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Mr. Warmate Ogbegbe -VS- DUFIL Prima Foods Plc

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

ON THE 7TH OF FEBRUARY, 2019.

 

BEFORE HIS LORDSHIP: JUSTICE I.S. GALADIMA

                           SUIT NO: NICN/PHC/173/2013

BETWEEN

WARMATE  OGBEGBE                                CLAIMANT

AND

DUFIL PRIMA FOODS PLC                         DEFENDANT

REPRESENTATION:

  • Innocent Okogbule; S. Ebenezer for the Claimant.
  • Mike Inyang; Uwem Noah; S. I. Nengia for the Defendant.

JUDGMENT

This complaint, duly accompanied by other originating processes, was filed on the 4th of November, 2013 and it seeks as follows:

  1. A declaration that the Claimant is still an employee of the Defendant and entitled to all the salaries, allowances, benefits, and entitlements from April 2011 till the date of judgment in this suit.
  2. A declaration that the mode and manner in which the Defendant purported to terminate the appointment of the Claimant is crude, offensive, wrongful and unlawful.
  3. An order of this honorable Court directing the Defendant to pay the sum of One Hundred Million Naira (N100,000,000.00) only to the Claimant for the crude, offensive, wrongful, and unlawful termination of his appointment.
  4. The sum of Fifty Million Naira (N50,000,000.00) as special and general damages occasioned to the Claimant by the purported wrongful dismissal or termination of his appointment by the Defendant.

HISTORY OF THE CASE:

The Defendant Company originally entered appearance and statement of defence albeit out of time, on the 25th of May, 2014. The Claimant deeming it necessary, subsequently entered a reply to the statement of defence on the 9th of June, 2014. On the 17th of June, 2015 Leave was granted to the Defendant to file an amended statement of defence dated 16th April, 2015. With issues now properly joined, the case was ripe for hearing. However, due to a series of undue delays arising from the case file being transferred from Calabar in Cross River State to Yenegoa in Bayelsa State and subsequently to Owerri in Imo State, trial could only begin properly on the 25th of April, 2018 before me. On that day, the Claimant as sole witness, adopted his deposition and tendered a total of 12 exhibits numbered C1 to C12. They are as follows:

  1. Exhibit C1 – Offer of Appointment dated 20/2/2004.
  2. Exhibit C2 – Certificate of Award dated 20/12/2009.
  3. Exhibit C3 – Query letter dated 4/4/2011.
  4. Exhibit C4- Query letter dated 18/4/2011.
  5. Exhibit C 5(a) – Query reply letter dated 4/4/2011.
  6. Exhibit C5(b) – Query reply letter dated 18/4/2011.
  7. Exhibit C6 – Solicitor’s Letter to the Defendant dated 3/5/2011.
  8. Exhibit C7 – Letter from Defendant’s Solicitor in reply to Exhibit C6 dated 5/5/11.
  9. Exhibit C8 – another Letter by Claimant’s Solicitor dated 11/5/11.
  10. Exhibit C 9 – Claimant’s Solicitor’s Letter to the DPO dated 2/9/2011.
  11. Exhibit C10 – Another Letter by Claimant’s Solicitor demanding reinstatement of Claimant dated 16/12/12.
  12. Exhibit C11 – Code of Conduct by the Defendant  Company.
  13. Exhibit C12 – loan agreement executed on 24/1/2011 by the Claimant for the sum of N600,000.00.

An additional document was tendered through the Claimant during cross examination. The employee handbook was admitted by this Court and marked Exhibit C13.

After the cross examination of the Claimant, the Defendant opened its defence on the 14th of June, 2018. It relied on the testimonies of 2 witnesses who tendered a total of 9 documents numbered D1 to D9 as follows:

  1. Exhibit D1 – Termination of Appointment letter dated 1/12/2011.
  2. Exhibit D2 – Letter by Defendant’s Solicitor dated 20/5/2011.
  3. Exhibit D3 – Another Letter by Defendant’s Solicitor dated 13/7/2011.
  4. Exhibit D4 – Letter by the Claimant’s Solicitor dated 15/7/2011.
  5. Exhibit D5 – Employee handbook.
  6. Exhibit D6 – Query dated 4/4/2011.
  7. Exhibit D7 – Query dated 18/4/2011.
  8. Exhibit D8 – internal memo titled “Abandonment of Duty” dated 19/4/2011.
  9. Exhibit D9 – Time/Schedule Table of the Defendant Company of Staff.

This Court however rejected a document dated 20/2/2004 sought to be tendered through DW1 purportedly being a letter of appointment of the Claimant because it was not pleaded in evidence by the Defendant.

Upon the cross examination of both witnesses by the Claimant’s Counsel, the matter was adjourned to the 14th of January, 2019 for adoption of final written addresses accordingly. This was not possible however and upon the Claimant’s Counsel’s application, the case was further adjourned to 5/2/2019 for adoption and this judgment was pronounced two days later, i.e on 7/2/2019.

