IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT-HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT-HARCOURT
BY ZOOM DUE TO JUSUN STRIKE
BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE, FCIArb
Date: May 31, 2021 Suit No: NICN/YEN/248/2016
Blessing Charles-Etim ----------------------------- Claimant
1. Martin Craighead
2. Baker Hughes Incorporated ----------------------------- Defendants
3. BJ Services Company Nigeria Ltd
(A Baker Hughes Company)
George Ogara with O. O. Erunoma (Mrs.) & Q.O. Epiah (Miss) for the Claimant.
Y. K. Kadri (SAN) with Ishmael .O. Muftau for the Defendants
1. On November 15, 2016 the Claimant sued the Defendants and by her Amended Complaint with her Amended Statement of Facts filed on March 21, 2019 at pages 470 to 492 of the record; she is seeking for the following reliefs:
i. A Declaration that the action of the Defendants in terminating the Claimant’s Contract of Employment with the Defendants by a summary dismissal letter dated 30th April, 2015 and titled “Notification of Redundancy” is unlawful, wrongful, a breach of the Contract of Employment between the Claimant and the Defendants and a violation of Labour Act, CAP L1, Laws of the Federation of Nigeria, 2004.
ii. An Order of Court setting aside the summary dismissal letter dated 30th April 2015 titled “Notification of Redundancy” issued to the Claimant by the Defendants for being illegal, a violation of the Contract of Employment between the Claimant and the Defendants and a violation of Labour Act, CAP L1, Laws of the Federation of Nigeria, 2004 .
iii. The sum of N4,293,639.57k only being the total amount due to the Claimant from the Defendant’s voluntary Release Program and the Redundancy package applicable in the Defendant’s West Africa Geomarket.
iv. Pre Judgment interest of Twenty – Five percent (25%) per annum on the sum of N4,293,639.57k Twenty – Five percent (25%) per annum from date of Judgment till the payment of the said sum.
v. The sum of USD $2,600.00 (Two Thousand Six Hundred Dollars) only being the one year medical contribution due to the Claimant from the Defendants Voluntary Release Program policy in the Defendants West Africa Geomarket.
vi. Pre Judgment interest of Twenty – Five percent (25%) per annum on the sum of $2,600 USD from 30th April 2015 till Judgment and post – Judgment interest of Twenty – Five percent (25%) per annum from date of Judgment till the payment of the said sum.
vii. The sum of N1,000,000.00 (One Million Naira) being cost of this Suit.
viii. An Order of Perpetual Injunction restraining the Defendants whether by themselves, their servants, workers, receivers, agents or privies from selling, divesting their interest, and transferring the 2nd and 3rd Defendants to General Electric (GE) or in any manner whatsoever interfering with or dissipating the 2nd and 3rd Defendants assets for the purpose of denying the Claimant the due redundancy package and voluntary release program package.
Other initiating processes were filed along with the Complaint in line with the Rules of this Court. In response, the Defendants entered appearances through their counsel and filed their Statement of Defence together with other processes in compliance with the Rules of this Court.
2. The Case of The Claimant As Pleaded
The case of the Claimant in her pleadings is that the Defendants entered into a Contract of Employment with her to be bound by polices of the 2nd Defendant, which includes its Voluntary Release Program (VRP). She continued that these policies do not provide for redundancy. The Claimant averred further that the Defendants regardless embarked on redundancy of many of their employees including herself without following the procedure provided for by it in the Labour Act. She again averred that the Defendants failed, refused and neglected to pay her redundancy benefits provided for under the 2nd Defendant’s Voluntary Release Program package.
3. The Case of The Defendants As Pleaded
The Defendants’ case as pleaded is that they conducted redundancy exercise, which affected the Claimant and that the Defendants accordingly paid her in line with her Contract of Employment. The Defendants averred also that the Claimant accepted the one month salary in lieu of notice as his redundancy entitlements and undertook not to ask for further paid again on the determination of her employment. They continued that the payment of one month salary in lieu of notice to the Claimant was sufficient to satisfy her redundancy benefits and that the Voluntary Release Programme policy of the Defendants was implemented in other Countries that make up the West Africa Geomarket.
During hearing of the case, the Claimant gave evidence as CW1 while Mr. Richard Babaoye testified on behalf of the Defendants as DW1. The court subsequently directed counsel to the parties to file their respective final written addresses in line with the Rules of this Court and they complied with the said direction.
4. DEFENDANTS WRITTEN ARGUMENTS
In the Defendants’ final written address, their counsel raised three objections to the Claimant’s case this way:
i. Whether the Claimant’s Exhibits C1, C4, C5 and C8 are competent, relevant and reliable documents that can be acted upon by this Honourable Court?
ii. Whether the Claimant’s action is not caught by the principle of estoppel, having accepted payment of her terminal and redundancy benefits from the 3rd Defendant in full and final settlement of her entitlements arising from the termination of her employment?
iii. Whether in view of the conflicting signatures in the Claimant’s Witness Statements on Oath before this Honourable Court, this Honourable Court can rely on any of the Claimant’s Witness Statements on Oath in this suit?
5. In arguing the 1st objection on whether the Claimant’s Exhibits C1, C4, C5 and C8 are competent, relevant, and reliable documents that can be acted upon by this Honourable Court; counsel submitted that a careful consideration of Exhibits C1, C3, C4, C5 and C8 tendered by the Claimant in this suit shows that the said documents are not relevant to the facts in issue and at the same time, these documents suffer legal defects that render them inadmissible in law, citing in support of this argument; the case of Abubakar v. Chuks  LPELR-52(SC) and Adegoke & Ors v. Reg Trustees of The Catholic Diocese of Ondo State & Ors  LPELR-49359(CA).
Counsel went on that Exhibits C1, C4, C5 and C8 are documentary hearsay, having not been made by or received by the Claimant through whom they were tendered and that the Claimant having failed to call the makers or receivers of those documents as witnesses. He also referred to the cross examination of the Claimant on 24th of November 2020 when she was asked how she came about Exhibit C4 - the Baker Hughes Nigeria, West Africa and Central Geomarket revenue and profit margin 2015; referring to sections 37 and 38 of the Evidence Act and to the cases of Anifowoshe v. Wema Bank Plc.  LPELR-24811(CA) & Mkpedem & Ors v. U.B.A Plc. & Anor  LPELR-42039(CA).
6. Counsel contended that the Claimant having failed to link herself with the making or receipt of any of the documents purportedly tendered to prove her case, the whole gamut of the bundle of these said documents tendered in evidence by the Claimant amount to documentary hearsay in law and has no value whatsoever; citing Emmanuel v. Umana & Ors  LPELR-40659 (SC) & Adegoke & Ors v. Reg Trustees of The Catholic Diocese of Ondo State & Ors  LPELR-49359(CA).
Also, counsel submitted that Exhibits C1, C4, C5 and C8 tendered by the Claimant as a witness, were merely dumped on this Court by her without tying any specific part of the documents to her case, citing Oyegun v. Igbinedion & Ors  LPELR-12735(CA); Alhaji Onibudo & Ors. v. Alhaji Akibu  7 S.C. 60 @ 62 and Oki & Anor v. Fed. Min. of Works & Housing & Anor  LPELR-49251(CA). Counsel noted that Exhibit C5 contains text not written in English Language and that the identity of its interpreter to English in Exhibit C.5 (a) is not known. Therefore, he submitted that same is not admissible in law, citing Ali v. Audu  LPELR-11330(CA).
