IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN IN ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI
DATED: 18TH OF MAY, 2020 SUIT NO.: NICN/ABJ/369/2018
MR. ISHOLA OLADEHINDE ……. CLAIMANT
AFRICAN UNIVERSITY OF SCIENCE AND …. DEFENDANT
Samuel Ogalawith Fidel Basseyfor the claimant.
OsefamAnegbefor the defendant.
1. It is the claimant’s case that he was employed by the defendant on the 10th of August, 2009 as a Faculty Liaison officer with an annual salary of N780,000.00 (Seven Hundred and Eighty Thousand Naira) per annum. He pleaded that his employment letter contained the terms of his employment and one of the terms provided that the defendant reserves the right to review and modify the terms of employment without prior notification. That by a letter dated 25th of January, 2012the defendant increased his salary in the sum of N107,338.00. He averred further that by letter dated 2nd January, 2018 he was issued a new contract of employment by the defendant to the position of Accommodation and security personnel. That his salary was increased to the sum of N1,800,000 (One Million Eight Hundred Thousand Naira only). He stated that the new letter of employment provided that the defendant reserves the right to terminate the contract at any time subject to the issuance of four weeks prior notice in writing of its intention to so do. That on the 27th of November, 2018 he was served with a letter relieving him of his position as security officer and on the 30th of November, 2018, his employment was terminated in breach of his new contract of employment. According to him, by the defendant’s Human Resource Manual, he is to retire from the employment of the defendant at age 60 which is in 2036 as he was only forty-two years when his employment was terminated.
2. He continued that upon the termination of his employment, it was discovered that the defendant has not been remitting his pensions as at when due to his Pension Managers. That in all the defendant is indebted to him in the sum of Forty Million One Hundred and Sixty-Seven Thousand Nine Hundred and Thirty Six Naira. (N40,167.936).
3. It is against this backdrop that the claimant by a General Form of Complaint dated 21st December, 2018 and subsequently amended on the 10thMay, 2019, filed against the defendant claiming the following reliefs.
A. DECLARATION that the termination of the claimant’s employment by the defendant without giving the claimant four (4) weeks prior notice in writing as provided for under the terms and condition of employment of the claimant with the defendant as contained in a letter dated 2nd January, 2018 and titled: RE OFFER OF EMPLOYMENT is illegal, null and void and a violation of the claimant’s right and privileges as contained in the said letter of employment and Human Resources Manual regulating the claimant’s employment with the defendant.
B. AN ORDER of this Honourable Court setting aside the notice of termination of employment dated the 30th day of November, 2018 and served on the claimant by the defendant.
C. AN ORDER of this Honourable Court directing the defendant to pay to the claimant the sum of N35,640, 000.00 (Thirty-Five Million, Six Hundred and Forty Thousand Naira) as general and punitive damages for breach of contract and unlawful termination of employment.
D. AN ORDER this Honourable Court directing the defendant to pay to the claimant the sum of N4,527,936.00 (Four Million, Five Hundred and Twenty-Seven Thousand, Nine Hundred and Thirty-Six Naira) as outstanding unremitted pension due to the claimant from 2009-2018.
E. AN ORDER of this Honourable Court directing the defendant to pay the claimant 10% post judgment interest on the judgment sum per annum.
4. The defendant in response filed its defence wherein, it stated that the claimant’s employment was not terminated wrongfully as the determination of the claimant’s employment was done within the ambit of the claimant’s employment. The defendant went on to state that prior to the termination of the claimant’s employment, there had been several complaints of inappropriate behaviour by the claimant’s supervisors against him. According to the defendant, it reserves the right to terminate the employment of its employees at any time in its Human Resource Manual and that upon the termination of the claimant’s employment it assured him that all outstanding benefits due will be paid accordingly inclusive of his unremitted employer’s pension contribution due to him from 10th August, 2009. That the defendant has no obligation to pay the claimant for what he would have earned if he had worked until retirement age. It admitted that it owes the claimant outstanding unremitted Pension but however, disputes the amount claimed by the claimant. It urged the Court to dismiss claimant’s claims with cost.
