IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HON. JUSTICE J. D. PETERS
DATE:11TH JANUARY 2021
SUIT NO: NICN/LA/445/2015
Olumide Emmanuel Ashiru Claimant
Nigerian Breweries Plc Defendant
Atinuke Ibidapo-Adebajo for the Claimant
U. Ihediwa with Malachy Omeye for the Respondent
1. Introduction & Claims
1. The Claimant approached this Court via his General Form of Complaint, Statement of Facts, Witness Statement on Oath and List and copies of documents to belied upon at trial and sought the following reliefs from the Court –
1. The sum of =N=2,468,298.17 (Two Million, Four Hundred and Sixty-Eight Thousand Two Hundred and Ninety-Eight Naira and Seventy-Eight Kobo) only being benefit due to him vide letter of Defendant titled: Letter of Disengagement and Compensation for loss of Office dated 3rd July, 2015.
2. The Defendant may pay the sum to the Claimant’s Legal Practitioner within the time allowed for appearance and upon such payment the proceedings shall terminate.
3. In addition to a & b above, the Claimant shall await the amount due to be calculated as his service gratuity to be credited into his bank account when the Defendant is advised by Progress Trust Limited in his regard.
4. Outstanding benefits in nature of accrued depot float, Annual leave bonus and Saturday work pay from January to June 2015.
2. On 20/1/16, the Defendant filed its statement of defence along with all other frontloaded processes as required by the Rules of Court.
2. Case of the Claimant
3. The Claimant opened his case on 14/11/16 and testified as CW1. The witness adopted his witness depositions dated 4/7/15 and 11/3/16 as his evidence in chief and tendered 10 documents as exhibits. The documents were admitted in evidence and marked as Exh. C1-Exh. C10 respectively.
4. The case of the Claimant is that he was employed by Consolidated Breweries as Depot Cashier and his appointment was confirmed by a letter dated 3/12/10; that he was elevated to the post of Head of Depot and transferred to Jos, Plateau State by a letter dated 11/8/14; that there was a merger and consolidation between Consolidated Breweries Plc and Nigerian Breweries Plc which resulted in transfer of all staff of Consolidated Breweries to the employment of Nigerian Breweries Plc with effect from 1/1/15; that soon afterwards Nigerian Breweries decided to cut down the number of employees and some of Consolidated Breweries staff who were transferred to Nigerian Breweries were issued letters of Disengagement and Compensation for loss of office.
5. It is the case of the Claimant that on Saturday 4/7/15 Claimant received a telephone call from Mr. Keffas ZAkka informing him that he had to collect a letter forwarded to him from head office at Abuja; that he hurried to Abuja on Saturday 4/7/15 but when he contacted Mr. Keffas ZAkka on phone he said he was not available and he had to wait till the next day; that he was handed a letter the following day and asked to endorse an acknowledgement copy; that after digesting the content of the letter on his way home he realized that some outstanding payments were not computed as accrued benefit; that on Monday the 6th of July 2015 he resolved to compose an email which he sent to Mr. Keffas in respect of outstanding payment that were not computed into his redundancy benefits and he copied other management team; that on the same day he received a phone call from Mr. Keffas ZAkka telling him that management had asked the Claimant to return the letter and when he requested for the reason he was told not to border asking for the reasons; that he then called the phone number of this superior officer in person of Mr. Osakwe Epohraim, Senior Area Sales Manager, who advised him to follow the terms of the received letter and handover accordingly and that he accordingly handed over.
6. Claimant added that the shock and trauma of losing his job unexpectedly made him inquire into the reason for such recall and he was advised that his return might be highly unfavorable since it is unusual for a company of Nigerian Breweries’ status to mistakenly insert an employee’s name on such terminal exercise; that after handing over he packed his belongings and travelled back to his home town Ijebu-Ode expecting to receive alert of his calculated compensation; that when he did not receive the alert and other persons who received similar letters confirmed that they had been paid he contacted a Legal Practitioner, Mrs. Atinuke Ibidapo-Adebajo who forwarded a letter dated July 13th, 2015, demanding for the payment of his benefits; that the amount calculated to be paid into Claimant’s bank account is the sum of =N=2,468,,298.17 (Two Million, Four Hundred and Sixty Thousand Two Hundred and Ninety Eight Naira and Seventy Eight Kobo) and that despite the demand Defendant has refused and/or neglected to pay the said calculated sum into the Claimant’s Bank account.
