IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS
DATE: SEPTEMBER 27, 2018 SUIT NO: NICN/LA/416/2016
BETWEEN
Olatayo Oluwadunsin Okeniyi – Claimant
AND
1. ABS Europe Limited
2. ABS Nigeria Limited – Defendants
REPRESENTATION
Ifeoluwa Adebambo with Olugbenga Dosumu for the Claimant.
Inam Wilson with I.O. Uwaifo for the Defendants.
JUDGMENT
1. Facts
According to the pleadings filed and evidence led in chief, Olatayo Oluwatosin ”the Claimant”, testified that on 25/2/14 and 3/3/14 he was offered an employment as a Surveyor by the 1st Defendant; that he accepted same; that at all material time to this case he worked assiduously for the advancement and development of the 1st Defendant; that in the course of his employment with the 1st Defendant on 6/4/16 he received a letter of termination of employment from the 2nd Defendant who is an unknown party to his employment; that he tried to get in touch with the 1st Defendant respecting the letter of termination of employment but was prevented by the 2nd Defendant and that the 1st Defendant owed him some outstanding salaries and allowances. The simple position adopted in reaction by the Defendants is that indeed the 2nd Defendant was the employer of the Claimant; that Claimant’s employment was governed by an offer of employment letter from the 2nd Defendant together with an ABS Personnel Policies & Benefits (Nigerian Edition) which was applicable to the Claimant during the period of his employment with the 2nd Defendant and that the employment of the Claimant was lawfully terminated by the 2nd Defendant.
2. Claims
On the basis of the above brief facts, the Claimant approached this Court via his General Form of Complain and statement of facts on 21/6/16 and by his Amended General Form of Complaint and Statement of facts dated the 24/5/18 sought the following reliefs –
1. A declaration that the purported termination letter issued by the 2nd Defendant on behalf of the 1st Defendant to the Claimant without any valid reason is wrongful, discriminatory and a breach of contract.
2. A declaration that the purported letter of termination dated the 6th day of April 2016 issued by the 2nd Defendant on behalf of the 1st Defendant to the Claimant is contrary to the provisions of section 21.1 and 12.2 of the 1st Defendant’s personnel policies and benefits 2014 and section 13.1 of the 1st Defendant’s offer of employment dated the 25th day of February, 2014 and same is therefore wrongful, a breach of contract, null and void and of no effect whatsoever.
3. A declaration that the employment of the Claimant with the 1st Defendant is still valid and subsisting and therefore the Claimant is entitled to salary till date.
4. An order of the Honourable Court directing the 1st Defendant company to pay the sum of =N=631,205.99 (Six Hundred and Thirty One Thousand Two Hundred and Five Naira Ninety Nine Kobo) being salary from the 1st day of April 2016 as well as his allowance, emolument and other entitlement till date.
5. Special Damages in the sum of US$7,445.50 (Seven Thousand Four Hundred and Forty Five US Dollars Fifty Cents) being the Claimant’s outstanding medical bill and the sum of US$20,100.00 (Twenty Thousand One Hundred US Dollars) being the Claimant’s unpaid out of Country allowance.
6. General damages in the sum of =N=20,000,000.00 (Twenty Million Naira).
7. An order of the Honourable Court directing the 1st and 2nd Defendants jointly and severally to pay to the Claimant the sum of =N=100,000,000 (One Hundred Million Naira) as exemplary damages to the Claimant for the Defendants’ act of wrongful and unlawful termination, unfair labour practice, oppressive conduct and an act of discrimination.
8. Interest thereon at the rate of 21% per annum from the 1st day of May 2016 until judgment and thereafter at the rate of 10% per annum until final liquidation thereof.
9. Cost of the basis of indemnity.
The Defendants entered an appearance and filed a joint statement of defence on 17/11/16. Accompanying the defence processes filed by the defendants are witness statement on oath, list of witness, list and copies of documents to be relied on at trial.
2. Case of the Claimant
The Claimant opened his case on 29/3/17 and testified in chief as CW1. Claimant adopted his written deposition dated 21/6/16 as his evidence in chief. Claimant also adopted his further witness statement on oath dated 22/12/16 as his further evidence in chief. Claimant tendered 13 documents in all as exhibits. The documents were admitted in evidence and marked ad Exh. C1-Exh. C13 respectively.
