➥ CASE SUMMARY OF:
Dorothy Adaeze Awogu v TFG Real Estate Limited (2018) – NICN
by “PipAr” B.C. Chima
➥ COURT:
National Industrial Court of Nigeria – NICN/LA/262/2013
➥ JUDGEMENT DELIVERED ON:
June 4, 2018
➥ AREA(S) OF LAW
Dismissal from employment;
Harassment at work place.
➥ NOTABLE DICTA
⦿ A REPLY ON POINTS OF LAW IS NOT MEANT FOR RE-ARGUING ONE’S CASE
A reply on points of law is meant to be just what it is, a reply on points of law. It is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address. A reply on points of law is thus not meant to improve on the quality of a written address; it is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr Augustine N. Mozie & ors v. Chike Mbamalu [2006] 12 SCM (Pt. I) 306; [2006] 27 NSCQR 425, Basinco Motors Limited v. Woermann Line & anor [2009] 13 NWLR (Pt. 1157) 149; [2009] 8 SCM 103, Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors [2016] LPELR-40220(CA), UBA Plc v. Ubokolo [2009] LPELR-8923(CA) and Musaconi Ltd v. Aspinall [2013] LPELR-20745(SC). — B.B. Kanyip, J.
⦿ MAKING REPEATED ARGUMENTS IS A WASTE OF JUDICIAL TIME
The defendant could easily have either discussed the inadmissibility of these documents in its preliminary issues of law or simply take them up when it was addressing its issue (3). But no, the defendant had to repeat its arguments thus making what should have been a final written address of manageable pages one that ran into pages. The defendant had initially a 41-paged final written address. I had to turn it down and asked counsel to the defendant to re-present his final written address of not more than 35 pages as required under the NICN Rules 2017. What I got as the final written address was a 35-paged final written address of repeated arguments. The mere task of having to read through these repeated arguments (as was the case with the reply on points of law) is just a waste of valuable judicial time that can be put to better use. — B.B. Kanyip, J.
⦿ THE NATIONAL INDUSTRIAL COURT IS A SPECIAL COURT AND CAN DEVIATE FROM THE EVIDENCE ACT
The National Industrial Court (NIC) is a special Court, in, and a result of, which it is not a court of technicality as the defendant seems to think. The defendant spent its time in addressing its issues (1), (2) and (3) discussing matters that can at best be regarded as recourse to technicality, some validly raised though. Section 12 of the NIC Act 2006 in its totality enjoins flexibility and informality on this Court before going the extra mile of enjoining this Court to apply the Evidence Act with the leverage to depart from it as the interest of justice may demand. In short, the paramount consideration in the NIC is the interest of justice. The High Courts in Nigeria do not have an equivalent provision in the nature of section 12 of the NIC Act 2006. So cases deciding issues that pertain to the High Courts are not necessarily applicable to the NIC and so must appropriately be distinguished. Why counsel to the defendant cannot appreciate this simple fact is something I have difficulty fathoming. — B.B. Kanyip, J.
⦿ RATIONALE FOR SOMETIMES DEPARTURE FROM THE EVIDENCE ACT BY THE NATIONAL INDUSTRIAL COURT OF NIGERIA
The resolution of labour/employment disputes is the resolution of disputes where the nature of rights is one in personam. This is an area of law where even the identity card of an employee is the property of the employer and must be surrendered immediately the employment relationship ceases or comes to an end. (Exhibit D5 actually demanded that the claimant should surrender any and all correspondences, materials and equipment provided to her by the defendant without retaining copies in any form whatsoever should the claimant discover them in her possession.) This is an area of law where upon the cessation of employment, an employee who hitherto had access (often very limited access) to the documents of the employer immediately ceases to so have simply because the employee’s internet access had been immediately clogged. See, for instance, Exhibit D5 couched as a non-competition term but which threatens the claimant with prosecution should she as much as divulge any information or document through sending such to herself vide her home address or personal email account. There is even the additional threat to the claimant that UAE law recognizes this behavior as theft punishable by imprisonment – this is even aside from the fact the claimant will forfeit any unpaid salary or commission and be liable to be sued for damages. This is an area of law where an employer expected to certify a document will willingly refuse to so certify the document. God save the employee if the employer is a public institution for which the Evidence Act requires certification before any secondary evidence can be rendered. — B.B. Kanyip, J.
