Mr.Samuel Okoli -VS- Royal United Nigeria Limited

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE ELIZABETH A OJI PhD

DATE: 5^TH FEBRUARY 2019 SUIT NO. NICN/LA/720/2016

BETWEEN:

SAMUEL OKOLI – CLAIMANT

AND

ROYAL UNITED NIGERIA LIMITED – DEFENDANT

Representation:

V O Anya appears for Claimant

Lucy Babafemi appears for Defendant.

JUDGMENT

Introduction and Claims:

On 21^st November 2016, Claimant commenced this suit via the General Form of Complaint accompanied by the Statement of Facts, List of Witnesses, Witness Statement on Oath, List of Documents and Copies of the Documents. Claimant claims against the Defendant as follows:

i)A DECLARATION that the failure, refusal and neglect of the Defendant to honour the agreement dated 31^st October 2008, which it willingly entered into with the Claimant is therefore, unconstitutional, null and void and of no effect whatsoever.
ii)A DECLARATION that it is unfair labour practice for the Defendants to refuse and neglect to honour the agreement dated 31^st October 2008, which it willingly entered into with the Claimant is therefore illegal, unconstitutional and of no effect whatsoever.

iii) A DECLARATION that the action of the Defendant in abruptly terminating the Claimant’s contract of service is wrongful, invalid, null, void and of no effect.

iv)A DECLARATION that the contract of service between the Claimant and the Defendant is still subsisting.
v)A DECLARATION that the letter of disengagement dated 1^st November 2016, and issued to the Claimant on the 14^th November, 2016 severing the contract of service unilaterally without due process of the law is wrongful, unlawful, arbitrary, oppressive, invalid, null, void and of no effect.
vi)AND ORDER of this Honourable Court directing the Defendant to honour the clear terms of the agreement dated 31^st October 2008, by handing over the Mercedeez truck 817 with Reg. No XR 29 KTU to the Claimant.

vii) AN ORDER of this Honourable Court directing the Defendants to pay the following damages contained hereunder;

SPECIAL DAMAGES
Sum of N600,000.00 (Six Hundred Thousand Naira Only) used by the Claimant on maintenance of the vehicle from 30^th April 2008 till date.
Sum of N500,000.00 (Five Hundred Thousand Naira Only) for fuelling and other logistics outside Lagos from 30^th April, 2008 till date.

iii. Sum of N2,000,000.00 (Two Million Naira Only) being legal fees and cost of this suit.

GENERAL DAMAGES
Sum of Ten Million Naira (10,000,000.00) for breach of service and expected income from the employment of the Defendants.
21% judgment interest on the sums until the determination of this suit.

On 9^th March 2017, Defendant filed his Statement of Defence. Defendant amended its Statement of Defence on 10^th January 2018 and counter-claimed as follows:

Declaration that the employment of the Defendant to the counter claim was properly terminated in accordance with the terms of his employment.
Special Damages in detinue for detaining the Companies Vehicle in the sum of N2, 000,000.00 from the 21^st November 2016 to 8^th December 2016.

iii. Damages in the sum of N 3,000,000.00 (three million Naira) for Malicious Prosecution

Refund of solicitors professional fee dated 2^nd March, 2017 in the sum of N1,500,000.00 (one million and five hundred thousand Naira);

Upon judgment interest at 10% per annum thereafter till liquidation thereof.

Claimant filed a Reply to Defendant’s Statement of Defence and Defence to Defendant’s Counter-claim dated 15^th January 2018 and a Further Statement on Oath of same date. Trial commenced on the 14^th of February 2018 and ended on 27^th September 2018. At the trial, the Claimant testified as the sole witness for himself. He tendered 7 exhibits as follows:

Exhibit C1 – Claimant’s letter of employment dated 30^th April, 2008.
Exhibit C – Service agreement between the Claimant and the Defendant

dated 31^st October, 2008.

Exhibit C3 – Letter of termination of Claimant’s employment dated 1^st

November, 2016.

Exhibit C4 – Claimants Solicitors demand letter dated 2^nd November, 2016.
Exhibit C5 – Letter of Reference/Recommendation dated 30/11/16.
Exhibit C6 – Staff ID Card
Exhibit C7 – Waybill dated 18/11/16.

During cross examination of the Claimant by the Defendant, Defendant’s Counsel tendered through the Claimant 4 more documents marked exhibits C8 – C11 as follows:

Exhibit C8 – Receipt and Temporary Card of Mr. Riyal Feras.
Exhibit C9 – Letter dated 30^th April 2008.
Exhibit C10 – One month notice for termination of employment dated 1^st

November 2016.