Under cross examination, CW1 testified that the address of 1st Defendant by Exh. C2 is situated No. 1 Frynpan London E.I. 7HR England; that he does not have the address of where he worked for Defendant in Nigeria; that he does not know if 1st Defendant is registered in Nigeria; that address of 1st Defendant in Nigeria is Abacha Road GRA, Port Harcourt; that the 2nd address is Ikoyi, Lagos; that he worked from these addresses for 1st Defendant; that Exh. C1 and Exh. C2 were ; that given to him together; that Exh. C1 is his Offer of employment letter of appointment by the 1st Defendant; that he knows that 1st Defendant is a multinational Company; that it operates in Nigeria, England, Belgium, Greece, Ghana, and Poland and that in Nigeria 1st Defendant operates as ABS Limited. Claimant added that he received pay slips from Defendant by going to the website of Defendant; that he used to make Pension Contributions and often received statement of accounts; that he does not have the statement of accounts in this Court; that the 1st Defendant used to deduct his tax; that his employment was confirmed after 6 months of employment; that he cannot remember if there is any laid down procedure for reporting discrimination; that he did not at any time formally complain about any alleged discrimination; that there is nothing in the contract that says he is entitled to out of country allowance; that from industry best practices however staff are paid out of country allowance and that there is a medical plan with Defendants reimburse medical expenses of staff.
3. Case of the Defendants
The Defendants opened their defence on 24/11/17. One Richard Patrick Douglas testified for the Defendant as DW1. The witness adopted his written deposition dated 17/11/16 as his evidence in chief and tendered 8 documents as exhibits. The documents were admitted in evidence and marked as Exh. ABS1-Exh. ABS8 respectively. ” additional documents were tendered during cross examination. There accordingly admitted in evidence and marked as Exh. ABS9 & Exh. ABS10.
Under cross examination DW1 stated that he worked for ABS South Africa for about 4 years; that he has been in Nigeria for about 18 months; that in his statement on oath he claimed to be working for ABS Ltd; that the Claimant is not under any form of secondment; that the 1st Defendant requested the Bank Statement of the Claimant; that before the termination of employment of the Claimant no query was issued to him; that he has met the Claimant in person; that he did not work directly with the Claimant; that the 1st Defendant may have designated hospitals in Europe but not in Nigeria; that the 2nd Defendant has relationship with Gold Cross Hospital; that there is no evidence in respect of that before the Court now and that he travels a lot.
4. Submissions of learned Counsel
The Defendants filed a 33-page final written address on 5/6/18 and set down the following issues for determination 1.Whether the Claimant’s employment was validly terminated by the 2nd Defendant’s letter of 6 April, 2016 and 2. whether the Claimant has proved that he is entitled to his monetary claims, to wit: i. The sum of =N=631,205.99 (Six Hundred and Thirty One Thousand Two Hundred and Five Naira, Ninety Nine Kobo) being arrears of salaries, allowances, emolument and other entitlements from the 1st day April, 2016 till date of filing the suit; ii. Special damages in the sum of US$7,434.50 (Seven Thousand Four Hundred and Forty Five US Dollars, Fifty Cents) being the Claimant’s outstanding medical bill and the sum of US$20,100.00 (Twenty Thousand One Hundred US Dollars) being the Claimant’s unpaid out of country allowance; iii. General damages in the sum of =N=20,000.000.00 (Twenty Million Naira); iv. Exemplary damages in the sum of =N=100,000.000 (One Hundred Million Naira); v. Interest at the rate of 21% per annum from the 1st day of May, 2016 until judgment thereafter, at the rate of 10% per annum, until final liquidation. The crux of the argument canvassed by the Defendants is that the 2nd Defendant was the employer of the Claimant; that the appointment of the Claimant was validly terminated by the 2nd Defendant in accordance with the terms and conditions applicable to the employment and that that being the case the Claimant is not entitled to any of the reliefs sought. Counsel urged the Court to so hold.
On 22/6/18, the Claimant filed a 22-page final written address and the learned Counsel set down the following issues for determination – 1. Whether the Claimant’s employment was validly terminated by the 2nd Defendant’s letter of 6 April, 2016; and 2. Whether the Claimant has proved that he is entitled to his monetary claims. Learned Counsel to the Claimant had made a preliminary observation on the competence of the witness called by the Defendants – DW1 who is a staff of the 2nd Defendant to testify on behalf of the 1st Defendant; the witness is not competent to testify for the 1st Defendant and that at best his evidence is hearsay. Counsel also observed that Exh. ABS6, Exh. ABS7 & Exh. ABS8 were wrongly admitted not being relevant and that the Court should expunge them from the record of Court citing Lambert v. Nigerian Navy (2006)7 NWLR (Pt. 980) 514. On the termination of the employment of the Claimant learned Counsel submitted that the 2nd Defendant was an unknown party to the contract between the Claimant and the 1st Defendant. Counsel urged the Court to so hold and to further hold that the Claimant is entitled to all the reliefs sought.
