IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE: HNOURABLE MR. JUSTICE SANUSI KADO
17TH DAY OF DECEMBER 2019 SUIT NO. NICN/ABJ/144/2018
BELLO IBRAHIM ………………………………………………………… CLAIMANT
ECO BANK PLC ………………………………………………………….. DEFENDANT
1. The claimant commenced this suit via general form of complaint dated and filed on 21/5/18. The complaint was accompanied by statement of facts, witness statement on oath, list of witnesses, list of documents and photo copies of documents to be relied on at the trial. The claimant is claiming the reliefs as follows:-
A. A declaration that the claimant’s employment was wrongfully terminated by the defendant.
B. An order for reinstatement of the plaintiff by the defendant.
C. The sum of N1,000,000,000.00 (One Billion Naira) as compensation for wrongful termination.
D. The sum of N100,000,000.00 (One Hundred Million Naira), as special damages
E. The cost of this suit being N10,000,000.00 (Ten Million Naira).
2. The defendant entered appearance and filed statement of defence accompanied by witness statement on oath, list of witnesses, list of documents and photo copies of documents to be relied on at the trial.
3. The claimant testified in proof of his claim as CL. CL tendered documents which were admitted in evidence and marked as exhibits CLA, CWL, CLC1-2, CLD, CLE, CLF, CLG, CLH and CLI. The crux of the claimant’s case as encapsulated in his evidence in chief, statement of facts and witness statement on oath is to the effect that he was employed by the now defunct Oceanic Bank International Plc, on 16/1/2006. He became employee of the defendant as a result of merger and issuance of exhibit CLB affirming continuity of his service with the defendant. According to CL he carried out his duties commendably and diligently and was praised on several occasions by the defendant. But, despite his achievement he was not promoted to a position commensurate with the work he did for the defendant. He also stated that during his period of employment the claimant was never involved in any disciplinary misconduct or misappropriation of finance of any kind. CL stated that at one time he was interviewed for the position of the country Head, Segments and Analysis. CL insisted that he was the best man for the job and waited from June to August for him to round up his existing assignment and resume work in that position. However, CL was utterly shocked when he received CLC1-2, a letter from the defendant dated 31/1/2018, terminating his employment for no reason whatsoever. That since termination of his employment his career has been brutally damaged and affected by the arbitrary and wrongful termination of his employment, for having served the defendant for 12 years. CL had through his Lawyer wrote letter to the defendant demanding for reversal of the termination and reinstatement. But, instead of acceding to the request of the claimant, the defendant gave no reason for termination and stated that claimant has been paid his benefits.
4. CL stated that the termination of his employment was not done merely as an exercise of the bank’s right to terminate the contract but was done wrongfully in a bid to victimize him. CL stated that before the decision to terminate his employment he was considered an advantage to the defendant. Thus, why he was shortlisted and interviewed for the position of Head of Segments and Analysis. CL stated that the issue of termination of his appointment would not have arisen, if, after his resumption of his new office as the Head of Segments and Analysis, he did not raise certain issues of misconduct and fraudulent activities of some individuals in his Department. It is his raising of these issues against these individuals, certain officers at the bank started carrying out disciplinary action against him. CL stated that his termination was wrongful, because, it came as a result of certain issues of ethics going on within the bank which he kicked against; of particular mention is the issue of falsifying figures to show that the bank was making progress whereas, it is not. Though the defendant stated that the claimant was not guilty of any misappropriation of fund, yet, the claimant was suspended for one month without pay for no reason prior to the termination of his employment. It was these actions of the defendant that culminated in the termination of the claimant’s employment this shows the termination was not only wrongful but spiteful, geared towards destroying the career of the claimant. The claimant also stated that several acts of discrimination were meted out against the claimant before the so called exercise of its right to terminate the employment contract of the claimant.
5. The defendant called one Adeyanju Oluwabukola, Human Resources Business Partner; of the Defendant testify in the defence of the defendant as DW. DW stated that the claimant was employed vide letter dated 16/1/2006. He resumed work on 13/2/2006. DW denied issuing letters of commendations. The claimant was promoted from officer grade to senior banking officer in the course of his employment. DW stated that the claimant was not found to be involved in any misrepresentation of finance while in the employment of the defendant. The claimant was successful at a job placement he applied for in the bank and was subsequently moved to the new role after he handed over his former role to his successor. It was stated that the contract of the claimant was determined in line with the terms and conditions of the contract of employment. It was also stated that the claimant exited the service of the defendant under the rightsizing exercise carried out by the bank in January 2018 and his benefits and entitlements totalling the sum of N14,494,546.97 were duly paid to him. The termination of the claimant’s employment was neither arbitrary nor was it wrongful but in line with the claimant’s contract of employment with the defendant.
THE SUBMISSION OF THE DEFENDANT.
