➥ CASE SUMMARY OF:
Monday Loveday Gbaraka v Zenith Securities Limited & Anor. (2020) – NICN
by “PipAr” B.C. Chima
National Industrial Court of Nigeria – NICN/PHC/45/2018
➥ JUDGEMENT DELIVERED ON:
27th day of January, 2020
➥ AREA(S) OF LAW
Wrongful termination of employment.
➥ NOTABLE DICTA
⦿ DEFINITION OF “SECONDMENT”
The term secondment is mostly used in the public service which is not the case in the instant suit. That notwithstanding, the Black’s Law Dictionary at page 1555 defines ‘secondment’ as “a period of time that a worker spends away from his or her usual job”. The court in the case of ALHAJI HAMZA DALHATU v. ATTORNEY GENERAL, KATSINA STATE & ORS (2007) LPELR-8460(CA) also reckoned the meaning of secondment as used in the Public service rules when it stated that: “SECTION 6 – TRANSFERS AND SECONDMENT 02601 – TRANSFER is the permanent release of an officer from one service to another or from one class to another within the same service. SECONDEMENT means the temporary release of an officer to the service of another Government or Body for a specified period.” Per ARIWOOLA, J.C.A. (P.34, paras. A-B). — Z.M. Bashir, J.
⦿ WHERE TERMINATION IS WRONGFUL; ONLY REMEDY AVAILABLE IS SALARY IN LIEU
While I have earlier reckoned that the termination of the Claimant’s employment was not in itself wrongful, I must add for the sake of the said relief 7 that even where a termination is wrongful in a master servant employment, the remedy available is to the extent of what the employee would have earned as salary in lieu of notice. — Z.M. Bashir, J.
➥ LEAD JUDGEMENT DELIVERED BY:
Justice Z. M. Bashir
⦿ FOR THE CLAIMANT
⦿ FOR THE DEFENDANT
➥ CASE HISTORY
The case of the Claimant is that on the 10th day of March, 2006, the 1st Defendant offered him employment into its company as a US III (personal driver) to be on probation for one year. He was not confirmed within the one year period and his employment was transferred to the 2nd Defendant sometime in 2007 and his working relationship with the 1st Defendant ceased. Claimant averred further that 2nd Defendant confirmed his employment on the 17th of August 2007 and has since been responsible for payment of his salaries, payment of 13th month salary on every 15th of December, deduction of pension contribution to Stanbic IBTC pension scheme and tax dues while he also takes directives from the said 2nd Defendant. He added that the 2nd Defendant posted him to Bayelsa on the 22nd of July, 2016. Claimant averred that he worked with the 2nd Defendant for 12 years and that he was entitled to promotions from USIII to USII and then to USI which attracts N5000 per promotion which was never paid. He added that he was shocked to receive a termination letter from the 1st Defendant who had ceased to be his employer and same being honoured by the 2nd Defendant and the letter of termination omitted his unutilized leave allowance for 4 years while the letter issued by the 1st Defendant has prevented him from accessing his pension with Stanbic IBTC who recognizes the 2nd Defendant as his employer.
Arising from the complaint and statement of fact, the Claimant claims against the Defendants jointly and severally as follows, inter alia: A DECLARATION that the purported termination of the claimant’s employment dated the 28th day of August, 2017 by the 1st Defendant and acted upon by the 2nd Defendant: the Claimant’s employer (sic) is null and void and of no legal effect whatsoever.
➥ ISSUE(S) & RESOLUTION
I. Whether exhibits D4(b) can be admitted since it was not front loaded?
RULING: IN CLAIMANT’S FAVOUR.
