IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP, HON. JUSTICE S. H. DANJIDDA
DATE: 3RD MAY, 2019 CONSOLIDATED SUIT NO. NICN/PHC/78-98/2014
BETWEEN:
ORUBOR PERE-EBI & 19 ORS CLAIMANTS
AND
1. ARMOUR GROUP NIGERIA LTD
2. ASSET GUARD SERVICES NIGERIA LTD
3. GROUP 4 SECURICOR NIGERIA
LIMITED DEFENDANTS
REPRESENTATION:
LAWRENCE S. OKO-JAJA FOR THE CLAIMANTS
BAMIDELE ADELEYE FOR THE DEFENDANTS
JUDGEMENT
By an amended Complaint filed on the 25th of July 2018, the Claimants are seeking the following reliefs from the Court against the Defendants:-
“1. A declaration that the purported termination of the twelve months service appointment of the Claimants through the lock out of the Claimants from the Defendants’ premises since July 2009 without a letter terminating the Claimant’s appointment while a collective bargaining towards the improvement of the conditions of service of the Claimants was ongoing is wrongful and contrary to the service agreement entered into between the Claimants and the Defendants as well as being in breach of the directive of the State Controller, Ministry of Labour and Productivity and the communique issued between the Defendants on one side and the Nigerian Labour Congress as the mediator and the Amalgamated Union Of The Public Corporations, Civil Service Technical And Recreational Services Employee, (AUPCTRE) representing the Claimants on the other side.
2. The sum of N7, 733,552.80 (Seven Million, Seven Hundred and Fifty Three Thousand, Five Hundred and fifty two naira, eighty kobo only) made up of salaries and allowances being the amount due and payable to the Claimants in the consolidated suit for the unexpired period of their respective service agreements.
3. The sum of N30, 000.000 (Thirty Million Naira Only) being and representing the total general damages claimed by the Claimants in the consolidated suit at the rate of N1, 500.000 (One Million, Five Hundred Thousand Naira Only) per Claimant.”
The Claimants also filed along with the complaint an amended verifying affidavit, amended statement of facts, amended list of witness and documents dated 25/07/2018.
CASE OF THE CLAIMANTS
It is the case of the Claimants as gleaned from the Amended Statement of Facts that the Claimants were at different times employed by the 2nd Defendant into various positions and roles but all on 12 months contract basis. That it has become the nature and practice of the 2nd Defendant to take employees on contract basis and outsource their services to its clientele rather than engage them as full and/or substantive staff.
It is the Claimants’ case that upon discovering what the returns were that accrued to the 2nd Defendant for the services which the Claimants severally rendered to a retinue of the Defendant’s Clientele, the Claimants jointly felt compelled to agitate for the renegotiation of their conditions of service. The Claimants aver that the process of collective bargaining was put into effect under the aegis of the Amalgamated Union of Public Corporations Civil Service Technical and Recreational Services Employees (AUPCTRE), Rivers State; a Government recognized union which has a chapter in the Defendant’s organization. The process of negotiating the collective bargaining towards enhancing the conditions of service of the Claimants which began sometime in April 2009 soon became deadlocked. That it took the intervention of the Nigeria Labour Congress (NLC) for a communiqué to be issued on the 19th of June 2009, with the defendants and representative of the Claimants, being the State Secretary of AUPCTRE as signatories.
The Claimants however stated that while the negotiations were ongoing, that the Defendants purportedly terminated the employment contracts of the Claimants in complete disregard of the terms contained in the Communiqué. Following agitations from the Claimants and other interest groups, the Defendants were urged to recall the Claimants but ultimately failed and/or refused to recall them. Hence, the Claimants are aggrieved and seek for this Court to set aside their termination and vest liability in the Defendants for their expected earning upon the 12 months contract and damages.