6. ISSUE FOR DETERMINATION: When this suit came up for adoption of final written addresses, the defendant was not in court and the counsel representing the defendant was also not in court. The counsel for the claimant who was in court moved the court to deemed the final written address of the defendant as properly filed and served in line with order 45 of the rules of this court. The final written address of the defendant was deemed argued. In the final written address a single issue was formulated for resolution, to wit:
‘’Whether the claimant has established, on the preponderance of evidence the reliefs sought in his statement of facts.’’
7. Counsel for the defendant commenced argument on the issue for determination by contending that the claimant has not established that he is entitled to the reliefs sought herein. It is the contention of counsel that the claimant has not discharged the evidential burden placed on him by law in proof of all alleged facts; therefore the entire claims of the claimant failed and the reliefs are liable to be dismissed. To buttress his contention counsel relied on the case of MIGHTY PLASTIC INDUSTRY LIMITED V BENNETH OKEKE (2016) LPELR-41034(CA).
8. It is also the contention of counsel that parties are bound by their pleading. In considering the case of the claimant and the defendant, the court and the parties are bound by the pleadings. The court is strictly to look at the reliefs sought by the claimant and the issue in controversy between the parties on the basis of the reliefs sought. In support of this contention counsel relied on the decisions in AREMO V ADETORO 2007 10 NWLR 9PT.1060 244 @ 261, OKWEJIMINOR V GBAKEJI 2008 5 NWLR PT.1079 172 @ 208. It is the contention of counsel that reliefs sought before the court should guide in determining the issues in controversy, as any issue that does not flow from the reliefs sought cannot be real issue in controversy. Counsel argued that in view of the reliefs before the court, the claimant is not entitled to the reliefs sought. Counsel contended that in resolved the main issue identified three sub-issues must be considered.
A. Whether the claimant’s employment was wrongfully terminated.
B. Whether the court can order for reinstatement in this instant case.
C. Whether the claimant is entitled to the reliefs sought in his statement of claims.
9. In arguing sub-issue A counsel submitted that in paragraph 18(a) of the statement of facts, the claimant is seeking for declaration that the claimant’s employment was wrongfully terminated by the defendant. According to counsel the claimant has not put forward any cogent evidence before the court to prove his employment was wrongfully terminated. On meaning and purport of wrongful determination, counsel referred to Black’s Law Dictionary Tenth Edition page 1850, which defines wrongful termination as ‘’an action alleging that a termination of employment violated a contract or was illegal.’’
10. Counsel argued that court does not grant declaration of right either in default or on admissions, without taking evidence and being satisfied that the evidence led is credible. The claimant having by his complaint sought declaratory reliefs is thus expected to present material facts before this court in order to be entitled to those reliefs. On this contention counsel relied on the case of NWAOGU V ATUMA (2003) 11 NWLR (pt.1364) 117 @ 141. Counsel contented claimant has not adduced cogent or placed material facts before the court to entitle him to the grant of reliefs sought.
11. According to counsel where employee alleged wrongful termination the burden is always on the claimant to prove terms and conditions of the employment, as decided in the decision of JOHN HOLT V NZERIBE (2018) LPELR-4494 (CA), UBA V ORANUBA (2013) LPELR-20692(CA).
12. It is the contention of counsel that the contract between the parties creates a master servant relationship. That is to say master can terminate the employment of his servant at any time and for any reason or for no reason at all provided termination is in accordance with the terms of the contract. On this principle of law counsel relied on the case of AJUZI V FBN PLC 2016 LPELR 40459. An employer always deserves the right to terminate the claimant’s employment under the law once the conditions in the terms employment are met. To support this view counsel cited the cases of UNION BANK V SALAUDEEN 2017 LPELR-3415(CA), PETER ONYEACHONAM V UNION BANK OF NIGERIA PLC.
13. Counsel refers to exhibit CLA, offer of employment stipulating the terms of the contract. In the said exhibit it was stated ‘’on confirmation of appointment, termination by either party shall be at least one month notice in writing or cash in lieu.’’ Counsel contended this provision is clear and unambiguous. The law is trite that where document is clear the operative words are to be given ordinary grammatical meaning. It is trite law that documents speak for itself. On this contention counsel relied on the case of KANMODE & ANOR. V DINO & ORS (2008) LPELR-8405(CA).
14. According to counsel it is clear from exhibit CLA that by the contract of the parties, termination can be done by either party by giving one month notice or paying one month salary in lieu of notice. It follows that any termination done in line with this procedure cannot be adjudged wrongful. Counsel contended that the defendant complied with the terms of contract when the contract of employment of the claimant was determined. To show compliance exhibit DWC1-10 (claimant’s statement of account) was tendered in evidence and relied on. By exhibit DWC1-10, the claimant was paid his one month salary in lieu of notice on 8/2/18, together with other entitlements due to him counsel contended that claimant admitted this position under cross-examination. According to counsel this is uncontroverted evidence which must be acted upon. To support this assertion counsel relied on the case of MUOMAH V ENTERPRISE BANK LTD (2015) LPELR-24832(CA).
