IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP, HONOURABLE JUSTICE K.D. DAMULAK.
DATED THIS 17th DAY OF SEPTEMBER 2019
SUIT NO. NICN/308/2018
BETWEEN:
SUNDAY IORLAMEN …………………………………………………. CLAIMANT
AND
NILE UNIVERSITY OF NIGERIA …………………………………….DEFENDANT
REPRESENTATIONS:
N.P Abang Esq. holding brief of Sunday Egbaji – for the claimant
Sekop Zumka, esq. with S.O.Okwanachi – for the defendant
JUDGMENT
1.0 INTODUCTION
The claimant took out a compliant accompanied by statement of facts, witness statement on oath, list of and copies of documents on the 13th of November, 2018. The claimant seeks the following reliefs:
- A declaration of this Honorable Court that the claimant is still a legitimate staff of the defendant University and the purported sack letter is null and void same having not been served on the claimant.
- An order mandating the defendant to pay to the claimant the sum of N1,450,000.00 (one million four hundred and fifty thousand naira) being arrears of salary at N50,000 monthly from the month of June 2016 up till the date of filing the action.
- An order of the court compelling the defendant to remit the claimant’s pension amount to the appropriate pension office which is the sum of N4000 monthly amounting to N116, 000 (one hundred and sixteen thousand naira) calculated from May 2016 up till the filing of this action.
- An order compelling the defendant to pay all outstanding salary arrears at N50, 000 monthly due and payable as would be calculated by the court on the date of the judgment of this case.
- An order of the Court compelling the defendant to pay to the claimant the sum of N10, 000,000 (ten million naira) being general and aggravated damages for failure to pay his salaries which has occasioned series of hardship on him and his family overtime.
- An order compelling the defendant to pay 10% post judgment interest on any amount given as judgment sum in this case till same is completely liquidated.
- Any other cost this court deems fit to award against the defendant.
In response, the defendant filed a statement of defence and other accompanying documents as required by the Rules of the Court on the 29th of November, 2018.
2.0 FACTS OF THE CASE:
The claimant was a staff of the defendant. On the 25th of May, 2016, the claimant was issued with a query letter for insubordination, which was responded to by him on the 26th of May, 2016. After that, communication ceased between them as well as payment of salaries of the defendant. The claimant wrote a letter on the 1st of February, 2018 to the defendant wanting to know his fate. When this was not replied to, the claimant’s solicitors wrote a letter to the defendant on the 28th of October, 2018 demanding the payment of their client’s salaries for 28 months. This was replied by the defendant’s counsels claiming that the claimant was sacked since the 1st of June, 2018. Thus the present suit.
3.0 CASE OF THE CLAIMANT
The claimant, as CW1, testified in line with his pleadings as follows;
I was employed by the Defendant as a Plumber by virtue of an offer of Provisional Appointment dated the 13th of October 2015. My appointment was subsequently renewed by virtue of a letter title Renewal of Appointment for Staff dated on 2nd of November 2015. I have been diligent in my duty as a plumber attached to Technical department, and while I was carrying on my legitimate duty, I was suddenly served a Query letter from the head of Human Resources of the Defendant University dated the 25th of May 2016. I immediately responded to the query in a letter dated the 26th May, 2016. By the letter of renewal of Appointment pleaded above, my remuneration month was stated as follows:
- Gross Salary N55,918.67
- Net salary . N50,000.00
- Contribution N4,000.00
- PAYE Nl,918.67
My Pension was supposed to be deducted at source and paid to the pension administrators in line with the pension Act but the Defendants has failed to keep to this terms since May 2016. Since my response on the 26th of May 2016, the Defendant University has not responded or taken any action but has remained incommunicado since then. I wrote a letter dated the 1st of February 2018 to the Human resources Manager but the said Human Resources Manager ignored my letter. The defendant never acknowledged any letter served on it by me even though all the letters written by me were duly served on the defendant through the security unit.
I was last paid salary in the month of May 2016 and since then my salaries were stopped by the Defendant for no justifiable reason. Even the May 2016 salary paid by the Defendant last was without pension remittance as agreed in the appointment letter.
I sought for the services of Lawyers Messers Soni Egbaji Solicitors & Partners to write to the Defendant demanding for my arrears of Salaries of over 28 months from the Defendant which amounted to the sum of Nl,400,000.00- (One Million Four Hundred Thousand Naira) at N50,000.00 monthly.
The Defendant has also failed to remit my pension amount to the appropriate pension office which is the sum of N4,000.00 monthly amounting to N116,000 (One Hundred and sixteen Thousand Naira only) calculated from May 2016 up till the date of filling this action.