5. Trial commenced on 7th November, 2019; the claimant testified for himself as CW. He adopted his written statement of the 17th of July, 2019. He tendered the following documents which were admitted in evidence, to wit- Exhibits A-A8 and was cross examined by the defence. One BoladeIgbagbo, gave evidence for the defendants as DW. He also adopted his witness statement on oath dated the 3rd of March, 2019 as his evidence. He tendered documents which were admitted in evidence and marked as Exhibit B-B4 and was also cross examined by the claimant’s counsel.
6. Pursuant to the rules of this Court, at the end of trial learned counsel on either side filed their respective final written addresses. The Defendants filed their final written address dated 3/12/2019 wherein counsel on their behalf formulated two (2) crucial issues for the determination of the Court, the Claimant also filed his on the 9th February 2020 and submitted two (2) main issues for the Court’s determination; the defendant in response equally filed reply on point of law dated 16th January, 2020 significant portions of which would be referred to in the course of writing this judgment.
7. I have had an in-depth examination of the processes filed by the parties, their supporting documents, the testimonies of witnesses, documents tendered in buttressing their case and the written submissions of counsel, it is in view of this that I find the issues distilled by counsel as apt and rephrase the issues framed in the consideration of this suit thus: whether or not claimant has proven his case to be entitled to his claims.
8. The main gist of the claimant’s case is that having worked diligently for the defendant for about nine years, his contract of employment was abruptly determined in breach of the terms of his employment for which he claims a declaration that the termination of his employment by the defendant without giving him the four (4) weeks prior notice in writing as provided for under the terms and condition of employment of the claimant with the defendant as contained in a letter dated 2nd January, 2018 is illegal, null and void and a violation of his right and privileges as contained in the letter of employment and Human Resources Manual regulating his employment with the defendant. Learned counsel respecting this claim submitted that while the claimant was in the employment of the defendant his contract was renewed vide exhibit A dated 2nd of January, 2018 and a term in the letter stipulates that the claimant employment can only be terminated by the defendant by giving the claimant four weeks prior notice in writing of its intention to terminate the employment.Claimant’s contention here is that the defendant has violated the clause when by a letter dated 30th of November, 2018 the defendant terminated his employment without notice.Learned counsel cited the case of Asca Bitumen Co Ltd v Isah  LPELR 40778 CA, in support of claimant’s case.On his own part Learned counsel to the defendant submitted that the claimant has failed to prove how the defendant breached any terms of his contract of employment. He submitted that by paragraph 1.6 of the defendant’s Human Resource Policy Manual which governs the claimant’s employment, confers right on the defendant to terminate his employment at any time. Counsel posited that an employer is entitled in law to terminate a contract of employment at any time, for a reason or for no reason at all as he who has the right to hire has the corresponding right to fire. He cited the cases ofObaje v NAMA  11 NWLR (Pt. 1365) 286; Texaco (Nig) Plc v Kehinde  6 NWLR (Pt 708) 224 at 239; MrOgheneovo Kingsley v Daewoo Nigeria Limited & 1 ors NICN/LA/23/2011.
9. The law is long settled as reiterated by both parties that, a party seeking for a verdict before the Court has the onerous duty of proving his assertions. Where declaratory relief is sought, as in the instant case, the claimant must succeed on the strength of his case and not on the weakness of the defendants or opponents’ case. See the case of Mr. Moses Benjamin &Ors. v. Mr. AdokieKalio&Anor  15 NWLR (Pt. 1641) 38. The law is also of common that a declaratory claim cannot be granted solely on admissions of the defendant. That is the position of the Court of Appeal inExaminer Osiobe&ors v Gwede&ors  LPELR 47815 CA. It is equally an established position of the law that where an employee protests the determination of his employment by his employer as being wrongful, it places on him the onerous task of proving by credible evidence the wrongful act or breach as stated earlier by;
a. Proving that he is an employee of the employer;
b. Placing before the Court the terms and conditions of his employment;
c. Proving by substantial evidence the manner the alleged term/s was breached by his employer.