7. Counsel again submitted that Exhibits C1 & C4 are not complete while Exhibits C5 and C8, which were presented as emails are also inconclusive citing Mrs. Vivien Folayemi Asana v. First Bank of Nigeria Ltd Unreported Suit No: NICN/LA/184/2016, he argued that these documents are not therefore admissible. Counsel also submitted that Exhibits C1, C4, C5 and C8 are neither dated nor signed. And so, they are not admissible. Counsel maintained that it is trite that a document, which ought to be signed, if not signed, is worthless; citing Fasehun & Ors v. AG, Federation  LPELR-5567(CA):  6 NWLR (Pt. 975) 141; Brewtech Nig. Ltd v. Akinnawo & Anor  LPELR-40094(CA); Elias v. Omo Bare  5 SC 13 at 23.
8. Arguing the 2nd objection of whether the Claimant’s action is not caught by the principle of estoppel, having accepted payment of her terminal and redundancy benefits from the 3rd Defendant as full and final settlement of her entitlements arising from the termination of her employment; counsel submitted that the Claimant had earlier received and accepted her terminal/ redundancy benefits from the 3rd Defendant upon the termination of her employment and same was accepted as payments in full and final settlement of her entitlements from the 3rd Defendant, and that she has no further claims or right of action against the 3rd Defendant or any of its parent or subsidiary company. To counsel, the doctrine of estoppel works as a bar to prevent a Claimant from asserting a claim or right, citing Asiru v. Asiru & Ors  LPELR-22075(CA); FBN Plc. v. Songonuga  LPELR-7495(CA) & SDV Nigeria Limited v. Philip Kayode Olusegun Ojo & Anor  LPELR-40323(CA). He also referred to section 169 of the Evidence Act, 2011.
Counsel referred the court to Imperial Medical Centre & Anor v. Ahamefule  LPELR-42886(CA) in which, it was held that where a party received his terminal benefits after his employment was brought to an end; he cannot be heard to complain later that his contract of employment was not properly determined. To him, the acceptance of payment renders the determination mutual and estoppel by conduct operated to disqualify the party from claiming or obtaining any benefits based on improper determination of his employment. He went on that this decision is on all fours with the circumstance of this case.
9. Arguing the 3rd objection on whether in view of the conflicting signatures on the Claimant’s Witness Statements on Oath before this Court, the Court can rely on any of her Witness Statements on Oath in this suit; counsel noted that CW1 confirmed during trial that she deposed to a number of written statements, which are: her Witness statement on oath deposed to on 15th November 2016 attached to the original Statement of Facts, her Witness statement on oath deposed to on 7th August 2018 accompanying the Reply to Statement of Defence, and lastly her Witness statement on oath deposed to on 21st March 2019 attached to the Amended Statement of Facts. Counsel submitted that the signatures on all the aforementioned depositions are different and conflicting from one another. The Defendants’ counsel with the leave of the Court, requested the CW1 the Claimant herein, to sign her signature on a plain sheet of paper during cross examination on January 31, 2020; which she did and the signature obtained during cross examination was admitted by the Court and made part of the record of the court, specifically on page 767 of the Court’s case file. Alas, the signature was again different from those contained on the above listed witness statements on oath!
10. Counsel went on that a careful comparison of these signatures shows that they are different thereby raising a presumption that the Claimant did not sign the statements herself or signed same before a Commissioner for Oaths. Counsel submitted that the failure of CW1 and her counsel to offer any explanation on the dissimilarities in those signatures works against them and that this Court cannot be in the position to fill this void for the Claimant. He urged the Court to discountenance the oaths in their entirety; relying on In Re: Diamond Bank v. M.A. Fadlallah & Co & Anor  LPELR-24599(CA); Erokwu & Anor v. Erokwu  LPELR-41515(CA) & Chidubem v. Ekenna & 12 Ors  LPELR-3913. Also on Section 101 of the Evidence Act, 2011.
11. Counsel to the Defendants then formulated two issues for determination of the Court on the merit of this case as follows:
i. Considering the fact that Exhibit C2 (Contract of Employment) was between the Claimant and the 3rd Defendant and nature of the evidence already adduced before the Court, whether the Claimant’s claims against the 1st and 2nd Defendants ought to be dismissed by this Honourable Court?
ii. Having regards to the Claimant’s claims and the Defendants’ defence before this Honourable Court, vis a vis the evidence led by the respective parties during trial, whether the Claimants’ Claims are liable to be dismissed by this Honourable Court?
12. Arguing issue one, counsel submitted that the law places a burden on the Claimant to prove the existence of the further contract of employment she allegedly entered into with the 1st and 2nd Defendants through the 3rd Defendant. He contended that it is trite that he who alleges must prove, citing section 136 (1) of the Evidence Act, 2011; Cameroon Airlines v. Otutuizu  LPELR- 827 (SC); Omo-Agege v. Oghojafor & Ors.  LPELR- 4775 (CA) & Salisu Ali Basheer v. Polycarp Same & Ors  4 NWLR (Pt. 236) 491 @ 503 para H, 504 paras D-E. Referring to Exhibit C3 – the Employment Verification and the introductory paragraph of Exhibit C2 – (the contract of employment) counsel submitted that the parties to Exhibit C2 - contract of employment are the Claimant and the 3rd Defendant only and that there was no privity of contract between the Claimant and the 1st and 2nd Defendants at all, citing Ogundare & Anor. V. Ogunlowo & Ors  LPELR-
In addition, counsel submitted that there is nothing in Exhibit C2 showing that the 3rd Defendant was acting as an agent of the 1st and 2nd Defendants neither was the exhibit issued on behalf of the 1st and 2nd Defendants. Counsel urged the Court to dismiss the Claimant’s suit against the 1st and 2nd Defendants with substantial costs.
13. Arguing issue two of whether the Claimants’ Claims are to be dismissed based on the evidence before the Court, counsel submitted that for a Claimant to succeed in a claim of this nature as set out before the Court, he/ she must establish by evidence, certain ingredients namely: that he is an employee of the Defendant; set out the terms and conditions of his employment and the way, manner and by whom his/her employment can be determined; citing Anifowoshe v. Wema Bank Plc.  LPELR-24811(CA). Counsel went on that where parties have reduced the terms and conditions of service into writing, the conditions must be observed citing Chukwumah v. Shell Petroleum  4 NWLR (Pt. 289) 512 @ 560 para F; Union Bank of Nigeria & Ors v. Edet  4 NWLR (Pt. 287) 288.
Counsel further submitted that the Claimant has not shown the Court that her contract of employment incorporated any other agreement such as Exhibits C1, C4, C5 or C8. To counsel, the Claimant cannot rely on the said extraneous materials contained in those Exhibits in proving her entitlement to the purported VRP. Counsel continued that anything outside the scope of Exhibit C.2 will be alien to the parties’ contract of employment. He argued further that the Claimant has failed to tender any policy document of the Defendants relating to the issue of VRP (the purported Country Severance Package). To him, Exhibits C1, C4, C5 and C8; all of which are not referenced to be contained and incorporated into the Claimant’s contract; cannot be the basis of the Claimant’s claims.
14. In addition, counsel submitted that even though there were no redundancy provisions regarding the Claimant’s employment as used in Exhibit C6 (Notice of Redundancy), the 3rd Defendant only terminated the Claimant’s employment in line with his contract of employment and before then, the 3rd Defendant’s Human Resource Manager had a meeting with the Claimant during which she was informed about her termination. He went on that the Claimant agreed to the terms of her determination, to her terminal benefits, accepted the terminal benefits paid to her by the 3rd Defendant and duly signed it as her Final Benefits Certificate/ Agreement.