7. Under cross examination, Claimant testified that he received Exh. C4 on Sunday 5/7/15 in Abuja; that the following day Mr Kefas called and informed him that Exh. C4 was sent to me in error; that he later called Mr. Osakwe Efraim his boss to seek his opinion on Exh. C4; that Osakwe Aphraim is the Area Manager – Jos of Defendant; that he did not rely on the opinion of his Area Manager alter being told that there was mistake on Exh. C4 and that he was paid salaries in July and August 2015.
3. Case of the Defendant
8. The Defendant opened its defence on 19/2/2020 and called one Kolawole Taiwo as its lone witness. The witness adopted his witness statement on oath 21/5/18 as his evidence in chief and tendered 5 documents as exhibits. The documents were admitted in evidence and marked as Exh. D1-Exh. D5.
9. The case of the Defendant as reflected in the evidence in chief of its lone witness and exhibits tendered is that it was foolhardy for the claimant to leave Jos to Abuja on 4/7/15 when he was not sure that Mr. Keffa was in Abuja; that the claimant is a reasonable man and one naturally expects such a person to contact the Head of HR before rushing to acknowledge the mistaken letter of termination and since the said acknowledgment was not attached to the filed processes, the Defendant would require proof of same at the trial; that Mr. Keffas while chatting with the Claimant on phone on 6/7/15, categorically told the Claimant that the letter of 3/7/15 was recalled because it was mistakenly addressed to him; that the Claimant knows that only HR Manager or anyone authorized by him are entitled to speak for the company in employment matters and referring and relying on an opinion from Mr. Osakwe Ephraim is mischievous and that the said advise of Mr. Osakwe Ephraim was unreasonable in view of the fact that the letter of disengagement had been withdrawn.
10. Witness added that the purported handover exercise is a non issue because as at the time it was allegedly done, the Claimant already knew that his disengagement had been reversed; that the Defendant received a letter from the claimants lawyer dated 13/7/15 and replied same by a letter dated 3/8/15; that the Claimant knows that the reason he was not paid the benefit he referred to in paragraph 17,18 and 19 of his statement of facts was because he was still an employee of the Defendant; that the letter of 3/6/15 was mistakenly addressed to the claimant and that the claimant is not entitled to the claim he has presented before this court and I urge your Lordship to dismiss same.
11. While being cross examined, DW1 stated that as at 7/715 he was not the Head of Employees Relations; that he is aware that in 2015 some staff of Consolidated Braveries and staff of the Defendant were retrenched; that it was carried out after due evaluation by the management of the staff concerned; that the exercise was within a month; that some of the staff called to make enquiries respecting their retrenchment; that about 200 staff were laid off; that the Defendant realized its error in the letter of retrenchment to the Claimant and Claimant was called on phone to discountenanced the letter and report for work; that he is not aware of any letter written to the Claimant rebutting his retrenchment; that as at the time Claimant was given Exh. D1 Claimant had a choice to decide whether or not he wanted to return to work for Defendant and that if the Defendant lays off a staff the staff is entitled to severance package and same if staff resigns.
4. Final Submissions of Learned Counsel
12. On 10/6/2020, learned Counsel to the Defendant filed a written address on behalf of the Defendant. In it learned Counsel set down the following issues for determination –
1. Whether this court has the jurisdiction to entertain this case having regard to the fact that all the processes filed in this case were not sealed with the seal of a Legal Practitioner.
2. Whether the Claimant has proved his case on the balance of probabilities.
13. Arguing issue 1, learned Counsel submitted that failure to comply with any condition precedent to adjudication renders the process null and void no matter how well conducted citing Shomolu Local Government Council v. Agbede (1994)4 NWLR (Pt. 441) 174 & Obeta v. Okpe (1996)9 NWLR 401; that Rule 10(1) of the Rules for Professional Conduct for Legal Practitioners, 2007 mandates that all processes filed by a Legal Practitioner must affixed with the Seal of the Legal Practitioner concerned; that the Claimant’s Complaint (Form 1), statement of facts, list of documents and list of witnesses all dated 3/9/15 were not affixed with the Seal of any Legal Practitioner; that the effect is that the processes are not proper before the Court. Counsel urged the Court to dismiss this case with cost citing Hamza v. Sanni (2015)5 NWLR (Pt. 453) 486 & SLB Consortium v. NNPC (2011)9 NWLR (Pt. 1252) 317.
