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National Industrial Court

Mr. Okkolor Malachy -VS- Grand Products Company Ltd

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL  DIVISION

HOLDEN AT ABUJA

BEFORE HONOURABLE JUSTICE K.D.DAMULAK

ON THE 10TH DAY OF MAY, 2019

                                                                                     SUIT NO: NICN/ABJ/323/2018

BETWEEN

  1. OKROLOR MAKACHY                                                  CLAIMANT

            V

GRAND PRODUCTS COMPANY LIMITED                                   DEFENDANT

REPRESENTATION

Jude Mmuoka with E.P. Dick-Ijiewere  for the claimant

Ogbonna Eze for the defendant

JUDGMENT

  1. INTRODUCTION

By a general form of complaint dated and fled on 23/11/2018 and accompanied by all the processes required by the Rules of this Court, the claimant is claiming for the following:

  1.  A DECLARA TION that the contract of employment dated 10th of March,   2016 which contract takes effect from 1st of February 2011 between the Claimant and Defendant is a valid and subsisting contract.
  2.  A DECLARATION that the purported suspension and/or termination of the  Claimant’s employment by the Defendant amount to a breach of his right of fair hearing and the provisions of his contract or employment with the Defendant and is therefore wrongful, null and void and of no effect.
  3. AN ORDER compelling the Defendant to pay the claimant the sum of N910,000.00 (Nine Hundred and Ten Thousand Naira) which is the total sum of his unpaid salaries tor Twenty six (26) months while he was illegally refused access to the office premise by your staff whom were working under  the strict instruction of the management .
  4.  Interest on the said sum of N910,000.00 (Nine Hundred And Ten Thousand Naira at the rate of twenty one (21%) per annum from the date of this suit until judgment is delivered and thereafter, post Judgment interest at rate of 20% per annum from the date of judgment until final liquidation of the judgment sum.
  5. AN ORDER that the sum of Nl,200,000.00 (One million Two Hundred Thousand Naira) be paid to the Claimant being the total amount spent during his trial at the magistrate court.
  6.  AN ORDER  compelling the Defendant to pay to the Claimant the sum of N100,000,000.00 (One Hundred  Million Naira) as punitive, exemplary and general damages for the emotional, physical, and mental trauma the claimant has been made to go through for an offence he never committed.
  7. AN ORDER compelling the Defendants to issue and Publish a Public apology to the claimant in two National Dailies specifically Punch and Thisday Newspapers.
  8.  Cost of this suit at N10, 000,000.00 (Ten Million Naira).

 

2.FACTS OF THE CASE

The claimant was a staff of the defendant as an electrical technician. On 18 and 19 /9/2016 he discovered a Generator equipment was missing from the Generator room and alerted the security officers. He was arrested, detained and tried along with others and the case was struck out for want of diligent prosecution. The trial lasted from October 2016 to 22/2/2018. The defendant stopped paying the claimant his salaries since September 2016, the month of the incidence.

  1. CASE OF THE CLAIMANT

The claimant testified for himself as CW1 on 12/3/2019 in line with the pleadings. According to the CW1, I became an employee of the Defendant, through a valid and subsisting Contract of Employment dated 10th of March, 2016, which contract took effect from 1st February, 2011. That I was being paid the sum of N35,000.00 (Thirty Five Thousand Naira) as  monthly salary by the Defendant. That my employment by the Defendant has been purportedly unjustly and wrongfully terminated, without recourse to the agreed terms of his Contract of Employment.  That my employment could not be terminated by either party without a One Month notice or One Month basic salary in lieu of such notice.

 That the Defendant did not follow this provision in the Contract of Employment signed by both parties. That Clause 4 my Contact of Employment states that I can only be dismissed summarily by the defendant if I commit any offence, I am incompetent, negligent or found wanting for gross misconduct or breached any of the terms of the offer.  That I have not been convicted of committing any offence against the Defendant by a competent Court of Justice, any investigatory or disciplinary panel, and has not shown directly or indirectly any measure/acts of incompetence and or negligence. And have also not breached any part of the Contract of Employment terms. That while I was on night duty on the 18th day of September, 2016, which duty spanned into 19th September, 2016, I discovered that a generator equipment was missing from its position in the generator room, and I immediately notified the security officers about this discovery. That I was detained in the Secretariat Police station for Four (4) days, and  refused access to any member of my family or even a lawyer to help secure my bail or enforce my fundamental human rights.

That after the police had finished with their investigations, I reported back to the office of the Defendant but was refused entrance on several occasions but at one point I was able to meet personally with Mr. Amadi, who is the head of my Department, who directed me to meet the Manager in Charge of Staff, Mrs. Ogbonna Who unequivocally told me that the company management has instructed her to stop paying my salary, and to stop coming to the office until the matter was completed in court. That the matter was eventually struck out on the 2nd of February, 2018 for want of diligent prosecution.

