IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN IN ABUJA
BEFORE HIS LORDSHIP, HONOURABLE JUSTICE K.D. DAMULAK.
DATED THIS 17THDAY OF OCTOBER 2019
SUIT NO. NICN/329/2018
BETWEEN:
MR SEDI SADIQ ISEME …………………………………………………. CLAIMANT
AND
VITAL PRODUCTS PLC …………………………………….DEFENDANT
REPRESENTATIONS:
S.N. Okonta Esq. for the claimant
Sam Ekpunobi Esq. with Calistus Ewulu Esq. for the defendant
JUDGMENT
1.0 INTRODUCTION
This judgment is on claimant’s challenge of his disengagement. The claimant took out a complaint accompanied by statement of facts, witness statement on oath, list and copies of documents on the 28th of November, 2018. The claimant seeks the following reliefs:
- A declaration that the purported disengagement from service of the claimant by the defendant was not proper and having been done without recourse to the claimant’s terms of employment as contained in the appointment letter and therefore null and void.
- An order of this honourable Court compelling the defendant to pay to the claimant all his entitlements as contained in the lists of outstanding salaries, and expenses attached hereto and amounting to Two Hundred and eighty Two Thousand Six Hundred and Sixty Two Naira Thirty One Kobo (N 282,662.31),
- An order of the honourable court compelling the defendant to compute and pay to the claimant his leave encashment for 2017, sales incentives for 2017 and severance packages as contained in the employees handbook of the defendant.
- An order of this honourable Court converting the purported disengagement to retirement and pay to the claimant all his retirement benefits from the date of employment to the date of judgment in this suit.
- An order of this honourable Court awarding to the claimant the sum of five million naira (N5,000,000) as damages for wrongful termination of employment.
- Order for cost as may be accessed by this honourable court.
The defendant entered a memorandum of appearance and a statement of defence on 11/1/2019. The claimant filed a reply via a motion on notice on 18/2/2019.
- FACTS OF THE CASE
The claimant was a confirmed staff of the defendant. He worked as a sales representative. The claimant entered into sales personnel agreement to sell goods with the defendant on 27th October, 2010 upon his employment. Claimant’s last basic salary was N236, 328.00 per annum. The defendant disengaged claimant on 27th October, 2017 Via Email. Claimant is now claiming for yet to be refunded out of pocket expenses, allowances, unpaid salaries and severance packages. The defendant contends that as at the time of making the Claim, the Defendant was owed well over the sum of N7,000,000 on goods delivered to various customers on the orders of the Claimant, and also, the heads of the claims fall outside the reimbursable expenditures of the claimant.
- CASE OF THE CLAIMANT
The claimant, as CW1, testified in line with his statement of facts as follows;
I was the sales representative of the defendant, covering Suleja Area of Niger State. I was employed by the defendant on the 12th of October, 2010 and placed on three (3) months probation. After a successful probation period, my appointment was confirmed via a letter of confirmation of appointment dated 7thJune, 2011 which took effect from 23rd May 2011. Again my appointment was re-confirmed via a letter dated 4thSeptember, 2012 with effect from the 23rd August, 2012. The appraisal of my performance for the year 2011/2012 shows an outstanding achievement that led to increment in my annual salary with effect from 1st April, 2012 to N195,072.00. I was equally rewarded by increasing my salary to N236,328.00 per annum with effect from 1st April, 2013.
I entered into sales personnel agreement to sell goods with the defendant on 27th October, 2010 upon my employment. The defendant violated the said agreement in disengaging me without recourse to the terms of employment. The defendant disengaged me on 27thOctober, 2017 Via Email. Upon receipt of the disengagement letter, on 30th October 2017, I sent a reply from my email Account.
I compiled and computed all my entitlements including yet to be refunded out of pocket expenses, allowances and unpaid salaries, and sent to the defendants but yet the defendants failed to acknowledge it and or pay the total amount which stood at Two Hundred and Eighty Two Thousand Six Hundred and Sixty Two Naira Thirty One kobo (N282,662.31).
I expended money in procuring general motor receipt and repairing of defendant’s vehicles which the defendant is yet to refund to me before my purported disengagement.
I briefed the law firm of Messrs Ultimate Chambers, Omar & Co. to write demand notice to the defendant on my behalf which they did. The defendant replied the above letter through the law firm of Credo Chambers, its lawyers on 27th November, 2017. The defendant alleged in the said reply that I had outstanding goods of defendant to the tune of N7, 160,000.00 (Seven million one hundred and sixty thousand naira) only which may be irrecoverable. I, through my lawyers, replied to the defendant’s counsel’s letter aforementioned via a letter wrongly and inadvertently dated 11th November, 2017 instead of 11thDecember, 2017.
It is not part of my duties to give or approve the supply of goods to any customer of the defendant. My duty is to source for customers, introduce the products to them to enable them consider our products. As at the time I joined the defendant, Bashir Sa’ad and Abdullahi Kasim who owed the defendant were already the defendant’s customers buying products from the defendant. The 3rd customer who owed the defendant is Uzomayor Global Services who was the only customer I sourced for the defendant who owes as at then. Uzomayor had paid up his outstanding debt as at the time I know through the defendant’s diamond account number 3332804971· Bashar Sa’ad and Abdullahi Kasim used Zenith bank account number 1011310551 and first bank PLC. Account number 2118339828 respectively.
I have no power to give any customer goods both cash and or credit. Every sale is approved from head office in Lagos where the goods are packed and from where the defendant sends goods to any customer.
The defendant did not accuse me of any wrong doing at any time and neither did they disengage me as a result of any wrong doing of whatever nature.