Exhibit C 11 – Debit Note on Refusal to Obey Instructions dated 15/11/16.

At the close of the Claimant’s case, the Defendant opened its Defence and called one witness – Ahmed Ali Sallam. The Defendant tendered 10 documents which were admitted in evidence and marked Exhibits Dl – D10 as follows:

Exhibit D1 – A copy of the company certificate.
Exhibit D2 – Claimants letter of employment dated April 30^th 2008(same as

Exhibit C9)

Exhibit D3 – Letter of termination of employment issued to the Claimant by

the Defendant dated 1^st November2016(Same as exhibit C10)

Exhibit D4 – Vehicle particulars and customs papers of the truck with old

registration number XR 29 KTU and new number KSF 558 XG and Chassis No WDB6760681K144354.

Exhibit D5 – A copy of the Debit Note issued to the Defendant(same as

exhibit C11)

Exhibit D6 – Residence permit of Mr. Riyal Feras with serial number

A0626700(same as exhibit C8)

Exhibit D7 – A copy of letter of instruction from the Defendant to the

Counsel.

Exhibit D8 – A copy of professional fee note from the Counsel to the

Defendant

Exhibit D9 – A copy of page 12 and 13 of Defendant employee hand book
Exhibit D10 – Police Investigation Report

At the close of trial, the Court ordered parties to file and serve their respective written addresses. The Defendants’ Final Written Address dated 9^th October 2018 was filed on same date. The Claimant’s Final Written Address dated 30^th October 2018 was filed on same date. The Defendant filed a Reply on Point of Law dated 12^th November 2018 and filed on same date. The Final Written Addresses were adopted on 26^th November 2018 and the Court adjourned for judgment.

During trial, Learned Counsel for the Claimant objected to the tendering and admissibility of Exhibit D10 on the ground that it violates section 83 (3) of the Evidence Act, and was made during the pendency of this suit. In this judgment, I have not had cause to utilise the said exhibit D10. I therefore hereby discountenance it. Claimant’s Counsel also objected to exhibit D6 on the ground that it violates Section 83(1) of the Evidence Act; and that the Defendant is not the maker of the document. Exhibit D6 is the original copy of Residence Permit of Mr. Riyal Ferez whom the Claimant claims entered into an agreement with him. The Court, relying on Sub-section (2) of section 83, admitted the said document. Sub-section 2 provides that:

(2) In any proceeding, the court may at any stage of the proceeding, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (I) of this section shall be admissible as evidence or may without any such order having been made, admit such a statement in evidence notwithstanding that

(a) The maker of the statement is available but is not called as a witness: and

(b) The original document is not produced, if in lieu of it there is produced a copy of the original document or of the material part of it certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be.

Counsel was invited to raise and address the objection his Final Written Addresses. This Counsel failed to do. I therefore take it that the objection is abandoned. Howbeit, in addition to the reason already given above, I find the document pleaded and very relevant for the just determination of this suit. I therefore proceed to utilise it in this judgment. It needs be noted that a copy of this same document was admitted through the Claimant, without objection, during cross-examination of Claimant.

Facts of the Case:

The Claimant was employed by the Defendant in 2008 as a driver. Claimant’s employment was terminated via a letter dated 1^st November 2016. It is Claimant’s case that he was assigned to drive a Mercedes Truck 817 with Reg No XR 29 KTU. Claimant contends that upon the confirmation of his appointment, he entered into a mutual agreement with the Defendant dated 31^st October 2008 wherein it was agreed that he will automatically become the owner of the Mercedes Truck 817 with Reg. No XR 29 KTU after 8 (Eight) years from the date of the agreement if he handles the truck without any blemish and does not incur liability to the Defendant. Claimant states that since his resumption of duty with the Defendant, he has not been involved in any accident or conduct likely to bring the Defendant into disrepute. Claimant also claims that he has been incurring the cost of maintaining the vehicle outside Lagos as agreed with the Defendant. He therefore seeks to have the Mercedes Truck transferred to him in accordance with the agreement. Defendant challenges the existence of any such agreement and states that the signature of Mr. Riyal Feras on the document, does not belong to Mr. Feras as it is not the same as the ones on other documents signed by him. The Defendant contends that the Mercedes truck referred to in the Claimant’s Claim did not exist in the company as at 30^th of April 2008 when Claimant was employed and there was no way he could have been assigned a non – existent truck to drive; rather he drove whatever vehicle was available when he is to go on a delivery errand. Defendant states that the truck in contention was acquired by the Defendant in 2010, two years after the Claimant was employed; and that the Vehicle has always been maintained by the company. Defendant claims that Sometime in November 2016, the Claimant was asked to deliver certain goods to a customer in Ibadan and failed to return within a reasonable time; upon his being accosted on his delay in return and where about of the vehicle in his care, he claimed the vehicle broke down and refused to disclose his location so that the company could send a mechanic to him. Defendant states that the Claimant later absconded with the said truck and it took the intervention of the Police to retrieve the truck from the place where the Claimant was detaining the truck. As a result of this action, the Defendant had to find other means of transporting its goods for the period.