 That I spent the sum of Nl,200,000.00 (One Million, Two Hundred Thousand , Naira) in the defence of the frivolous charge instituted against me by the Police, through the instigation of the Defendant and its officials.

That while the trial was still pending before the Magistrate Court till the time of filing this suit, I was never served; neither did I receive any notice of termination of my employment by the Defendant. That my salary was stopped since September 2016. l never abandoned my duty, but I was denied access to the Defendant premises times without number for no Just cause. That the Defendant has breached grossly the terms of the Contract of Employment entered into by me and Defendant.

  1. CASE OF THE DEFENDANT

One MR. Okwudiwa Onwukwe, the chief security officer of the defendant testified as DW1 for the defendant. In his testimony which is in line with the statement of defence, he testified that while the Claimant worked with the Defendant, he worked as artist, Electrical Technician and had his duty post at the generator room. On the 19th day of September 2016, it was discovered that the following generator equipment were missing from the generator room: (a) Starting Wizard (1) of 810 KVA Generator, (b) Starting Wizard (I) of 1000 KVA, generator, (c) the Automatic Voltage Regulator (AVR) (1) of 1000 KVA Generator. The sheriff deputies thereafter reported the theft to the Federal Secretariat Police Station.  That I did not influence or overshadow the Police to arrest and detain the Claimant and the other two suspects. That the Police did not disclose it’s finding to me after the investigations and I did not instruct the Police to press charges against the three suspects including the Claimant as alleged. That I became aware vide the Claimant Solicitors letter dated 19th February 2018 that the 3 suspects including the Claimant were charged for Criminal Conspiracy, Negligent Conduct and Theft contrary to Sec. 97, 196, 287 P.C.L. That I also became aware that the matter was struck out on the 2nd of February 2018 vide the Claimant Lawyers letter. I am aware that the sheriff deputies wrote an incident report to the Defendant dated March 7 , 2018. That it is not true that the Claimant met the Manager in Charge or the said Mr. Amadi at any point and it is not true that the Manager in charge told the claimant to stop coming to the office until the matter is completed in court.  That I know as a fact that the Claimant’s employment has been terminated by the Defendant on the 18th November, 2016. That I did not authorize the Police to detain the three (3) suspects including the Claimant and did not influence the Police to charge the Claimant to court as alleged.

  1. FINAL WRITTEN ADDRESS OF DEFENDANT’S COUNSEL

In his final written address, learned Ogbonna Eze of counsel to the defendant submitted that under our law and in decided case laws, a willing former employee (the Claimant) cannot be foisted upon the employer (the Defendant).  NEPA VS EBOIGBE  (2009) 8 NWLR PART 1142 PAGE 150 AT PAGE 162. The general principle is that specific performance will not be ordered in respect of an obligation to perform personal services.  The services of the claimant was terminated by the defendant, even if albeit wrongly and unlawfully. The issue of subsistence of the employment or re-instatement should not even arise under the circumstances. That the Contract of Employment with the Claimant is that of master and servant relationship, and therefore the servant will only be entitled to damages. ODINKENMERE V IMPRESIT BAKOLORI NIG. (1995) 8 NWLR (PART 11) PAGE 52 AT 56.

It is trite in our laws that an employee cannot be foisted on an unwilling Employer especially in an employment without statutory flavor.  Furthermore the Claimants abandonment of his duties to the Defendant after his arrest effectively brings the Contract of Employment between the parties to an end. The fact that the Claimant alleged that the termination of his employment amount to a breach of his constitutional right of fair hearing, that does not mean that the employment is subsisting.

 It is trite in our laws that an employer in a master and servant relationship can

 dismiss his employee without first telling him what is alleged against him and hearing his defence. IDOUBIOYE-OBU V, N.N.P.C (2003) 2 NWLR (PART 805) PG 610  AT 626-627 P.

The Claimant did not return or resume work after his arrest by the police. The relief for payment of unpaid salaries cannot be established by the Claimant under the circumstances of the case.

Furthermore, it is the position of the law in plethora of decided cases that the measure of damages for wrongful termination, the employee is only entitled to salaries and benefits he would have earned within the period of notice as contained in the contract of employment between the parties. It is a fact that damages are not intended to give a servant a windfall. The damages recoverable are usually the Salary and entitlements that is due to the servant within the period that a notice ought to have been given. IMOLOAME v WAEC (1992) 9 NWLR (PT. 2650) 303 AT 318. Furthermore unlike a contract of employment with statutory flavor, where the employment of an employee is unlawfully terminated, the employer is liable to pay what he would have paid had the employment of the employee been properly terminated. The claimant is not entitled to the said relief but only entitled to one month’s salary in lieu of notice. See the case of ADENIRAN V NEPA (Supra).