⦿ SECTION 12 OF THE NATIONAL INDUSTRIAL COURT ACT PERMITS THE COURT TO BE FLEXIBLE
The very first thing a labour court understands is the difficulty of the employee accessing documents to prove his/her case. It is as a result of all of this that the NIC, as a special Court, is permitted under section 12 of the NIC Act 2006 to be flexible, informal and depart from the Evidence Act if the interest of justice so demands. The NIC realizes that section 12 of its enabling Act is not license to act anyhow. So when it comes to admissibility of especially documentary evidence, the NIC insists that once the issue of authenticity is raised, particular care must be taken to admit only documents that are authentic; and in deserving cases the NIC had refused to admit inappropriate documents even when section 12 of the NIC Act was relied on. — B.B. Kanyip, J.
⦿ AN UNDATED DOCUMENT HAS NO EVIDENTIAL VALUE
Exhibit C3 is a letter to the Honorable Minister for Sports by Joe McCormack, Business Development Manager – Lagos of the defendant requesting an appointment with the Honourable Minister for 26th February 2013. It is not dated. An undated document has no evidential value. See Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA). Accordingly, Exhibit C3 has no evidential value and so would be discountenanced for purposes of this judgment. — B.B. Kanyip, J.
⦿ WHERE SANCTION FOR BREACH IS NOT PROVIDED, THE RULE IS MERE DIRECTORY
The law is that once a provision of law enjoins the doing of a thing, if sanction for breach is not provided then the doing of that thing enjoined is merely directory, not mandatory. See Bode Thomas v. FJSC unreported Appeal No. SC.228/2013, the judgment of which was delivered on 16th February 2018. In the words of Akaahs, JSC who delivered the leading judgment: When the learned trial Judge x-rayed Rule 030307(xiii) of the Public Service Rules, there was nowhere it was provided that failure to observe the 60 days period would vitiate the proceedings. The logical conclusion which the court ought to have arrived at is that since the Rules did not provide any sanction for non-compliance, the period stated is directory and not mandatory. — B.B. Kanyip, J. para. 55.
⦿ NOTICE FOR DISMISSAL MUST BE READ INTO CONTRACT OF EMPLOYMENT
The common law enjoins that even where the contract of employment does not stipulate a notice period, one that is reasonable must be read into the contract of employment. See Akumechiel v. BCC Ltd1997 695 at 703 and Emuwa v. Consolidated Discounts Ltd [2000] LPELR-6871(CA);[2001] 2 NWLR (Pt.697)424. The Supreme Court in Olayinka Kusamotu v. Wemabod Estate Ltd [1976] LPELR-1720(SC); [1976] 9-10 SC (Reprint) 254 stated the law thus: The law is that, generally, the length of notice required for termination of contracts of employment depends on the intention of the parties as can or may be gathered from their contract and in the absence of any express provision, the courts will always imply a term that the employment may be terminated by a reasonable notice (from either of the parties); and even where (as clearly provided in clause 21(c) of “Exhibit “B” for persons still under probation) the employer has power to terminate the contract in his absolute discretion, the law enjoins the employer to give reasonable notice to the employee (see Re-African Association and Allen (1910) 1 KB 396). — B.B. Kanyip, J. para. 60.
⦿ A CASE IS PROVED BY THE QUALITY OF EVIDENCE, NOT QUANTUM
A case is proved by either oral evidence or documentary/real evidence or a combination of all of this. It is not the quantum of evidence/witnesses, but the quality of the evidence/witnesses that matters. See Onwuka v. Ediala [1989] 1 NWLR (Pt.96) 182 at 187 and Lafarge Cement WAPCO Nigeria Plc v. Owolabi [2014] LPELR-24385(CA). — B.B. Kanyip, J. para. 67.