The defendant Lawyer messers Triumph Attorneys wrote a reply letter dated 28th of October 2018 claiming to have sacked me since the 1st of June 2018. I was never served any sack letter. I am still keeping my Staff ID Card up till date as nobody has made any request for it to be submitted until this purported sack letter.
I am still in the employment of the Defendant until all my financial entitlements is paid to me and am relieved appropriately from the services of the defendant. My salaries are therefore still counting even as this action progresses.
The claimant as CW1 testified further in support of his reply to the statement of defence as follows;
There has never been any time any person warned me for any misconduct as I have conducted myself within the ambit of my employment terms. I never denied going to fix any damaged plumbing defect neither did I use any such word as ‘Mr Turan is not God. I did not hear the walkie Talkie ring due to the noise from the machines I use to do my work on th.at day and which I tendered apology for missing the call. I never commit various acts of gross insubordination against the Director and other superiors in my department. If the Defendant has terminated my employment as alleged, I wouldn’t be writing series of letters pleaded in this court.
I resumed work severally within this period but I wouldn’t be allowed access by the security to my department to carry out my legitimate duties.
The claimant tendered 9 documents in evidence which were admitted and marked as Exhibits SI 1 to SI 9.
The claimant testified under cross examination as follows:
He knew the Director, Mr. Turan Denizliy and the supervisor, Mr. Abubakar Nuhu and that he received instructions from them. He further stated that in June 2016 he was still going to work, although there was no register wherein he signed attendance. He stopped going to work on the 12th of June, 2016 when he was denied access by the defendant to the premises. He admitted his non-denial of the allegations against him in Exhibit SI 4. He also admitted that there was no evidence that Exhibits SI5 and SI 6 were received by anybody, although the security officers that collected same from him were still alive. He finally stated that he was not aware that his pension for May 2016 was paid to his pension administrators.
CW2 was one Mr. Agyun Andrew, he testified for the claimant as follows:
I was a staff of the Defendant University particularly in the Security department for over 3 Years until recently i.e November 2017 when I left the employment on my own for another job.
I know the Claimant very well and I was one of the guarantors of the Claimant who filled a form guaranteing him as a condition in the Appointment letter from the defendant. I can vouch that the Claimant is a law abiding person who will hardly disrespect any staff of the defendant. The Defendant never for a single day contacted me in connection with any alleged misconduct claimed against the Claimant while carrying out his duty. I was still in the employment of the Defendant University in 2016 when the defendant started the feud with the Claimant.
I am aware the Claimant approached the Security post of the University severally when I was still a staff of the security department in connection with issues bordering on the query issued him but we were instructed orally by the University Authority not to allow him entrance.
The Defendant has never called me or requested to see me or to serve me any letter of termination of employment on behalf of the Claimant if need be hence am surprised to hear of the action of the Defendant against the claimant.
CW2 testified under cross examination thus;
The claimant was employed as a plumber. I was a security with the defendant. My duty post was in the same block with that of the claimant and I was a head guard. I am aware that the claimant stopped coming to work same June 2016. I did not complain to the defendant when I noticed the claimant was not coming to work.
4.0 CASE OF THE DEFENDANT
One Mr. Yahaya Sanusi, an Assistant Director, Human Resources Department in the defendant, testified as DW1 on behalf of the defendant in line with the statement of defence as follows:
The claimant was employed by the defendant as a plumber but the said employment was terminated on the 1st of June, 2016.
Mr. Turan Denizli and Mr. Abubakar Nuhu were Director and Supervisor of the claimant in the Technical Department. These two had warned the claimant severally for his insubordination, before the query letter was issued.
On the 24th of May, 2016, my office received an offence report against the Claimant that Mr. Turan Denizli called the Claimant three (3) times on his Walkie Talkie which was provided to the Claimant by the Defendant for ease of communication, but the Claimant did not answer the said calls. The Supervisor, Mr. Abubakar Nuhu called the claimant’s personal line and the claimant answered. He informed the claimant that the Director had instructed him to fix a plumbing defect in a particular staff house. The claimant said he was not going to do it even if the Director personally instructed him, the said mr. Turan is not god. Mr. Abubakar reported the act of insubordination to Mr Turan and on the same 24th May,2016 they reported the matter to the Office of the Human Resource upon which an Offence Report Form was issued against the Claimant with the detail of the offence stated in the form. On the 25th of May, 2016,the office of the Human Resource issued a query against the claimant informing him of his insubordination. He admitted his act of insubordination and asked for forgiveness.It is not true that the reason the Claimant did not answer his call on the Walkie Talkie was because of the noise from the machine he uses to do his work because he never stated that in his response to the query.