15. Referring to paragraph 19 of the Amended Statement of Facts, counsel contended that on 14th December 2015, the Defendants West Africa Geomarket purportedly launched a programme called “Voluntary Release Program (VRP) wherein the employees agree voluntarily to be relieved of their appointments. He submitted that the Claimant failed woefully to prove and establish this fact. Also on the Defendants’ Voluntary Release Programme Policy Package; counsel argued that Exhibit C5 (Manager Arnaud Ludovic Minsta and the Congo agreement with translation) is irrelevant, unreliable & inadmissible before this Court as its origin is unknown and also because it is neither dated nor signed. He maintained that it is trite that an unsigned and undated document is not admissible or reliable, citing Global Soap and Detergent Ind. Ltd. v. NAFDAC  LPELR – 4202 (CA). He further contended that the document constitutes a documentary hearsay and that it is not admissible before the court; citing G. Chitex Industries Ltd v. Oceanic Bank International (Nig.) Ltd  LPELR-1293 (SC).
16. Counsel submitted also that the contents of the documents do not also support the Claimant’s case as same specifically relate to Gabon. Again, he pointed out that the Claimant has not by any shred of evidence proved the purported percentage computations contained in paragraph 19 (i) of the Amended Statement of Facts neither did she show the Court that Exhibit C5 (purported VRP mandate) makes any provisions for the elaborate percentages contained in paragraph 19 (i) of the Claimant’s Amended Statement of Facts. He contended that it is the law that averments in pleadings, which are not supported by evidence go to no issue and are deemed abandoned; citing Kumshe v. Kaloma  LPELR – 43818 (CA). Counsel went on that assuming without conceding that the Court decides to rely on Exhibit C5, he submitted that the exhibit stipulates that the VRP programme would be for a limited period of time as stated in the body of the document, i.e. for those who voluntarily retire between “14th – 22nd December 2015”; whereas, the Claimant’s employment was determinated on April 30, 2015. Counsel argued that obviously, the document (Exhibit C.5) is not applicable to the Claimant.
17. In respect of the Country’s Severance Policy as averred in paragraph 40 of the Amended Statement of Facts, the Defendants’ counsel submitted that the Claimant has also failed woefully to prove this averment by any credible evidence, as Exhibit C8 with the heading “Subject: Update on Lagos Townhall Meeting 1” is neither dated nor signed by any natural or corporate entity and that no foundation was laid as to its origin, authenticity or reliability by the Claimant. Counsel continued that Exhibits C1 & C4 do not bear the name of the 3rd Defendant; they are unsigned, undated and they are incomplete document citing Ilondu v. Ilondu & Anor  LPELR-42093(CA). To counsel, the Claimant has not led any iota of evidence in proof of the reliefs she is seeking for. Hence, there is nothing to base the granting of these reliefs on, citing Macfoy v. UAC.  AC 152; Elias v. Omo Bare  5 SC 13 @ 23 & Okosun v. CBN  2 NWLR (Pt. 428) 77 PP. 86 paragraph G.
18. On final note, counsel submitted that the Claimant failed to prove her entitlements based on International Best Practice as what amounts to good or international best practice in labour or industrial relations is purely a question of fact, which the Claimant in this case has not been able to bring before this Court. To counsel, speculations and imaginations of the Claimant as to purported entitlement in Gabon and Congo, which are unfounded cannot constitute the international best practices being contemplated under the International Instruments. Counsel contended that a Voluntary release program can only apply where a Claimant voluntarily decides to voluntarily resign from her employment within the stipulated period in the Exhibit C.5 (i.e. between December 14 and 22, 2015). It would, in such circumstances constitute a valid ground to claim for relevant entitlements arising out of the employee’s free will; Co-Operative Development Bank v. Joe Golday Co. Ltd & Ors  LPELR-6813(CA).
19. On the Claimant’s claim for healthcare benefit, counsel submitted that the Claimant had already enjoyed a standard of Health Benefit out of her employment with the 3rd Defendant and also that the Claimant has not placed any material before court in support of that purpose.
20. Referring to the Termination of Employment Convention, 1982 (No. 158) particularly Article 14 thereto on a valid reason for termination of employment must be by the employer; counsel submitted that the application of these convention ought not be overstretched to accommodate the speculative and imaginary reliefs being sought by the Claimant. Finally counsel urged the court to resolve this issue in favour of the Defendants.
21. CLAIMANT’S WRITTEN ARGUMENTS
In his Final Written Address, counsel to the Claimant formulated the following issues for determination of the court:
i. Whether the Defendants violated the provisions of the Labour Act and International Labour Organization Convention Protocols in declaring the Claimant redundant in the course of their Contract of Employment.
ii. Whether the Claimant is entitled to redundancy payment in accordance with the Voluntary Release Programme Policy of the Defendants West Africa Geomarket.
22. Arguing issue 1, counsel referred the Court to the case of B. A. Morohunfola v. Kwara State College of Technology  4 N.W.L.R. paragraph 145 at 525 – 526 paragraphs H-E; Exhibit C1 (the Bye-Laws of the 1st and 2nd Defendants, Article Sections 1 and 2) & Clause 5.6 and 5.8 of Exhibit C2.
23. On The Claimant Been An Employee of The Defendants
Counsel contended that by Clauses 3.6, 5.6 & 5.8 of Exhibit C2 (the Contract of Employment), the Claimant and 3rd Defendant agreed to transfer the Claimant’s services to the 1st and 2nd Defendants. He went on that the rights and obligations created under Exhibit C2, Clauses 3.6, 5.6 & 5.8 between the Claimant and the 1st and 2nd Defendants through the 3rd Defendant are enforceable against all the Defendants, citing The Shell Petroleum Development Company of Nigeria Ltd. & Ors. v. E. N. Nwawka  6 N.W.L.R. (Pt. 815) page 184 at page 208 paragraphs D-E.
24. On The Determination of The Claimant’s Employment By Redundancy
Counsel referred the Court to Clauses 3.1, 3.2, 3.3, 3.4(a)(b)(i)(ii)(c)(d) and 3.5 of Exhibit C2, which define the various modes, circumstances, tenor and procedure for the determination of the Claimant’s contract of employment with the Defendants. Counsel maintained that Exhibit C2 does not provide for “Redundancy” or redundancy exercise; referring to Clause 5.1 of Exhibit C2 and submitted that Exhibit C2; having not provided for “redundancy” or redundancy exercise, if the parties intend to embark on redundancy exercise, they must abide by Nigerian Laws on the subject, citing section 20(1) (2) (3) of the Labour Act, CAP L1, LFN, 2004; Exhibit C9, Article 14 of the Termination of Employment Convention, 1982 (No. 158); Section 254(C)1(f)&(h), 2 of the Constitution of the FRN, 1999 (Third Alteration) 2010 and the case of Peugeot Automobile Nigeria Ltd. v. Soliu Oje & Ors.  11 N.W.L.R. (Pt. 530) page 425 at 431. Counsel submitted that the International Labour Convention, Protocols and treaties having been enacted and incorporated by the National Assembly of the Federal Republic of Nigeria into the Country is binding. Counsel submitted again that the Claimant having chosen to determine the Claimant’s employment by other means not contained in the contract of Employment, the Defendants have breached the statutory obligation to abide by both national Laws of Nigeria on redundancy and International Treaty (Article 14 of Exhibit C10).