  1. FINAL WRITTEN ADDRESS OF CLAIMANT’S COUNSEL

 

In his final written address, learned Jude Mmuoka of counsel to the claimant submitted that the court cannot impose an unwilling master on a willing employee; what the court could do in any of such situations would be to award appropriate damages. ARAROMI RUBBER ESTATE LTD V. OROGUN (1999) 1 NWLR PT 586 PG 302 AT 304. but for an employer or employee to terminate the contract of employment he must follow the laid down rules and regulations as stated in the Contract of Employment or the Nigerian Labour Act.

From the provisions of paragraph 3 of the Regularization of Employment, it can be seen that before either party can terminate the contract, it most give a month notice or payment of one month basic salary in lieu of such notice. There is also no doubt that the Defendant did not give any one month notice neither have they paid any form of money as  salaries in lieu of such notice to the claimant as provided in the  Regularization of Employment, Labour Act and in OKPETE V. NIGERDOCK NIG. PLC (2013) 30 N.LLR (PT. 86) 304 NIC.

Defendant has not proved how the employment of the Claimant with the defendant has ceased to exist. The Defendant has not been able to prove that the Claimant abandoned his duty during his trial at the Magistrate Court. The Claimant has proved that he went to the premises of the Defendant to resume his duties but was sent back.  Where there has been a breach of contract, it naturally flows that the victim of such breach of contract must be entitled to some form of compensation, which is normally damages that will be awarded to him.

That once there has been a breach of contract, it follows naturally that the Court ought to award general damages to the party who has been offended by such breach of contract.

That the final Written Address of the Defendant is invalid and void, as same was filed without affixing the seal of a legal practitioner as provided under Rule 10(l) of the Rules of Professional Conduct for Legal Practitioners.

  1. ISSUES FOR DETERMINATION

The learned counsel for the defendant set out a summary of his written address as his issues for determination. The learned claimants counsel formulated three issues for determination as follows;

  1. Whether there is a wrongful termination of the employment of the Claimant and a breach of the contract of employment.
  2. Whether the Claimant is entitled to damages and his claims for breach of the contract of employment.
  3. Whether the Defendant has filed a valid written address.

Considering the claims, the evidence and the written address of both counsel, this court is of the opinion that the following two issues will properly dispose of this matter. These issues are;

  1. Whether the claimant has proved that his termination was wrongful, null and void.
  2. Whether the claimant is entitled to claim from the defendant the cost of defending himself at the Magistrate court.

 

  1. COURT DECISION

The question as to whether the defendant has a valid written address is answered in the positive. The written address has attached to it the legal stamp of Kaodi Chukwu Onuoha listed as a counsel on the written address. This issue does not deserve further ink and paper.

  1. Whether the claimant has proved that his termination was wrongful, null and void.

According to the claimant, he made efforts to resume work during and after his trial but the defendant stopped him. The defendant on its part alleges that the claimant absconded from work during his trial and his employment was terminated in November 2016.

The defendant does not dispute the fact that it stopped paying the claimant his salaries from September 2016, neither is it in dispute that the claimant was not given one month basic salary in lieu of notice. The claim by the defendant that it terminated the claimant’s appointment in November 2016 also failed for lack of proof of service of any termination letter.

I find it more probable that the claimant attempted to resume work but was denied from entering the premises of the defendant. Since the claimant was not attending his trial from detention, the claim that he absconded from work during the trial lacks any probative strength.

Now, the claimant was never put on any suspension, the defendant simply stopped paying his salaries and stopped him from entering its premises. What is the legal implication of this?

It is the firm view of this Court that since the employment of the claimant was not statutory and he was not on suspension, the refusal of the defendant to allow the claimant access to its premises and refusing to pay him any salaries since September 2016 is evidence that his services were no longer required by the defendant and the defendant had terminated his employment by conduct. See MR. OMADACHI V. NOTORE CHEMICAL INDUSTRIES LTD. [2019] 1 NCLR. PG. 144-145 wherein it was held that:

“…While the claimant is contending that no letter of termination of employment was served on him… 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 salary is enough proof that the claimant’s services were no longer required by the defendant’. See the judgment of this Court in ALIYU DAN SULEIMAN v ALH. YARO GOBIRAWA (Trading under the name and style of Alh. Yaro Gobirawa & sons), SUIT NO.NICN/SK/05/2018, the judgment of which was delivered on 28TH day of March, 2019.

 

I accordingly find and hold that the defendant terminated the employment of the claimant by conduct since September 2016.

The claimant having worked for 19 days in the month of September, 2016 is entitled to that portion of his salary for that month.  N35, 000 divided by 30 days and multiplied by 19 days is N22,166.66 and the claimant is entitled to this sum as his salary for the month of September,2016.