15. Counsel contended that the defendant has not breached the terms and conditions of the contract as there is total compliance. The motive behind termination is not vital in the determination of wrongfulness or otherwise of termination. In support of this view counsel placed reliance on the case of ODIBO V FBN (2018) LPELR-46628(CA).
16. It is argued by counsel that the defendant has demonstrated compliance with the terms of the contract. The judicial authorities are consistent with this position that termination cannot be wrongful, if, terms of contract were complied with. Claimant has not placed any contrary evidence before the court to prove his claim of wrongful termination against the defendant.
17. On the second sub-issue ‘B’ ‘whether the court can order for reinstatement in this instant case. Counsel contended that an order for reinstatement cannot be made as the claimant is not entitled to it, as there is no evidence placed before the court for making such declaration, by showing that the termination was indeed wrongful. In any event the remedy for of reinstatement cannot avail the claimant in the instant case.
18. It is argued by counsel that assuming without conceding that the claimant’s employment was wrongfully terminated, it is again settled that the reliefs of reinstatement is unavailable under a master servant relationship. On this contention counsel relied on the cases of ODIBO V FBN (2018) LPELR-46628(CA), UBN LTD V OKENWA (1994) LPELR-23178(CA). Counsel contended that the claimant cannot be reinstatement in the defendant’s employment, over purported allegation of wrongful termination which he has failed to prove. This is also in keeping with the principle that the court cannot impose an employee on unwilling employer. To buttress the point being made counsel relied on the case of ZUDESH V RIVERS STATE CIVIL SERVICE COMMISSION (2007) LPELR-3544(SC).
19. ON RELIEFS C, D & E, which deals with compensation for wrongful termination and general and special damages, it is the contention of counsel for the defendant that the claimant has not proven to be entitled to these reliefs. According to counsel this is undoubtedly, an unfounded demand as the defendant is guided by the terms of the contract of employment the defendant had paid the claimant one month salary in lieu of notice and all entitlements due as clearly evidenced in exhibit DWC 1-10. It is further argued that compensation and general damages flows from a recognized breach which has been occasioned to the claimant. The law is settled that the object of award of general damages is to put the claimant in the position he would have been if contract was rightly performed. GARI V SHERATON NIG. PLC (2008) 2 NWLR (PT.1070) 1 @ 2, AFOLABI V OLA (2016) LPELR-40186(CA). General damages are only awarded where there is a breach. It follows that a claimant who has not established breach of contract cannot be entitled to damages.
20. On issue of special damages, it is contended the relief is not available to the claimant under an action for wrongful termination of employment. TEXACO NIGERIA PLC V KEHINDE (2000) LPELR-10000(CA), ODIBO V FBN (supra). It is the contention of counsel that the claim for compensation, general and special damages lacked any factual or legal basis and cannot therefore be granted.
21. On RELIEF F; cost of N10,000,000,000.00 (ten Million Naira). Counsel contended that award of cost is discretionary. The party must place before the court cogent evidence in proof. AKINBOBOLA V PLISSON FISCO NIGERIA LTD (1991) 1 NWLR PT.167 270. Having claim cost as special damages, it must be specifically pleaded and proved strictly. On this view counsel relied on the decision 9n the case of HADEJIYA JAMA’ARE RIVER BASIN (2016) LPELR-40202. Counsel contended no evidence has been adduced by the claimant in proof of his claim. It is trite law that court cannot grant what was not proved. In support of this contention counsel relied on the cases of GREEN V GREEN (1987) 3 NWLR (PT.61) 480, OPIA V IBRU (1992) 3 NWLR (PT.231) 658, ABENGA V BENUE STATE JUDICUAL SERVICE COMMISSION (2006) 14 NWLR (PT.1000) 621.
22. In concluding his submission counsel contended that the employment of the claimant was not wrongfully terminated and he is not entitled to any reliefs claim same should be dismissed.
THE SUBMISSION OF THE CLAIMANT.
23. Adaolisa Anyanutaku, Esq; counsel for the claimant adopted the written address of the defendant as his argument in this suit. In the final written address two issues were formulated for determination. They are:-
I. ‘’Was the defendant’s termination of the claimant’s contract of employment wrongful.’’
II. ‘’Is the claimant entitled to the reliefs sought?
24. In arguing issue one counsel contended that the law require contract of service to be terminated in line with the terms of contract. In time past it was the law that employer needs not give reason for terminating the contract, but it is sufficient that such termination is done in accordance with the terms of contract.