25. On Whether The Determination of The Contract of Employment Complied With The Law
Counsel submitted that in both Section 20 of the Labour Act and in International Labour Organization C158 (Exhibit C10), the Defendants are required when carrying out redundancy to: (a) Notify and (b) negotiate redundancy payment with the Claimant’s representative or Union; referring to paragraphs 23(a)(b)(c), 24, 25(a)(b)(c) & 26 of the Statement of Facts. Counsel further submitted that the Defendants did not comply with these requirements; citing National Electricity Power Authority v. Friday Edokpayi Eboigbe  LPELR 8576; section 81(1) of the Labour; Exhibit C5; Exhibit C6 and Exhibit C7. Counsel went on that the mere acceptance of two weeks basic salary as redundancy payment and one month salary in lieu of notice is insufficient to estop the Claimant from contesting the non-payment of her redundancy benefits by the Defendants particularly in compliance with their Policy on (Voluntary Release Program) and that the protest by the Claimant is a repudiation of the payment, which clearly destroys the defence of waiver put up the Defendants; citing Nigerian Telecommunications Ltd. v. Clifford Ikaro  1 N.W.L.R. (Pt. 320) page 350 at page 366 paragraph E.
26. Arguing issue two of whether the Claimant is entitled to redundancy payment in accordance with the Voluntary Release Programme Policy; counsel referred the Court to paragraph 19 of the Amended Statement of Facts and submitted that the Voluntary Release Programme Policy of the Defendants in the West Africa Geomarket is the only Redundancy Policy by them and that by virtue of clause 5.8 of Exhibit C2, both the Claimant and the Defendants are bound by the Baker Hughes Incorporated (BHI) payment policies. He continued that the law is that where an employee is declared redundant, the employee has right to redundancy payment, referring to B. A. Morohunfola v. Kwara State College of Technology  4 N.W.L.R. (Pt. 145) at page 506 Ratio 7; Calabar Cement Co. Ltd. v. Daniel  4 N.W.L.R. Pt. 188 p. 750 at 759; Maikudi Aminu & Ors. v. Afribank Nigeria Plc. & Anor.  N.L.L.R. part 66 page 446 paragraphs C-H at page 431.
27. On Interest; the Claimant’s counsel submitted that post judgment interest is awarded at the discretion of the Court, which does not require to be specially pleaded, citing Mrs. Eno Umo v. Mrs. Cecilia Udonwa  LPELR-7857 (CA).
28. In Response To The Objections Raised By The Defendants’ Counsel
Counsel to the Claimant submitted that Exhibits C1, C4, C5, C6 and C8 are relevant documents to the facts in issue as they are all necessary to explain or introduce the relevant facts in this case and are therefore admissible; citing Section 7 of the Evidence Act 2011; Alhaji Mohammed Bala Audu v. Petroleum Equalisation Fund (Management) Board & Anor.  LPELR – 3824 (CA); Amuda Yusuf Animashaun & Anor. v. Oluyinka Ogundimu & Ors.  LPELR – 25979 (CA) & Melwani v. Five Star Ind. Ltd.  N.W.L.R. (Pt. 753) page 236 paragraph H, (SC).
On the issue of estoppel raised in the Defendants’ objection in paragraphs 20 and 21 of their Final written Address; counsel submitted that the mere acceptance of two weeks basic salary and one month salary in lieu of notice is insufficient to estop the Claimant from contesting the non-payment of the redundancy payment in line with the Defendants policy (Voluntary Release Program) and in accordance with the Labour Act, L1, LFN, 2004 and that the protest by the Claimant as pleaded is a repudiation of the accepted payment, which clearly destroys the defence of waiver put up by the Defendants.
29. Defendant’s Reply on Point of Law
The Defendants’ counsel maintained that Claimant’s failure to respond to material points in her final written address is fatal to her case, referring to Stephen Okongwu v. Nigerian National Petroleum Corporation  LPELR-2475(SC); Ugboaja v. Akintoye - Sowemimo  16 N.W.L.R. (Pt. 1113) 278 @ 292 paragraph A. He continued that the failure to respond to other arguments over the admissibility of these documents Exhibits C1, C4, C4(1), C5, C5 (1) and C8 can only work to the benefit of the Defendants.
30. In response to the Claimant’s submission, on the purported Admissions and the need for the Claimant to prove her entitlements to the declaratory reliefs based on the strength of her own case; counsel submitted that for an admission to be held to be one, it has to be unequivocal and direct, without any doubts whatsoever; citing Adamu & Ors v. Jatau & Ors  LPELR – 47141 (CA) (Pp. 19 paragraph B). Counsel went on that the Claimant misconceived the position of the law when she sought to place the burden of proof on the Defendants for her wrongful termination; referring to her counsel’s argument at page 13 of his address where he contended that ‘The Defendant failed to prove that it notified the Claimant of the redundancy exercise’. Counsel to the Defendants submitted that the burden of proofing that fact is on the Claimant, citing Angel Spinning & Dyeing Ltd. v. Ajah  LPELR – 10724 (CA) (Pp. 35-36 paragraphs E-E).
31. In response to Claimant’s submission under issue one relying on Clause 3.1, 3.2, 3.3, 3.4(a)(b)(i)(ii)(c)(d), 3.5 and 5.1 of Exhibit C2 as well as the content of the document titled ‘Country Severance package’; counsel to the defendants submitted that these portions of the documents were not placed before the court, either by pleadings or evidence of the witnesses, and that parties did not join issues on them. To counsel, the law is trite that the address of Counsel no matter how brilliant and erudite cannot take the place of the evidence on record, citing Hamidu & Anor v. Kaduna Electricity Distribution Plc.  LPELR – 48281 (CA).
32. Responding to the case of National Electricity Power Authority V. Friday Edokpayi Eboigbe  LPELR 8576 at page 12 of his written address cited by the Claimant’s counsel to establish the effect of redundancy; Defendants’ counsel submitted that the quoted portion does not exist in the case cited as National Electricity Power Authority v. Friday Edokpayi Eboigbe  LPELR 8576. He went on that the case absolutely has nothing to do with Redundancy, citing Nnamuch v. State  LPELR – 25744 (CA) & Okafor v. Nnaife  4 NWLR (Pt.64) 129 @ 137. Counsel further submitted that an issue merely raised by counsel in his final address as done by the Claimant in this case cannot be part of the evidence before the Court and ought to be discountenanced as address of Counsel no matter how brilliant and erudite cannot take the place of the evidence on record; citing the case of Dodo v. Salanke  9 NWLR (Pt. 986) 447 at 471 B - C, Omisore v. Aregbesola (supra) at 300 - 301 paragraphs H - A. That the Claimant failed to establish any “Voluntary Release Programme” (VRP) as a policy of the Defendants.
33. COURT’S DECISION
I have carefully read through the facts of this case as presented by the parties, the arguments of their counsel including the decided authorities cited. From all of these, I am of the considered view that the following issues need to be resolved by the Court between the parties:
i. On the Defendants’ objections; this Court will decide whether the Claimant’s Exhibits C1, C4, C5 and C8 are competent, relevant and reliable. It will also decide if the Claimant’s action is caught up by the principle of estoppel. Again, the Court will decide if it can rely on any of the Claimant’s Written Statements on Oath in this suit in view of the conflicting signatures thereon.
ii. Are the 1st and 2nd Defendants employers of the Claimant?
iii. Was the Claimant’s employment properly determined by the 3rd Defendant in line with the terms and conditions of her employment and also in compliance with the provisions of Labour Act and International Labour Organization Convention Protocols? Is she entitled to Redundancy benefits under the VRP or at all and is she entitled to One Million Naira as cost of prosecuting the case?