  It is important to note that in a master and servant employment relationship, where it is provided that an employment is to be terminated upon on month notice or one month salary in lieu, failure of the employer to give one month notice or one month salary in lieu will not render the termination null and void, the employer will simply be ordered to pay to the employee his one month salary in lieu of notice which is what the employee would have earned if the employment was properly terminated and damages where appropriate. Accordingly, prayers A, B and C of the claimant fail.

In the instance of this case, it is one month basic salary. Since the claimant was not given any termination letter, he is entitled to one month basic salary, I so find and hold.

Prayers A, B, and C of the claimant having failed, prayers D, F, G and H must necessarily fail as they hang on prayers A, B and C.

In the circumstance of this case, the claimant is entitled to damages assessed at N300,000.00.

  1. Whether the claimant is entitled to claim from the defendant the cost of defending himself at the Magistrate court.

This issue relates to claimant’s prayer E. It is the case of the claimant that he spent the sum of Nl,200,000.00 (One Million, Two Hundred Thousand  Naira) in the defence of the frivolous charge instituted against him by the Police, through the instigation of the Defendant and its officials.

The case of the defendant on the other hand, according to DW1 a security officer of the defendant, is that the matter was handled by the sheriff deputies who thereafter reported the theft to the Federal Secretariat Police Station.  That he did not influence or overshadow the Police to arrest and detain the Claimant and the other two suspects. That the Police did not disclose it’s finding to him after the investigations and he did not instruct the Police to press charges against the three suspects including the Claimant as alleged. He is aware that the sheriff deputies wrote an incident report to the Defendant dated March 7, 2018.

For a start, the facts and claim discloses a claim for malicious prosecution, it is a matter clearly outside the jurisdiction of this court. That claim is accordingly struck out for want of jurisdiction.

Supposing that this court has jurisdiction because the prosecution arose in the cause of employment of the claimant, the law is that merely reporting a matter to the police who thereafter investigate and prosecute the suspect does not amount to a prosecution at the instigation of the person who reported the case. See

PATRICK OGBONNA v. CHRISTAIN OGBONNA & ANOR (2014) LPELR-22308(CA)
where the court held;

For liability to lie in malicious prosecution, the defendant must have done more than merely reporting the matter to the Police to spearheading the prosecution, even when there was no basis for same and he was so told. See the case of EJIKEME V. NWOSU (supra); BALOGUN V. AMUBIKAHUN (supra); OJO V. BAMIDELE LASISI (2003) FWLE (pt. 156) 896.

In the same case, it was held that;

 In order for a plaintiff to succeed in an action for malicious prosecution, he must prove: (1) the prosecution proceedings (normally criminal) were initiated by the prosecutor against the plaintiff; (2) termination of the prosecution proceedings was in the plaintiff’s favour; (3) no reasonable cause for the prosecution; (4) evidence of malice on the prosecutor’s part; and (5) the plaintiff suffered actual damage. The onus is on the plaintiff to prove each of these elements.

In Balogun v. Amubikahun (1989) NWLR (Pt.107) 18 it was held that all the four elements above must be present for successful action for malicious prosecution, and the onus is always on the plaintiff to prove each and everyone of them.

 

The claimant, apart from stating that the prosecution was through the instigation of the defendant and its officials, did not plead and prove how the defendant and its officials instigated the said prosecution. Similarly, claimant made no attempt at proving any of the five elements of malicious prosecution whereas he is under a duty to prove all of the elements. In the same way, claimant did not prove how he spent N1,200,000  to defend himself at the Magistrate Court. On this ground, the claim must also fail.

Furthermore, there is no evidence that it was the defendant who reported the matter to the police, let alone instigates the prosecution of the claimant. The fact that the matter was handled by the sheriff deputies who thereafter reported the theft to the Federal Secretariat Police Station was neither denied nor was it controverted in any way by the claimant.  I have taken a look at exhibit OO1, I find that the SHERIFF DEPUTIES LIMITED is a separate entity from GRAND PRODUCTS COMPANY LIMITED, the defendant herein. The implication is that even if the police charged the claimant through the instigation of anybody, it will be the instigation of Sheriff Deputies limited who is not a party to this suit.

The claim accordingly must also fail on its merit.

  1. COURT ORDER

For the avoidance of doubt, the claim of the claimant succeeds in part and it is hereby ordered as follows;

  1. That the defendant is to pay to the claimant the sum of N22,166.66 (twenty two  thousand, one hundred and sixty six naira, sixty six kobo) being his earned salary for the month of September, 2016.
  2. That the defendant is to pay to the claimant one month basic salary being what he was entitled to in lieu of notice.
  3. The defendant is to pay to the claimant damages of N300,000 (Thee hundred thousand Naira) only.
  4. I award cost of N100,000.00 in favour of the claimant.
  5. The defendant is to pay the judgment sum with the damages and cost within 14 days of this judgment failure upon which the judgment 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

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