Submissions of Counsel:

The Defendant in its Final Written Address raised the following issues for determination:

Whether the employment of the Claimant was properly terminated in accordance with Law or whether the termination of the appointment of the Claimant by the Defendant was wrong and unlawful in law?
Whether the contract of service between the Claimant and the Defendant is still subsisting having regard to the termination letter issued to the Claimant by the Defendant?

iii. Whether there was any agreement between the Claimant and the Defendant with respect to the truck and whether the purported service agreement dated 31^st October 2008 is valid?

Whether the Claimant is entitled to his claims in this action?
Whether the Defendant is entitled to her counter claim in this suit.

On issue one, Defendant argues that Defendant’s employee handbook (Exhibit D9) and the Claimant’s employment letter (Exhibit C9/ D2) form the basis of the contract of employment between the Claimant and the Defendant and submits that the Claimant’s employment was terminated in accordance with the documents governing his employment.

On issue two, Defendant submits that by virtue of exhibit C10/D3, the contract of service between the Claimant and the Defendant terminated on the 30^th of November 2016, the Claimant having been properly served with a letter of termination.

On issue three, the Defendant contends that no agreement was entered into by the Managing Director of the Defendant with the Claimant and that Exhibit C2 is forged by the Claimant. Defendant argues that Claimant has failed to prove that Mr. Feres Riyal signed the agreement as required by Section 93 (1) of the Evidence Act 2011. Defendant also referred to Section 101 (1) of the Evidence Act 2011 and urged the Court to compare the signature of Mr. Feres Riyal in exhibit C2 and what was signed by him in exhibit C8/D6. Defendant contends that Claimant is not a witness of truth due to alleged inconsistencies in his testimony with respect to his last date at work for the Defendant.

On the fourth issue, Defendant maintains that the Claimant is not entitled to any of his Reliefs and urged the Court to enter judgment in their favour in the terms of the counter-claim.

Claimant, in his final written address raised the following issues for determination:

Whether the termination of the employment of the Claimant was in accordance with the Extant Laws and the contract of employment between the Claimant and the Defendant.
Whether the Claimant is entitled to the terms of the service agreement it entered with the Defendant dated 31^st October 2008.
Whether the Defendant has furnished any defence in law to sustain its defence and counter claim in this suit.

On issue one, Claimant contends that the notice of termination given to him was less than the one month notice stipulated in his contract. On issue two, Claimant argues that service agreements are recognised labour practice all over the world, including Nigeria; and as such, is enforceable. He argues that a cursory look at the signatures of Mr. Riyal Ferras in Exhibit C2, C8 and D6 showed no material difference.

On the contention by the Defendant that the truck in question was acquired in 2010, Claimant argues that the Defendant’s witness, during cross examination failed to state in clear terms the particular vehicle the Claimant was assigned since his resumption of duty in 2008. Claimant further submits that Exhibit D4 was procured by the Defendant for the purposes of this suit and urged that no weight be attached to it.

Furthermore, on the contention by the Defendant that there exists inconsistencies in the pleadings of the Claimant and his evidence adduced before this Court, Claimant submits that at no point in time did the Claimant state that he was reimbursed by the Defendant. That, the position of the Claimant both in his pleadings and evidence before this Court, is that despite the fact that he requested for reimbursement of expenses, the Defendant deliberately, inadvertently and negligently refused to reimburse him with no justifiable excuse.

On issue three, Claimant submits that Defendant has no defence to his action as Defendant filed an amendment to its statement of defence, but failed to file along with the amended statement of Defence her witness written deposition or statement on oath with which the facts pleaded in the said amended statement of defence shall be proved in evidence.