A. “With regards to the objection to admitting the document on the basis of failure to frontload, without much ado, I must state that this court had in the case of Eddie Sunday v Halliburton Energy Services Nigeria Limited (Unreported) Suit No: NICN/PHC/61/2017, delivered on 30th April, 2019 reiterated that the legal position is that documents should not be rejected for failure to frontload same, particularly in view of the fact that the Evidence Act does not make frontloading a document a prerequisite for admissibility. Reliance was placed on the position of the law in OGBORU V. UDUAGHAN (2011) 2 NWLR 538 where the Court of Appeal posited that: ‘…there is the liberal approach founded on a consideration of the attainment of substantial justice. According to this approach, the rejection of documents because they were not frontloaded would occasion a miscarriage of justice.’ PER DONGBAN-MENSEM, J.C.A. ( Pp.38-40. E-G). I find it apposite to adopt the said liberal approach in the instant case having considered the said document to be relevant and pleaded.”
II. Whether or not the claimant is entitled to the reliefs sought in view of the facts, evidence led and circumstances of this case?
RULING: IN DEFENDANT’S FAVOUR.
A. “The Claimant is deemed to have known from the onset that he may be sent to work under any other organization aside from the 1st Defendant by way of ‘secondment’ and the 1st Defendant is with the discretion of determining the terms of the said secondment. Although, the Claimant considered himself to no longer be an employee of the 1st Defendant when he was in his words ‘transferred’ to the 2nd Defendant by the 1st Defendant, such notion cannot ordinarily be deduced from the content of exhibit C2.”
B. “That notwithstanding, the basis upon which the Claimant considers that he is no longer an employee of the 1st Defendant is as presented to the court in exhibit C4, which is the letter of confirmation issued to him by the 2nd Defendant and dated the 17th of August, 2007. While the Claimant did not state the exact date he was ‘transferred’ to the 2nd Defendant, he was by the letter of confirmation informed that: ‘Your appraisal for the first one year of your employment has shown that you have performed satisfactorily well. Your employment is hereby confirmed as a permanent staff of People plus Management Services Limited with effect from August 17, 2007’.”
C. “In the instant case, even though the 1st Defendant reserved the right to second the Claimant to a sister company, there was no specified period within which the Claimant was expected to be with the 2nd Defendant and to return to the 1st Defendant. There were no clear terms guiding the secondment hence it is left to the jaws of implied terms and in the instant case, it can be duly implied that the Claimant was permanently handed over to the 2nd Defendant as an employee of the 2nd Defendant notwithstanding the fact that his original letter of employment was issued by the 1st Defendant. In other words, the implication of exhibit C4 is that while the letter of employment issued by the 1st Defendant contemplated secondment, what was in actual fact done was a permanent transfer of service as the Claimant was absorbed by the 2nd Defendant as a permanent staff.”
D. “I am also mindful of the fact that the Claimant has accepted his terminal benefit as collated and paid by the 1st Defendant via exhibit D4(b) and the copy of the cheque tendered as Exhibit D5 both of which were acknowledged by the Claimant. The said Exhibit D4(b) also contains salary in lieu of notice computed as N6,250. This act of the Claimant in collecting the cheque which was in the name of the 1st Defendant clearly shows that the Claimant had no difficulty with the termination as at the time it happened and that he continued to accommodate both Defendants as his employers. The issue at hand only arose when Claimant was to claim 25% of his pension and needed to tender the letter of termination as he recounted in paragraphs 27 – 31. The foregoing indicates that the termination of the Claimant’s employment is not wrongful as the Claimant has collected his salary in lieu of notice and the Defendants reserves the right to terminate the contract of employment. This further concretised by the position of the law as stated in SIMEON v. COLLEGE OF EDUCATION, EKIADOLOR BENIN (2014) LPELR-23320(CA) where the court held that: “Under the common law, an employer is entitled to bring the appointment of his employee to an end for any reason or no reason at all. As long as he acts within the terms of his employment, the terms of his employment or motive for doing so is irrelevant. See: IDONIBOYE-OBU V. NNPC (2003) 2 NWLR (PT. 805) NWLR (PT. 805) 589.” Per EKPE, J.C.A. (P. 43, paras. C-F).”