10. The motive behind the law is that where the issue of wrongful/unlawful termination of employment calls for determination, the term of contract of service is the basis upon which the Court decides the right and obligation of the parties. This is because it is a basic principle of law which has gained notoriety that the terms and conditions of a contract of employment or service are the bedrock or differently put foundation upon which a claim of wrongful termination of employment by a claimant can stand. Where there is a written or documented contract of service, the Court will not look outside the clear written terms stipulated there in deciding the rights and obligations of the parties and also, such terms and conditions of contract of the employment are required to be pleaded and placed before the Court in evidence by the claimant. See the cases of Jalbait VenturesNig Ltd and anor v Unity Bank Plc  LPELR 41625; Aina&anor v Ariyo&anor  LPELR 42888CA;Mighty Plastic Industries Ltd v Okeke  LPELR-41034 CA; NITEL Plc v Akwa  2 NWLR (Pt.964) 391.
There is no dispute as to the fact that the claimant was an employee of the defendant and he has succinctly placed before the Court exhibits A and A8 as documents regulating or governing the terms of his employment.It is imperative for me to state that parties are ad idem that on the 2nd of January, 2018 by exhibit A, the defendant issued the claimant a new offer of employmentwhich is the extant contact that regulates his employment and at page three particularly at paragraph 3 it provides for Termination of offer and it states thus;
The University may terminate your employment at any time by giving you four weeks prior notice in writing. If you wish to terminate your employmentyou are also required to provide the institution with four weeks prior notice in writing or forfeit one month salary in lieu of such termination”
11. It is so plain in the above highlighted paragraph 3 of the contract of employment that either party is entitled to four weeks’ notice before termination of the relationship between the duo. The claimant’s employment was terminated vide a letter dated 30thof November, 2018 with immediate effect. The defendant has argued by paragraph 4.6 of its written address that it has the right to terminate the claimant’s employment at any time. It relied on clause 1.6 of exhibit A8 in support of its arguments in this regard. For ease of reference I reproduce clause 1.6 of exhibit thus;
“Employment at Will
Employees may terminate their employment with AUST at any time. This may be done with or without notice for any reason not in conflict with current Federal or State Legislation. Unless otherwise agreed upon in a written agreement, AUST may terminate the employment of any employee at any time, with or without notice, for any reason not in conflict with current Federal or State legislation”
The defendant by paragraph 1.6 of its reply on point of law, only looked into the wordings of the Manual exhibit A8 that “AUST may terminate the employment of any employee at any time, with or without notice” in support of its argument that it can determine the employment of the claimant without holistically reading the document in question. The law gives the Court the nod to read a document holistically so as to reach and gather harmonious results of its content. See the cases of MothercatNig Ltd &Anor vAkpan  LPELR 47158 CA; Orogun&anor v Fidelity Bank Plc  LPELR 46601CA.
12. From the above stated clause, it is clear that this clause has two parts the first is as pertains to the employees in this instance the claimant. It is deduced that employees and not the employer in this instance the defendant may terminate their employment with the defendant without notice however the right vested therein is limited pursuant to the fact that it must not be in conflict with any law Federal or State. On the second part which refers to the defendant it clearly states that the right of the defendant to terminate the employment of any employee at any time is SUBJECT to any written agreement which in this instance is exhibit A, dated 2nd of January, 2018. Exhibit A is the personal contract between the claimant and the defendant in this case and the terms of this contract as reasoned supra binds both parties and this contract is determinable by the agreement of both parties simplicita, Infact this Court cannot read any other terms into it or exclude any of the terms therein. The law is equally settled that where a contract of service as in this case provides for termination by either party giving a specified or pre agreed period of notice, there is no dispute over how the contract comes to an end. See Shena Security Co. Ltd v. AfropakNig Ltd  18 NWLR (PT.1118)77SC.Therefore, the clause on termination as stated in paragraph 3 at page 3 of the letter of offer of the claimant’s employment binds the heart and soul of the parties together as it relates to their separation.Also, it must not be in conflict with current Federal or State legislation.I need to state the trite position of the law that in a master servant relationship, the master has a right to terminate the employment of its employee but must ensure that it complies with the terms of the contract of employment. The employer cannot renege on the terms. See the cases ofAdvanced Maritime Transport (Nig) Ltd v Ojugboli  LPELR 46265;Mr S. Anaja v United Bank for Africa Plc  4 ACELR 78.It is also the case here that exhibit A8 relied on by the defendant does not form part of its relationship with the claimant. This is in view of the clear provision of exhibit A, the clause titled “Entire agreement” it is stated thus-“The terms and conditions referred to in this letter constitute all of the terms and conditions of your employment and replace and supersede any prior understanding or agreement between you and the institution” .This provision has clearly excluded exhibit A8 relied upon by the defendant in determining its relationship with the claimant. I thus find and hold that exhibit A8 does not form part of the terms of the contract between the parties before me. It is thus discountenanced. Further to the above, by ECWA v. Dele  10 FWLR (PT.230)297, where the conditions of service applicable at the time of employment had in the meantime been amended or replaced, the relevant conditions of service is the one that is applicable at the time of termination of appointment and introduces improved condition of service to the employee and not the one that seeks to take away his benefits.