25. The law requires that for the claimant to succeed in a claim of wrongful termination of employment he has to meet certain requirements. In the case of SHELL PERROLEUM DEVELOPMENT COMPANY NIG. LTD V AFDDICO & ANOR. (2016) ALL FWLR (PT.816) 439. A person who seeks a declaration that his contract of employment has been wrongfully terminated must prove;
I. That he is an employee of the defendant.
II. The terms and conditions of his employment.
26. This was restated in the case of ZIDETH V RIVERS STATE CIVIL SERVICE COMMISSION (2007) ALL FWLR (Pt.354) 243. When an employee complains that his employment has been wrongfully he has the onus (a) to place before the court the terms of the contract of employment and (b) to prove to what manner he has the onus the said terms were breached by the employer. The cumulative effect of these two authorities is that the claimant has shown that there is an employment relationship exists; present the terms of the contract and how the terms were breached by the employee.
27. It is the contention of counsel for the claimant that vide exhibits CLA and CLB, the claimant has established existence of contractual relationship between the claimant and the defendant, which is that of master and servant and that the terms and conditions are as contained in exhibit CLA and those implied by statutes. It is the contention of counsel that though, the defendant relied on exhibit CLA to terminate the claimant’s employment. That exercise is contrary and goes against the circumstances surrounding the exercise of the power of termination. According to counsel courts would always enquire into the circumstances surrounding the termination to determine if the termination was fair and reasonable especially where the entire governing the contract are not expressly stated.
28. According to counsel the claimant’s challenge of his termination was on the ground of reason behind the termination. Counsel contended the termination of the appointment was not in line with international standard practice for employers to do so. Counsel further argued that the courts have held that in certain circumstances the employer cannot simply exercise its right to hire and fire especially where the employee is a senior staff and has been in a long standing relationship with the employer. To buttress this point being made counsel relied on the case of UNIVERSITY OF ILORIN V OBAYAN 2019 AFWLR (PT.991) 96. Counsel contended that applying the principle enunciated in the University of Ilorin’s case to the facts of the case at hand the claimant’s employment as a senior staff of the defendant cannot have his employment determined at will.
29. Counsel contended that the defendant cannot in exercise of its power to terminate in the circumstance of this case be allowed to terminate claimant’s employment at will. The reason being that claimant has served the defendant for a long period of 12 years. He has impeachable character which the employer affirmed. Counsel contended equity only aids those with clean hands. Counsel also contended that courts have held even where procedure was followed that termination was wrongful and unlawful, if, it is in violation of the elementary rules of natural justice. To support this view counsel relied on the case of EZE V SPRING BANK PLC (2012) AFWLR (PT.609) 1076 @ 1105. To do substantial justice recourse must be had to the entire gamut of the case and not just a fraction of it.
30. Counsel also contended that recent attitude of this court is that employer can no longer terminate an employment contract without expressly stating the reasons for such termination. Counsel placed reliance on the case of EBERE ONYEKACHI ALOYSIUS V DIAMOND BANK PLC (2015) 58 NLLR 92, ADERONKE V SKYE BANK (unreported) Suit No. NICN/IB/08/2015 judgment delivered on 17th May 2017.
31. Counsel contended that the defendant has failed to present any reason for termination of claimant’s contract. Even after claimant has adduced evidence that he has been of stellar and impeachable character while under the employment of the defendant, even the only witness of the defendant has testified that the defendant had no issue with the claimant. Counsel contended that the termination of his employment was wrongful contrary to position taken by the defendant due to lack of reason for dismissal.
32. Counsel referred to the provisions of section 254C(1) (b) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), which allowed the court to entertain application of international convention, treaty, or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relation or matters connected therewith.
33. Counsel also referred to Article 4 of the Termination of Employment Convention 1982 (No. 158) of the international Labour Organization which prohibit termination of employees without reason for such termination connected with capacity, or conduct of the worker or based on operational requirements of the undertaking, establishment service. Counsel contended that by convention 158 motives is indispensable in this kind of situation. Vide recommendation 166 an employee has the right to demand for reason for termination of his employment.
34. On burden of proof, counsel referred to section 133 of the Evidence Act, the claimant having shown that termination of his employment was wrongful the burden of proof has shifted to the defendant to disprove.
35. It is the contention of counsel that the series of emails tendered in evidence have shown that the defendant did not exercise its right to hire and fire in isolation. But did so because the claimant was raising issues of ethics and fraudulent activities. Counsel further argued that the defendant failed to challenge the evidence adduced by the claimant and did not even cross-examine on the facts. This according to counsel has raised presumption that facts presented by the claimant are true position, thus admitted by the defendant. In support of this contention counsel relied on the cases of WAEC V OSHIONEBO (2007) AFWLR PT.370 1501 @ 1509, GIVT. OF ZAMFARA STATE V GYALANGE (2013) AFWLR PT.658 821, where Supreme Court stated that evidence not attacked nor successfully challenged is deemed to have been admitted and the court can safely rely on the evidence in the just determination of a case.