CASE OF THE DEFENDANTS
On their part, the Defendants initially filed a motion on the 15/7/2016 to regularise their statement of defence already filed on the 15/7/2016, however an extension of time was granted but a deeming order was not granted. The Defendants thereafter filed another statement of defence on the 20/3/2018 but on 18/09/2018 they jointly filed a Consequential Amended Statement of Defence dated 24/08/2018 without the leave of the court. But on the 2/5/2019, Defendant’s two statements of defence dated 15/7/2016 and 20/3/2018 were withdrawn and consequently struck out at their instance. Defendants also orally apply for leave to file their consequential amended statement of defence filed on the 18/9/2018.
The Defendants stated that contrary to the Claimants’ averment that it is the 1st and 2nd Defendants that employed them and that the 3rd Defendant had no relationship with the Claimants. It is further stated by the Defendants that the 1st, 2nd and 3rd Defendants are completely separate entities.
The Defendants averred that the employment of the Claimants was regulated by the agreement signed between the 1st and 2nd Defendants.
It is the case of the Defendants that the Claimants with prior and full knowledge that their actions would impact the business of the Defendants with its clients negatively, opted to absent from duty which caused the clients to terminate the contract between it and the Defendants. The Defendants in argument also averred that the Defendants’ continued absence from work caused serious losses which necessitated their termination by the Defendants. The Defendants stated that the Claimants were notified by text messaging to come and pick up their letters of termination respectively but they failed to turn-up. However, from the letter of 18/11/2009 sent by the Claimant’s solicitors to the Defendants, the Defendants are convinced that the Claimants took notice of the text and its context.
The Defendants averred that the labour union prevailed on them to re-engage the Claimants so they eventually sent a circular dated 23/07/2009 withdrawing the termination notice earlier issued on the Claimants. However, while that process was yet on the way, the Claimants commenced strike action which made the Defendants to shelve the reabsorption process altogether.
The Defendants further stated that when its futility of serving notice of termination on the Claimants became apparent that they decided to pay the Claimants their July salary, being one month salary in lieu of notice, along with other terminal benefits accruing to the Claimants.
On the 13th of July 2018 following consent of parties and upon hearing an application by Counsel for the Defendants, which was unopposed, this Honourable Court delivered ruling dispensing with the calling of oral evidence in this matter. Trial in this case was to be held on the record alone. The case was adjourned to 10/10/2018 for the adoption of Final Written Addresses but owing to my transfer from Owerri to Makurdi Division of the court, the matter was further adjourned to 2/5/2019 where the parties adopted their Final Written Addresses and thereafter all was set for the judgment of court.
SUBMISSION OF THE CLAIMANTS
The Claimants filed their Final Written Address on 13/08/2018 and dated the same day. In it, the Claimant formulated two issues for determination by this Honourable Court, to wit:
“Whether the purported termination of the Claimant’s respective employment contracts with the Defendants through a lock out and without a letter or notice in writing to the Claimants when the Claimants and Defendants were engaged in the negotiations is lawful especially in the light of the respective service agreements between the Claimants and the Defendants.
Whether the Claimants are entitled to the monetary reliefs claimed.”
While arguing the issues so formulated, on issue one above, the Claimants began by stating that contrary to the argument of the Defendants that the Claimants were employees by the 2nd Defendant alone, the Defendants in the suit are proper and necessary parties. It is the opinion of the Claimants that the Defendants companies are so proximate and/or interlinked with the operations and management of each other that the absence of anyone of them will make it impossible for the court to do complete and effectual justice in the case.
The Claimants then went further to argue on the lawfulness or otherwise of their purported termination by the Defendants. Then Claimants were of the view that union activities of the Claimants, their peaceful demands for better welfare conditions and even non-violent strike did not by any stretch of imagination amount to serious misbehavior in the workplace. The Claimants therefore contended that the unilateral decision of the Defendants to terminate the employment contracts of the Claimants on that account was highhanded, arbitrary and unlawful.