DEFENDANT’S ADDRESS AND SUBMISSIONS:

 

The Defendant’s address was filed on the 6/12/2018. In it, two issues were raised for determination thus:

  1. Whether the Claimant’s employment with the Defendant was wrongfully terminated?;
  2. Whether the Claimant is entitled to the monetary claims in the suit?

On issue 1 above, Counsel argued that the Claimant is evidentially bound to proof his case on a balance of probability as required by the law. It is alleged that since the Claimant believes his employment was wrongfully terminated, he has to establish how this happened with the presentation of facts sufficient enough to convince this Court. That by the decision in NRW INDUSTRIES V. AKINGBELEGBE (citation supplied), an employee must proof four essential ingredients where he seeks that he was wrongfully terminated. They are 1). That he was duly employed 2). Establish his terms and conditions of his employment. 3). Establish the manner in which he was terminated was wrongful. 4). The terms and conditions of his employment which were consequently breached thereby.

It was submitted that although the Defendant does not challenge the fact that the Claimant was duly employed by it, it however denies that the Claimant’s employment was wrongfully terminated. That in comparison with the vague and intangible evidence adduced by the Claimant, the Defendant had succeeded in showing this Court that his (Claimant’s) employment was properly terminated when it served the Claimant with a letter in that regard as Exhibit D1. It is submitted on that the Claimant merely denied he was ever served such letter by the Defendant and that instead of him concentrating more on how his termination was wrongful, he spent most of his efforts to only establish his distaste in the manner in which he was served the letter of termination. That the letter was accordingly sent to the address the Claimant had provided to the Defendant as contained in the Claimant’s personal file. That this information was collaborated by the evidence of DW1 who personally mailed the letter in the ordinary course of business. That in fact, DW1 was never challenged under cross examination by the Claimant’s Counsel and so his testimony must be believed by this Court. He cited the decision in the case of WAEC V. OSHIONEBO (citation supplied) to suggest that where a witness’s testimony is unchallenged during cross examination, it must be deemed to be reliable. Accordingly also, the Defendant’s Counsel believes that the Claimant cannot be heard to complain that he was not given sufficient notice prior his termination since he failed to establish how much notice he is entitled to. As such, resort must be accordingly had to common law which states that a reasonable notice should be given and that was what the Defendant did by giving a month’s notice.

On issue 2, learned Counsel submitted that the reliefs sought as numbers 3 and 4 on the Complaint were not specifically itemized and pleaded as special damages, and the failure of this Claimant to do so, amounts to non-compliance giving the reasoning in NRW Industries v Akingbelegbe (citation). The Court was urged to dismiss the said reliefs.

Furthermore, it was contended that an employee who succeeds in establishing that he was wrongfully terminated is only entitled to what he would have earned for the period of notice he ought to have been given and with the evidence in the instant case showing that the Claimant received his salary monthly, he (the Claimant) is not entitled to any damages. Reliance was placed on the following cases including: ACB v Ufondu, Chukwuma v SPDC, WAEC v Oshinebo (citations supplied).

Learned Counsel for the Defendant argued on that the evidence before this court indicates that the last time the Claimant worked was in April 2011, with his terminal benefits including one month salary coming up to N211,097.24, whereas he (the Claimant) is indebted to the Defendant to the tune of N589,883.33. It is counsel’s view that with this indebtedness admitted by the Claimant, it requires no further proof. Counsel urged the Court to direct the Claimant to pay the said sum to the Defendant.

In conclusion, counsel reiterated that this suit should be dismissed because the Claimant has failed to prove that he is entitled to any of his claims.

 

CLAIMANT’S FINAL SUBMISSIONS

Counsel for the Claimant formulated two issues for determination as follows:

  1. Whether the appointment of the Claimant was terminated in compliance with the terms and conditions of the Claimant’s contract of employment with the Defendant?
  2. Whether the Claimant is not entitled to damages for wrongful termination of his employment?

On issue 1, counsel contended relying on the decision in Sani v FCDA (citation supplied) that the Claimant’s employment was terminated without following the terms and conditions of his employment contract which can be inferred from the offer of employment, employee handbook and Code of Conduct and the Grievance Procedure. The Court was urged by counsel to rely on exhibits C1, C11 and C13 respectively to ascertain whether the Claimant’s employment was wrongfully terminated.

Furthermore, it was conceded that in a master-servant relationship, the master has unfettered right to terminate the servant in accordance with the contract – Longe v FBN Plc (citation supplied). It is Counsel’s contention that the Claimant has proved that he was wrongfully terminated and the Defendant has failed to prove that the Claimant’s employment was duly terminated.