The claimant’s employment was terminated on the 1st of June, 2016 and he is no longer entitled to receive pension deductions from the Defendant. The claimant was informed by the office of Human Resource Department to pick up his termination letter, which he did not. The claimant stopped going to work and all efforts to contact him were abortive.No correspondence was received from the claimant until the 17th of October, 2018 when his counsel contacted the defendant via a letter demanding for unpaid salaries from June 2016 to 17th October, 2018.The defendant’s lawyers were instructed to immediately respond to the letter, which they did on the 28th of October, 2018.
The defendant tendered 3 documents which were admitted in evidence and marked as Exhibits YS1, YS2 and YS3 and equally relied upon all documents tendered by the claimant.
Abubakar Nuhu testified on behalf of the defendant as DW2 . The depositions of DW2 is materially the same with that of DW1, thus it will not be reproduced herein.
Under cross examination, DW1 stated as follows:
That the Human Resource Department oversees other departments. He stated that it is not every document that the Registrar signs, except for appointment letters. That the report tendered covered the insubordination complained about while others were verbal warning which he was told by the Technical Department. He further stated that the technical department used equipment that made noise, as such it was possible to not hear a walkie-talkie ringing while working with such an equipment. Also that he was not aware that the pension of the claimant for the month of May was not remitted to the pension administrator. Furthermore, that he was aware that the termination letter was not served on the claimant as he refused to go and collect same. Employees usually furnish the defendant with their contact address, but that of junior staff are usually not definite, the claimant only gave Ungwan Rogo as his address. He stated that he met the claimant at Ungwan Rogo and informed him that his letter was ready. The claimant had a guarantor but no attempt was made to reach him. The claimant has his I.D card because he refused to come. The claimant was not stopped from entering the premises. He had been coming in, he was even on a contract job after the termination.
DW 2 under cross examination stated that he was the supervisor of the claimant at the technical department and prior to the incident leading to the case at hand, there had been instances of insubordination by the claimant for which he gave him verbal warning. He further stated that the claimant was not using any noise making equipment and that he was not aware that the claimant was stopped by authorities from entering the premises of the defendant.
5.0 FINAL WRITTEN ADDRESS OF THE DEFENDANT:
The counsel to the defendant argued that a party that seeks a declaration for wrongful termination must prove:
- That he is an employee of the defendant;
- The terms and conditions of his employment;
iii. The way and manner and by whom he can be removed;
- The way and manner the terms and conditions of employment were breached by the employer.
By tendering Exhibits SI 1 and SI 2, the claimant showed his employment and the terms and conditions thereof, however, the claimant failed to show how and by whom he can be removed or if the termination complained about breached any of the terms of his employment. Although an attempt was made by the claimant’s effort to deny insubordination leading to the issuance of the query, this was contradicted by Exhibit SI 4, in which he owned up to the offence and begged for forgiveness.
Furthermore, it was posited that the claimant is not a staff of the defendant as the latter terminated the contract on 1st June 2016 and the claimant stopped going to work from that time (a period of two years and five months). It is settled in law that an employer can terminate the service of an employee at any time and generally courts are reluctant to compel the continuance of a contract of employment, which is a contract of personal service, against the will of one of the parties. See UNION BANK OF NIGERIA LTD. V. CHUKWUELO OGBOH (1995) 2 SCNJ, 1.
The mere possession of his I.D. card will not make the employment subsist.
Furthermore, the counsel submitted that the argument of the claimant that the termination is null and void as the letter was not served on him holds no water. This is because the essence of the letter is to notify and such can be actual or constructive. The evidence before this court shows that DW1 under cross examination stated that he verbally informed the claimant at Angwan Rogo that his employment was terminated and he should go and pick up the letter. This was also confirmed by the claimant in paragraph 4 of Exhibit SI 5. This, in addition to the non-payment of salary since June 2016, is enough constructive notice of the termination of employment of the claimant.
Learned counsel submitted that the claim for salary arrears of N1, 450,000.00 (one million, four hundred and fifty thousand naira) at N50, 000, from June 2016 to the date of filing lacks any basis. This is because as stated above, the employment contract was terminated.
It was posited that the claim for pension of N116, 000 at N4, 000 monthly from May 2016 to the date of filing must fail as they are ancillary to the above claims which have been answered in the negative by the defendant. This is the same with the claim of 10% interest of the judgment sum or the cost of the suit.
The claim for general and aggravated damages of N10, 000,000 for the hardship suffered as a result of non-payment of salary cannot stand. The suit is as a result of the conduct of the claimant and he should not be allowed to benefit from his misgivings.