34. Before making decisions on the above framed issues, I need to make some preliminary remarks. Firstly, the Claimant’s counsel filed his final written address of 30 pages without properly paragraphing and numbering it serially as provided for in Order 45 Rule 2 (2) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017; see pages 854 to 883 of the record. The Defendants’ counsel too filed his Final Written Address of 40 pages at pages 799 to 838 of the record, although with the leave of the court and with a warning not to contradict the provisions of Order 45 Rule 2 (2) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 again by ensuring that his addresses in this Court; be it final or otherwise do not exceed 35 pages again. However, in his attempt to file Reply on Points of Law only as provided for in Order 38 Rule 20 (4) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017; counsel to the Defendants filed what he titled: “Defendants’ Reply Address” of 20 pages and used the opportunity to re-argue his case at length again.
35. Order 45 Rule 2 (2) of the NICN (CP) Rules, 2017 is to the effect that a Written Address shall not be more than thirty-five (35) pages, set out in paragraphs and numbered serially. In essence, the Claimant’s address before the Court case is offensive to this Rule of Court for not being set out in paragraphs and numbered serially. Furthermore, by the provision of Order 45 Rule 3 (2) of the NICN (CP) Rules, 2017; failure to comply with Rules 2 and 3(1) of this Order may render the written Address incompetent. Nevertheless in the interest of justice, the Court will not take that had position but the Court is hereby advising the Claimant’s counsel to always strictly comply with the Rules of this Court in filing subsequent addresses before it so as to avoid his address being declared incompetent.
36. In respect of counsel to the Defendants re-arguing their defence in his supposed “Reply on Points of Law”; the Law is trite that a Reply on point of law is just as a Reply brief in an appeal. It should only be used to answer, respond or react to any new or fresh point raised in the Respondents' address; (in the instant case, in the Claimant’s address). It should, and it cannot be used to further argue an issue already argued in the Appellant's written address or used as a repair kit or as an avenue to correct defect, deficiency or errors made in the written address; see the case of Ahmodu v. Yunusa  LPELR-8601(CA) Per Garba, J.C.A. (Pp. 22-23, paragraphs E-C). In the circumstance, the re-argued part of the Defendants’ case as presented in paragraphs 6.6 and 6.7; 6.14 to 6.16 and 6.22 to 6.24 of the reply address is accordingly discountenanced in this judgment.
37. Are Exhibits C1, C4, C5 and C8 Competent, Relevant and Reliable?
Exhibits C.1 before the Court is the Bye Laws of Baker Hughes Incorporated, Restated as of June 5, 2014; it is at page 517 to page 545 of the record. This exhibit is the bye-law of the 2nd Defendant, who the Claimant contended is also her employer. The law is that where a document is relevant, its admission is proper; but the weight to attach to it may be different. Once the evidence is probative to the fact in issue like in the instant case, it is relevant and therefore admissible; see Kayili v. Yilbuk  7 NWLR (Pt. 1457) page 26 at 69 paragraphs B-C:  All FWLR (Pt. 775) 347 at 383 paragraph D. I find on this score that this exhibit passed all these case law tests. In the circumstance, I hold that Exhibit C.1 is relevant to this case and that it is properly admitted in evidence by the Court. However, Exhibit C.1 is neither signed nor authored and it is not a complete document. At its last page; page 25, which is page 545 of the record, the last paragraph is section 8(iv) and it states “any action asserting a claim against the Corporation, its director, officers or employees governed by the internal”. This is an incomplete provision and so; I find that the exhibit is not a complete document and I hold that this Court shall not attach any weight to it. Exhibit C.1 is accordingly discountenanced in this judgment.
38. Exhibit C.4 and C.4 (i) are the Baker Hughes Nigeria, West Africa and Central Africa Geomarket Revenue and Profit Margin in 2015; they are at page 567 to page 569. These documents were tendered by the Claimant to support her contention that it is not true that she was declared redundant because the Defendants were no more making profits. I find on this basis that the two exhibits are relevant and properly admitted in evidence in the instant case; going by the decision in Kayili v. Yilbuk (supra). Nonetheless, the two exhibits have no author and they are not signed. In the circumstance, I hold that Exhibits C4 & C4 (i) have no legal value and no weight can be attached to it at all; the two Exhibits are accordingly discountenanced here.
39. Exhibit C.5 and C.5 (i) are Manager Arnaud Ludovic Mintsa and the Congo Agreement with its translation as described on the claimant’s list of documents; the two Exhibits are at pages 569, and 570 to 571 of the Record. The two exhibits were put in evidence by the Claimant to show the policy she contended that the Defendants had for their employees they declared redundant in the whole of West Africa including Nigeria but which were not complied with in Nigeria. Therefore, I hold that these documents are relevant and properly admitted in evidence in this case. Nonetheless, looking at the contents of the two documents, they are written in English language and so, I find that there is no translation in either of them. Furthermore, Exhibit C.5 has no title, no author, no addressee and the date it was generated is not stated on it; see page 569 again. I hold that Exhibit C.5 clearly has no evidential value and it is accordingly discountenanced in this judgment.
40. Exhibit C.5 (i) looks like an email message and a detailed or more explanations on the content of Exhibit C.5. The subject of this document is “Voluntary Release Program Reminder & Update – Congo” It was generated on Tuesday December 15, 2015 at 11:06 AM. By the content of this exhibit, the Defendants agreed that any of their employees who voluntarily resign from his/her employment with the Defendants from 14th to 22nd December 2015 will enjoy some terminal benefits stated therein. However, by the content of Exhibits C.6, titled Notification of Redundancy; the Claimant was declared redundant by the Defendants on April 30, 2015 with immediate effect. This was a period of seven and a half months before Exhibit C.5 (i) was generated. In the circumstance, I hold that Exhibit C.5 (i) before the Court is not relevant to the Claimant’s case. I further hold that it was wrongly admitted in evidence and it is accordingly expunged from the record of this Court on this case.
41. Exhibit C.8 is the e-mail by Human Resources Department of the Defendants; it is at pages 579 of the record. It is titled “Subject: Update on Lagos Town Hall Meeting 1”. It has no date, no author and no addressee. I hold that this document is an ordinary paper trash that has no legal value. It was wrongly admitted and it is expunged from the record of the Court in this case.
42. Is The Claimant’s Action Caught Up By Estoppel?
The 2nd objection of the Defendants in this case is whether the Claimant’s action is not caught by the principle of estoppel, having accepted payment of her terminal and redundancy benefits from the 3rd Defendant in full and final settlement of her entitlements arising from the determination of her employment. It is worthy of note that the Doctrine of Estoppel is an equitable remedy. Accordingly, any person wishing to plead it must come to equity with ‘clean hands’; see Participant Properties Limited v. Mr. Ademola Fashola & Ors  LCN/13506 (CA). And he who wants equity must do equity; see Nimasa & Anor vs. Hensmor Nig. Ltd  LPELR-7913 (CA).
The contract of employment between the parties is a product of the terms and conditions agreed upon by them and the parties are bound by the said terms and conditions they freely enter into; see Gbedu v. Itie  3 NWLR (Pt.1710) SC 104 at 129-130 paragraphs H-A. The question is, have the Defendants come with clean hands to equity in the instant case? In other words, was the determination of the Claimant’s employment and the payment of her terminal benefits fair and in accordance with the terms and conditions of her employment? It suffices to state here that, determining the Claimant’s employment by declaring her redundant is not provided for in her terms and conditions of employment with the Defendants (Exhibit C2) and I so find. Therefore, by determining the Claimant’s employment contrary to the terms and conditions of her employment, the Defendants have not come to equity with clean hands, consequently; I hold that the defendants cannot plead equity before this Court against the instant.