According to Counsel, exhibit C11 is a vital document in determining whether the Defendant complied with the procedure for termination, as the said document provides a guide for administration of discipline; and where a disciplinary procedure is incorporated into a contract of employment, failure to follow that procedure constitutes a breach of contract by the employer.

With respect to issue 2, counsel submitted that where an employment is wrongfully terminated, the employer must pay damages to the employee. In the instant case, counsel further submitted that from the event of 19/4/20111 when the Claimant was refused entry into the Defendant’s factory, and 2/12/2011 when the termination letter was posted, the termination of the Claimant’s employment was done contrary to the contract between the parties.

It is counsel’s further opinion that employees are entitled to damages if they can establish that their employer’s wrong doing seriously damaged their reputation and caused them financial loss.

The court was urged in conclusion, to enter judgment in the Claimant’s favour.

COURT’S DECISION:

I find that one issue calls for resolution in this case, which is:

  1.             Whether the Claimant’s employment was wrongfully terminated to entitle him to the award of damages?

What are the facts relevant to the claims made by this Claimant? It is undisputed that the Claimant was employed vide exhibit C1, (the offer of appointment), on 20/2/2004. Following a query on the Claimant’s absence from work on 16/4/2011, he was refused entry into the Defendant’s factory and his salaries were stopped. It was the Claimant’s contention that reading his appointment letter together with the Employee Handbook and Code of Conduct & Grievance procedure, he was entitled to have been given one month notice or payment of one month basic salary in lieu, and that failure to give him such notice would make his termination wrongful.

Apparently, there is no dispute as to the fact that from the day the Claimant was prevented entry into the Defendant’s premises to date, the Claimant actually stopped working for the Defendant and his salaries were stopped.

Now what was the defence put forward by the Defendant in its pleadings?

I bear in mind that triable facts can only be discerned from the pleadings of parties – See: Longe v FBN Plc (2010) 6 NWLR (pt 1189) 1 at 31, C. Therefore, the most relevant facts pleaded by the Defendant are found in paragraphs 5(viii), 6(v)&(vi), 7(iv) & (viii) of the amended statement of defence and they read as follows:

5(viii)—Though the Claimant reported for work on 17/04/2011, he did not perform any work because news of the Defendant’s plan to terminate his employment got to him. Emphasis mine.

6(v)—That the Defendant (sic) was asked to return to his duty post making statement to the police and undertaking to furnish the Defendant with the second guarantor.

6(vi)—Instead of returning to his duty post at the Defendant’s premises, the Claimant proceeded to engage the services of Okogbule & Okogbule to write the letter dated 3/05/2011 alleging breach of fundamental right and claiming the sum of N100M as compensation.

7(iv)—That the Claimant’s consistent reply to the request by the Defendant to resume work has always been the payment of N100M compensation as a condition precedent to resume work.

7(viii)—That one of the terms of the contract of employment of the Claimant with the Defendant provides that where there is no work, there would be no pay. The Defendant hereby pleads its employees’ handbook.

It is easy to see that paragraph 7 above collaborates the Claimant’s account that  he was stopped from further working for the Defendant.

As correctly stated by both Counsel, it is the contract of employment that determines whether a termination was proper or not. Just as the Supreme Court held in Idoniboye-Obu v NNPC(2003) 2 NWLR (pt 805)589 at 603 C-E that:

“The court is not entitled to look outside the contract of employment as to the terms and conditions. These must be gathered therefrom and/or from other sources which can be incorporated by reference to the contract…” (emphasis mine).

Exhibit C1 in the instant case is the contract of employment between the litigating parties in this suit. No other document was incorporated into this contract. Therefore, I find that it is only the terms and conditions contained in this contract (Exhibit C1) that should be considered in the resolution of this case.

Now, paragraph 8 of the said exhibit C1 which provides for termination/cessation of the employment relationship of the parties, partly reads:

“After confirmation, employment may be terminated at any time by giving one month’s notice on either side in writing or alternatively by payment of one month’s basic salary in lieu of notice by either side.”

As recounted earlier on from the Defendant’s pleadings, when the Claimant went to work on 17/4/11, “news of the Defendant’s plan to terminate his employment got to him”. The following day i.e. 18/4/2011, he was not allowed into the premises of the Defendant, perhaps confirming the news the Claimant allegedly heard the previous day.

Without any doubt in my mind, by preventing the Claimant from working on the 18/4/2011, the Defendant clearly breached the contract of employment entered into with the Claimant. Furthermore, the letter of termination (exhibit D1) did not give the requisite one month notice stipulated in the parties’ contract. The letter was dated 1/12/2011 to take effect from 2/12/2011. Curiously though, Exhibit D1 provided that the Claimant should “visit” the Finance/Account’s Department for his salary together with one month’s salary in lieu of notice and other terminal benefits less his indebtedness to the Defendant Company. Following this, I find and hold therefore that the Claimant is entitled to the amount of N11,088 only as payment of one month’s salary in lieu of notice.