5. Decision
I have read and clearly understood all the processes filed by learned Counsel for each side. I heard the testimonies of the witnesses called at trial and watched their demeanor. I carefully reviewed and evaluated all the exhibits tendered and admitted in this case. Having done all this, I note that both learned Counsel have set down the same issues for determination though framed differently. For me this shows a consensus on the real issues agitating the minds of the parties and which call for adjudication. I therefore adopt the following 2 issues as set down for determination by the Claimant –
1.Whether the Claimant’s employment was validly terminated by the 2nd Defendant’s letter of 6 April, 2016.
2.Whether the Claimant has proved that he is entitled to his monetary claims.
The nature of our adjudicatory system in this jurisdiction is that whoever approaches the Court for judicial intervention must prove the basis of his assertion in order to be entitled to a positive disposition. This is aptly expressed in the maxim he who asserts must prove. The discharge of this burden of proof is by adducing cogent, credible and admissible evidence be it oral, documentary or both. Let me quickly address the issue of competence of DW1 to testify for the 1st Defendant as raised by the learned Counsel to the Claimant. DW1 identified himself as a Director of ABS Limited. There is sufficient evidence before me to the effect that 1st Defendant is a multinational company with branches in different part of the world including Nigeria and that the 2nd Defendant is a subsidiary of the 1st Defendant. I thus find nothing unusual in DW1 giving evidence on behalf of both Defendants. In any event, the Defendants were jointly sued. They filed a joint statement of defence to which the Claimant did not object to. I am not aware of any rule of law or practice which forbids a staff of a subsidiary from giving evidence on behalf both the subsidiary and the parent company. Secondly, I have reason to review and evaluate Exh. ABS6, Exh. ABS7 & Exh. ABS8. I found and still find these exhibits both relevant and admissible for the purpose of doing justice in this case. The fact remains that a Court of law is obliged to be afforded opportunity of access to all documents relevant to a case before it. For it is then and then alone that the Court will be able to discharge its constitutional adjudicatory responsibility of justice delivery. I have no reason to discountenance these exhibits and I so hold.
Now, to the first issue for determination here. The argument of the Claimant is that his employment was terminated by a party other than his employer. In other words, Claimant is alleging wrongful termination of his employment. The law is trite that in an action for wrongful termination of employment, the Claimant must exhibit his contract of employment and prove to the Court how the termination was not in compliance with the extant contract and conditions. See N.N.P.C. v. Olagbaju (2006) All FWLR (Pt. 334) 1855 at 187. See also Mighty Plastic Industry Limited v. Okeke (2016) LPELR-(CA).Who employed the Claimant? How was he employed? What are the terms and conditions of his engagement? Who has the power to remove him and under what conditions can his employment be terminated? These are some of the critical questions which the Claimant must proffer answers. The burden of proof is on the Claimant herein. That burden is to be discharged on the preponderance of evidence. It is not for the Defendants to offer any evidence until the burden of proof shifts. In support of his assertion of unlawful termination of employment, the Claimant tendered Exh. C1 & Exh. C2. Exh. C1 was addressed to the Claimant, dated 25/2/14 and titled Offer of Employment (Strictly Private & Confidential). In its first paragraph, the exhibit states that ”We are very pleased to extend a formal offer of employment for the position of Surveyor 1 and we look forward to your … ABS Ltd. (”the employer/the company”). This exhibit, I find. contains the terms and conditions of engagement of the Claimant. Clause 13 of same deals with termination of the relationship by providing that ”either party may terminate the agreement on one month’s written notice to the other or payment of one month salary in lieu of such notice”. The exhibit was signed by the Senior Vice President and Africa Regional VP of ABS. My understanding of and finding in relation to the content of Exh. C1 is that without doubt the 2nd Defendant was the employer of the Claimant. Secondly, the Claimant tendered Exh. C2. This exhibit was not dated. It was signed by Jean M. Jenkins, Director, Human Resources of ABS Europe Limited. Again in its first paragraph, the exhibit which was addressed to the Claimant states that ”We refer to our offer of employment and confirm your appointment as Surveyor 1 at an annual salary of 8,715,000 Nigerian Naira”. The date or content of the alleged letter of employment under reference was not indicated. Let me however point out that Exh. C2 has a lot of similarity to Exh. C1. For instance both exhibits referred to Claimant being appointed as Surveyor 1. Both exhibits also state his annual salary to be 8,715,000 Nigerian Naira. Unfortunately, Exh. C2 bears no date. The law is trite that an undated document is nothing but a worthless piece of paper. It has no utility for the purpose of doing justice in a cause or matter. See Udo & Ors. Essien & Ors. (2014) LPELR-22684 (CA). Even where a document is admitted in evidence, albeit, wrongly, the Court is not bound to rely on or act on same. At the time of evaluation as this, the Court is under an obligation to expunge such an exhibit in the interest of justice. Agbi v. Ogebeh (2006)11 NWLR (Pt. 990) 65 & Maigwandu v. Maradun & Anor. (2018) LPELR (CA). I am therefore constrained to and I here discountenance Exh. C2 and expunge same from this proceedings having been wrongly admitted. In addition to the foregoing, I find Exh. ABS2 as tendered by the Defendants. This exhibit is a bundle of Pay slips issued to the Claimant. Each page of the 11-page exhibit carries the name of ABS LIMITED. Exh. ABS9 & Exh. ABS10 are Form CAC7A & Form CAC2A from the Corporate Affairs Commission indicating the name of the company to be ABS LIMITED. Now it is apparent that the party which the Claimant ought to have brought to this Court as 2nd Defendant is indeed ABS Limited as opposed to ABS Nigeria Limited.