I am entitled to my 2017 bonus as contained in the defendant’s employees hand book which the defendant had refused to make available to the workers. By the said handbook, having worked for the defendant from 2010 to 2017, I am entitled to severance benefit as contained therein.
Testifying further in reply to the statement of defence, CW1 testified as follows;
I filled and returned the original copy of the sales Agreement and a photocopy is what I have. The cause of occasional dwindling in Sales was not caused by me but the market condition due to available alternative competitors and poor managerial decisions that affect our sales. I was never called on phone for any discussion whatsoever requiring me to arrange for a meeting to audit my sales or for whatever purpose. I was in the market working for the Defendant on 30/10/2017 when I received the mail for disengagement which I replied immediately. I have no credit facility with any customer and have no power to grant or approve credit sale to any customer and the issue of outstanding does not arise.
At the point my employment was terminated I have no right to demand further payment from any customer having not been the one who approved and granted the credit facility to them.
The amounts recovered were by my effort when irrespective of my disengagement I was still going to the customers demanding them to pay their outstanding and they continued to pay remaining the sum of N1, 655, 000.00 with Bashir Sa’ad and not the sum of N2,409,800.00 as claimed by the Defendant.
There is no document the Defendant has to show that I gave or approved credit facility to any customer of the defendant and clauses 4 and 10 of the sales personnel agreement does not apply here. The invoice of the Defendant clearly shows that the Defendant never consigned products to me but to their customers direct whether sourced by me or already in existence before I joined the Defendant.
Before the Claimant was disengaged the Managing Director Mr. Murkesh and Mr. Subranshu, the then G.M. visited Suleja and we visited all the customers in Suleja and minna and they met with all the customers, took record of their stock and discussed with them on how they will pay whatever amount they are owing and to know what they need to enable the Defendant supply more goods to them.
It is wrong for the Defendant to hinge the payment of my entitlement on my being able to recover all the indebtedness of Defendant’s customers within my area of assignment after I was relieved of my duties.
My duties are not only sales but also collection of outstanding and redistribution of products from customers’ outlets too.
CW1 tendered 36 documents in evidence which were admitted and marked as exhibit SSI 1 to SSI 36. Reference will be made to any specific document as the need arises.
Under cross examination, CW1 testified as follows;
My job definition as a sales representative was to sort for customers, I distribute products to customers. My work includes recovery of debt owed the defendant. At the time I was relieved, there was N7.160,000 which I was yet to recover for the defendant. I did not write any letter to the defendant explaining why I had not recovered these sums. I know of duty field report in my job. The duty field report covers my duty movement, the amount recovered for that day and the sales orders for that day, the amount paid and goods supplied for that day.
I sought for permission from the company to effect repairs on the vehicle.
- CASE OF THE DEFENDANT
DW1 was one Oluwasegun James Kuye, Defendant’s acting Head of Human Resources department. He testified in line with the statement of defence as follows;
I know the Claimant in this case as the Defendant’s Sales Representative for Suleja before he was relieved of his duties on the 27th day of October. 2017. As the employee of the Human Resources Department of the Defendant, I studied all the personnel files of the employees, including the claimant. From the records available in the file of the Claimant regarding his employment I state that he was duly employed by the Company and I also confirm that he was severally granted incentives and praises for good works and received the usual performance treats from the Defendant.
As a practice of the defendant, employees, including the claimant, are required to provide guarantors. I did see the agreement referred to in paragraph 11 of the Statement of Facts. The agreement therein attached represented the intentions of the parties to it but the Claimant failed to return the executed copy for the Defendant to counter-sign.
The Defendant duly observed the terms of employment of the Claimant and the Sales Personnel Agreement in terminating his employment. I am also aware that there are records of warnings issued to the Claimant against dwindling of his sales and other factors which impugned on his former excellent performances but there was no change leading to several calls on him to improve his sales to no avail.
I admit that the Defendant received the mails as are claimed in paragraph 14 of the Statement of Facts, but thereafter, the Defendant continued to call on the Claimant to forward his account\ records for review after which the payment could be made to him but which he refused to honour, insisting that the Defendant pays his benefits.
In response to paragraph 15 of the Statement of Facts, I state that the Defendant does not owe the Claimant the sums represented in the claims as demanded not only because as at the time of making the Claim the Defendant was owed well over the sum of N7,000,000 on goods delivered to various customers on the orders of the Claimant but also on the fact that the heads of the claims fall outside the reimbursable expenditures of the claimant.
The agreement of parties did not place the maintenance of its vehicle given for the Claimant’s use on the Defendant but rather on Claimant himself. Clause 7 of the Sales Agreement as attached to the Statement of Facts of the Claimant shows on whom lies the duty to maintain vehicle given to the Claimant for his sales activities.
The Defendant received the Claimant Solicitors· letter of 15th November, 2017.As at the date of the reply letter of the Defendant’s Solicitors, the amount outstanding to the credit of the Defendant on account of sales ordered by the Claimant but which has not been recovered was the sum of N7.160,000. However, the Defendant, through efforts of its personnel was able to recover some fraction of the debt remaining the sum of N2,409,800.00 (Two Million, Four Hundred and Nine Thousand, Eight hundred Naira).
Clauses 4 and 10 of the Sales Personnel Agreement attached to the Claims of the Claimant show that he, the Claimant, is the consignee of goods delivered on his order to any customer of his choosing. Clause 4 of the aforementioned agreement is that all goods irrespective of who makes delivery is in the control of the Sales Representative who sourced the customer and it is on him that the Defendant resorts to recover the sales.
I am also aware that the goods which stands unpaid for in the hands of the various old customers of the Claimant were not goods delivered before the Claimant assumed control of their transactions but goods delivered to them under the coverage of the Claimant.