On the Counter-claim, Claimant submits that that it is not only ill-conceived, that there is also no evidence to prove same. He argues that Defendant contended that they incurred cost to deliver goods through other companies but failed woefully during trial to adduce evidence of cash invoice issued to them by another company. On the claim for professional fee cost by the Defendant Counsel, Claimant refers to the case of Intels Nigeria Ltd. & Ors v. Bassey (2011) LPELR-4326 (CA), where the Court held that indeed, a special damage under our law is incapable of being subjected to conjecture or speculation or any element of uncertainty; and that Defendant has not proved its entitlement to its Lawyer’s fees.

In Response, Defendant States that Claimant absconded with the truck in contention and it took the intervention of the Nigerian police at the Alausa Division Ikeja to recover the truck from him. Defendant further states that the employment of the Claimant was not wrongfully terminated but that the Claimant refused to accept his benefits.

Court’s Decision:

I have carefully considered the processes filed, the evidence led, the written submissions and authorities cited in the final addresses. I also heard the evidence of the two witnesses called at the trial as well as watched their demeanour. In addition, I evaluated all the exhibits tendered. I hereby set the following issues down for determination:

Whether the termination of Claimant’s employment was wrongful;
The validity of the Service Agreement between parties dated 31^st October 2008.
Whether the Claimant is entitled to his claims; and
Whether the Defendant is entitled to its counter claim.

Issue one is determinable by reference to the contract regulating the employment of Claimant. Parties are agreed that Claimant was employed pursuant to exhibit C1/D2 and terminated by exhibit C3/D3. The difference between exhibit C1 and D2 is that D2 has the signature of Claimant accepting the offer and the date of reception of the letter. The difference between exhibit C3 and D3 is that D3 has the signature of the Claimant on it. Exhibit C1 provides that “this contract of employment can be terminated by either party giving one month’s notice or one month salary in lieu of notice”. The one month notice of termination was issued on 1^st November 2016; with effect from same date. Claimant alleges that the letter was given to him on the 14^th of November 2016, though purportedly written on the 1^st of November 2016. Though Claimant signed exhibit C3/D3 showing he collected it, it was not dated to indicate the date he collected it. The only dispute therefore is with respect to the date the termination letter was received by the Claimant. This also determines the wrongfulness or otherwise of the termination.

When Claimant stated that the letter was given to him on the 14^th of November 2016, Defendant said nothing to controvert that assertion, except to state that the letter was issued and collected. Defendant stated in evidence that:

In response to paragraph 11 of the Claimant’s statement of fact, the defendant states that the Claimant was served with a letter of termination of appointment dated the 1^st of November 2016 as every other member of staff of the defendant company because the defendant was shutting down business activities as they could no longer continue in business due to the harsh economic situation the country is experiencing. The Claimant like every other staff of the defendant received and signed the letter which was adequate notice in accordance with the provisions of his employment letter.

It is common knowledge that date of reception of notices have implications on the validity or otherwise of the notice. This is because, that is what determines if the correct length of notice has been given. In Oyekoya v. GB Ollivant Nig. Ltd (1969) 1 All NLR 80, the Supreme Court distinguished between 30 days and one month notice. In one month notice, it was held that it must expire at the end of the current month, so that where a month’s notice is given and served to be effective after the first day of the month, then the proper day of the expiration of the notice will be the end of the next month, if the document is properly worded to that effect.

Defendant has not shown by any form of evidence when the letter was received. It therefore means that Defendant has not contradicted Claimant’s evidence that the letter was served on him on the 14^th of November 2016. That date is clearly less than the one month notice stated in the contract of employment between the parties. That being so, I find that the termination of the Claimant’s employment not being in accordance with the agreed terms between the parties, is wrongful. I so hold.

Issue two is on the validity of exhibit C2, being a Service Agreement between Claimant and the Defendant, and which is purported to have been signed by Mr. Feras Riyal, the then Managing Director of the Defendant. The Defendant challenges the authenticity of the said agreement, and states that no such agreement was entered between the parties, and that the signature of Mr. Riyal on the document, was forged. Defendant tendered exhibit D6/C8 being Temporary Card of Mr. Riyal issued by the Ministry of Internal Affairs as Combined Expatriate Residence Permit and Alien Scheme. Mr. Riyal signed the said document. Claimant identified it as the correct ID of Mr. Riyal. Defendant called on the Court to compare the two signatures of Mr. Riyal and his purported signature on exhibit C2. It is Claimant’s contention that “a cursory look at the signatures of Mr. Riyal Ferras in Exhibit C2, C8 and D6 showed no material difference.

Section 101(1) of the Evidence Act provides on what is to be done in a situation as this. It provides that:

(I) In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing. seal or finger impression has not been produced or proved for any other purpose.