E. “Consequent upon the primacy of fact, it is considered that both 1st and 2nd Defendant were employers of the Claimant thereby creating a triangular employment and the only basis upon which relief one is considered is the determination of who should have issued the Claimant with letter of termination of employment between the 1st and 2nd Defendant.” “In the interest of justice therefore, I find that the employment letter issued to the claimant subsists as his letter of employment upon which the 2nd Defendant confirmed his employment and made him a permanent staff. Consequently, the letter of termination of the Claimant’s employment ought to have been issued by the 2nd Defendant and not the 1st Defendant.”
F. “I find it inordinate that the Claimant wants salaries from both defendants after he has contended that the 1st Defendant ceased to be his employer after 17th of August 2007. That notwithstanding, I must reiterate that this court has found that the termination of the Claimant’s employment is not wrongful and even if so, the relief the Claimant would be entitled to would merely be the sum payable as salary in lieu of notice and not arrears of salaries from date of termination till judgment is delivered. The Claimant having stopped working for both 1st and 2nd Defendant since 28th of August 2017 has no basis to claim arrears of salaries for no work done.”
✓ Relief 3 is for “AN ORDER for the payment of the Claimants one month salary of the sum of N63,000.00 in lieu of notice”.
G. “Upon consideration of the said relief, I had earlier reckoned that the Claimant was paid salary in lieu of notice in the computation of his terminal benefits which the Claimant tendered along with the letter of termination as Exhibit C9. The said document contains entitlement ‘in lieu of notice’ put at the sum of N6,250.00. The Claimant is not contending that the sum is not what he is supposed to earn as salary in lieu, hence I will not bother about the propriety or otherwise of the sum even though he has stated the sum of N63,000.00 as his salary in lieu of notice. This is because the Claimant has not placed any evidence before the court to established that what he earns as salary is N63,000 while the only document relating to salary of Claimant is the letter of employment tendered as Exhibit C2 issued to the Claimant by the 1st Defendant which puts the Claimant’s annual Basic salary as N76,000. Consequent upon the foregoing, the claim for payment of salary in lieu of notice in the sum of N63,000 is unsubstantiated and same is accordingly refused.”
✓ Relief 6 is for the sum N2,000,000.00 (Two Million Naira) as damages for the inconveniences and public harassment caused the claimant at the Stanbic IBTC Pension office that he falsified termination letter from 1st Defendant when the 2nd Defendant is his employer who is supposed to terminate his employment.
H. “Rightly so, the burden is on the Claimant to establish that he was indeed embarrassed, harassed and assaulted at Stanbic IBTC Pension Office upon presentation of the letter of termination of employment issued to him by the 1st Defendant. In view of the said burden, no evidence has been placed before this court to substantiate the alleged harassment and assault. The mere assertion by the Claimant will not suffice that he suffered such damage. Consequent upon the failure to prove that he suffered any such damage, the claim for the sum of N2,000,000.00 as general damages lacks merit and same is accordingly refused.”
“In the final analysis, I find the claims of the Claimants to be largely unmeritorious as reliefs 2 – 7 lacks merit and they are accordingly dismissed. Judgment is accordingly entered. I make no order as to cost.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ DECLARATORY RELIEFS ARE NOT GRANTED WITHOUT PROOF
✓ In IKUMA v. CIVIL SERVICE COMMISSION BENUE STATE & ORS (2012) LPELR-8621(CA) held that: “Declaratory reliefs are not granted as a matter of course but on credible evidence lead. This is so even where the other partly admits the claims. See David Fabunmi Vs Agbe (1985) 1NWLR (pt.2) 316.” Per TSAMIYA, J.C.A. (P. 22, para. A.