14. On the second issue, learned Counsel submitted that Exh. C3 contains the applicable terms and conditions of employment of the Claimant; that under the terms and conditions the relationship could be brought to an end through dismissal, retirement or by termination; that the form of disengagement as contained in Exh. C4 did not comply with any of the stated forms of disengagement in Exh. C3 and that it did not bring the relationship to an end citing Alh. Ade Aliu v. Unipetrol (Nig.) Limited (1993) LPELR-23695(CA). Counsel added further that Exh. C4 alluded to Redundancy but did not follow the procedure for same as contained in the statute; that by virtue of S. 137, Evidence Act 2011, the onus is on the Claimant who claims a relief on the strength of Exh. C4 to satisfy the Court that Exh. C4 complied with Section 20, Labour Act citing Elema v. Akenzua (2000)6 SCNJ 226 & Orji v. Dorji Textile Mills (Nig.) Limited (2020) All FWLR (Pt. 519) 999; that there is evidence to the effect that the Claimant was paid salaries for the months of July and August, 2015 and hence Claimant is estopped from contending that he was no longer a staff of the Defendant citing A.G Rivers State v. A.G, Akwa Ibom State (2011) All FWLR (Pt. 579) 1023 at 1054-1055. Respecting the reliefs sought, learned Counsel submitted that Claimant could not lay claim to the sum of =N=2,468,298.17 on the basis of Exh. C4 which was issued in error and that reliefs e and f at paragraph 21 are vague, imprecise and un-grantable citing Oruhe v. Edo & Anor. (1966)9 NWLR (Pt. 473) 473 at 488. Counsel prayed the Court to refuse and dismiss the case of the Claimant.
15. The written address of the Claimant was filed on 17/7/2020. In it learned Counsel set down 2 main issues down for determination as follows –
1. Whether in view of available facts and exhibits the claimant is entitled to redundancy benefits, gratuity and pension.
2. Whether failure to affix counsel seal can nullify proceedings in the instant suit.
16. On issue 1, learned Counsel submitted that there existed a Master/Servant relationship between the parties; that once issued Exh. C4, the Claimant was not expected to question his disengagement by the Defendant; that the Defendant admitted that it down sized its workforce; that the content of a written document cannot be modified or nullified by verbal instruction citing Bunge v. Governor of Rivers State (2006)12 NWLR (Pt. 995) 573 & Larmie v. DPM & Services Limited (2005)18 NWLR (Pt. 958) 438 at 470; that it is trite that once a letter of termination of appointment is delivered it becomes effective citing Oduko v. Government of Ebonyi State (2004)13 NWLR (Pt. 891) 487 and that it is not open to an employee to continue to treat his employment with the Defendant as still subsisting citing Jombo v. P.E.F.M.B (2005)14 NWLR (Pt. 945) 443. Learned Counsel prayed the Court to resolve this issue in favor of the Claimant submitting that since Exh. C4 emanated from the Defendant, the Defendant cannot renege on the same now.
17. On issue 2, Counsel submitted that failure to affix NBA Stamp and Seal does not nullify claims of the Claimant; that same is a mere irregularity which can be regularized by the Court directing Counsel to affix the Stamp and Seal as required citing Senator Bello Sarkin Yaki (Rtd) & Anor. v. Senator Atiku Atiku Abubakar Bagudu & Ors. (2015) LPELR-25721(SC) & Mainstreet Bank & Ors. v. Hammed (2018) LPELR-45557(CA). Learned Counsel urged the Court to find in favor of the Claimant and grant all the reliefs sought.
18. I have carefully read and understood all the processes filed by the learned Counsel on either side. I heard the oral testimonies of the witnesses called at trial and watched their demeanor. I also patiently evaluated all the exhibits tendered and admitted. Having done all this, I adopt the 2 issues as set down by the Defendant for the just determination of this case. They are as follows –
1. Whether this court has the jurisdiction to entertain this case having regard to the fact that all the processes filed in this case were not sealed with the seal of a Legal Practitioner.