I have taken time to compare the the two signatures. I disagree with Counsel for Claimant that there is any semblance between the two signatures. I rather find that the signature of Mr. Feras Riyal on exhibit C8/D6, which is accepted to be his signature, is radically different from that appearing on Exhibit C2. If the validity of the execution of exhibit C2 is founded on the signature therein being that of Mr. Riyal, then I find that Claimant has not proved that the document (exhibit C2) was signed by the Mr. Riyal. In view of that, I find that exhibit C2 cannot be valid.

I now consider issue three. Claimant had argued that Defendant has no valid defence in that when he amended his statement of defence, he did not file a fresh statement of facts. I do not find that he gave any authority in support for that argument. There is nothing that invalided Defendant’s witness statement on oath dated 9^th March 2017 and adopted in open Court.

Claimant’s 1^st Relief is for ‘a Declaration that the failure, refusal and neglect of the Defendant to honour the agreement dated 31^st October 2008, which it willingly entered into with the Claimant is therefore, unconstitutional, null and void and of no effect whatsoever’. In view of my finding that Exhibit C2 is not valid as such, it means that the declaration sought in this relief cannot be granted. I therefore decline this declaration. Relief 2 is dependent on the finding and holding with respect to relief 1. Relief 1 having failed, relief 2 also fails and is hereby declined.

Relief 3 seeks a declaration that the action of the Defendants in abruptly terminating the Claimant’s contract of service is wrongful, invalid, null, void and of no effect. I have already found that the termination of the Claimant is wrongful. With respect to its being invalid, null, void and of no effect, it is the law that a wrongful termination of contract of employment entitles the employee to damages. This is based on the notion that no servant can be imposed by the Court on an unwilling master even where the master is wrong. In the case of Angel Spinning & Dyeing Ltd. v. Ajah (2000) 13 NWLR (Pt.685)523, it was held that:

It is also the law that in ordinary contracts of employment where the terms provide for one month’s notice before termination or salary in lieu thereof, the only remedy an employee who is wrongfully terminated can get is a month’s salary in lieu of notice and any other legitimate entitlements due to him at the time the employment was brought to an end.

See also, Afribank (Nig.) Plc v. Osisanya (2000) 1 NWLR (Pt.642), pg. 599. I therefore cannot hold that the contract of service between the Claimant and the Defendant is still subsisting, as requested in Relief 4.

A helpful question to ask is, if the Defendant had complied with the terms of the contract between the parties, and had issued the appropriate notice of termination in accordance with exhibit C1, what would be the position of the Claimant? His position would have been his one month salary and not an order of re-instatement as is being sought here; by a finding that the contract is still subsisting. See Mobil Producing Nig. Unlt & Anor v. Udo Tom Udo [PC NO. 542] (2008) LPELR-8440(CA).

Reliefs six and seven are overtaken by the findings already made.

The requests for special damages of the sum of N600,000.00 (Six Hundred Thousand Naira Only) used by the Claimant on maintenance of the vehicle from 30^th April 2008 till date is declined, as there is no proof of such expenditure. Request for special damages of the sum of N500,000.00 (Five Hundred Thousand Naira Only) for fuelling and other logistics outside Lagos from 30^th April, 2008 till date is also declined for lack of proof. The sum of N2,000,000.00 (Two Million Naira Only) being legal fees and cost of this suit is also declined for lack of proof. Consequentially, the reliefs for general damages also fail.

The 4^th issue raised for determination is whether Defendant is entitled to its counter-claim. Defendant’s first relief is overtaken as it has already been found that Claimant’s termination was wrongful. On Defendant’s 2^nd Relief, I find that the sum sought is not supported by evidence and is therefore declined.

Relief 3 is for damages in the sum of N 3,000,000.00 (three million naira) for malicious prosecution. This relief comes purely under the common law of torts. It is not one of the matters for which this Court is granted jurisdiction by section 7 of the National Industrial Court Act and Section 254C (1) of the 1999 Constitution (as amended). This Court does not have jurisdiction to entertain this relief. I therefore strike it out. Even if this Court were to have jurisdiction to entertain the relief, it will certainly be premature to assert it at this stage, as the ingredients available will not be sufficient to establish the tort.

In summary, Claimant’s case fails, subject to the finding that his termination was wrongful. The Defendant’s counter-claim also fails. Parties are to bear their various costs for litigation.

Judgment is entered accordingly.

……………………………………

Hon. Justice Elizabeth A. OJI PhD