36. Counsel for the claimant also argued that a peep into the circumstances surrounding the termination of the claimant’s contract of employment, clearly shows that his employment came under attack after he raise issues regarding the finances of the defendant. Exhibits CLG – CLK, the emails messages exchanged between the claimants and named principal officers of the defendant point to this fact. As already stated earlier, this evidence was neither challenged nor controverted by the defendant, thus present the true position. According to counsel a curious fact to note is that the claimant was a star staff of the defendant as proved by the various letters of commendations until he raised the issues contained in the emails.
37. Counsel contended that the rules of corporate governance provide for protection of whistle blower not their victimization. The Securities and Exchange Commission code of corporate governance 2011 provides that companied should have whistle blowing policies known to everyone and whistle blower protection mechanism. The entire process involves investigation and protection of the identity of whistle blower.
38. Counsel contended taking into consideration the facts and surrounding circumstances, though the defendant complied with mode and form of termination, the motive as required by international labour standards is faulty as the termination is merely a guise. These and many more make the claimant’s case peculiar and we urge the court to find that the termination of the claimant’s employment is wrongful and unfair.
39. On weight to be attached to the evidence of the defendant, counsel contended that the law frowns at attaching so much weight on the testimony of a witness who is not familiar with the facts of the case or personally aware of the circumstances of the case. The courts have always questioned the weight to be attached to testimony of a witness/employee who was not directly involved in the transaction in question. MR. CHARLES UGHEE V ACCESS BANK PLC (Unreported) suit no. NICN/LA/287/2014, delivered by Hon. Justice B. B. Kanyip.
40. ISSUE TWO Is the claimant entitled to the reliefs sought? In arguing issue two counsel contended that contrary to the submission of the defendant that the claimant has been unable to prove the special damages claim especially the cost of the suit. Counsel contended that the courts have held that damages follow event. Once there is a wrong there must be a remedy, as decided in the case of IGHRERINOVO V SCC NIGERIA LTD (2013) AFWLR PT.700, where general damages was defined as ‘general damages are those that the law presume flow from the type of wrong complained of-compensatory damage for harm that so frequently results from the tort for which a party has sued that the harm is reasonably expected and need not be alleged or proved. It does not need to be specifically claimed. Reliance was further placed on the case of UNION BANK OF NIGERA PLC V AJABULE (2012) AFWLR (PT.611) 1413. Counsel contended that the claimant has shown that the arbitrary termination of his contract of employment has caused him to suffer loss both financially and in terms of reputation. It is trite that this loss be followed by a remedy. The claimant need not to prove anything else in other to be entitled to general damages, the mere fact that it has been established above that a wrong has been occasioned to him by the act of the Defendant is sufficient. In support of this contention, counsel placed reliance on the case of OSOH V UNITY BANK PLC (2013) AFWLR (PT.690).
41. On special damages, counsel argued that the claimant has specifically pleaded and claim same. Evidence has also been tendered in proof.
42. On claim for reinstatement by the employee is not far-fetched given the peculiar nature of this case. The defendant is in charge of a large number of employees scattered across the country. Reinstating the claimant would in no way affect the affairs of the defendant. Also, given the disgraceful nature in which the claimant’s employment was terminated, a reinstatement in only fair to restore lost reputation.
43. In concluding his submission counsel contended that the days of the employer exercising his Lordship over the employee by terminating the employment contract whenever he deems it fit is over. The international labour standards and judgment of the court cited above have proved and provided otherwise. Counsel urged the court to find in favour of the claimant.
44. I have carefully and painstakingly considered the processes filed in this suit as well as the written and oral submissions of counsel for both parties.
45. The facts of this suit are not much in dispute, they are straightforward. The claimant vide exhibit CLA was employed by the now defunct Oceanic Bank international on 16/1/2006. With the merger of Oceanic Bank and the defendant, the claimant vide exhibit CLB dated 24/4/12, issued by the defendant, the continuity of the claimant’s employment with the defendant was assured and affirmed.
46. The claimant during the period of his employment served the defendant diligently and was never involved in disciplinary misconduct or misappropriation of finance of any kind. The claimant was at one time interviewed for the position of country Head, Segment and Analysis. However, on resumption of duty as Head of Segment and Analysis, the claimant raised ethical issues regarding fraudulent activities in generating reports. That he was shocked to on 31/1/18 to received exhibit CLC1-2, Letter terminating his employment without giving reason for such termination.