19. The first issue as set down borders on the jurisdiction of this Court to hear and determine same. Jurisdictional issues are critical and central issues. They go to the very root of a case. It is therefore essential that if and when they are raised, they must be resolved one way or the other. For, it is trite that where a Court exercises a jurisdiction it does not have, no matter the ingenuity and sincerity of the trial Judge, the end product of the exercise is nothing short of a nullity.
20. The argument canvassed by the learned Counsel to the Defendant is that this Court lacks the power to hear and determine this case. The crux of the argument is that the processes filed on behalf of the Claimant were not affixed with both the Stamp and Seal of the Legal Practitioner who filed the same. I perused the General Form of Complaint, statement of facts filed by Atinuke Ibidapo-Adebajo(Mrs.) of Counsel to commence this case on 4/9/15. Both processes were not affixed with Stamp and Seal of the said learned Counsel. The need to affix Stamp and Seal is pursuant to the provision of Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners, 2007, made pursuant to the Legal Practitioners Act. I should add that the rationale for this requirement on all processes filed by a Legal Practitioner in any Court is to ensure that quacks are not allowed a space to practice this noble profession. In a recent Judgment, the Court of Appeal in Mobil Producing (Nig.) Unlimited v. Pepple (2019) LPELR-47473 following the principle earlier laid down by the Supreme Court in the case of Yaki v. Bagudu (2015)18 NWLR (Pt. 1491) 288 that such a process not so affixed with Stamp and Seal was not void but only voidable and that the Court can upon proper application grant Counsel permission to remedy the defect.
21. In the case of Mobil Producing (Nig.) v. Pepple (Supra) it is interesting to note that indeed the learned Counsel for the Appellant was afforded opportunity to remedy the error but failed to do so within the time allowed and even till the hearing of the appeal. This portends that objection respecting failure to affix Stamp and Seal ought ordinarily to be raised at trial in which case the opportunity would be available for Counsel to apply to affix the same and Court also afforded opportunity to grant same. In the instant case, this objection was not raised at trial. The objection was raised by learned Counsel in his final address when the case has been adjourned for Judgment. I hold that this challenge to the jurisdiction of this Court as raised must necessarily be discountenanced and dismissed for several reasons the first being that it was not raised at trial. Secondly, as earlier pointed out one of the reasons for the introduction of Stamp and Seal for Legal Practitioners is to ensure that only the members of the Bar alone practice the profession. Thus, whoever does not possess the Stamp and Seal is deemed a quack.
22. Now, is there evidence before me to the effect that the learned Counsel who filed the originating processes in this case is a Legal Practitioner with Stamp and Seal issued by the Nigerian Bar Association? On 29/6/16 the Claimant filed a Motion on Notice to regularize the Reply to the Statement of Defence. That process was affixed with Stamp issued by the Nigerian Bar Association bearing the name of Adebajo Atinuke Ibidapo. That process remains on page 126 of the Record of this Court. Thirdly, it appears to me that the learned Counsel to the Defendant is also guilty of not affixing his Stamp and Seal as required to all the defence processes filed on 20/1/16. None of the defence processes was affixed with the Stamp and Seal as required. I am inclined to overrule the objection raised regarding the jurisdiction of this Court in this case. I hold that it is late in the day for the Defendant to raise the issue of stamp and seal at the address stage. I thus resolve issue one in favor of the Claimant and against the Defendant. I hold that considering the circumstance, all the facts and all the processes filed in this case, this Court has the requisite jurisdiction to hear and determine the same.