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice B. B. Kanyip, Phd
➥ APPEARANCES
⦿ FOR THE CLAIMANT
⦿ FOR THE DEFENDANT
➥ CASE HISTORY
By the statement of facts, the claimant is praying for the following reliefs:
A declaration that the termination of the claimant’s appointment on ground of her genotype as a Sickle Cell Anemia (SS) patient is discriminatory, illegal, null and void.
A declaration that the termination of the claimant’s appointment by reason of her genotype as a Sickle Cell anemia (SS) patient constitutes unfair labour practice.
A declaration that the termination of the claimant’s appointment without adequate notice is wrongful and a flagrant breach of contract of employment.
An order directing the defendant to pay the claimant N10,000,000.00 (Ten Million Naira) as damages for physical harassment, discrimination at work based on circumstance of her birth and false imprisonment.
An order directing the defendant to pay the claimant one month’s salary as damages for breach of contract of employment.
➥ ISSUE(S) & RESOLUTION
I. Whether there are justification for the Claimant’s dismissal by the Defendant?
RULING: IN CLAIMANT’S FAVOUR.
Para. 56: “If the other facts of involuntary departure of the claimant and her refusal to sign and accept Exhibit D6 are added, then I have no doubt whatsoever that the claimant was dismissed from work by the defendant, not terminated. The law is that once an employee is dismissed, the employer must justify the dismissal. The duty to justify the dismissal of an employee lies on the employer, the defendant in the instant case. The attempt to justify the dismissal is the argument of the defendant that the termination of the claimant’s employment was as a result of her poor performance, and that same cannot be linked to any form of discrimination as she was not discriminated against by the defendant in any way. This explanation cannot support the dismissal of the claimant as dismissal connotes gross misconduct, not poor performance. The defendant’s justification is accordingly untenable; and I so find and hold.”
Para. 57: “The defendant had argued that the warning letter (Exhibit D2) stated that the claimant should make 3 AIV bookings before 30th December 2012 and failure to so do will mean immediate termination of her employment. The defendant did not dismiss the claimant until 13th March 2013. What this means is that the dismissal of 13th March 2013 was certainly not based on the warning letter, Exhibit D2, which had indicated that the claimant’s employment will be terminated by 30th December 2012 if she does not make 3 AIV bookings by that date. The language of Exhibit D2 is that of immediate termination if the claimant does not make 3 AIV bookings by 30th December 2012. The argument of the defendant that the claimant’s employment was consequently terminated in March 2013 because she could not meet up with the 3 AIV bookings cannot accordingly stand. It sounds more like an afterthought. I so find and hold.”
.
.
II. Whether the Claimant was dismissed without adequate notice?
RULING: IN CLAIMANT’S FAVOUR.
Para. 58: “Exhibit D6 dismissed the claimant with immediate effect. That is more than sufficient proof that no notice was given to the claimant before she was dismissed. The argument of the defendant that an employer may terminate an employment without notice may be true (although the defendant appears to equate and hence confuse this with the statement of law that an employment may be terminated without reason); but that is at the risk of bearing all the consequences of having to terminate without notice. Also, the argument of the defendant that the law enjoins only notice to be given, not adequate notice, misses the point that in the instant case even the notice that the defendant talks of was not given to the claimant, if Exhibit D6 in dismissing the claimant with immediate effect is anything to go by.”
Para. 59: “The further argument of the defendant that the claimant did not deny that she was not given notice cannot fly in the face of Exhibit D6, a document supplied by the defendant itself, and which in its right acts like an admission on the part of the defendant. A dismissal with immediate effect can never be a dismissal with notice. This is commonsensical. The defendant’s counsel should know this; but it appears that he does not. This is because he argued that the defendant never failed to give adequate notice to the claimant, citing Exhibits D6, D4, D5, and D5A as showing that the claimant’s employment was terminated on 13th March 2013. The defendant’s counsel appears to think that because these exhibits were dated 13th March 2013 and the claimant’s dismissal took effect on same 13th March 2013, that is notice sufficient to excuse culpability.”