47. The claimant in his reply to the defendant’s defence stated that his termination was not done merely as an exercise of the defendant’s right to terminate the contract but was done wrongfully in a bid to victimize him. The issue of termination would not have arisen, if after he resumed work at his new office as the Head of Segment and Analysis, he did not raise certain issues of misconduct and fraudulent activities of some individuals in his Department. It was because the claimant has raised issues of misconduct against some members of staff that triggered carrying out disciplinary action against him, whereby query was issued to him, he was suspended for one month without salary. Thereafter, vide exhibit CLC1-2, the Claimant’s appointment with the defendant was terminated without giving any reason.
48. The defendant on its part insisted that the termination of the claimant’s employment followed due process as it was done in line with the terms and conditions of the contract of employment as encapsulated in exhibits CLA and CLAB.
49. It is true as pointed out by counsel for the defendant that an employer has the right to hire and fire at will. This is where the contract of employment is basically one of personal service; the duties of the parties cannot be enforced by specific performance in the event of breach by either party. This means that the court can neither order the employer to continue to engage the services of his employee, nor can the later be ordered to work for the former in a proven case of wrongful termination of contract of service. This is subject to the rule that where the employee is a public officer or his employment is backed up by statute, or what is termed contract with statutory flavour, specific performance by way of reinstatement can be ordered by the court. See OLANIYAN V UNIVERSITY OF LAGOS, (1985) 2 NWLR (PT.9) 599, or where the peculiar circumstance of a particular case, so necessitate ordering of specific performance or reinstatement such an order can be made as a remedy for breach of the contract of service. See HILL V C. A. & CO. LTD 1971 3 ALL E.R 1345, 1972 CH 305, an order may be made for reinstatement and continuance of service in exceptional cases where the facts so dictate.
50. Generally, the law on termination is that motive is irrelevant as long as the terms of the contract are complied with. In WEJIN V ASHAKA CEMENT CO LTD. (19991) 8 NWLR (Pt.21 608, where court of Appeal stated that once properly terminated, intention and motive becomes irrelevant. See also NWAUBUSHI V GOLDEN GUINEA BREWERIES LTD (1995) 6 NWLR (Pt.400) 184.
51. The defendant in this case has insisted that the termination of the employment was done in the exercise of the right to determine the contractual relationship as permitted by exhibit CLA upon payment of one Month salary in lieu of notice of termination. The defendant tendered in evidence exhibit DWC1-10 showing payment of the sum of N499,829.34 (Four Hundred and Ninety Nine Naira Eight Hundred and Twenty Nine Naira Thirty Four Kobo), as evidence of one month salary in lieu of notice which was made on 8/2/18.
52. In law payment of salary in lieu of notice means the defendant is dispensing with the period of notice which notice is supposed to run and expire, by payment of monetary sum, agreeably commensurate with that period. This is in accord with the common law principle that there is no duty to provide work as long as the employee receives his salary. The payment must be made at the time the notice of termination is given; otherwise, it will be invalid. CHUKWUMAH V SHELL B. P. & CO. LTD 1993 LPELR-864 SC @ 28, where it was stated thus;
‘’Where a contract of service gives a party a right of termination of the contract by either giving a particular length of notice or payment in lieu of the length of notice and the latter is chosen, the party seeking to put an end to the contract must pay to the other party the salary in lieu of notice at the time of termination of the contract. It is not enough that in the letter of termination he offers to pay salary in lieu of notice.’’
53. It is patently clear from the decision of the apex court above that for a termination of employment via payment of salary in lieu of notice to be effective, the payment in lieu of notice must be made to the employee contemporaneously with the notice of termination. This means that any notice of termination served or given to an employee without payment of salary in lieu of notice, when such notice was given will not be valid and such termination will be declared wrongful.
54. In the case at hand exhibit CLC1-2, notice of termination was dated 31/1/18 and the notice is to take effect on 2/2/18. Exhibit DWC1-10 was tendered by the defendant to show that the one month salary in lieu of notice was paid to the claimant on 8/2/18. It is apparent from exhibit DWC1-10, that the one month salary in lieu of notice was not paid to the claimant by the defendant contemporaneously with the notice of termination. This breach has rendered the notice of termination invalid. Therefore, the termination of claimant’s contract of service has been rendered ineffectual as at 2/2/18, since payment in lieu of notice was not paid on 2/2/18.
55. The claimant has also raised the issue of non-compliance with international best practices as enjoined by the International Labour Organisations. Counsel made reference to section 254C of the Constitution of the Federal Republic Of Nigeria, 1999, (as amended) and Article 4 of the Termination of employment Convention of 1982 No. 158 and contended that the termination of the claimant’s contract of employment was done in breach of the international best practices in labour and industrial relation.
56. I shall commence consideration of issue of termination of employment without reason, by reproducing provisions of the constitution and relevant provisions of the applicable convention.