The Defendant is willing and able to pay unto the Claimant all legitimate claims he may have if he recovers all the sums outstanding to his name and office.
For a period of more than 6 months before the termination of the employment of the Claimant, he did not make any form of contact to the Defendant on the issues affecting his performance and did not send his daily field report.
DW1 tendered four documents in evidence which were admitted and marked as exhibits OJK1 to OJK4 and the claimant counsel tendered exhibit SNOJK5 through DW1.
Under cross examination, DW1 testified as follows;
We do not have evidence of the several invitations to the claimant which he turned down. The salary of the claimant for July 2017 is not reflected on exhibit OJK3.We did not give the claimant three month notice of termination. The policy of the defendant is that before a staff is disengaged, all his customers owing the defendant must have paid their indebtedness to the defendant.
The customers that were owing the defendant at the time of the disengagement of the claimant are still customers of the defendant who is still supplying them goods uptil date.
- FINAL WRITTEN ADDRESS OF DEFENDANT’S COUNSEL
The defendant counsel formulated three issues for determination.
Submitting on his issue 1, learned defendant’s counsel argued that the termination of the employment of the Claimant was not wrongful and that given the relationship of parties, this court has not enough grounds to declare the termination of the Claimant’s employment null and void irrespective of whether the court finds it wrongful. The employment of the Claimant and Defendant is purely based on the common law principle of right of parties under a private contract and not under any known statute. Has no statutory flavor, which means the court cannot make a declaration that the termination is null and void which will have the effect of returning the willing horse to the service of an unwilling master. SHELL PETROLEUM DEVELOPMENT CO. NIGERIA LTD & ANOR V MABEL ADDICO & ANOR. (201 6) ALL FWLR (PT.816)P.439 AT 456; OGUNDIPE V NIGERIA TELECOMMS. LTD (201 6) ALL FWLR (PT 817) P. 613 AT 631
Counsel submits further that the Claimant failed to show that the termination was wrongful. Under common law contract of master/servant relationship, what the court needs do is to examine the terms of employment as evidenced in the letter of employment and any other document annexed to it in order to see and understand the terms. It is only in doing this that the court may come to true terms of whether there has been breach of the terms or not.
By the ordinary reading of the letter of employment dated the 12th of October, 2010, the parties agreed that the employment relationship could be terminated by giving one month notice by either party to the other. The facts of this case show that there was no such one month notice issued to the Claimant before his termination but the immediate preceding actions of the Claimant show that his actions are not such that the employer must await a notice to be given before the termination. Section 11 (5) Labour Acts, Laws of the Federation, CAP L1, 2004.
Arguing his issue 2, learned counsel submitted on the issue of outstanding salaries that it has not been sufficiently proved to the satisfaction of the court that it existed. There is no fact in the statement of facts that shows that this debt is owed to the Claimant by the Defendant, neither is there a statement of it in the reply to the Statement of defence. The only mention of outstanding salary is made in paragraph 15 of the Statement of Facts and Witness Statement on Oath wherein the Claimant states as follows: .
“That the Claimant compiled and computed all his entitlements including yet to be refunded out of pocket (sic) expenses, allowances and unpaid salaries, …”
That there is no evidence in support of the fact that any salaries were owed the claimant for which months. KYARI V ALKALI (2001) 1 NWLR (PT. 724) P 412 AT PP 433-434; BUHARI V OBASANJO (200 5) 2NWLR (PT910) P.41 AT 351.
On the issue of outstanding expenses; counsel submitted that the Claimant has not sufficiently proved to the satisfaction of the court that the Defendant has obligation to pay him the sum claimed. That clause 7 of the agreement which exists between the Claimant and the defendant clearly stipulates which party has the responsibility of maintaining the vehicle that was provided, and it is the claimant.
On leave encashment for 2017, sales incentives and severance packages: claimant counsel submit that apart from the endorsement in the complaint and the claim (relief), there appears no other place in the body of pleadings and evidence same was raised by the Claimant.
On the issue of damages for wrongful termination: learned counsel submits that this claim is being made on the wrongful assumption of the Claimant that your Lordship was going to declare his termination null and avoid which we have shown cannot be the case in this suit. Damages payable for wrongful termination, if the court finds that there was wrongful termination, is no more than either the provisions of the term of the contract of employment or based on the amount the claimant would have earned in the period within which the notice would have lasted. ODAIASE V AUCHI POLYTECHNIC (1998)4 NWLR (PT 546) P.477 AT PP.489-90.
In the unlikely event that your Lordship is of the view that the employment of the Claimant was wrongly terminated, the verdict will not be to award the Claimant the sum as claimed but merely to award to him the damages he suffered because the notice was not given. This is done by examining the letter of employment and all other documents forming the contract of the parties. The only document relevant in this issue is the letter of employment which provides the obligation of one month. Thus the quantum of damages payable if the court finds for the Claimant on this is one month salary and the Claimant is only entitled to his basic salary in exclusion of all allowances. Section 11 (9) of Labour Act CAP L1 Laws of the Federation of Nigeria 2004.
Submitting on issue 3, learned counsel argues that unless there is an agreement between the Claimant and Defendant, the court has no powers to order the payment of retirement benefits to the Claimant. Counsel refer the court to the agreement of the parties which are contained in the letter of employment dated the 12th day of October, 2010, the Personnel Sales agreement dated 27th day of October, 2010 and the Defendant’s Human Resources Policy (Company Manual). That all these documents do not contain any agreement for payment of retirement benefits besides pensions contribution. In the Claimants Statement of Facts he failed to show what the expected benefits are.