Para. 63: “It must be noted that section 11 of the Labour Act Cap L1 LFN 2004 is conscious of all of this. In subsection (1) it makes it clear that either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so. In subsection (2), it states that the notice to be given for the purposes of subsection (1) shall beone day, where the contract has continued for a period of three months or less;one week, where the contract had continued for more than three months but less than two years;two weeks, where the contract has continued for a period of two years but less than five years; andone month, where the contract had continued for five years or more. Subsection (3) provides that any notice for a period of one week or more shall be in writing. And by subsection (4), the periods of notice specified in subsection (2) of this section exclude the day on which notice is given. These are general principles applicable to workers as defined under section 91 of the Labour Act, but they provide useful insights as they codify the general principles of even the common law as ordinarily would apply in the instant case given that the claimant was employed as a Property Consultant and so may not come within the definition of the term “worker” under section 91 of the Labour Act. In paragraph 12 of the claimant’s further statement on oath, she referred to University of Lagos as her “alma matter”, and Exhibit C15 in requesting for NYSC preferential posting to Lagos State for the claimant, all of this presupposes that the claimant is a graduate and so is not a worker within the definition of the term under section 91 of the Labour Act. The claimant started work with the defendant on 10th September 2012 and the employment was determined on 13th March 2013. This means that the claimant put in 6 months of service with the defendant. So, even under the Labour Act, the claimant is entitled to at least one week’s notice. This is the minimum enjoined for workers. The claimant as a Property Consultant certainly ranks higher than the worker as defined under section 91 of the Labour Act. What all of this means is that in the instant case, termination (dismissal in fact) with immediate effect, which is what Exhibit D6 did, is not the reasonable notice enjoined on the defendant by law. I so find and hold. Contrary, therefore, to the argument of the defendant that the claimant being not entitled to any length of notice as per Exhibits C1 and D1 (the contract of employment) cannot insist on notice or any length of notice, it is my holding that she can insist on, and is entitled to, reasonable notice.”
Para. 66: “I am accordingly satisfied that the claimant’s appointment was determined without reasonable/adequate notice and so is wrongful as it is a breach of the contract of employment. To this extent, the claimant’s relief (3) succeeds; and I so find and hold. By relief (5), the claimant is consequentially claiming for one month’s salary as damages for breach of contract of employment. Exhibit C1 stipulates that “the notice period required is one month’s written notice from either party” although the defendant can terminate the claimant’s appointment without notice. I have already ruled as wrong this provision entitling the defendant to terminate without notice. This means that since the notice period remains one month’s notice, the salary in lieu must be one month’s salary in lieu of notice. Exhibit C1 puts the annual gross salary of the claimant as N600,000, which if divided into 12 months gives us a monthly gross salary of N50,000. This is the sum the claimant is entitled to from the defendant as per her reliefs (3) and (5); and I so order.”
.
.
III. Whether the Claimant proved harassment done by the Defendant against her?
RULING: IN CLAIMANT’S FAVOUR.
Para. 72: “In the instant case, therefore, the direct evidence of the claimant as to her superior Mr Gavin Smyth instructing her to flirt with potential clients, Mr Gavin Smyth espousing her good looks as an asset to the defendant, the constant threats and harassment by her superior of dismissal on grounds of her medical condition, scolding by Mr Gavin Smyth, Mr Gavin Smyth asking the claimant to work even when sick, the fact that two days into the claimant’s employment she orally told her line manager of her genotype, the fact that Exhibit C15 was submitted to Mr Gavin Smyth by the claimant, the fact of Mr Gavin Smyth forcefully dragging the claimant to a room which he locked (it remains false imprisonment even if for a very short period so long as the imprisonment was total – see Adeyemo & anor v. Akintola [2003] LPELR-10905(CA); [2004] 12 NWLR (Pt.887)390), etc all having not been contradicted by a more believable witness/evidence, is more believable and so preferable for present purposes than the evidence of DW; and this remains so despite that I discountenanced Exhibit C4.”