The Claimants also took exception to the use of the words “violent” and “criminal” by the Defendants in describing the activities of the Claimants in most paragraphs of their Statement of Defence. The Claimants questioned the legality of effecting a termination of employment via lockout.
The Claimants differ from Defendants’ narrative of the events leading up to the cause of action in this case. It is the Claimants’ opinion that the Defendants have never been forthcoming with facts within the proper context. The Court was urged not be swayed by the Defendants’ accounts of the events. The Claimants also argued that the Defendants did not afford them fair hearing before terminating their respective contracts of employment.
The Claimants further cited a long line of cases to the effect that for an employer to validly terminate an employee’s contract of employment, the employer must follow the procedure laid down in the contract of employment, keeping in mind the rule of natural justice. The Claimants drew the attention of the Court to item 18 on Termination of their respective service agreements which provide that:
“This agreement may be terminated by either party giving not less than one month’s notice in writing to the other.”
On the then issue to which the Claimants submitted for determination by this court, it was argued that the Claimant by their pleadings and documents brought in evidence before the Honourable Court had proved that they are entitled to the monetary reliefs claimed by them. The Claimants cited a line of cases to give instance of damages following wrongful termination in remedy and submitted that this court should rather be concerned with the quantum of damages to be awarded in this case. Cited S.S. Co. Ltd. v. Afropak (Nig) Ltd. (2008) 18 NWLR (Pt. 1118) 77 @ Para. E; S.P.D.C. Ltd v. Olarewaju (2008) 18 NWLR (Pt 1118) 1 @ 27, Para D-E; C.O.E. Ekiadolor v. Osayande (2010) 6 NWLR (Pt. 1191)423 at 449, Para G.
The Claimants also in arguing for the award of general damages for the alleged harassment, intimidation and maltreatment of the Claimants by agents of the Defendants called in aid the Supreme Court case of Elochim (Nig) Ltd v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47 at 65, citing in alignment to their submission that:
“the primary object of an award of damages is to compensate the Plaintiff for the harm done to him or a possible secondary object is to punish the Defendant for his conduct in inflicting the harm.”
SUBMISSION OF THE DEFENDANTS
On the part of the Defendants, their Final Written Address was filed on 18/09/2010 wherein the Defendants put forward three issues for determination, to wit:
“a. Whether the termination of the Claimants’ respective employment contracts with the 1st and 2nd Defendants is illegal.”
b. Whether the Claimants are entitled to the monetary reliefs claimed
c. Whether there is a cause of action against the 3rd Defendant.
The Defendants, by the issues formulated canvassed extensive arguments in defence of the case.
On issue NO. 1, the Defendants pointed out that the issue can only be resolved upon a determination of whether or not there is indeed a valid and subsisting contract of employment between the parties, capable of being terminated. The Defendants submitted that contrary to the impression given by the Claimants that their employment was illegally terminated in July 2009 and their terminal benefits unpaid, the Claimants were paid their salary for July 2009, including one month in lieu of notice pursuant to Paragraph 18 of the Employment Contract between the Claimants and the Defendants. The Defendants called the Court’s attention to Exhibits B1, B2, C1 and C2, further submitting that none of the Claimants in their evidence or testimony before the Honourable Court denied it, neither did anyone of them return the said monies to the Defendants. The Defendants have therefore urged this Court to find that contract of employment between the parties was effectively ended in July 2009 with the Defendants’ termination of the Claimants. The Defendants while relying on the Supreme Court case of Ex- Capt Charles C. Ekeagwu v. the Nigeria Army & Anor (2010) LPELR-1076) SC, aligned their submission with the words of Tabai, J.S.C. on Pg. 22-23, Para. F-A that:
“the law is well settled that where an employee accepts salary or payment after employment is brought to an end he cannot be heard to complain later that his contract of employment was not properly determined. Acceptance of payment by the appellant has rendered the determination mutual.”