Interestingly though all the claims made by the Claimant that he was cruelly and maliciously mistreated by the Defendant when he was refused access into the Defendant’s premises is however untenable and unfounded in the absence of any other collaborative evidence or testimonies. All the alleged circumstances which purportedly led to the break down and deterioration of the relationship between the parties were frankly not sufficiently proved by the Claimant and I find the facts averred thereon are highly improbable. Giving the above reasoning, I hereby refuse reliefs 2 and 3 sought by this Claimant.

Nonetheless, I do in fact find that the intention of the Defendant on the 18/4/2011 was to indeed disengage the Claimant’s services, which intention was later crystallized by the letter of 1/12/2011. In an ordinary master/servant relationship, an employee cannot be granted a declaration that he is still employed by an employer who is clearly no longer interested in continuing the employment relationship. As such, I cannot grant relief 1 sought by this Claimant which is for an order declaring that he is still employed in the Defendant’s company and entitled to salaries from the 18/4/2011 to the date of judgment in this suit. Relief 1 is accordingly hereby denied.

However, having found the Defendant to be in breach of the contract of employment, the Claimant is entitled to damages for the breach following the decision in Oforishe v Nigerian Gas Company Ltd (2018)2 NWLR (pt 1602) 35 at 61. I will award as damages to the Claimant, eight months of his basic salary calculable from April, 2011 to 30th November, 2011. Interestingly, the only evidence of the amount the Claimant earned as salaries is the one provided for in Exhibit C1. There are no other pieces of averments in the Claimant’s pleadings or evidence in the form of pay slips or statement of account suggesting or indicating the last salary paid before the Claimant’s employment was terminated and before this suit was instituted. As such, the only amount proved to be the Claimant’s monthly salary and entitlement in 2011, is N11,088 as contained in Exhibit C1 which is what shall be granted.

Accordingly, I award the sum of N88,704 (which is N11,088 multiplied by 8 months) as general damages for the wrongful termination of the Claimant’s employment to be paid by the Defendant within 7 days of this judgment.

A critical issue to be addressed at this juncture is regarding the Defendant’s assertion that the Claimant is indebted to it for his unpaid loan. It is fairly clear that this Court will not allow a former employee, except where the contextual facts allow him, to avoid fulfilling contractual obligations for example, the repayment of loans even on the excuse that the loss of employment has made it impossible to repay the loans advanced to him in the course of the employment relationship. See Fashanu V. Prestige Assurance Plc NICN/LA/25/2016 delivered on April 25 2018 per Kanyip J, and Iyamah V. FBN Plc NICN/LA/367/2012 delivered on November, 24 2018 per Obaseki – Osaghae, J.

However, it must be borne in mind that a court of law is not a charitable institution. Its duty in civil cases is to render to everyone according to his proven claims. See: Edilcon (Nig) Ltd v UBA Plc (2017) 18 NWLR (pt 1596) 74 at 102, C-D,F. From the pleadings before me, the Defendant has neither a cross-claim nor a counter-claim. Order 32(4) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, specifically provides that:

4—Where any Defendant seeks to rely upon any ground as supporting a right of Set-Off or counter-claim, the Defendant shall in the defence state specifically that the Defendant does so by way of supporting a right of Set Off or counter-claim.

 

Paragraph 7(vi) of the amended statement of defence relevant to the alleged Claimant’s indebtedness reads:

“At the termination of the Claimant’s employment, his terminal benefit, unpaid salary for the days he worked for the Defendant in April 2011 and one month salary in lieu of notice  was 211,097.24 while the claimant’s unpaid house ownership loan was N589,883.33”

From the above averment, the Defendant did not specifically plead that  it was relying on these facts to support a right of counter claim or set-off. In fact, there was no specific particulars set out in proof of the claim. Thus, I find and hold that the Defendant is not entitled to be paid the sum of N589,883.33 or any other amount having not been specifically counter claimed.

Thus, for clarity, and in the light of my finding that the employment of the Claimant was wrongfully terminated and in breach of his employment contract, I hereby declare and order as follows:

1)   A declaration that the termination of the Claimant’s employment was wrongful.

2)   An order directing the Defendant to pay the sum of N11,088 as payment of one month’s salary in lieu of notice.

3)   An order directing the Defendant to pay the sum of N88,704 only to the Claimant as general damages.

4)   Order directing the Defendant to pay the Claimant the total sum of 2 and 3 above which is N99,792.00 within 7 days of this here judgment which shall in default, attract 10% interest per annum until final liquidation of the sum.

Parties are to bear their own costs of this action.

This suit succeeds in part only and I so pronounce.

 

 

Delivered in Owerri, this 7th February, 2019.

Justice Ibrahim S. Galadima,

Presiding Judge.

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