7.0 CLAIMANT’S FINAL WRITTEN ADDRESS
The claimant’s counsel submitted that the contract of employment between the two parties can only be properly terminated with the service of the letter of termination of employment on the claimant. This has not been done as DW1 testified that the letter was not served on the claimant and same has been acknowledged in the defendant’s final written address. It is not the intent of the claimant to foist himself on the unwilling defendant, all that is asked for is the payment of the claimant’s entitlement before the contract is severed. The current letter of termination was an afterthought that was only delivered after the claimant’s counsel sent a letter to the defendant. See IMO EFFIONG MBOSOH V. JOINT MATRICULATION BOARD (2008) LPELR 4306
Moreover, contradictory evidence were given by the defendant. On one hand it was alleged that the claimant was nowhere to be found and on the other hand it was claimed that he had been coming to the premises of the defendant.
In addition, it was submitted that no effort was made by the defendant to contact the guarantor of the claimant Mr. Agyun Andrew (CW 2), who stated in his witness statement of oath that he knew the contact address of the claimant and he equally gave his own full contact address.
Counsel submitted that the claimant was not suspended pending the determination of the query against him. As such, all the above mentioned arguments make the termination a charade and an afterthought when legal demands for salary was made.
Finally, in consideration of the arguments above, counsel submitted that the claimant is entitled to the payment of his salary arrears and his pension. See SPRING BANK PLC V. JULIUS BABATUNDE (2013) 33 NLLR PT. 97 AT P 529; KUNLE OSANSANYA V. AFRIBANK PLC (2011) 24 NLLR PT. 67 AT P 33, wherein the Supreme Court held 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 damage the employee can get.”
8.0 DEFENDANT’S REPLY ON POINTS OF LAW
The defendant responded to the claimant’s final written address as follows:
The learned counsel submitted that the case of Imo Effiong Mboshi v. Joint Matriculation Board (2008) LPELR 4306 relied upon by the claimant is incongruous to the one at hand, as such, inapplicable. The employment in Imo case is one with statutory flavor, hence regulated by the statute in question. Whereas in this case, the employment is a master/servant relationship governed by the terms agreed upon by the parties. The claimant has failed to show which term(s) in Exhibits SI 1 & 2 were breached.
It was also submitted that the claimant is not denying that he was informed by DW 1 of the termination of his employment, what he is denying is that he was not served. This shows that the claimant had constructive notice, see the case of B.E.D.C. Plc v. Esealuka (2015) 2 NWLR (1444) p. 411
Furthermore, counsel submitted that there is no contradiction in the evidence given by DW 1 or DW 2. The evidence before the court is that the claimant failed to collect his termination of employment letter after he was informed by DW 1. As such, the evidence elicited from DW 1 during cross examination that the defendant failed to show how the terms and conditions of his letter of employment were breached. Equally no evidence was presented showing that the contract was terminated by the wrong authority or that he did not breach any terms of the contract.
8.0 ISSUES FOR DETERMINATION:
The defendant raised a lone issue for determination which is:
- Whether based on the pleadings of the claimant and the evidence adduced in this case, the claimant has proved his case to entitle him to the grant of the reliefs sought before this Honorable Court.’
The claimant formulated the following two issues for determination:
- Whether there can be a valid and lawful determination of employment of the claimant by the defendant without a letter or notice of termination of appointment duly served on the claimant.
- Whether the claimant is entitled to the payment of his arrears of salaries and pensions as contained in Exhibit SI 1, in the event that issue one succeeds.
The issues formulated by both counsel are similar and will adequately dispose of the matter. As such, the lone issue formulated by the defendant counsel is hereby adopted.
9.0 COURT’S DECISION
Whether based on the pleadings of the claimant and the evidence adduced in this case, the claimant has proved his case to entitle him to the grant of the reliefs sought before this Honorable Court.
By way of a compressed summary, the kernel of claimant’s case is as expressed in his prayer 1 thus;
“…that the claimant is still a legitimate staff of the defendant University and the purported sack letter is null and void same having not been served on the claimant”.
It is the further argument of claimant that he is still a staff because his staff ID card is still with him.
The evidence before the court shows that the claimant was not served the said letter of termination. DW1 testified under cross examination that he informed the claimant of his letter at Ungwan Rogo. Exhibit SI 5. Claimants complaint letter shows that DW1,Sanusi Yahaya, indeed informed claimant of his termination at Ungwan Rogo.