The only available exit entitlement as may be found in the documents of employment of the Claimant is the payment of gratuity as may be found in clause 20 at page 14 of the Human Resources Handbook of the defendant. In the unlikely event that the court is mindful of treating the Provisions of gratuity in the Handbook as terminal benefit the said Clause 20 provides that, as a junior staff, the gratuity payable to a person who has worked between 5 to 10 years (a bracket in which the Claimant belongs) is 6 weeks’ salary of every completed year of service. The claimant has been in the service of the Defendant for only 7 years and therefore is only entitled to 7 years in calculation of his gratuity, if any. It is also worthy to note that the calculation is based on 6weeks pay of the basic salary and not gross salary of the Claimant.
- FINAL WRITTEN ADDRESS OF CLAIMANT’S COUNSEL
The claimant counsel adopted the three issues formulated by defendant’s counsel for determination.
Arguing on issue 1, learned counsel submitted that the termination of employment of the Claimant is wrongful the same having violated the terms of both the Sales Personnel Agreement Exhibit SSI 10 and the letter of employment Exhibit SSI 1. The letter of employment states that “After confirmation, the appointment could be terminated by either party by giving one month notice while the Sales Agreement between the parties provides for 3 months. Failure by the Defendant to comply with the above agreements of the parties in terminating the employment of the Claimant renders the termination null and void.
Assuming but not conceding that the termination of the employment of the Claimant in the manner the Defendant did was wrongful and not null and void; it is not without consequences. No law gives the employer right to violate the terms of employment he had with his employee simply because such employment is that of master/servant and does not have statutory flavor. Where an employer fails to comply with the employment agreement, his action is wrongful and illegal and the consequences is for Court to hold that the employment was not properly terminated and award damages to the employee. SAMUEL NIYI ABEREOLA & ANOR V. MR. ALIU TOYE & 2 ORS (2013) 4 WRN 114 AT 120.
We concede that this Honourable Court may not impose a willing servant on an unwilling master, but where it is obvious that there is a breach of contract of employment between a master/servant in terminating the employment of a servant, the servant is entitled to damages for wrongful termination. The Claimant is entitled to his claim for damages for wrongful termination of his employment.
The claimant was working for the Defendant on 30/10/2017 when he received an E-mail Via his cell phone that his appointment is terminated. This was done without any warning or query for any wrong doing as the Defendant is now trying to allege.
Arguing on issue 2, learned counsel submitted that given the evidence adduced at the trial of this case, the Court is enable to grant the Claimant’s reliefs 2, 3, 5 and 6 as are shown in the Claimant’s complaint and statement of facts.
On Outstanding Salaries: counsel submitted that the Claimant has been able to establish that he is being owed July and October 2017 salaries via Exhibit SSI 13 as well as Paragraph 15 of the Claimant’s statement on oath and statement of facts. The Defendant has the duty to furnish this Honourable Court with evidence of payment of Claimant’s salaries for the month of July and October 2017, if they have paid.
On Outstanding Expenses: counsel submit that paragraph 7 of Exhibit SSI l0 mean that he should ensure the vehicle is repaired whenever the need arises and expenditure forwarded to the Defendant for reimbursement and this has been their practice for these years except the cost outstanding not yet paid as at the time the Claimant was disengaged. Exhibit SSI 19 clearly shows that the vehicles were repaired and maintained on various dates and the kind of repairs carried out and most importantly that the Defendant has been paying for them save the last one which amounted to Seventy Six Thousand Naira N76,000.00).Exhibit SSI 13. This is equally confirmed by Exhibit SNOJK 5, the Defendant’s Human Resources Policy (Employees handbook) which provides in paragraph 16.l8 page 13 for the use of company vehicles, page 22·.23 for vehicle policy which all point out the duty of the driver or staff who uses company vehicle on page 23 of Exhibit SNOJK 5 the drivers were mandated to ensure “Any faults observed in the vehicle at anytime should be reported immediately”
On Leave Encashment for 2017; learned counsel submitted that the Claimant is entitled to payment of his leave encashment for 2017 having clearly pleaded the fact that the Defendant is owing him his entitlements in paragraph 15 of his point of facts and witness statement on oath and went ahead to list what constitute the said entitlements in paragraph 16 of both the point of facts and witness statement on oath and the said list was admitted in evidence as Exhibit SSI 13. The parties have provision in the company handbook Exhibit SNOJK5 for leave encashment and the Claimant is qualified for payment of leave encashment for 2017 having not gone on leave for that year until he was disengaged.
On sales incentives and severance packages; learned counsel submitted that Claimant is entitled to sales incentives and severance packages. The monthly collection of the Claimant shows he is at work making collections, Exhibit SSI 30.
That clause 10 of the Sale Personnel Agreement exhibit SSI 10 shows clearly the distinction between the debts owed the Defendant by the claimant in personal capacity and those owed the Defendant by customers.
On Damages for Wrongful Termination: learned counsel submitted that the action of the Defendant by not complying with the contract of employment between it and the Claimant amounts to wrongful termination of employment, so the Claimant is entitled to damages. Section 11(9) of Labour Act Cap LI LFN 2004 does not apply here as the payment in lieu of notice is not the same thing as damages.
Arguing issue 3, learned claimant counsel submitted that if the court holds that the termination of the Claimant’s carried out was wrongful, this Court has powers to hold that the claimant’s disengagement be converted to retirement and all his terminal benefits as contained in the Human Resources Policy Paid to him. See page 14 of Exhibit SNOJK 5 – Junior Staff payment of gratuity.
