordance with the due process of law.See NFOR VRS ASHAKA CEMENT CO. LTD (1994) 1 NWLR (PT. 319) 222 CA; LAYADE VRS PANALPINA WORLD TRANSPORT NIG LTD (1996) 6 NWLR (PT. 456) 544 SC.
Indeed, while the Claimants frame ignorance of the termination of their employment, the Defendant is unequivocal about its stance that it has terminated the Claimants’ contract of employment. The Claimants further assume that if it is held that the Defendant terminated their contract of employment, then the said termination was not done in accordance with the terms and conditions of the contract, particularly that they were not notified of the termination of their employment. The Defendant, on the other hand, contends that it followed the proper procedure and also paid the Claimants two months salaries in lieu of notice of termination.
A peep at the contracts of employment (Exhibits CW1-BP-002) between the Claimants and the Defendant, particularly at the terms/condition for termination of the contract of employment, which is relatively similar, it requires either of the Parties who wish to terminate the employment, to give the other Party, “a one month notice or make payment in lieu of notice”.
From the content of the contract of employment, the method through which the notice of termination may given is not specified. Thus, the Party terminating may choose to inform the other Party by oral means or by writing. In fact, the Party terminating may choose to announce the termination of the employment using a megaphone in a public place provided it is directed towards the other Party, and the other Party can hear and understand the information. It is however proper that since the contract of employment is in writing that the notice terminating same also should be made in writing.
On the other hand, the term “in lieu of notice” simply means the amount which the employer ought to pay to the employee as salary for the period but which said period the employee needs not to work.” This was given judicial credence in the case of CHUKWUMAH v SHELL PETROLEUM NIG LTD (1993) 4 NWLR (PT.298) P.512 where the Court held as follows:
“The phrase has been defined in the Concise Oxford Dictionary of English Language 4th Ed., page 687 as “in the place, instead of, in substitution of…” Thus, when the condition of termination of the contract of service is the giving of two months’ notice or the payment of two months’ salary in lieu of notice, it can only mean the payment of two months’ salary instead of, in place, in substitution of the giving of two months notice.”
See also UDEMBA v NWABUEZE (2016) LPELR-41314 (CA)
In terminating the employment of the Claimants, the Defendant issued Exhibit DW1-BP-003 (internal memo). The internal memo is dated 4th July, 2016, and takes effect from the same date, thus the Claimants’ employment was terminated on the 4th of July, 2016. From the definition of the term ‘in lieu of notice’ above, it simply means that the Defendant did not give the Claimants the required one month’s notice as stipulated in the contract of employment. The Defendant’s arguments, which could not be substantiated by evidence that it paid the Claimants two months salaries in lieu of notice is laughable. This Court does not have the luxury of such comic relief for this is a Court of justice where serious life issues are dealt with. I say no more.
Furthermore, the memo was directed to all the Claimants. Having contended that the contracts of employment of the Claimants were individual and personal to each of them, it becomes rather imperial that the Defendant would issue a collective termination notice. It can thus be inferred from the evidence that the Defendant did give room for a common grievance against it by the Claimants.
It becomes very evident therefore that the Defendant did not terminate the employment of the Claimants in accordance with the contract of employment. The least the Defendant could have done was to pay the Claimants their salary/entitlements for the month of July, 2016, being one month in lieu of notice of termination. This was never done.
Parties are bound to the terms of their agreement that they voluntarily entered into and the Court must give plain and unambiguous meanings to the terms used in the agreement. It must not add, subtract or subsume into the contract that which was not intended by the Parties. See A.G. FERRERO & CO LIMITED v HENKEL CHEMICALS (NIG) LIMITED (2011) 6-7 SC (PT.1) PG.165 AT 183. Exhibit CW1-BP-002 is a reflection of what the Parties intend to regulate their relationship and they are bound by it.
Having held that the employments of the Claimants do not enjoy statutory flavour, I hold no hesitation in holding that the termination of the Claimants’ employment by the Defendant was wrongful. However, since the position of the law is clear that in a master/servant relationship, an employee is not entitled to reinstatement, as a servant cannot be forced on an unwilling master, what the aggrieved servant can recover is damages which equal the length of notice which he ought to have been served with.
I am fortified with the position of the Supreme Court in NIGERIA PRODUCE MARKETING BOARD VS. ADEWUNMI (1972) ALL N.L.R. 870 PG. 872 where it was held that: “If under the conditions of service of a Plaintiff who has been wrongfully dismissed, his employment is determinable by notice of a stipulated length and on such determination the Plaintiff is also entitled to any benefits accrued to him under the staff provident fund, the rules of which provide for payment in fixed proportion to length of service, then all that the Plaintiff is entitled to as damages in respect of his pay is the salary which he would have received during the stipulated period of notice; without more”.
On the issue of interest, the locus classicusEKWUNIFE v WAYNE WEST AFRICA LTD (1989) 5 NWLR (PT.122) P.422 is apt. The law as it stands is to the effect that interest may be awarded either as of right or where there is a power conferred by statute to do so, in exercise of the Court’s discretion. It may be claimed as a right where it is contemplated by the agreement between the Parties, or under a mercantile custom, or under a principle of equity such as a breach of a fiduciary relationship. Where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it on the writ and plead facts in the statement of claim as well as lead evidence which shows such entitlement.
On the other hand, the power to award interest on a judgment debt rests on a different principle. It is at the discretion of the Court to award it, or not, on pronouncing the judgment and with effect from that date. I am however not inclined to grant an award of interest in the circumstance.
On the whole, the Claimants’ claims succeed in part,I hold that the Claimants’ claim that their employment is still valid and subsisting fails and same is dismissed. The termination of the Claimants’ contract of employment, though wrongful for having not followed the required procedure, still stands.
On that basis, the Claimants are only entitled to their salaries and entitlements for the month of July, 2016, in lieu of notice of termination of their employments by the Defendant.
I also award cost of Five Hundred Thousand Naira (N500,000.00) in favour of the Claimants.
All the terms of this judgment are to be complied with by the Parties and their respective Counsel within 30 days. This is without prejudice to the right of appeal against the judgment by any of the Parties dissatisfied by the judgment.
I so hold.
Judgment is hereby entered accordingly.
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HON. JUSTICE BASHAR A. ALKALI
PRESIDING JUDGE