43. Can The Court Rely on The Claimant’s Written Statements On Oaths?
The 3rd objection raised by the Defendants in this case is whether this Court can rely on any of the Claimant’s Witness Statements on Oath in this suit, in view of her conflicting signatures on these Statements on Oath before the Court. During the hearing of the case, the Claimant gave evidence as CW1 and confirmed in her evidence in chief that she deposed to two written statements on oath before the court. The 1st one was deposed to on August 7, 2018 accompanying her Reply to the Statement of Defence at page 789 to page 798 of the record and the 2nd one was deposed to on March 21, 2019 attached to the Amended Statement of Facts at page 494 particularly at 508 of the record. See her evidence in chief of July 10, 2019 at page 7 and the one of March 16, 2020 at page 13 of the proceedings’ file.
44. With the leave of the Court, counsel to the defendants requested the Claimant to sign her signature on a plain sheet of paper during cross examination, which she did and the signature so obtained in the face of the court is at page 767 of the record. Furthermore, the Claimant answered under cross examination that she signed two written statements on oath in this case but that she could not remember where she signed them; whether in her counsel’s chambers or before the Court’s Registrar. A look at all the signatures of the Claimant on the two adopted written statements on oaths before the court compared with the one obtained on the face of the court show that they are dissimilar.
The position of the Defendants’ counsel is that because of the dissimilarity of the Claimant’s supposed signatures on her adopted evidence, the Court is to discountenance the two written statements on oath as she was not the maker and that the Court cannot pick and choose from the different statements.
45. Going by the submissions of the Defendants’ counsel on this issue will mean that the Claimant has no evidence on all her pleadings before the Court and to technically knock off her case; because pleadings without evidence go to no issue. See the case of Brawal Shipping Nigeria Ltd v. Ometraco International Ltd  10 NWLR (Pt.1255) 290 at page 303 paragraph E; where per Mukhtar JCA held that the trite position of the law is that averment in pleadings is not evidence. Even if it was duly pleaded, it would have been deemed to be abandoned, there being no evidence led to prove such averment, unless it was admitted or denied. In my humble view, it will be a disservice to this case by the Court to discountenance the Claimant’s written statements on oath on this score. More so; that the Defendants have joined issues with the Claimant on her evidence in those statements. The better approach will be to resolve the joined issues on their merits. This is substantial justice that NICN is widely known for and the option; this Court is inclined to take in the instant case.
46. Besides, it is stated on these written statements on oath that they were made before the Commissioner for Oaths. Section 147 of the Evidence Act, as amended provides that “Whenever any document is produced before any court, purporting to be a record or memorandum of the evidence, --- purporting to be signed by any judge or magistrate or by any such officer as mentioned in this section, the court shall presume that— (a) the document is genuine and (b) any statement as to the circumstances in which it was taken, purporting to be made by the person signing it, are true ---“. Based on the provision of the Evidence Act quoted above, I hereby presume in favour of the Claimant that she made these statements on oath before the Commissioner for Oaths of this Court correctly. In addition, section 128 (1) of the Evidence Act, 2011 as Amended provides that “when a judgment of a court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence”. It is my finding, therefore; that the written statements on oath of the Claimant in question are the Claimant’s evidence reduced to writing and stated to have been done before a Commissioner for Oaths of this Court in the instant case. In other words, I find that the said statements are other judicial or official proceeding mentioned in section 128 (1) of the Evidence Act. Consequently, I hold that no evidence may be given on them neither may their contents be contradicted, altered, added to or varied by oral evidence. I further hold that the Written Statements on Oath of the Claimant in question were properly made before this Court and they will be relied on in this judgment.
47. Are The 1st and 2nd Defendants Employers of The Claimant?
On this issue, the Claimant’s counsel contended that by the parties’ agreement in Clauses 3.6, 5.6 & 5.8 of Exhibit C2 (the Contract of Employment); she and 3rd Defendant agreed to transfer her service to the 1st and 2nd Defendants and so, the rights and obligations are also created under Exhibit C2 in these Clauses between her on one hand and the 1st and 2nd Defendants on the other hand through the 3rd Defendant and that those obligations are enforceable against all the Defendants; relying on the case of The Shell Petroleum Development Company of Nigeria Ltd. & Ors. v. E. N. Nwawka  6 N.W.L.R. (Pt. 815) page 184 at page 208 paragraphs D-E. Exhibits C.2 at pages 546 to 559 & D.1 at pages 661 to 674 are one and the same document. They are copies of the Claimant’s contract of employment. Each of them was tendered by the Claimant and the Defendants respectively. The Exhibit is titled: “Contract of Employment Between BJ Services Company Nigeria Ltd (the Defendant) and Blessing Joseph (the Employee)”; see pages 546 & 661 of the record.
48. Clause 3.6 of Exhibit C.2 & D.1 is on ASSIGNMENT and it provides:
(a) The employee shall not at any time assign or transfer this agreement.
(b) The company may on any terms and at any time during the Employee’s employment with the Company assign or transfer this Agreement to
(i) any wholly owned subsidiary of the company; or
(ii) a parent company of the Company ; or
(iii) Any affiliate of the Company or any party that succeeds to substantially all of the Company’s business conducted in the Federal Republic of Nigeria”.
Clause 5.6 of Exhibit C2 is on Company Policy and it states:
The Employee agrees to abide by the policies and all the written policies of the company as issued from time to time during his employment with the company
Clause 5.8 of Exhibit C2 is on Conditions Precedents and it provides:
The Employee must read the below referenced company policies and endorse as indicated prior to employment by company. The Employee agrees by these policies during his employment by Company.
· BHI Code of Conduct initial each page
· BHI Network & Computer initial each page
· BHI facilitating payments initial each page
49. By clause 3.6 (b) of Exhibit C.2 & D.1, the 3rd Defendant who issued it to the Claimant may assign or transfer the contract to any of the listed bodies. However, there is no evidence before the Court that the 3rd Defendant actually transferred this contract, neither was the Claimant able to show that it is clearly stated in this exhibit that the 3rd Defendant entered this contract agreement with her on behalf of the 1st and the 2nd Defendants. As a general rule, words should be given their ordinary and plain meaning and, additional words or clauses ought not to be imported into a written agreement like clause 3.6 of Exhibits C.2 & D.1 in the instant case unless it is impossible to understand the agreement in the absence of such additional words or clauses; which is not the case here and I so find. See the case of Union Bank of Nigeria Ltd & Anor v. Nwaokolo  6 NWLR (Pt.400):  LPELR- SC.217/1991. The fact that the Claimant was required to agree with the policies of the 2nd Defendant as stated in Clause 5.8 of Exhibits C.2 & D.1 does not translate to contract of employment being entered between her and the 2nd Defendant together with the 1st defendant and I hold.
What’s more, Clause 1.3 of Exhibit C.2 & D.1 is on Place of Work and It states that “The employee shall be liable to work at any of the company’s location within the Federal Republic of Nigeria as the company may from time to time decide”; see page 548 of the record. This further clarifies the issue as it is only the 3rd Defendant that has its place of work in Nigeria. Consequently, I hold that the Claimant has failed to prove to the satisfaction of the Court that the 1st and the 2nd Defendants were her employers. I further hold that by the agreements in Exhibits C.2 & D.1, the 1st and 2nd Defendants were not employers of the Claimant. In addition, I hold that only the 3rd Defendant was the employer of the Claimant in this instant case. Therefore, the names of Martin Craighead and Baker Hughes Incorporated are expunged as the 1st and 2nd defendants in this case.