- REPLY ON POINTS OF LAW
Submitting in his reply on point of law, learned defendants counsel argued that there is a distinction between the letter of employment and the Sales Personnel Agreement. The letter of employment is what it is and nothing more. It is the primary document of engagement of the parties as far as the employment is concerned. The sales agreement is a separate document by which the personnel, already employee entered into a special agreement with the company to sell its goods and it seeks to define the special terms of sales. Thus it is not same as the letter of employment. The termination of the said agreement does not mean the end of the employment, for the employment itself is particularly controlled by the letter of employment and its acceptance.
All the rest of counsel’s submissions in the reply are mere re-enforcement of his earlier written address or re-arguing same differently; this is not the purpose of a reply on points of law and liable to be discountenanced. A reply on points of law is a reply on points of law and no more. It is a legal answer to any legal point raised by the claimant which legal point was not raised by the defendant in his written address. See
| ECOBANK NIGERIA LIMITED v. ANCHORAGE LEISURES LIMITED & ORS |
| (2016) LPELR-40220(CA)where the court held;
“By law where a reply on points of law translates to re-arguing a party’s written address or brief of argument, it will be discountenanced by the Court. That was the stance of the Lower Court and the holding is within the ambit of the law. See OKPALA VS IBEME (1989) 2 NWLR (PT 102) 208; FRN VS IWEKA (2011) LPELR (9350) CA; OPENE VS NJC (2011) LPELR (4795) CA. In UBA PLC VS UBOKOLO (2009) LPELR (8923) CA this Court held that a reply brief is not meant to improve the quality of the argument in the Appellant’s brief. In the same way, a reply on point of law is not meant to improve on the quality of a written address.” |
- ISSUES FOR DETERMINATION
Both counsels adopted the same issues for determination thus;
- Whether the termination of the employment of the Claimant is wrongful on the basis of the adduced evidence and whether given the nature of employment relationship between the Claimant and the Defendant this honourable court has power to declare the termination of the Claimant’s employment via letter of termination dated the 27thof October, 2017 null and void.
- Whether given the evidence adduced at the trial of this suit, the court is enabled to grant the Claimant’s reliefs 2,3, 5 and 6 as are shown in the Claimant’s Complaint and Statement of Facts dated the 23rd of November, 2018.
- Whether the honourable court has instrument to convert the disengagement of the Claimant to retirement and whether the Claimant is entitled to any terminal benefits given the evidence before the court.
These issues are summarized and adopted as follows;
- Whether the termination of the employment of the Claimant is wrongful, and if so, whether this court can declare the termination of the Claimant’s employment null and void.
- Whether the Claimant has proven his entitlement to reliefs 2,3, 5 and 6 of his claim.
- Whether the honourable court can convert the disengagement of the Claimant to retirement and whether the Claimant is entitled to any terminal benefits given the evidence before the court.
- COURT’S DECISION
I have read the pleadings, the evidence adduced including the exhibits and the written submissions of learned counsels. These have been summarized above but the fuller details will bear on the mind of the court in this judgment. We shall approach the judgment by examining the issues formulated.
ISSUE 1; Whether the termination of the employment of the Claimant is wrongful, and if so, whether this court can declare the termination of the Claimant’s employment null and void.
For a court to come to the conclusion that a termination or dismissal is wrongful or null and void will depend on the type of contract of employment; either a master/servant employment or a statutory employment. In the same vein, whether a termination or dismissal is declared wrongful or null and void determines the order to be made by the court.
In a master/servant relationship where the law is that a willing servant cannot be foisted on an unwilling master, the termination or dismissal can only be declared wrongful and the order that can be made is that for damages.
On the other hand, where the employment is covered with statutory flavor, the termination or dismissal can be declared null and void and the consequent order is one for reinstatement. See
| DAVIDSON OBIANWUNA v. NATIONAL ELECTRIC POWER AUTHORITY (2016) LPELR-40935(CA) where the court held; |
The law is well settled to the effect that where an employment or contract of service is protected by the statute, the enabling law which created the governmental agency, the employer, the removal, termination, dismissal or retirement of the employee must be predicated upon and in compliance with the statutory provisions, governing the employment or contract of service. Thus, a non-compliance with the enabling statute, in the dismissal, or retirement of an employee, renders such dismissal or retirement, as null and void. Adeniyi v. Yaba College of Technology (1993) 7 SCNJ (Pt.II) 304 at 336 & 338; Central Bank of Nigeria &Anor v. Mrs. Agnes Igwillo (2007) 5 SCNJ 52.
On the other hand, a wrongful termination of employment which does not have statutory flavour cannot be declared null and void and the remedy for such an employee is only in damages to be paid to him. So he cannot be ordered to be reinstated by the employer. Union Bank of Nig Ltd v. Chukwuego Ogboh (1995) 2 SCNJ 1 at 16.
An employment with statutory flavor was defined by the court of Appeal in the case of N.E.P.A. v. EDEGBERO (2000) 14 NWLR (Pt.688)615; (2000) LPELR-6884(CA) relying on the decision of the Supreme Court decision in IMOLOAME V. WA.E.C. (1992) 11/12 SCNJ 121 at 135; (1992) 9 NWLR (Pt. 265) 303 thus;
There is no evidence before the court to show that the employment of the claimant with the defendant is regulated by any statute. The only instruments regulating the employment of the claimant and the defendant before this court are his employment letter and the condition of service or staff manual. The employment is one of master/servant relationship and does not enjoy statutory flavor. I so find and hold. Notice of termination is regulated by section 11 of the labour Act and parties can also agree in the terms of employment. The evidence before the court, especially exhibit SSI 1, is that after confirmation, the appointment could be terminated by either party by giving one month notice. Exhibit SNOJK5 similarly provides in paragraph 18.1.2 for one month notice or salary in lieu thereof.