✓ For want of emphasis, the court in OYETUNJI v. AWOYEMI & ORS (2013) LPELR-20226(CA) also held that: “In line with the general burden of proof as stated above, it is equally trite that in a claim for a declaratory relief a claimant must succeed on the strength of his own case and not on the weakness of the defence unless there is an aspect of the defendant’s case that supports his case. See: Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (7) 393 @ 429 D – E; Kodilinye v. Odu (1936) 2 WACA 336 @ 337; Onwugbufor v. Okoye (1996) 1 NWLR (424) 252; Shittu v. Fashawe (2005) 14 NWLR (946) 671.” Per KEKERE-EKUN, J.C.A. (as she then was) (P. 34, paras. C-E).
⦿ EMPLOYMENT GOVERNED BY STATUTE & THAT NOT GOVERNED BY STATUTE
In the case of BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. v. ESEALUKA (2013) LPELR-20159(CA) where the court held that: “There is no doubt that there is a vast difference between an employment with statutory flavor in which case the terms of employment of that staff is governed by the statute creating that organization and any infraction of the terms of employment and discipline as guaranteed by the statute is bound to be declared null and void. That is illegal dismissal, where it occurs. In such situations the employee is restored to the position as if no disciplinary measures had been taken at all. See Dr. Taiwo Oloruntoba-Oju & Ors. v. Prof. Shuaib O. Abdul-Raheem & Ors. (2009) 13 NWLR Pt.1157 Pg.83; Bamgboye v. University of Ilorin (1999) 10 NWLR Pt.622 Pg.290. However, where the relationship is not governed by statute and there is infraction of the terms of employment and dismissal by the employer such infraction is merely wrongful and not null and void. The employee can only claim damages for breach of contract and cannot claim arrears of salary and reinstatement. See Eze v. Spring Bank (2011) 12 SC Pt.1 Pg.173; Joseph Ifeta v. SPDC Nig. Ltd. (2006) 8 NWLR Pt.983 Pg.585.” Per OGUNWUMIJU, J.C.A. (Pp.32-33, Paras.B-F).
⦿ INCORPORATED LTD. LIABILITY COMPANY IS DISTINCT FROM HER SHAREHOLDERS/DIRECTORS
In NEW NIGERIAN NEWSPAPERS LTD. V. AGBOMABINI (2013) LPELR-20741(CA) held that: “An incorporated limited liability company is always regarded as a separate and distinct entity from its shareholders and directors. The consequence of recognizing the separate personality of a company is to draw the veil of incorporation over the company. No one is entitled to go behind the veil. This corporate shell shall however be cracked in the interest of justice” Per ABIRU, J.C.A. (Pp. 40-41, Paras. F-E).
⦿ EMPLOYMENT NOT GOVERNED BY STATUTE – EMPLOYEE CAN ONLY CLAIM DAMAGES
In BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. v. ESEALUKA (2013) LPELR-20159 (CA) held that: “…where the relationship is not governed by statute and there is infraction of the terms of employment and dismissal by the employer, such infraction is merely wrongful and not null and void. The employee can only claim damages for breach of contract and cannot claim arrears of salary and reinstatement. See Eze v. Spring Bank (2011) 12 SC Pt.1 Pg.173; Joseph Ifeta v. SPDC Nig. Ltd. (2006) 8 NWLR Pt.983 Pg.585.” Per OGUNWUMIJU, J.C.A. (Pp.32-33, Paras.B-F).
⦿ WRONGFUL TERMINATION OF EMPLOYMENT – WHAT WOULD HAVE EARNED IN THE PERIOD
In NITEL Plc. v. Akwa (2006) 2 NWLR (Pt.964)391 held that: “The law is settled, that where an employee’s appointment is terminated wrongfully or otherwise all he is entitled to is what he would have earned over the period of notice required to lawfully terminate this employment. The amount he is entitled to in his case is one month salary in lieu of notice and no more. See International Drilling Co. (Nig.) Ltd. v. Ajijala (1976) 2 SC 115; Akunforile v. Mobil (1969) NCLR 253; WNDC v. Abimbola (1966) 1 All NLR 159; Nigerian Produce Marketing Board v. Adewunmi (supra).” Per SANUSI, J.C.A (P. 42, paras. A-D).
➥ REFERENCED (OTHERS)