23. The second issue for determination as set down is whether the Claimant has proved his case on the balance of probabilities. The reliefs sought by the Claimant are mainly 4. Has the Claimant proved his entitlement to all or some of these reliefs on balance or probabilities? The first relief sought by the Claimant is for the sum of =N=2,468,298.17 (Two Million, Four Hundred and Sixty-Eight Thousand Two Hundred and Ninety-Eight Naira and Seventy-Eight Kobo) only being benefit due to him vide letter of Defendant titled: Letter of Disengagement and Compensation for loss of Office dated 3rd July, 2015. By Exh. C4 dated 3/7/15, Claimant was informed by the Defendant that as part of the ongoing efforts to realign their operations for greater effectiveness, the management decided to reduce the number of its personnel in some aspects and that the services of the Claimant would no longer be required with effect from 3/7/15. The effect of that exhibit is to put a sudden end to the employment of the Claimant. The employment relationship between the parties is not a statutory one. It is not one with statutory flavor. It is trite that employment relationship is a voluntary one. Either party has the right of free entry and free exit. Both sides are however expected to comply with the applicable terms and conditions binding the parties.
24. At Common Law an employer has the right and power to terminate the services of his employee at any time with or with no notice. Where the terms are not complied with, the employer may be liable in damages for breach of applicable terms. It is trite that once a letter of termination is given in whatever form, an employee or servant can neither refuse same nor continue to treat his employment as still existing. Olatunbosun v. NISER (1988) LPELR-2574 (SC) supports this proposition of the law. Once an employment is terminated what is left is any post-employment rights that may exist between the parties. See Jombo v. PEFMB (2005)14 NWLR (Pt. 945) 443. Exh. C4 stated the entitlement of the Claimant in the sum =N=2,468,298.17. Now, that is the figure Claimant sought in his first relief. I have read the pleadings of the Defendant and heard the argument canvassed by its learned Counsel to the effect that that exhibit was issued in error; that Claimant ought to have reasonably made enquiry for confirmation before relying on the exhibit. Let me state that the argument that the exhibit was issued in error is of no moment. The fact remains that the Defendant as the employer of the Claimant at the time was in possession of both the Knife and the Yam. The Defendant for reason stated decided to reduce its workforce. It determined the workforce to be affected. Without the input of the Claimant, the Defendant sent him Exh. C4 untimely sending him to the unemployment market. Claimant acted on the exhibit by handing over to the appropriate authority at the Defendant. It was not open to the Claimant as an employee to refuse to accept his letter of disengagement. See Jombo v. PEFMB (2005)14 NWLR (Pt. 945) 443. Claimant also could not continue to treat his employment as still existing. There is no evidence from the Defendant that it had paid the stated sum to the Claimant. I hold that Exh. C4 is sufficient proof among others of the Claimant’s entitlement to the first relief sought. The Defendant is here ordered to pay to the Claimant the sum of =N=2,468,298.17 (Two Million, Four Hundred and Sixty-Eight Thousand Two Hundred and Ninety-Eight Naira and Seventy-Eight Kobo) only being benefit due to him vide Exh. C4.
25. The third relief is for the amount due to be calculated as his service gratuity to be credited into his Bank account when the Defendant is advised by Progress Trust Limited in his regard. This head of relief is vague. What is the basis of the claim for gratuity? What is the amount due to the Claimant as gratuity? How is the amount due to be calculated? I find no answer provided to any of these pertinent questions. There is also no evidence to support any claim for gratuity. This claim is thus not proved. I therefore refuse and dismiss same accordingly.
26. The fourth relief is for outstanding benefits in nature of accrued depot float, Annual leave bonus and Saturday work pay from January to June 2015. Again, pleadings are the basis of any claim before the Court. I perused the pleadings filed by the Claimant and note that both the statement of facts and the Reply to the statement of defence did not make any reference to this head of claim at all. Evidence was also not led in support of the same. I thus have no hesitation in dismissing this relief as sought and I so do.
27. Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment,
1. I hold that considering the circumstance, all the facts and all the processes filed in this case, this Court has the requisite jurisdiction to hear and determine the same.
2. The Defendant is here ordered to pay to the Claimant the sum of =N=2,468,298.17 (Two Million, Four Hundred and Sixty-Eight Thousand Two Hundred and Ninety-Eight Naira and Seventy-Eight Kobo) only being benefit due to him vide Exh. C4.
3. All the other reliefs sought are refused and dismissed for lack of proof.
4. The Defendant is ordered to pay the cost of this case assessed at =N=200,000.00 only to the Claimant.
5. All the terms of this Judgment shall be complied with within 30 days from today.
28. Judgment is entered accordingly.
Hon. Justice J. D. Peters