It is not in contention that the claimant was not given notice. This is sought to be justified by the defendant in the words of its counsel thus; The facts of this case show that there was no such one month notice issued to the Claimant before his termination but the immediate preceding actions of the Claimant show that his actions are not such that the employer must await a notice to be given before the termination.
The letter of disengagement from service, exhibit SSI 11 did not cite any reason for the said disengagement other than services no longer required. It is not in the place of learned counsel to supply or substitute the reason given by the defendant for the disengagement. See
I find that the claimant was entitled to notice of disengagement which was not given to him. This is in violation of the terms of employment and it is therefore wrongful but not null and void. The claimant is accordingly entitled to damages which quantum shall be considered under issue three.
ISSUE 2; Whether the Claimant has proven his entitlement to reliefs 2,3, 5 and 6 of his claim. This issue is best approached by reproducing the relevant reliefs. Reliefs 2 and 3 read as follows; 2. An order of this honourable Court compelling the defendant to pay to the claimant all his entitlements as contained in the lists of outstanding salaries, and expenses attached hereto and amounting to Two Hundred and eighty Two Thousand Six Hundred and Sixty Two Naira Thirty One Kobo (N 282,662.31). 3. An order of the honourable court compelling the defendant to compute and pay to the claimant his leave encashment for 2017, sales incentives for 2017 and severance packages as contained in the employees handbook of the defendant. This claim is supported by paragraphs 15 of the statement of facts and paragraph 15 of the CW1 witness statement on oath which reproduce the statement of facts as follows; That I compiled and computed all my entitlements including yet to be refunded out of pocket expenses, allowances and unpaid salaries, and sent to the defendants but yet the defendants failed to acknowledge it and or pay the total amount which stood at Two Hundred and Eighty Two Thousand Six Hundred and Sixty two Naira Thirty one kobo (N282,662.30) The said compiled list of entitlement owed me by the defendant is attached as Annexure M. The said annexure M was admitted in evidence as exhibit SSI 13. Except on vehicle maintenance in paragraph 16, there are no details or any further pleading and evidence on this in spite of the fact that the evidence of the claimant is that the defendants failed to acknowledge it. In response, the defendant denies paragraph 15 in paragraph 8 of the statement of defence thus; The Defendant denies paragraph 15 of the Statement of Facts, and states that it owes the Claimant no such amounts not only given the amount of unremitted sales conducted by the Claimant but also on account that the computations included extraneous bills that were not its obligations as per the agreement of parties. The claimant did not see any need for further pleadings and evidence on these claims. These claims are treated by both counsels in their written addresses under various heads as outstanding salaries, outstanding expenses, Leave encashment for 2017, Sales incentives and Severance packages. Besides outstanding salaries and outstanding expenses; leave encashment, sales incentives and severance packages are not particularly mentioned in the pleadings and evidence, the written address and exhibit SSI 13 also treats them separately. The amount of leave encashment, sales incentives and severance packages are not stated anywhere; in fact, they are represented by a question mark in exhibit SSI 13. The implication is that even if exhibit SSI 13 were taken to be proof of what is therein demanded, nothing is proven under these items. The fact that the claimant computed and made a demand on the defendant is not enough prove of the claim in the demand. Evidence must be led in court to prove what is in the demand, particularly in this case, where the evidence of the claimant is that the defendant failed to acknowledge the letter of demand; that has not been done in this case. Exhibit SSI 13 proves nothing beyond the fact that such a demand was made on the defendant. These heads of claim cannot be said to have been proven without any further evidence before the court. Claimant’s counsel submitted that the Claimant is qualified for payment of leave encashment for 2017 having not gone on leave for that year until he was disengaged. This is evidence from counsel in written address which cannot take the place of evidence. The claimant never said so in his evidence before the court, it is not even in the statement of facts. See
The question of waiver due to excessive delay as propounded in the appellant’s brief and also earlier raised in its written address in the lower court is an issue of fact which cannot rightly be raised in counsel’s final address because in a trial court where pleadings are filed and exchanged it can only be properly raised on the pleadings. See BURAIMOH v. BAMGBOSE (1989) ALL NLR 669 and as was held in OGUNSANYA v. THE STATE (2011) LPELR (2349) SC. No amount of brilliant address or playing to the gallery by counsel can make up for lack of evidence to prove or defend a case in court. The main purpose of an address is to assist the court, and is never a substitute for compelling evidence. See also ISHOLA V. AJOBOYE (1998) 1 NWLR (PT 532) 74 and ALIUCHA v. ELECHI (2012) LPELR (1823) SC and NIGER CONSTRUCTION LTD v. OKUGBENI (1989) 4 NWLR (pt 67) 738 at 792.
The claims for outstanding salaries leave encashment and sales incentives fail and are hereby dismissed. The further evidence before the court relates to the claims for vehicle maintenance and claim for severance packages or gratuity. Paragraph 16 of the claim and evidence as well as exhibits SSI 10 and SSI 14 are the further evidence in respect of the claim for vehicle maintenance while exhibit SNOJK 5 is the further evidence in respect of severance packages or gratuity. It is the submission of the defendant that it is ready to pay all legitimate claims on a condition. It is my view that if exhibit SSI 10 and exhibit SNOJK 5 show that the claimant is entitled to refund of vehicle maintenance and gratuity, then they are legitimate claims. In respect of vehicle maintenance, both counsels rely on paragraph 7 of exhibit SSI 10. Claimant counsel relied on exhibits SSI 19 and exhibit SNOJK 5. The defendant claims that vehicle maintenance is the responsibility of the claimant while the claimant said he is entitled to a refund. Exhibit SSI 19 is a list of claims compiled and signed by the claimant, it is also not endorsed by the defendant. That document cannot be proof of the fact that such claims were usually or have been refunded by the defendant as contended by claimant’s counsel. Paragraph 7 of exhibit SSI 10 provides as follows; Company shall provide, wherever possible, vehicles to its sales personnel to enhance sales promotion activities. The sales personnel is expected to use the company vehicle in the interest and to the benefit of the company, while the sales personnel shall be required to maintain it and shall return it to the company whenever required to do so in such good working condition. (underlining supplied) This clearly puts the duty of maintenance on the claimant. The contention of counsel that paragraph 7 of Exhibit SSI l0 means that he should ensure the vehicle is repaired whenever the need arises and expenditure forwarded to the Defendant for reimbursement and this has been their practice for these years is not borne out of this paragraph. Besides, the submission that this has been their practice for these years is not from the evidence of the claimant but from counsel’s written address.