13. Now the question is can the defendant terminate the claimant’s employment at any time as it wants the Court to believe? I answer same in the negative. This is in view of the terms of the contract of the parties which has been breached by the defendant as clearly stated above, I thus find that the termination of the claimant’s employment with immediate effect vide a letter dated 30th of November, 2018 is wrongful. I so hold.
14. With regardsto claimant’s claim two, learned claimant’scounsel at paragraph 4.2-4.3 submitted that he is not unmindful of the fact that the relationship between the parties is purely of contract of a master servant. He stated that where there is a breach there ought to be a remedy therefore the claimant is entitled to the reliefs sought.Learned defence counsel vide paragraphs 4.19 to 4.22 of its written submission has argued that the measure of damages where it has been so proven that the employee’s employment has been terminated wrongfully, the employer is liable to pay only what he would have paid had the employment of the employee been properly terminated. The employee is not entitled to reinstatement as it is akin to foisting a willing employee on an unwilling employer. He cited the case of Isiewvore v NEPA  13 NWLR (Pt 784) 417 SC.The law is notorious that reinstatement is not ordinarily the remedy for breach of contract of service. See the cases of FRSC v Idowu  LPELR 40153 CA; FRSC v Orunmuyi  LPELR 40150 CA. By the nature of the contract of employment between the claimant and the defendant the claimant is not entitled to be reinstated into the defendant rather he is entitled to damages which lies in the period of notice not issued to him. Therefore, I find that the claimant is entitled to the sum of N150,000 as his four weeks’ salary in lieu of notice. I so hold.
15. Claimant claims the sum of N35, 640, 000.00 (Thirty-Five Million, Six Hundred and Forty Thousand Naira) as general and punitive damages for breach of contract and unlawful termination of employment. Learned claimant counsel posited vide paragraphs 4.13- 4.23of his written address that the defendant in flagrant disregard for the terms of claimant’s employment, wrongfully terminated his employment in which he ought to have retired at 60 years of age. He submitted that in consequence of the wrongful termination, the claimant has calculated his earning from the date of his employment [SIC] till the date of his retirement in the sum of N35,640,000.00as general and punitive damages for breach of contract and unlawful termination of employment. Learned defence counsel argued that no fixed term was ever promised to the claimant and that the law is trite that it does not approve payment of salary for work not done nor guarantees employment until retirement. He relied on the case of U.T.B Nig v Ozoemena  3 NWLR(Pt. 1022) 448at 487. Counsel submitted that damages are not awarded in the air, it must follow established right which the defendant must have breached and the measure of damages is calculated in accordance with the normal principles applicable to actions for breach of contract. He submitted that the claimant’s claim for the sum of N35,640,000.00 as general and punitive damages do not form part of the measures of damages for wrongful dismissal/termination. He cited in support the case of Osisanya v Afribank (Nig) Plc  6 NWLR (Pt 1031) 565 at 578-580. With regards to the claims of salary from the date of termination till retirement date, it is notorious that an employee is not entitled to salaries for work not done. There is no evidence on record to prove that claimant has a fixed term of employment for which he is expected to stay in office to the end of same. The law is that you cannot reap where you have not sown. Claimant has not marshalled any credible evidence in prove of this claim. It is in the light of this that discountenanced. I so find and hold.