Paragraph 1 at page 2 of exhibit SI5, claimant’s complaint, reads as follows;
“Sir, I was truly surprised when I mate(sic) with the assistance(sic) of human resource manager Mr. Sanusi Yahaya at Angwan Rogo Village only to tell me that You have terminate my appointment” it was a shock of my day” .
There is evidence that claimant ceased coming to work from June, 2016 and his salary was stopped. Furthermore, according to the claimant, the defendant stopped him from entering its premises.
The position of the law is that the termination of the employment of the claimant stands as valid and effective notwithstanding the non-service of the letter on him and the I.D. card still in his possession. This is because the employment being a master/servant relationship can be ended in three ways- in written form, orally or by conduct. Non-payment of salary, as well as denial of an employee access to the workplace has been held to be an effective means of ending an employment contract. See MR. SOLOMON JUDE V NIGERIA BOTTLING COMPANY PLC (2016) 67 N.L.L.R (PT.241) 609 AT 637 and MR. OMADACHI V. NOTORE CHEMICAL INDUSTRIES LTD [2019] 1 NICLR, pg. 142 at 166 where this court held;
‘While the claimant is contending that no letter of termination of appointment was served on him even when he was aware that same was written, and that his salary was stopped in the month of March, 2015, the defendant tendered exhibit DW1 to prove that the claimant’s services with the defendant have been terminated. I must pause here to state that, while I agree with the claimant that he was not given any letter of termination of appointment, it must be pointed out straight away that, in a master and servant employment such as the instant case not being an employment with statutory flavor, termination of employment can be made either orally, in written form or even by conduct. The conduct of the defendant in stopping the claimant’s salary is enough proof that the claimant’s services were no longer required by the defendant.
See also the unreported case of ALIYU DAN SULEIMAN v ALH. YARO GOBIRAWA SUIT NO.NICN/SK/05/2018, the judgment of which was delivered by this court on 28th day of March, 2019.
I accordingly find and hold that the conduct of the defendant in denying the claimant access to the work place and stopping the claimant’s salary in June 2016 is enough proof that the claimant’s services were no longer required by the defendant and the claimant’s employment was thereby effectively terminated. The termination cannot be declared as null and void, even if it was found to be wrongful.
Whether the claimant is entitled to the payment of his arrears of salaries and pensions contributions and damages from June 2016 to the date of filing this suit:
Having found that that the employment was duly terminated in June 2016, the salary claim of N1, 450,000.00 from June 2016 till the date of filing this action is not tenable. The claimant admitted under cross examination that he stopped going to work sometime in June 2016,he cannot be paid for work not done.
The learned claimants counsel rightly submitted as follows;
It is not the intent of the claimant to foist himself on the unwilling defendant, all that is asked for is the payment of the claimant’s entitlement before the contract is severed.
Where counsel got it wrong is to ask for salaries from June 2016 up to judgment.
Now the failure of the defendant to give the claimant notice makes the termination wrongful, but nonetheless valid.
The law is now settled that where an employment in a master/servant relation is terminated, the damages that the employee is entitled to is what he would have earned if the employment was properly terminated. See KUNLE OSANSANYA V. AFRIBANK PLC (2011) 24 NLLR PT 67 AT PG. 33
In this case, the claimant worked from October 2015 to May, 2016, a period of 8 months only. By section 11(2) (b) and (6) of the Labour Act, the claimant is only entitled to one week notice or salary in lieu of notice. The claimants monthly salary was N50,000.00 per month; a week’s wage is N50,000 divided by 4 =N12,500.00. The claimant is entitled to N12,500.00 in lieu of notice.
The claim for pension contribution from May, 2016 to the date of filing this case on 13/11/2018 is also affected by the finding that the claimant ceased to be a staff of the defendant since June 2016. However, since from the witness statement on oath of the claimant, paragraph 19 and 21, his pension of May 2016 was not paid and from Exhibit YS 3 (termination letter) the termination was from 1st June 2016, the claimant is entitled to have his pension contribution for that month remitted to his pension administrator.
Post judgment interest is within the power of this court to award. See Order 47 Rule 7 of the 2017 Rules of this Court.
10.0 COURT ORDER
For the avoidance of doubt, the case of the claimant succeeds in part and it is hereby ordered as follows;
- The defendant is hereby ordered to pay to the claimant the sum of N12,500.00 being his one week salary in lieu of notice.
- The defendant is ordered to forward the claimants pension contribution of N4,000.00 for the month of May, 2016 to his pension administrator.
- Cost is assessed in favour of the claimant in the sum of N100,000.00 only.
- The judgment sum and the cost are to be paid within 21 days of this judgment or the 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.