Claimant’s counsel also relied on paragraph16:18 at page 13 and page 22 of exhibit SNOJK 5. Paragraph 16:18 at page 13 provides as follows; Employees are permitted to use company vehicles (drive only, have relevant papers including valid driving license) for official purposes only. If an employee is found to use company vehicles for personal gain, he/she is liable to be penalized as per the company policy. page 23 of Exhibit SNOJK 5 on vehicle policy, provides as follows; 6. All drivers must immediately report and document accidents, damage, problems or concerns to the supervisor within 24 hours. None of these provisions says the driver is to effect repairs and be refunded as argued by claimants counsel. It is the view of this court that if the claimant is to effect a repair expecting a refund, it should have prior knowledge and approval of the defendant as sought to be established by the claimant when he testified under cross examination as follows; “I sought for permission from the company to effect repairs on the vehicle”. The evidence of such permission is not before the court. The claim for refund of cost of maintenance of vehicle fails and is hereby dismissed. On severance packages or gratuity, learned defendants counsel submitted that; In the unlikely event that the court is mindful of treating the Provisions of gratuity in the Handbook as terminal benefit the said Clause 20 provides that, as a junior staff, the gratuity payable to a person who has worked between 5 to 10 years (a bracket in which the Claimant belongs) is 6 weeks’ salary of every completed year of service. The claimant has been in the service of the Defendant for only 7 years and therefore is only entitled to 7 years in calculation of his gratuity, if any. It is also worthy to note that the calculation is based on 6 weeks pay of the basic salary and not gross salary of the Claimant. This is indeed the provision of exhibit SNOJK 5 which also provides in paragraph 20.7 on disqualification for gratuity as follows; “Employees who have been terminated or dismissed on the ground of fraud and theft will not be entitled for gratuity”. The termination of the claimant was not for theft or fraud but for services not required so he is entitled to gratuity to be calculated per exhibit SNOJK 5. I so hold. ISSUE 3; Whether the honourable court can convert the disengagement of the Claimant to retirement and whether the Claimant is entitled to any terminal benefits given the evidence before the court. This issue relates to Relief 4 which reads as follows; 4. An order of this honourable Court converting the purported disengagement to retirement and pay to the claimant all his retirement benefits from the date of employment to the date of judgment in this suit. Given the facts of this case, there is no basis for conversion of a wrongful disengagement or termination to retirement. The purpose of this prayer is to enable the claimant claim his terminal benefits. The law is already in favour of the claimant as relating to claim of terminal benefit because it was a termination for services not required and not a dismissal. See JOMBO v. P.E.F.M.B. (2005) 14 NWLR (Pt.945)443 at 467, per Oguntade JSC on the distinction between termination and dismissal where my lord held thus; “ Under a termination of appointment, the employee is enabled to receive the terminal benefits under the contract of employment. The right to terminate or bring an employment to an end is mutual in that either may exercise it. “Dismissal” on the other hand is punitive and depending on the contract of employment very often entails a loss of terminal benefits”.
The employment of the claimant was simply terminated; he is therefore eligible for terminal benefits if he qualifies under the terms of engagement. By the evidence, the claimant has been in the service of the Defendant for only 7 years. He is said to be a junior staff which has not been contested and that should be so from his annual salary of N236, 328.00 per annum, which translate to N19,694 per month. By paragraph 20.4 of the said manual, he is entitled to 6 weeks basic pay for each completed year of service. The claimant is accordingly entitled to 6 weeks basic pay for each of 7 years of service. His last annual basic salary as per exhibit SSI5 is N236, 328.00 per annum; this translates to a monthly basic salary of N19, 694.00. Six weeks’ salary is equals to one month salary plus half month salary which is N19,694.00 + N9,847= N29,541.00. The claimant is entitled to N29, 541.00 for each year of service and that translates to N29, 541.00 X 7 years =N206, 787.00 as gratuity. The defendant shall pay to the claimant the sum of N206, 787.00 as gratuity. I so hold. It is part of the defendant’s case that the Defendant does not owe the Claimant the sums represented in the claims as demanded because as at the time of making the Claim the Defendant was owed well over the sum of N7,000,000 on goods delivered to various customers on the orders of the Claimant. It is also the submission of the defendant that the Defendant is willing and able to pay unto the Claimant all legitimate claims he may have if he recovers all the sums outstanding to his name and office. The defendant has not shown by credible evidence that it was the claimant who procured, approved, granted or delivered the goods to the customers on credit. The keeping of records and collection of outstanding debts from customers are shown to be part of the schedule of claimant’s duties only as a staff. It is also in evidence that the defendant delivers goods to its customers on credit and it is still supplying goods to the same customers in the same Suleja arrears hitherto covered by the claimant. See evidence of DW1 under cross examination where he testified as follows; The customers that were owing the defendant at the time of the disengagement of the claimant are still customers of the defendant who is still supplying them goods uptil date. This also accords with the evidence of the defendant that it was able to recover from the said customers some amount remaining the sum of N2,409,800.00 out of N7,160,000.0 which means the defendant has recovered the sum of N4,750,000.00 from the debtors. The debts cannot be said to be irrecoverable as contended by the defendant. The defendant should not expect the court to believe it that the claimant collected goods and delivered them on credit or recommended customers for credit without documentation in its file. I find the uncontroverted evidence of the claimant that “I have no power to give any customer goods both cash and or credit. Every sale is approved from head office in Lagos where the goods are packed and from where the defendant sends goods to any customer” to be more probable in the circumstance of this case and I believe him. Relief 5 reads as follows; 3. An order of this honourable Court awarding to the claimant the sum of five million naira (N5, 000,000) as damages for wrongful termination of employment. In issue 1, this court held that the claimant is entitled to damages which shall be considered in issue 3.