The Defendants argued that they had discharged the onus placed on them by law to prove the payment of the Claimants’ entitlements through Exhibits B1, C1 and C2.
The Defendants contended that the Claimants having placed the terms of contract in evidence before the court, failed to prove before the Court that their employments were terminated wrongly. The Defendants in arguing against the Claimants’ statement that their employment was terminated due to “irreconcilable work ethics”, stated that the term “irreconcilable work ethics” can be interpreted to mean that the mode in which the Claimants exercise their duties differ from the work ethics of the 1st and 2nd Defendants. The Defendants reasoned that motive for termination of employment is immaterial where the contract vests either of the parties with the right to bring the employment to an end with or without notice. Cited the cases of Ajayi v. Texaco Nigeria Limited &Ors (1987) 3 NWLR (pt. 62) 577 @ 593, (1987) ALL NLR 471 @ 488; Mobil Oil Nigeria Ltd & Anor v. Assan (2002) LPELR- 5861 (CA) Pg. 12, Para. E-G; Daudu v. UBA PLC (2003) LPELR-5634(CA).
Furthermore, the Defendants submitted in argument that the Claimants having abandoned their employment were rightly and deservedly terminated, with consequences attending in that regard. The Defendants also submitted that in a master and servant relationship, the duty of the master relating to the termination of the employment of the servant is to ensure that the termination is done in accordance with the contract between the parties. The Defendants then tentatively made a distinction between dismissal and termination, submitting that the employment of the Claimants was not brought to an end as a punitive measure but by reason of their abandoning their work place.
On issue two; whether the Claimants are entitled to the monetary reliefs claimed, the Defendants argued that damages for wrongful termination are only payable when the court has found Defendants liable for wrongful termination. That nevertheless, where the court finds liability for wrongful termination, the only remedy available to the employee will be an award of salary for the period of notice, together with other legitimate entitlements due to the employee when the employment was determined.
The Defendants also brought to attention the Supreme Court case of Obanye v. Union Bank (2018) LPELR-44702 (SC), aligning themselves in submission with the finding therein that:
“the only remedy available to an employee in an ordinary master and servant relationship for wrongful termination of employment is a claim for damages. The rationale being that a servant, though willing, cannot be foisted upon an unwilling master.”
On the case of Okungbowa v. Edo State (2015) 10 NWLR (Pt. 1467) 257 cited by the Claimants to support their measure of damages claimed, the Defendants argued that the case is not in line with the facts and circumstances of present case. The Defendants submitted that the cited case was decided based on wrongful dismissal in an employment with statutory flavour instead.
The Defendants went further to cite a plethora of case law to buttress the argument that the Claimants are not entitled to the monetary relief claimed.
Citing the provision of Section 136 (1) of the Evidence Act to the effect that the onus lies on the person who alleges a fact to prove same, the Defendants contended that there is no shred of evidence to support the assertion by the Claimants that they were harassed, intimidated or maltreated in any way. Defendants cited case law and urged the Honourable Court to find that Claimants are not to recover damages on that note, having failed to provide evidence in proof of damages, whether special or general.
In distinguishing the case of NBC v. Edward (2015) 2 NWLR (Pt. 1443) 201 cited by the Claimants from the present case, the Defendants argued that whereas in the cited case there was clear and uncontroverted evidence of beating, flogging and dehumanizing of the cross-appellant, there is none of such in the instant case. The Defendant maintained that the Claimants were paid one-month salary in lieu of notice terminating their employment and that damages are awarded where there is wrongdoing. It is the expressed opinion of the Defendants in this regard that no wrong was committed against the Claimants. The Court was urged to discountenance the claim for damages as sought by the Claimants.
On issue three; whether there is a reasonable cause of action against the 3rd Defendant. The Defendants cited plethora of cases in a bid to define what a cause of action is and what criteria determines that there is a manifest cause of action. The Defendants argued that the entirety of the facts pleaded by the Claimants did not disclose any reasonable cause of action against the 3rd Respondent on the face of it. The defendants urged the Honourable Court to hold that the claimants have failed to disclose any reasonable cause of action against the 3rd Defendant.
