THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KANO JUDICIAL DIVISION
HOLDEN AT KANO
Before His Lordship:-
HON. JUSTICE E.D. E ISELE JUDGE
DATE: 8th FEBRUARY, 2019 NICN/KN/56/2017
BETWEEN
- YUSUF SHUAIBU
- JOSHUA LUKA
- FARUK SULEIMAN. CLAIMANT
AND
NIGERIAN BOTTLING COMPANY PLC (COCA – COLA)
REPRESENTATIONS: 3rd Claimant present, others absent. Defendant absent.
Sani Umar for the Claimants.
JUDGMENT
The Claimant commenced this action by the Writ filed on the 14th of November, 2016 wherein they sought the following reliefs:
- A Declaration that not hearing the Claimants individually or collectively amounted to a violation of their fundamental rights which render the whole proceedings against them unconstitutional, null and void.
- A Declaration that the disciplinary proceedings conducted against the Claimants by the Defendant occasioned a miscarriage of justice against them same being flawed with irregularities which infringed on the Claimants’ Fundamental Human rights guaranteed by Section 36 (1) (2) (3) (5) (6a) and (9) of the 1999 Constitution as amended.
- An Order setting aside the termination of the Claimants employment handed to them on the recommendation of the disciplinary panel constituted by the Defendant against the Claimants, the recommendation for same being unconstitutional null and void.
- An Order re-instating the Claimants to their jobs and payment of all their entitlements from June 2010 when their employments were terminated until same is upset in full.
- Costs of this action.
ALTERNATIVELY
- The Claimants claim the sum of ₦ 30,000,000 (Thirty Million naira only) jointly and severally being special damages for the exceptional hardship and joblessness the Defendant exposed them to unfairly and the mental and physical trauma they suffered for 4 years as they endured a criminal trial at the instance of the Defendant after the disciplinary panel they faced had recommended termination of their appointments, which at the end of it the Court found nothing against them and discharged them.
PARTICULARS OF SPECIAL DAMAGE
- F. I. R in case no: KA/245/2010 filed against the Claimants and 3 others by the Police at the instance of the Defendant after the disciplinary panel they faced contrary to Section 36 (9) of the 1999 Constitution (as amended).
- The record of proceedings in the above case, where the Court discharged the Claimants.
THE CASE OF THE CLAIMANTS
It is the case of the Claimants that they were individually employed by the Defendant by Exhibit A of 6th August, 2002 for the 1st Claimant. And for the 2nd Claimant by Exhibit G dated 5th February, 2003; the third Claimant tendered his letter of confirmation in Exhibit L dated 4th October, 1999. They were employed variously as Sales Assistant, Sales Truck Assistance and Salesman driver as contained in the Exhibits. Eventually they all became Driver Salesman and drove respectively for 8, 7, and 11 years while in the Defendant’s employ.
They maintain that on the 14th of May, 2010 the three of them were each handed queries in Exhibits G, H and m over rebates of some of their respective customers and they all responded within 48 hours denying the allegations against each of themselves. And despite the denials, a disciplinary panel was constituted to try them on 18th June, 2010 and they each maintain that they were not allowed to be heard in their defence. After which the Defendants handed them over to the Police to be charged to Court.
They maintain they were each handed termination letters dated 21st June, 2010 in Exhibits C, I and N respectively also averred that the prosecution of the matter at the Magistrate Court lasted almost 5 years. They tendered Exhibits Q, the first information report dated 10/08/2010 and Q1 the Ruling of the Chief Magistrate discharging them dated 27th August, 2014. Having been so discharged the Claimants wrote to the Defendant through their Counsel demanding payments of all their entitlements and salaries from June, 2010 when they were terminated that this recourse was as provided in the Code of Conduct and Grievance procedure for persons who stood trial and were discharged by the Court but the Defendant after acknowledgement refused to pay.