50. Was The Claimant’s Employment Determined By The 3rd Defendant in compliance with the terms and conditions of her Employment?
With Exhibit C.6 at page 572 of the record, the 3rd Defendant, who is now the only Defendant in this case, put an end to the Claimant’s employment with the company. The Exhibit is dated April 30, 2015 and it is titled: “Notification of Redundancy”. Paragraphs one and two of this Exhibit state:
BJ Services Company Nigeria Ltd (the Company) regrets to inform you that your employment has been declared redundant through no fault of your own as you have been informed by your supervisor. The redundancy is due to a downturn in the business activities, which significantly impact the company.
Your redundancy is effective Thursday, April 30, 2015. You will be entitled to full terminal benefits as stated in your employment agreement. Please note that the company will pay you 1 (one) month basic salary in lieu of notice. You are required to leave all company belongings in your possession with your immediate supervisor prior to picking up the full and final benefit cheques from the HR department in Port Harcourt.
51. By the agreement of the parties as stated in clauses 3.4 and 3.5 of Exhibits C.2 & D.1, the employment of the Claimant can be put to an end by the Defendant either by termination or by retirement; see pages 554 & 555 of the record. It is trite that where parties have reduced the terms and conditions of service into an agreement, the conditions must be observed as they are bound by that contract, which they freely entered into; see the case of Avre v. Nigeria Postal Service  46 NLLR (Pt.147) 1 at 41 and Gbedu v. Itie  3 NWLR (Pt. 1710) SC 104 at 129-130 paragraphs H-A. Therefore, I find that determining the employment of the Claimant by redundancy through Exhibit C.6 is not provided for in the terms and conditions of the contract between the parties. In the circumstance, I hold that the Claimant’s employment was wrongly determined by the Defendant.
52. Did the Defendant Violate Provisions of the Labour Act and International Labour Organization Convention Protocols in Determining The Claimant’s Employment?
The Claimant answered this question in the affirmative; she maintained that the mode of her determination is not provided for in her contract with the defendant and that the provision for that mode of determination (Redundancy) in the Labour Act and also in the International Labour Organization Convention Protocols was not followed. In response to paragraph 23(c) of the Statement of Facts on the issue; the Defendant averred in paragraph 18 of the Amended Statement of Defence that even though the term “Redundancy” was used in the notice issued to the Claimant in ending her employment, the they only terminated her employment in line with the employment contract. The company continued that the procedure laid down in the Labour Act on redundancy does not apply to the termination of the Claimant’s employment, as same was not provided for in the contract of employment. Moreover, the defendant went on that it’s management/ supervisor or Human Resource Manager had a meeting with the Claimant during, which she was informed about her termination. That after then, her terminal benefits were agreed upon and duly paid to her and that she signed for them in the Acceptance of Final Benefits document. See also its arguments in paragraph 5.7 of the Defendants’ final written address.
53. In clause 5.1 of Exhibit C.2 & D.1, parties agreed that their contract will be governed by and construed in accordance with the Law of Federal Republic of Nigeria. The Labour Act is a Law in Nigeria and so, I hold that the provision of this Act is applicable to the Claimant’s contract. Section 20 of the Act states:
(1) In the event of Redundancy -
(a) The employer shall inform the Trade Union or workers representative concerned of the reasons for and the extent of the anticipated redundancy.
(b) The principle of “last in, first out” shall be adopted in the discharge of the particular category of workers affected, subject to all factors of relative merit, including skill, ability and reliability; and
(c) The employee shall use his best endeavours to negotiate redundancy payments to any discharged workers who are not protected by regulations made under subsection (2) of this Section.
(2) The Minister may make regulations providing, generally or in particular case, for the compulsory payment of redundancy allowances on the termination of a worker’s employment because of his redundancy
(3) In this Section, “redundancy” means an involuntary and permanent loss of employment caused by an excess of man power.
Also, section 254(C) 2 of the 3rd Alteration Act, 2010 to the Constitution of the FRN, 1999 is another law of Nigeria that is applicable to this case. It provides that this Court has jurisdiction and power to deal with any matter connected with or pertaining to the application of any International Convention, Treaty or Protocol, which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith. See again, the cases of Aloysius v. Diamond Bank Plc.  58 NLLR (Pt. 58)92 at 134 and Duru v. Skye Bank Plc.  59 NLLR (207) 680 at 724 to 725. This Court also applied this principle in its unreported decision in Mr. Christian Ehisotie Ilegbodu v. Skye Bank Plc. Suit No: NICN/PHC/110/2013 delivered on June 3, 2015.
54. Exhibit C.9 is a copy of Article 14, under the Termination of Employment Convention, 1982 (No. 158). The Article provides: “when the employer contemplates termination for reasons of an economic, technological, structural or similar nature, he shall notify, in accordance with national law and practice, the competent authority thereof as early as possible, giving relevant information including a written statement of the reasons for the termination, the number and categories of workers likely to be affected and the period over which the termination are intended to be carried out.” See page 587 of the record.
Even though this convention has not been ratified, this Court is still enjoined to be guided by it in making decisions on similar issues. Besides, the content of this convention (Article 14) has been codified in Nigeria as stated in section 20 of the Labour Act. In the circumstances, I hold that the provisions of section 20 of the Labour Act and by extension that of Article 14 of the Termination of Employment Convention (Exhibit C.9) are applicable to the instant case. The essence of these provisions is that when an employee is to lose his/her job due to no fault of his/hers but for the employer’s economic etc. reasons, the employer must inform its employee(s) through his/her or their union or representative; of the reason for and the extent of the redundancy a head of the determination of her employment by redundancy. The employer must also negotiate adequate payment for the redundancy with their Union or representative for the loss of their job, which is due to no fault of his/hers or theirs.
55. Nonetheless, in spite of the content of the letter of determination of the Claimant’s employment (Exhibit C.6) titled ‘Notification of Redundancy’; the Defendant still argued that it did not declare the Claimant’s employment redundant but only terminated it. This contention holds no waters in my considered view as the content of Exhibit C.6 is clear, unequivocal and speaks for itself. The Defendant is neither allowed in law to change the express content of Exhibit C.6 by oral evidence nor by any other form of argument; see section 128 of the Evidence Act, 2011. In the circumstance, I hold that the Claimant’s employment was determined by Redundancy and that the determination was wrongful. I further hold that the determination of the Claimant’s employment by the Defendant was done in violation of the provisions of section 20 of the Labour Act, section 254 (C) 2 of the Constitution of the FRN, 1999 As Amended and the provision of Article 14 of the International Labour Organization Convention Protocols.
56. In the 2nd relief endorsed on the complaint, the claimant is seeking for an order of this Court setting aside the summary dismissal letter dated 30th April 2015 titled “Notification of Redundancy” issued to her by the Defendant for being illegal, a violation of the Contract of Employment between the parties and in violation of Labour Act, CAP L1, Laws of the Federation of Nigeria, 2004. Even though I have held above that the determination in question is wrongful and that it was done in violation of the provisions of Labour Act, the Constitution of the FRN, 1999 As Amended and that of Article 14 of the International Labour Organization Convention Protocols as incorporated in the Labour Act; I find that this relief is not grantable. This is because the violated laws of Nigeria and Article 14 of the International Labour Organization Convention Protocols do not prescribe any remedy or sanction for violating the provisions. Again, the contract of employment between the parties is not with statutory flavour but it is a Private Contract of Employment in which the court cannot impose a willing employee on an unwilling Employer except in certain conditions, which is not the case here. Although, the determination is wrongful, it all the same evinces the defendant’s intention to discontinue the contract and I so find. I further find that for wrongly declaring the claimant redundant; the justice and fairness demands that compensation be paid to her in addition to the terminal benefit already paid to her by the defendant as it is also required in section 20 (1) (c) of the Labour Act and I so hold. Relief (ii) on the complaint is accordingly declined and dismissed in this judgment.