CLAIMANTS’ REPLY ON POINTS OF LAW
In response to the Defendants’ Final Address, Claimants filed a Reply on Point of Law dated and filed on 05/08/2018.
The claimants contending against the submission by the Defendants that the Claimants having received payment after termination of their employment could not be heard to say that the termination is unlawful. The Claimants argued that they are also claiming the outstanding of their salaries and allowances which were unexpired at the time the Defendants purportedly and unlawfully terminated their employment contracts. They submitted that Defendants did not therefore capture the essence of the case of the Claimants.
The Claimant also submitted that since the defendants are the ones who are claiming that the Claimants were paid one month salary in lieu of notice that it is their responsibility to prove by credible evidence such payment. The Claimants maintained that the Defendants have not shown that the claimants were paid their July 2009 salary and the one month salary in lieu of notice and as such, the authority of Ex Capt Charles C.EkeagwuVs.The Nigerian Army(2010) 6 SCNJ 22, cited by the defendants did not support their case. The Claimants in attempting to distinguish that case from this instant case stated that in the cited case, the appellant was dismissed from the army. He went to court where he won his case and was re-instated. Payments were made to him which he received. He was subsequently dismissed. Aggrieved by his dismissal, the appellant went to court again. The respondent claimed that having received salary prior to the termination of his employment, he had waived his right to complain about the wrongful termination. The trial court and the Court of Appeal aligned themselves with the respondent’s submission. But on appeal to the Supreme Court, the court after reviewing the evidence of the respondent on the issue said at page 33,para 25 of the report as follows:
“From the record therefore there is no iota of evidence that appellant was paid his retirement benefits following his compulsory retirement vide exhibit 7. The holding by the lower court that appellant was paid his retirement benefit is clearly not supported by the evidence on record and I consequently hold that the said holding or finding is perverse and consequently subject to being set aside”
The Claimants invited the court to note that the Defendants in spite of their vigorous contention that they paid the Claimants’ July 2009 salary did not at any point in their statement of defence state what the monthly salary of the Claimants was.
The Claimants also argued in response that the Defendants were mistaken. That the Claimants never conceded to receiving any text messages or notice of any kind from the Defendants. That the purport of the Claimants’ counsel’s letter of 18th November, 2009 was to intimate the Defendants of the fact that the Claimants’ employment cannot be terminated by text messages as they purported to do.
The Claimants have contended that the Defendants did not follow due process and they did not also comply with the provisions of the service agreements between the parties in respect of the requisite notice to be issued.
In contending issue two(2) of the Defendants’ final written address, particularly Paragraphs 6.2 to 6.2.17, it is the opinion of the Claimants that counsel for the defendants forcefully argued that damages in cases of this nature are only paid where the court submit that having entered into a one (1) year fixed term of employment contract, the correct position of the law is that the employee would be entitled to the full salary he would have earned had the employment continued according to the contract of employment. Cited the case of Opeyemi v. Owoeye (2017) 12 NWLR (pt. 1580) 364 at 404, Paras F-G.
Also contending in respect of the issue of the payment which the Claimants are entitled to, the Claimants submitted that they are entitled to the full salary they would have earned for the unexpired period of the fixed contractual term of one (1) year. The Claimants also submitted that they are entitled to receive adequate compensation for the harassment, intimidation and maltreatment suffered by them in the process of the Defendants unlawfully terminating their respective employment contracts.
Counsel for the Claimants submitted that the point has been extensively addressed in paragraphs 4.35 to 4.43 of the claimants’ final written address.