Para. 73: “The defendant’s counsel had given as the reason why the defendant did not call Mr Gavin Smyth as a witness the fact that Mr Smyth had left the employment of the defendant and so travelled back to his country. This is counsel giving evidence in a written address, something the defendant’s counsel knows pretty well is not allowed in law. The law is that evidence given which is not in line with the facts pleaded goes to no issue and so is of no help to the party that produces it. See The Shell Petroleum Development Company of Nigeria Limited v. Kwameh Ambah [1999] LPELR-3202(SC); [1999] 3 NWLR (Pt. 593) 1; [1999] 2 SC 129. The further argument of the defendant that it could not locate the other witnesses listed even when it applied for a subpoena for them is wishful thinking and an afterthought. The law is that even where a subpoena is issued against a witness who does not show up in Court, nothing favorable, as a result of the failure to appear in Court, is to be read in terms of the case of the party who applied for the subpoena. In other words, the effect of failure to answer the subpoena does not lead to an adverse finding against the defaulting party. See Buhari v. Obasanjo[2005] 7 SCNJ1 and Lawal v. Magaji&ors[2009] LPELR-4427(CA). So having to give the failure to locate the other witnesses as an excuse by the defendant is unhelpful to the defendant and does not change the fact that it called only one witness, DW, in defence of its case.”
.
.
IV. What quantum of damages is Claimant entitled to then?
RULING: IN CLAIMANT’S FAVOUR.
Para. 74: “The object of an award of damages is to compensate a person for the injury he has sustained by reason of the act or default of another, whether the act or default is a breach of contract or tort. The measure of damages on the other hand, is an amount that would reflect what would put the injured party in the same position as he would have been had the injury not occurred. In Alhaji Ibrahim Abdulhamid v.Talal Akar. & Anor. [2006] LPELR-24(SC); [2006] 13 NWLR (Pt. 996) 127; [2006] 5 SC (Pt. I) 44, the Supreme Court affirmed the award of a quarter of what was originally claimed by the applicant for “harassments, intimidation and degrading treatment”. The claimant in the instant case is claiming for N10 Million. A quarter of this sum is N2,500,000.00. This is the sum I will award against the defendant in favour of the claimant in terms of her reliefs (1), (2) and (4). I so order.”
.
.
.
✓ DECISION:
Para. 75: “On the whole the claimant’s case succeeds in terms of the following orders:
The defendant shall pay to the claimant the sum of Fifty Thousand Naira (N50,000.00) only being one month’s salary in lieu of notice for breach of the contract of employment.
The defendant shall pay to the claimant the sum of Two Million, Five Hundred Thousand Naira (N2,500,000.00) only being damages for physical harassment, discrimination at work based on circumstance of her birth and false imprisonment.
Cost of this suit is put at Three Hundred Thousand Naira (N300,000.00) only payable by the defendant to the claimant. These sums indicated in orders (1), (2) and (3) above are to be paid to the claimant by the defendant within 30 days of this judgment, failing which they shall attract 10% interest per annum until fully paid.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ DISTINCTION BETWEEN WITNESS STATEMENT ON OATH & AFFIDAVIT
In Okpa v. Irek & Anor. [2012] LPELR-8033(CA) held thus: This court has consistently held that a witness statement on oath is different from affidavit evidence. An affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a court Process in writing deposing to facts within the knowledge of the deponent. It is documentary evidence which the court can admit in the absence of any unchallenged evidence. Akpokeniovo v. Agas [2004] 10 NWLR (Pt. 881) 394. On the contrary a witness statement is not evidence. It only becomes evidence after the witness is sworn in court and adopts his witness statement. At this stage at best it becomes evidence in chief. It is thereafter subjected to cross examination after which it becomes evidence to be used by the Court. If the opponent fails to cross examine the witness, it is taken as the true situation of facts contained therein.
⦿ A CASE IS PROVED BY THE QUALITY OF WITNESSES, NOT QUANTITY
As the Supreme Court per Tobi, JSC puts it in Nigerian Army v. Major Jacob Iyela [2008] LPELR-2014 (SC); [2008] 7-12 SC 35; [2008] 18 NWLR (Pt. 1118) 115: A case is not necessarily proved by the quantity of witnesses. A case is proved by the quality of the witnesses in the light of either inculpatory or exculpatory evidence, as the case may be. And so, it does not necessarily follow that because the respondent called four witnesses, they rebutted the evidence of the two witnesses of the appellant.
➥ REFERENCED (OTHERS)