57. To begin with, in order to determine the extent of the jurisdiction of this court on the issue of international best practices and labour standards, it is now settled that the proper place to look is the enabling law setting up the Court and conferring it with jurisdiction. In the case of the National Industrial Court of Nigeria is Section 254C (1) and (2) of the 1999 Constitution of Nigeria as Amended and Section 7(1) of the National Industrial Court Act, 2006, become apposite. It is important to note that Section 254C (1) and (2) of the Nigerian Constitution, 1999 confers an expansive jurisdiction on the Court to adjudicate on any matter arising from the workplace. Section 254C (1) provides as follows;
‘’Notwithstanding the provisions of sections 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 b 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:-
(a) relating to or connected with any labour, employment, trade Industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith."
(f) relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters,
(h) relating to, connected with or pertaining to the application or interpretation of international labour standards;
(2) Notwithstanding anything to the contrary in this constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of ant international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relation or matters connected therewith.
Section 7(1) of the National Industrial Court Act 2006, provides:
7(1) The court shall have and exercise exclusive jurisdiction in civil cases and matters:-
(a) Relating to:-
(i) Labour, including trade unions and industrial relations: and
(ii) Environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto: and
(6) The court shall, in exercising its jurisdiction or any of the powers conferred upon it by this Act or any other enactment or law, have due regard to good or international best practices in labour or industrial relations and what amounts to good or international best practices in labour or industrial relations shall be a question of fact.
58. The idea behind the constitutional provision is to remove any limitations or obstacles on the categories of claims or reliefs which the Court can entertain arising from workplace or employment issues.
59. It is without doubt from the foregoing provisions of the Constitution and statute that this court has power to in appropriate circumstances apply and enforce international best practices in employment dispute brought before the court for adjudication.
60. Article of 4 of Termination of Employment Convention of 1982 No. 158 and Recommendation 166 of ILO, clearly makes provisions deprecating determination of contract of employment without giving any valid justifiable reason. Article 4 of Termination of Employment Convention of 1982 No. 158 of the ILO, provide
‘’The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.’’
61. The two instrument i.e Article 4 and recommendation 166 on termination of employment Convention no 158 of ILO establish minimum international measures against unfair dismissal or termination in order to safeguard employment security. The standards established by ILO constitute minimum criteria to use in terminating or dismissing employee. For employment to be validly terminated employer must provide valid and justifiable reason for taking such action for terminating the employment of a worker or employee
62. Generally, Termination of employment is a common law right of every employer of workers, the same way every employee can resign and leave service of his employer without let or hindrance. The law, for long has been that an employer needs not give reason to terminate a contract of employment; he only needs to comply with the terms and conditions of employment. Thus, making motive for termination irrelevant and inconsequential provided the employee complies with the terms and conditions of the contract between the parties. Employers are at liberty to terminate for good, bad reason or no reason at all. This general trite position of the common law rule is however considered not be in tune with modern day global labour law best practices.
63. In exceptional cases where the facts and circumstances dictates employer of labour must give reasons for termination, failing which such termination will be declared wrongful in law.
64. In the case at hand the vide exhibit CLC1-2, the defendant clearly stated that in paragraph 1 that:
‘‘we write to inform you that in line with the terms of your contract of employment with the Bank, the Bank is hereby exercising its right to determine the contract, effective February, 2, 2018 because your services are no longer required by the Bank.’’
65. The message being conveyed to the claimant in exhibit CLC1-2, is that the defendant is exercising the right to terminate claimant’s employment as contained in exhibit CLA. The exercise of the right was not based on any reason whatsoever. In any case, on the accepted general legal principles, an employee may be summarily dismissed without notice and without wages, if, he is guilty of gross misconduct. See Boston Deep Sea Fishing Co. v. Ansell (1888) 39 Ch. D339; Babatunde Ajayi v. Texaco Nigeria Ltd. and Ors. (1987) 3 NWLR (Pt. 62) 577. And gross misconduct has been identified as a conduct that is of a grave and weighty character as to undermine the confidence which should exist between an employee and the employer. So, too, working against the deep interest of their employer amounts to gross misconduct entitling an employer to summarily dismiss the employee: Ridge v. Baldwin (1963) 2 All ER 66 at 71 and Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599. To warrant a summary dismissal, it suffices that the conduct of the employee, is of such grave and weighty character as to undermine the relationship of confidence which should exist between the employer and employee. Teliat Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt. 5) 17.
66. Surprisingly, however, from the evidence before the court which was admitted by the defendant, the claimant has no record of fraud or misappropriation to cast doubt on the trust and confidentiality of the business of the defendant. From the evidence and circumstances of this there was nothing to cast doubt on the claimant’s capacity in terms of performance of his job. To my mind, in view of Article 4 of convention No. 158 of ILO and recommendation 166 of the said convention, it will not be fair to terminate contract of employment for no reason whether bad or good.