The Claimants proposed that the Defendants’ counsel failed to appreciate the reason the courts decided as they did in most of the cases cited and sought to be relied upon by the Defendants. The Claimants submitted in argument that in those cases, the employment relationship was an ordinary, open ended one. That there was no fixed term in the respective employment contracts. That if this case was such a situation the contention of the Defendants’ counsel might apply, but alas, it is not.
In the same vein, the defendants’ counsel’s contention that the claimants did not bring any evidence in support of the fact that they were harassed, intimidated and maltreated is of no moment. It is absolutely baseless and aimed at misleading the court. In paragraph 15 of their statement of facts and paragraph 5 of their reply to the defendants’ statement of defence, the claimants specifically pleaded the fact that they were brutalized, harassed, intimidated and maltreated by the Defendants and their agents. In proof of this fact, the claimants supplied a couple of documents including the letter of 14th September, 2009 written to the Commissioner of Police, Rivers State by the claimants’ Union and National Point newspaper article of Monday, December 14, 2009 which detailed the level of violence visited on the claimants by the defendants and their agents. The Claimants have therefore proved that fact to the standard required by law. Also, the suggestion in paragraph 6.2.15 of the defendants’ final address that the claimants abandoned their duty post is a white wash. It is a mere baseless assertion with no evidence to back it up. The court is urged to discountenance same. The fact is controvertible that the claimants were locked out of the defendants’ premises when they resumed for work.
Under their issue three (3), the Claimants contended that counsel for the defendants argued vigorously but unsuccessfully while relying on the cases of Akinsete v. Kiladejor (2013)LPELR 20215 (CA): Egbe v. Adefarasin (1987) 1 NWLR (Pt 47) 1; FRN v. Abacha (2014) LPELR 22355(CA): Society Bic S A v. CharzinInd.Ltd (2014) LPELR 22256 (SC); Yare v. National Salaries, Income and Wages Commission (2005) LPELR 7470(CA): Obonov.Obono (2016) LPELR 41198 (CA)and Owoshov. Dada (1984) 7 S.C.149: that no reasonable cause of action is disclosed against the 3rd Defendant.
The Claimants in response to this point directed the attention of this Honourable Court to the pleadings of the Claimants, submitting that they clearly demonstrate that the 3rd defendant is a vital and necessary party to the instant action. The Claimants stated that the connection which the 3rd Defendant has to the case at hand has eminently been established by the claimants in paragraphs 4.3 to 4.7 of their Final written address.
The Claimants urged the Court to find that the Defendants are not permitted to prevaricate, approbate and reprobate. Cited the Supreme Court case of Nyako v. A.S.H.A. (2017) 6 NWLR (Pt. 1562) 347 at 403, para H; where it was held that:
“A party is to be consistent with the case he sets up and not shift ground in another court as it suits his fancy.”
Also cited the case of Abubakar Vs.Yar’ Adua (2008)19 NWLR (Pt 1120) 1 at 153-154; paras H-B where the apex court held that:
“In one breath, the appellants make a case of three conflicting results and in another breath they make a case of two conflicting results. Which version should this court take or believe. Is it the version of three conflicting results or the version of two conflicting results? I see here a confusing and confused case made by the appellants. Paradoxically, learned Senior Advocate in making a case of conflict, involved himself in a conflict in the number of results oscillating between the figures“2” and “3”. Which one should this court take? A party must be sure of his case and he must present it in one lung breath; not in two lung breath. If a party makes a case bearing opposing positions, which positions affect the substance or merits of the issue, it crumbles. A court of law is not competent to make a choice or repair the case and give the party in default judgment”.
Similarly, the Claimants urged this Honourable Court to take notice that the consequential amended statement of defence when placed side by side with the earlier statement of defence filed on the 20th of March, 2018, the court will see that the defendants introduced completely new facts and changed the character of their defence. The Claimants though conceded that a party is permitted to make consequential amendments to their pleadings where it is so expressly ordered but that in the present case, no such order was made. That even if such an order was made, that it does not give the Defendants the latitude to change the character of their case in a way that overreaches the opposing party.