57. Is the Claimant Entitled to Redundancy Benefits Under the VRP or At All?
I have resolved earlier in this judgment that the Voluntary Release Program (VRP) stated in Exhibits C.5 & C.5 (i) before the Court are neither relevant nor applicable to the Claimant’s case because her employment was already determined over seven months before the documents in question were generated. In the circumstance, I hold that the Claimant is not entitled to the Redundancy benefits stated in the two exhibits. Consequently, I hold that the 3rd, 4th, 5th and 6th reliefs of the Claimant as endorsed on the Amended Complaint and in paragraph 55 (3, 4, 5 & 6) of the Amended Statement of Facts at pages 471 to 472 and 489 to 490 of the record respectively; which are: for the sum of N4,293,639.57 as total sum due to her from the Defendant under the VRP, pre & post Judgment interests of 25% per annum on the N4,293,639.57, the sum of USD $2,600.00 only being her one year medical contribution under the VRP and the pre & post Judgment interests of 25% per annum on the $2,600 USD; are not claimable neither are they grantable in this case. Therefore, the four claims are dismissed in this judgment.
58. Is The Claimant Entitled To Redundancy Benefits At All?
According to the Defendant, the Claimant has been paid all that she was entitled to under the contract and that she even acknowledged same as full and final settlement of her entitlement for the termination of her employment; relying on Exhibit D.2. This exhibit is at page 675 of the record, it is titled: Acceptance of Final Benefits. In it, the Claimant acknowledged receipt of the sum of N350,412.16 in full and final settlement of all her benefits and entitlements under the contract.
59. I have held above that the claimant’s employment was determined by declaring her redundant and not by termination. There is no evidence before the Court from the defendant to the effect that the company gave the claimant prior notice of the reason for and the extent of the redundancy; neither did the defendant give any evidence that it negotiated with the claimant’s union or representative what to pay to her for declaring her redundant. The payment being mentioned here is different from the ones agreed to by the parties in their terms and conditions of the contract of employment particularly in Clause 3.4 (d) of Exhibits C.2 & D.1 for being terminated by the defendant. It is a compensation that accrues to the claimant for losing her job by redundancy due to no fault of hers as guaranteed in section 20 (1) (c) of the Labour Act. In other words, the redundancy ought to have been a gradual process; starting with prior notice (notification of the reason for and extent of the exercise) and then negotiation of the compensation to pay to the claimant for declaring her redundant. Nevertheless, the defendant declared her redundant and paid her terminal benefits same date; April 30, 2015 as if she was being dismissed for gross misconduct. See the contents of Exhibits C.6 & D.2.
I have also held above that the defendant declared the claimant’s employment redundant contrary to her terms and conditions of employment and contrary to the Laws of the FRN (section 20 of the Labour Act and section 254(C) 2 of the Constitution of the FRN, 1999 as Amended) and also contrary to Article 14 of Termination of Employment Convention as incorporated in the aw of Nigeria. It is to be noted that these violated provisions do not provide any remedy or sanction against the defendant for the violation. Notwithstanding, the fact that the defendant paid the claimant terminal benefit for termination of her employment under Clause 3.4 (d) of Exhibits C.2 & D.1; I hold that fairness and justice of this case demands that the claimant is still entitled to Compensation for been declared redundant by the defendant contrary to the Laws of Nigeria. Consequently, I direct the defendant to pay the sum of N400,000.00 (Four Hundred Thousand Naira) only to the claimant as compensation for been declared redundant.
60. In the Claimant entitled to N1,000,000.00 cost of Action As Claimed?
In relief seven endorsed on the complaint, the Claimant is seeking for the sum of N1,000,000.00 from the Defendant as her cost of prosecuting this suit. However, she did not give any evidence on how she arrived at the figure or sum she is claiming. In the circumstance, I hold that the claimant will only be awarded general cost at the discretion of the Court, considering the age of the case. I hereby direct the defendant to pay to the claimant the sum of N200,000.00 (Two Hundred Thousand Naira) only as cost.
61. The eight claim of the Claimant endorsed on the complaint is for an Order of Perpetual Injunction restraining the Defendants whether by themselves, their servants, workers, receivers, agents or privies from selling, divesting their interest, and transferring the 2nd and 3rd Defendants to General Electric (GE) or in any manner whatsoever interfering with or dissipating the 2nd and 3rd Defendants’ assets for the purpose of denying the Claimant the due redundancy package and voluntary release program package. The Claimant completely abandoned this claim and it is accordingly discountenanced and dismissed in this judgment.
62. On the whole; I hold, declare, order and direct as follows:
i. I hold that Exhibit C1 is not a complete document; it is not signed; even though found to be relevant and properly admitted, it is not of any legal value to the case and it is discountenanced in this judgment.
ii. I hold that Exhibits C4 & C.4 (i) are also found to be relevant and properly admitted in evidence but they are not signed neither are they authored; they are of no evidential value and they are discountenanced in this judgment.
iii. I hold that Exhibit C5 & C.5 (i) though found relevant and properly admitted in evidence; Exhibit C.5 has no title, no author, no addressee and no date on it. And so, it has no evidential value and it is discountenanced. Exhibit C.5 (i) is not relevant to this case as it was made over seven months after the claimant’s employment was declared redundant; hence, it is expunged from the Court’s record.
iv. I hold that reliefs 3, 4, 5 & 6 of the claimant based on the VRP are not grantable and they are accordingly dismissed.
v. I hold that the 1st and 2nd Defendants are not employers of the Claimant; their names are expunged as defendants in this case.
vi. I declare and hold that the Claimant’s employment was wrongfully determined when she was declared redundant by the Defendant.
vii. I hold that although the determination of the claimant’s employment is wrongful, I decline from setting the letter of determination aside as the determination was legal but it was only wrongly done.
viii. I hold that the Defendant violated the provisions of Labour Act; which also incorporates the International Labour Organization Convention Protocols (Article 14 of the Termination of Employment Convention) and section 254(C) 2 of the Constitution of the FRN, 1999 (As Amended) in declaring the Claimant’s employment redundant.
ix. I hold that the Claimant is not entitled to Redundancy benefits under the VRP as the Agreement stated in Exhibit C.5 (i) is not applicable to the claimant’s case because the programme was initiated over 7 months after the claimant’s employment was determined.
x. I hold that Claimant is entitled to N400,000.00 as compensation for being declared redundant as the fairness and justice of this matter demands and in line with the provision of section 20 (1) (c) of Labour Act.
xi. I hold that the Claimant is not entitled to the N1million cost of prosecuting the case she is claiming because it was not proved.
xii. I further hold that the claimant is only entitled to general cost at the discretion of the Court.
xiii. I hereby direct the Defendant to pay N200,000.00 cost to the Claimant.
xiv. I direct the Defendant to pay to the claimant, the total judgment sum of N600,000.00 within 30 days from today after which, the said judgment sum will begin to attract interest of 10% per annum until it is finally settled.
63. Judgment is entered accordingly.
Hon Justice F. I. Kola-Olalere FCIArb