Now, was the employment of the Claimant validly terminated by the letter dated 6/4/16? The letter terminating the employment of the Claimant was dated 6/4/16. It was issued on the letter head of ABS and signed by one Richard Taylor. The letter which was admitted as Exh. C4 states thus –
”I am writing to you regarding your employment with ABS-Nigeria. This letter is to inform that your employment with ABS-Nigeria is terminated as of today’s date.
You will receive your final pay up to termination date as normal. You will also receive One (1) month pay in lieu of notice, subject to normal withholdings. Any unused and accrued vacation will be paid out in your final payroll. The housing rent advance will be deducted from your last pay slip accordingly.
If you wish to appeal against this decision, please do so in writing to Eva Krawariti within 7 business days of this letter.
If you have any further queries or concerns, please feel free to contact me”.
Exh. C4 was written on the same letter head paper as Exh. C1. My finding in this case is that ABS is a group or rather a multinational company with branches in different regions of the world and that ABS Europe is a collective term for branches or subsidiaries of the company in Africa Region, Eastern Region, Northern Region and Southern Region. See Exh.C5.I have sufficient evidence before me to the effect that the Claimant was employed by the ABS Limited wrongly referred to as ABS Nigeria Limited by the Claimant. I find and hold that the employment of the Claimant was validly and lawfully terminated by his employer ABS Limited referred wrongly by the Claimant to mean ABS Nigeria Limited.
The second issue for determination is whether the Claimant has proved that he is entitled to his monetary claims. The first relief sought is for a declaration that the purported termination letter issued by the 2nd Defendant on behalf of the 1st Defendant to the Claimant without any valid reason is wrongful, discriminatory and a breach of contract. By virtue of Clause 13 of Exh. C1, either party is at liberty to terminate the employment relationship between them. The employer only simply exercised its right under the contract without more. The law is trite that parties are bound by their contract. See Askpo v. Access Bank (2015) LPELR-25845(CA). In a situation as this it is not the duty of the Court to write for or rewrite the contractual agreement between the parties. See Visitor, IMSU & Ors. v. Okonkwo (2014) LPELR-22458 (CA). Parties are also bound by the terms and conditions of their engagement. I also do not find any evidence led in support of the allegation of discrimination as claimed by the Claimant. I refuse this head of claim for lack of proof by cogent and admissible evidence. In much the same vein, having found that the employment of the Claimant was validly terminated I refuse and dismiss the second relief sought as well. Once an employment is terminated as in the instant case, it is not open to a Claimant to continue to hold that the relationship subsists. In circumstances as this, only post employment rights of the parties are to be pursued. There is no evidence that the Claimant is still in the employment of the Defendants. This Court has found and held that the employment of the Claimant was with the second Defendant and not the first. Thus the claim for a declaration that the employment of the Claimant with the 1st Defendant is still valid and subsisting and therefore the Claimant is entitled to salary till date is refused and dismissed for there being no basis to so hold. The Claimant has failed to adduce cogent and credible evidence in support of any of the reliefs sought. I therefore dismiss this case in its entirety.
Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, I dismiss the case of the Claimant in its entirety. I make no order as to cost.
Judgment is entered accordingly.
____________________
Hon. Justice J. D. Peters
Presiding Judge