The Claimants expressed the view that what the Defendants did is therefore not a consequential amendment properly so called but a complete, wholesale departure from their statement of defence. The Claimants argued that by Order 26, Rule 4 of the Rules of this Court, 2017, the Defendants are obligated to first apply for leave to amend which they failed to do therefore, the claimants are out of time and their consequential amended statement of defence is not properly before the court. Cited the case of Nwankwo v. Abazie (2003) 12 NWLR (pt. 834) at 413-414, Paras C-H.
DECISION OF THE COURT
I have read through the pleadings of the parties, their submissions and the frontloaded documents and I consider it necessary to address a threshold point which has been contended between the parties. It has been contended that the Claimants have failed to disclose a cause of action against the 3rd Defendant, Group 4 Securicor Nigeria Limited. This is an issue to be determined based on fact. The Claimants argued in response to this contention at page 7, Paragraph 2.21 of their Reply on Points of Law in Response to the Final Written Address of the Defendants that the 3rd Defendant is eminently connected to the case at hand. The Claimants pointed to Paragraphs 4.3 and 4.7 of their final written address as establishing the cause of action against the 3rd Defendant. A cursory appraisal of the stated paragraphs does not however seem to support the submission of the Claimants. I need to add that whilst there are three types of parties recognized at law, the Claimants have not satisfied this Court that the 3rd Defendant is a necessary party.
The position of the law is that in order to determine whether a cause of action has been established against a party, one needs to look at the claims or reliefs sought to know whether a case has been made out against a desired party.
I have looked at the Amended Complaint and the statement of facts and it is obvious that the claim consists of a declaration and various other consequential reliefs. I find that there is nothing that will impede a just and effectual resolution of this case without the 3rd Defendant. I have no difficulty in concluding that the 3rd Defendant in this case is clearly not a necessary party because all that the Claimants are seeking from this Court is a judicial pronouncement on the status of the employment contracts between them and the 2nd Defendant, in particular. Consequently, the 3rd Defendant, Group 4 Securicor Nigeria Limited is dismissed as party from this case.
Moving on from there, this Court considers it expedient to determine the claims in this case upon the following issues:
Whether the termination of the Claimants’ contracts of employment is wrongful and contrary to the service agreement between the Claimants and the Defendants.
Whether the Defendants are liable to the Claimants for any monetary reliefs claimed.
ISSUE NO. 1
The law is well settled that an employee who complains that his employment has been wrongly terminated has the onus to: Place before the Court the terms and conditions of the contract of employment and; Prove in what manner the terms of employment were breached by the employer.
Just as the contract of service is the bedrock upon which an aggrieved employee must found his case, the court will not look outside the terms agreed in the contract of service to decide the rights and obligations of the parties. See the cases of AMODU V. AMODE (1990) 5 NWLR (Pt. 150) 356; AFRIBANK (NIG.) PLC V. OSISANYA (1999) LPELR-CA/IL/12/99.
It is pertinent to note that the complaint of the Claimants against Defendants is that their employment was wrongfully terminated because they were entitled to guarantee one-year tenure of employment. By the contract of service entered between the Claimants and the Defendants, it is evident that the agreement may be terminated by either party giving not less than one month’s notice in writing to the other. Article 18 of the Agreement of parties provides as follows:
“This Agreement may be terminated by either party giving not less than one month’s notice in writing to the other.”
Though the agreement is silent on what the alternative to the notice should be, but since it is rendered subject to the laws of Nigeria, I have no difficulty in deeming that one month’s salary in lieu of notice would appropriately suffice.