The law is well settled that where a contract of employment is terminable on notice, and the employee is not given the requisite notice, what the employee could have earned during the period of the notice is the damages that the employee can get. I.D.C. v. Ajijola (1976) 2 SC. 115 at 119-120;Mobil Oil Nigeria Limited v. Abraham Akinfosile (1969) NMLR 217.
Now exhibit SNOJK 5 provides as follows; 18.1.1 Termination of an appointment after probationary period shall be subject to a notice or payment in lieu thereof, by either party, except in case of summarily dismissal. 18.1.2 Termination of appointment after confirmation of an employee shall at least be one (1) month notice pay. This is also in line with the provision of section 11 of the Labour Act. Accordingly, the claimant was entitled to one month notice of termination or payment in lieu, the failure to give such notice of termination or payment in lieu now entitles him to damages equivalent to what the employee could have earned during the period of the notice and that is one month basic pay which is the sum N19, 694.00. I so find. Relief 6 reads as follows; 4. Order for cost as may be assessed by this honourable court. A successful party in litigation is entitled to cost as cost follows events. I hold that the claimant is entitled to cost in this case assessed at N100, 000.00. |
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10.COURT ORDER
For the avoidance of doubt, the case of the claimant succeeds in part and it is declared and ordered as follows;
- It is hereby declared that the termination of the claimant employment without one month notice and without payment of one month salary in lieu of notice is wrongful.
- The defendant is hereby ordered to pay the claimant the sum of the sum N19, 694.00 being his one month basic salary in lieu of notice.
- The defendant is hereby ordered to pay the claimant the sum of N206, 787.00 being his gratuity for seven years of service.
- The defendant is hereby ordered to pay the claimant the sum of the sum N100, 000.00 as cost.
- The total judgment sum of N317, 481.00 is to be paid within 21 days of this judgment failure upon which the judgment sum shall attract 10 % interest per annum.
This is the judgment of the Court and it is entered accordingly.
………………………………
HONOURABLE JUSTICE K.D.DAMULAK
JUDGE, NICN, ABUJA.
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN IN ABUJA
BEFORE HIS LORDSHIP, HONOURABLE JUSTICE K.D. DAMULAK.
DATED THIS 17THDAY OF OCTOBER 2019
SUIT NO. NICN/329/2018
BETWEEN:
MR SEDI SADIQ ISEME …………………………………………………. CLAIMANT
AND
VITAL PRODUCTS PLC …………………………………….DEFENDANT
JUDGMENT ORDER
WHEREAS claimant took out a complaint on the 28th of November, 2018 against the defendant seeking the following reliefs:
- A declaration that the purported disengagement from service of the claimant by the defendant was not proper and having been done without recourse to the claimant’s terms of employment as contained in the appointment letter and therefore null and void.
- An order of this honourable Court compelling the defendant to pay to the claimant all his entitlements as contained in the lists of outstanding salaries, and expenses attached hereto and amounting to Two Hundred and eighty Two Thousand Six Hundred and Sixty Two Naira Thirty One Kobo (N 282,662.31),
- An order of the honourable court compelling the defendant to compute and pay to the claimant his leave encashment for 2017, sales incentives for 2017 and severance packages as contained in the employees handbook of the defendant.
- An order of this honourable Court converting the purported disengagement to retirement and pay to the claimant all his retirement benefits from the date of employment to the date of judgment in this suit.
- An order of this honourable Court awarding to the claimant the sum of five million naira (N5, 000,000) as damages for wrongful termination of employment.
- Order for cost as may be accessed by this honourable court.
AND after hearing the evidence of both parties and the address of S.N. Okonta Esq. for the claimant and Sam Ekpunobi Esq. with Calistus Ewulu Esq. for the defendant, it is held that the case of the claimant succeeds in part and it is hereby ordered as follows;
COURTORDER
- It is hereby declared that the termination of the claimant employment without one month notice and without payment of one month salary in lieu of notice is wrongful.
- The defendant is hereby ordered to pay the claimant the sum of N19, 694.00 being his one month basic salary in lieu of notice.
- The defendant is hereby ordered to pay the claimant the sum of N206, 787.00 being his gratuity for seven years of service.
- The defendant is hereby ordered to pay the claimant the sum of N100, 000.00 as cost.
- The total judgment sum of N317, 481.00 is to be paid within 21 days of this judgment failure upon which the judgment sum shall attract 10 % interest per annum.
GIVEN UNDER THE SEAL OF THE COURT AND THE HAND OF
THE HONOURABLE JUDGE, HON. JUSTICE K. D. DAMULAK
THIS 16TH DAY OF OCTOBER, 2019.
…………………………….
HON. JUSTICE K. D. DAMULAK
JUDGE