16The claimant claims the sum of N4,527,936.00 (Four Million, Five Hundred and Twenty-Seven Thousand, Nine Hundred and Thirty-Six Naira) as outstanding unremitted pension due to the claimant from 2009-2018. Learned claimant counsel argued that the claimant is entitled to the sum as claimed as his outstanding pension due to him from 2009 -2018. He submitted that the defendant have admitted by paragraph 13 of its statement of defence that they have assured the claimant that they will pay all outstanding benefits due inclusive of his unremitted pension. Based on this counsel urged the Court to enter judgment in claimant’s favour. Learned defence counsel in response vide paragraph 4.48 posited that the defendant already remitted for the year 2018 and assured the claimant of the remission of his pension for outstanding years 2009-2017 in the sum of N1,337.383.10 and nothing more. It is a legal obligation of every employer of labour to remit certain amount of money from its employee’s salary as Pension into the employee’s Pension Fund Administrator. Pursuant to Sections 2(b) and 11 (5) of the Pension Reforms Act 2011, an employer of labour is to statutorily remit atleast 8% of the employee’s salary as well as to contribute 8% also into an account to be opened by its employee with a Pension Administrator of his choice. Section 11(5)of the same Act also provides thus – “An employer shall deduct from source the monthly contribution of the employee in his employment and not later than 7 working days from the day the employee is paid his salary, remit an amount comprising the employee's contribution under paragraph (a) of this subsection and the employer's contribution to the custodian specified by the pension fund administrator of the employee to the exclusive order of such pension fund administrator”.It is not in contention that the defendant admitted vide paragraph 13 of its pleading that it owes the claimant his unremitted pension but it however disputes the said sum claimed by the claimant in the sum of N4,527,936.00 (Four Million, Five Hundred and Twenty-Seven Thousand, Nine Hundred and Thirty-Six Naira). I have perused the document on record and found by exhibit A5, i.e. claimant’sStanbic IBTC statement of Account that the claimant’s pension was only remitted in 2018. The inference of this is that the defendant did not remit money deducted from claimant’s account into his IBTC RSA account since 2009 till December 2017. Now the question is what is the exact sum of money deducted? The claimant claims the sum of N4,527,936.00 and the defendant admits the sum of N1,337.383.10 as claimant’s pension. It is the law that he who asserts must prove see Section 131 of the Evidence Act. The claimant tendered in this case his Stanbic IBTC RSA statement of account as at February 2018 to November 2018. Before the Court is an admission by the defendant that it is indebted to the claimant to his unremitted pension but the actual amount remains unknown. What is clear on record is that the defendant remitted the sum of N15,000 and N12,000 respectively per month into the claimant’s RSA account as both the employer and the employee’s contribution. The import of this is that the defendant failed to remit the monies deducted from claimant’s salary from 2009 till January 2018. I found at paragraphs 9,13 and 19 of the statement of defence that the defendant admitted that it has failed to remit claimant’s pension from 2009 when he was employed to November, 2018. The law is of common place that facts admitted need no further prove. The only grouse the defendant has is that it disagrees with the claimant on the calculated amount. The defendant however, failed to tender before the Court any other calculation in contradistinction with the one calculated by the claimant.I have stated supra that by A7, which is claimant’s RSA account with Stanbic IBTC, it evinces that the total amount remitted into claimant’s account is N29,000per month representing both the claimant and the defendant’s contribution. Upon the admission of the defendant that it owes the claimant his pension from August 2009 to 2018, I make an order that the defendant is to remit all the monies deducted from the salaries of the claimants as well as its counterpart contribution into claimant’s IBTC RSA accountfrom 2009 – January 2018 as pension contribution within 14days of this judgment and evidence of payment produced in Court. I so find and hold.
17. With regards to its claim for 10% post judgment interest, by Order 47 Rule 7 of the National Industrial Court Rules, 2017, this Court is enjoined to award post judgment cost at a rate not less than 10% per annum to be paid upon any judgment. The claimant in this suit has claimed 10% interest. It is in this light that I find that claimant claim for 10% post judgment interest succeeds. I so find and hold.
18. In sum, I find that claimant’s case succeeds in part, thus I make thesedeclarations and orders-
1. That the claimant’s employment was wrongfully terminated.
2. That his claim for reinstatement fails.
3. That he is entitled to the sum of N150,000 as his four weeks’ salary in lieu of notice.
5. That the defendant is to remit the claimant deducted sum as pension from the 2009 till 2017 to his Pension Fund Administrators.
6. This judgment is to be complied within 14 days failing which 10% interest on the judgment sum will accrue per annum.
No award as to cost
Judgment is entered accordingly
Hon. Justice OyewumiOyebiola O.