It is my humble view that, although the claimants argued that their contract is for a fixed period and they are entitled to the salaries and allowances for the unexpired period of their respective service agreements but being an ordinary master and servant relationship, the termination of a contract of service, whether lawful or wrongful, brings to an end the relationship of master and servant. This is based on the notion that no servant can be imposed by the Court on an unwilling master even where the master’s behavior is wrong. For their wrongful act, if at all, the Defendants can only be liable in damages, and nothing more. See the cases of OLANREWAJU V. AFRIBANK NIG. PLC. (2001) 13 NWLR (PT. 731) 691; DUDUSOLA V. NIGERIA GAS CO. LTD. (2013) 10 NWLR (PT. 1363) 423; U.B.N. LTD V. OGBOH (1995) 2 NWLR (PT. 380) 647 @ 664; IBAMA V. S.P.D.C (NIG.) LTD. (2005) 17 NWLR (PT. 954) 364.
ISSUE NO. 2
What damages are recoverable for wrongful termination of employment?
In a contract of employment which is of the ordinary nature like this one, other than one with statutory-flavour where the terms provide for a length of notice being given before termination or salary in lieu thereof, the only remedy an employee who has his appointment wrongfully terminated can get is that period’s salary in lieu of notice and any other legitimate entitlements to which he may be entitled at the time the employment was put to an end. The measure of damages, therefore, will be the salary which the employee would have earned during the period of notice. See McGregor on Damages, 17th Edition at page 937 paragraphs 28-002 and 28-003.
Where the parties have agreed, as in this case that the contract of employment may be terminated by either party upon the giving of notice or the payment of the equivalent salary for the period of notice, the measure of damages for wrongful termination is the amount the servant would have earned over the period of notice.
Also, a claim for damages could only arise if there is a breach of any legal duty to the claimant. A party who brings a contract to an end without justification or notice or with inadequate notice before the expiration of the agreed term by wrongful dismissal or termination or in any manner contrary to the contract will be said to be in breach of the contract. In a contract for a fixed term where a party is given the right to terminate before the end of that term as in the instant case, then damages will be limited to the notice period. See British Guiana Credit Corpn V Da Silva (1965) 1 WLR 248, 109. Chukwumah V Shell (1993) 3 NWLR (Pt.289) 512, where the Supreme Court held that the appellant was entitled to damages for 2 months’ salary in lieu of notice in addition to his terminal benefits for wrongful termination of his appointment. See also Garba V Kwara Investment Co. Ltd & Ors (2005) 1 SC (Pt. 80).
The Defendants have canvassed argument in their defence that the employment of the Claimants had been ended when they accepted payment in lieu of notice. The Defendants have relied on their letter of 30th 2009 to their bankers, Fidelity Bank, together with Statement of Account covering the period from January to December 2009, and staff pay rolls for July 2009 to show this Court that the Claimants were paid salaries for July 2009 when it became impracticable to serve a notice of termination on the claimants. But the Claimants have vehemently opposed this point made by the Defendants.
However, since the Service Agreement between the parties in this case is reduced into writing and Article 18 of the agreement says that a party terminating the contract shall do so in writing by giving one month’s notice, then I think the Claimants are entitled to be notified by the Defendants in writing that the contract is terminated by giving them salary in lieu of notice.
Going by the letter dated 5/11/2009 from the Federal Ministry of Labour and Productivity and other correspondence, it appears that the Defendants should have exercised a kind of restraint in terminating the appointments of the Claimant at the time of an industrial action.
In the present case, the Claimants have proved that the Defendants were in breach of their legal obligations arising from the contract of service to them. In Consequence, I am satisfied that the termination of the Claimant’s appointment was wrongful and the Claimant shall be entitled to damages.
On the whole, I Order that the 1st and 2nd Defendants shall pay to each of the Claimants one month’s salary in lieu of notice.
The 1st and 2nd Defendants shall also compute and pay to each of the Claimants their terminal benefits which is one month’s gross salary and any accrued leave allowance and accrued bonus.
I make no Order as to Cost.
Judgment is entered accordingly.
………………………………………..
HON. JUSTICE S. H. DANJIDDA
JUDGE