The Defendant on its part maintained the Claimants were given fair hearing during the disciplinary hearing as they were asked of their level of involvement and they responded. That the disciplinary hearings of the Claimants were taken through a routine aspect of the Defendant’s operation as prescribed by the Company’s Disciplinary and Grievance policy. The Defendant also maintained that the disciplinary hearing was fair and just having regard to its disciplinary code. That the Claimants are aware that they could have called witnesses if they so desired according to the Code, but they neither called or showed any interest in calling any witnesses during the hearing.
The Defendant went on to maintain that the termination of the Claimants’ employment was simply an exercise of the Defendant’s contractual right to terminate the employment of an employee with or without reason as stated in part 3 article 10 of the Defendant’s Junior Staff Handbook. The Defendant stated further that the Claimants are all fully aware and agreed with its right to terminate their employment and they all collected payments of one month salary in lieu of notice, gratuity and other terminal benefits and signed a Statements of the said terminal benefits accepting the sums paid in full and final settlement of all claims against the Defendant. These were documents tendered for the 1st Claimant and Exhibit D consisting mainly of one month salary in lieu and gratuity. And Exhibit K consisting of the same payment for the 2nd Defendant as well as Exhibit P for the 3rd Claimant.
THE FINAL WRITTEN ADDRESSES AND COURT’S DECISION.
At the close of hearing, parties filed written addresses. In the Defendant’s final written address three issues were formulated for determination:
- Whether this suit is statute barred in view of the provisions of Section 7 (1) (a) of the Limitation Act, CAP 522, Laws of the Federation of Nigeria, 2004.
- Whether the Honourable Court has jurisdiction to entertain this suit.
- Whether the Claimants were properly terminated in line with the terms and conditions of their contract of employment.
The Claimants in response formulated 3 issues for determination:
- Whether this suit is statute barred in view of the provisions of Section 7 910 (a) of the Limitation Act CAP 522 Laws of the Federation 2004.
- Whether the Honourable Court has the jurisdiction to entertain this suit.
- Whether the Claimants’ employment were properly terminated in line with the terms and conditions of their contract of employment..
In essence, the Claimants adopted all 3 issues as formulated by the Defendant.
And in response the Defendant filed a Reply on points of law.
At issue one, the Defendant had contended that Section 7 (10 (a) of the Limitation Act provided that:
“The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued:
- Actions founded on simple contract.”
On this basis it was submitted for the Defendant that the contract of employment between the Defendant and the Claimant as contained in Exhibit A; G and L falls within the provisions of Section & above; the Exhibits being simple contracts. Citing U. B. A LTD V. MICHEAL ABIMBOLA & CO (1995) 9 NWLR (PT. 419) 317 at 384 and NWOBOSI V. A. C. B LTD (1995) 6 NWLR (PT. 404) 658 at 683. That the Claimants had lost their right of action against the Defendant having failed to institute the suit within the period stipulated by Section 7 91) (a) of the Limitation Act citing further IBRAHIM V. J. S. C KADUNA STATE (1998) 14 NWLR (PT 554) 1; TAFIDA V. ABUBAKAR (1992) 3 NWLR (PT. 230) 511 at 520 – 521.