67. The defendant has attempted in the pleading before the court to suggest that the termination of the claimant’s employment was as a result of reorganization carried out in January of 2018. This assertion cannot avail the defendant. Exhibit CLC1-2 is very clear and unambiguous no such reason bordering on reorganization was contained in the letter of termination. The law as we know it is that oral evidence will njot be allowed to alter documentary evidence. The evidence of reorganization introduced by the defendant has no place in law to alter exhibit CLC1-2, in the circumstances the suggestion that the contract of employment was terminated as a result of reorganization is incompetent has no evidential value and same is hereby rejected and discountenance.
68. I have no difficulty in holding that the principle established by the cases relied on by the defendant does not apply to the instant case. In the cases relied by the defendant in asserting the right to terminate with reasons or no reason whether bad or good are distinguishable with the facts of this case, in that, those cases were decided based on the existing law prior to the amendment of the Constitutions of the Federal Republic of Nigeria, 1999, (as amended). This court has now been cloth and empowered with requisite jurisdiction to deal with international best practices and enforcement of international labour law convention, protocol and treaties, once they are ratified by the country and even if they are not domesticated.
69. The new jurisdiction of the court as encapsulated in section 254C of the Constitution of the Federal Republic of Nigeria and section 7(1) of the National Industrial Court Act 2006, have clearly and adequately empower the court to shift from the old common law position of employer’s right to terminate with reasons or no reasons. The implication of the new jurisdiction of the court is the paradigm shift in the law of termination is that employers must now justify every termination as it is no longer the law that employers can terminate for good or bad reasons or no reason at all. This also shows that the current labour regime in the country empowering the court to deal with issues of international best practices clearly demonstrated the resolve of the legislature to modify the traditional common law doctrine giving employers power to perpetrate unfair termination. Therefore the general common law rule of not ordering specific performance in master and servant relationship as in this case has been demystified. Now, with the provisions of section 254C of the Constitution as amended, section 7(1) of the National Industrial Court Act 2005, as well as Article 4 of the Termination of Employment Convention, of 1982, No. 158 and recommendation 166 of the ILO, this court can order specific performance in appropriate cases. See HILL V C. A. & CO. LTD 1971 3 ALL E.R 1345, 1972 CH 305
70. The Termination of Employment Convention of 1982, No. 158 and Recommendation 166 of ILO, have set standard to guide employer on termination and dismissal of employees from service. Therefore, to terminate or dismiss employee without giving justifiable reason will tantamount to unfair termination, more particularly when as in this case the employee was not found wanting in carrying out his duties. The requirement of valid justifiable reason for termination is a procedural safeguard to guard against mischief.
71. A careful examination of the factual situation giving rise to the claims of the claimant, the email messages tendered and admitted in evidence, it will readily show that the termination of claimant’s employment without valid justifiable reasons is totally in disregard of the international best practices as provided for in convention no. 158 of 1982 and recommendation 166 of the ILO.
72. Now, even though an employer has the right to terminate employment of employee, the employer must be satisfied that the servant has done something which is incompatible with the faithful discharge of his duty or has displayed conduct such that it would be injurious to the employer’s business to retain him, the employer may dismiss the servant: Maja v. Stocco (1968) 1 All NLR 141 at 151. The burden is on the employer to justify the termination or dismissal: see Arthur Walters v. Frank Harrison (1922) All NLR 73.
73. From all I have been saying, the defendant in termination of employment of the claimant has committed serious infraction by ignoring international best practices and non-contemporaneous payment of salary in lieu of notice. The termination having been found to be faulty due to the breaches is hereby declared wrongful.
74. In view of the peculiar facts and circumstances of this case in that the claimant was not found wanting in his job nor has he been found to have committed fraud or serious misconduct, he has made out a case in which it is exceptionally necessary to order specific performance. In the circumstances I hereby ordered the immediate reinstatement of the clamant back to the employment of the defendant. With the order for reinstatement, the claimant is not entitled to the monetary claim in respect of reliefs C and D, on general and special damages. Those claims are hereby refused.
75. On the whole, I hereby declare, hold and order as follows:
I. The termination of claimant is wrongful due to non-contemporaneous payment of salary in lieu of notice.
II. The termination of employment of the claimant by the defendant is wrongful, unfair due non-adherence to convention No. 158 and recommendation 166 of the ILO, which this court has power to enforce by virtue of section 254C of the constitution of the Federal Republic of Nigeria, 1999, as amended and section 7(6) of the National Industrial Court Act 2006.
III. In the circumstance and in consideration of the special nature of the facts of this case, I hereby ordered reinstatement of the claimant back to the employment of the defendant with immediate effect.
IV. The defendant shall pay cost in the sum of N500,000.00 (Five Hundred Thousand Naira), to the claimant.
V. Judgment entered accordingly.
Adaolisa Anyanutaku, Esq; for the Claimant
Bibian C. Urum, Esq; for the Defendant.