In response the Claimants had argued by submitting that the suit is not statute barred and the Limitation Act cited by the Defendant does not apply to it, that looking at the claims of the Claimants’ as endorsed on the Writ as their oral evidence, it is very clear that the Claimants’ grievance was because they were not accorded fair hearing in the disciplinary process they were subjected to in the hands of the Defendant, because if they had been accorded fair hearing their appointments would not have been terminated. Arguing that Fundamental Rights are not contractual (whether simple or statutory) tantamount to fall under Section 7 (1) (a) of the Limitation Act and cited OCHU V. FRN (2011) ALL FWLR (PT. 5630 2008. The Defendant in the reply on points of law had wrongly contended that the Constitution is very clear as to which Court has jurisdiction to entertain a suit for the enforcement of Fundamental Human Rights. That it is the Federal High Court that has jurisdiction on this, the provisions of Section 254 C (1) (d) provides that:
“Notwithstanding the provisions of Section 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly. The National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in Civil causes and matters –
- Relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, . . . or other matters which the Court has jurisdiction to hear and determine”
So it is clear that the limb of the Defendant’s argument must be discountenanced here as not founded in the true provision of the law. Even though the claim of the Claimants has to do with the right to fair hearing under Chapter IV it is clear that the suit is about labour and employment and the rights of the parties therein. That being the case, it is also the claim of the Claimants that they seek to be reinstated and payments of all their salaries and entitlements. I hold right away that these cannot just be determined by the Limitation Act as the law allows certain exceptions as to its applicability. In considering the provisions of Section 2 (a) of the Public Officers Protection Act (also a Limitation Act), the Court of Appeal in the case of the AJAO V. THE PERMANENT SECRETARY MINISTRY OF ECONOMIC PLANNING BUDGET CIVIL SERVICE PENSIONS OFFICE CA/L/922/2010) (2016) NGCA 24, held following the Supreme Court in recognising the exceptions to be (a) Instances of continuance of damage or injury, (b) Situation where the Public Officer acted outside the bounds of his duty (c) Cases of recovery of land (d) Breaches of contract (e) Claim for work and labour done; and (f) Good faith. See A. G RIVERS STATE V. A. G BAYELSA STATE & ANOR (2013) 3 NWLR (PT. 1340) 123, FGN V. ZEBRA ENERGY LTD (2002) 18 NWLR (PT. 798) 162. Now looking at the above categories of exceptions it is hard to say that the Claimants’ claim cannot be recognised under (d) and (e). So, for the above reasons I hold that this Court has jurisdiction and the suit cannot be statute barred, this in regard to issues 1 and 2.
Now, regarding the 3rd issue whether the Claimants’ employment was properly terminated. In determining this issue it must be acknowledged right away that it is a fact established in the course of the hearing that the Claimants had in the been paid their one month’s salaries in lieu and gratuities by the Defendant in Exhibits D, K and P.
On this issue the Defendant had referred to the portion in the termination letters to the Claimants which read:
“We regret to inform you that your services with this establishment are no longer required with effect from 21st June, 2010 and are accordingly terminated in accordance with Part III Article 16 of the Staff Handbook”
The Defendant maintained that in exercising their right to terminate the contract, the Defendant acted on the terms as contained in the Junior Staff Handbook marked as Exhibit F – F35 Part III Article 16 of the Exhibit which reads:
“16 TERMINATION OF APPOINTMENT.
It is fully understood and recognised that the Company or employee may terminate the employment without assigning any reason whatsoever by giving the required notice of one month (or pay in lieu) of as may be required by the job grade”
The Claimants did not address the above provision in their argument on the same 3rd issue for determination. And it is easy to determine and to hold that this being a Master/Servant relationship the Defendant was at liberty to invoke the said clause. In the case of G.O DUDUSOLA V. NIGERIAN GAS COMPANY LTD (2013) 10 NWLR (PT 1363) 423 the Supreme Court per Akahs JSC held at page 436 that:
“From the evidence presented, it is clear that the Respondent is a mere master and servant. In such a case, the Respondent who is the master has an unfettered right to terminate or even dismiss the Appellant who is the servant. The motive for exercising the right does not render the exercise of the right ineffective. In other words, the Respondent is at liberty to terminate the Appellant’s employment with or without reason”
The learned JSC went on to hold at the same page:
“Termination of a contract of service, even if unlawful brings to an end the relationship of master and servants, employer and employee. The law is trite that a servant (employee), even if willing and able cannot be imposed on an unwilling master (employer). Where parties to a contract mutually agree that the condition for termination is the giving of notice or payment of equivalent salary in lieu of notice, the only valid way to discharge a party from his obligations under the notice stipulated is the payment of the equivalent salary for the period of notice. . .”
In the instant case, I have found earlier that the Defendant has complied with this stipulation/provision and there is nothing more to add to the claim of the Claimants. I hold that it lacks merit in the face of the law and the authority cited and the claims are hereby dismissed.
There are no awards as to costs.
Judgment is entered accordingly.
_____________________________
HON. JUSTICE E. D. E. ISELE
JUDGE
