➥ CASE SUMMARY OF:
Mr Peter Enemona Adejo V. Arksego Nigeria Limited (NICN/ABJ/354/2017, 27 May 2020)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Wrongful termination of employment.
➥ CASE FACT/HISTORY
The case of the claimant as can be gathered from the pleading, witness statement on oath and the oral testimony of CW1, that the claimant was employed by the defendant as security operative on 15th January, 2013, as per exhibit CW1A1-2, dated 15/1/2017. The claimant’s take home salary after deductions is the sum of ₦42,720 (Forty-Two Thousand, Seven Hundred and Twenty Naira) only. It was averred that the claimant was a graduate and bread winner. Under exhibit CW1A1-2, either party may terminate the employment by giving Two (2) weeks’ notice of termination. It was averred that the Claimant, since his employment with the Defendant, carried out his duties over the years with integrity, diligence and competence; and there was never any course for him to be queried by the Defendant or anybody else.
However, on 15th August, 2017 the Defendant terminated the Claimant’s employment vide the Defendant’s letter of Termination of Contract of Employment dated 9th August, 2017, citing alleged “Below Average Intelligence Rating and Test Score” as reasons for termination. According to claimant the reasons for the termination is not only ridiculous but false and unjustifiable as the Claimant always exhibited very high competence and intelligence in the discharge of his duties over the years and the reason why he was never queried for any reason at all by the Defendant. The reasons are completely invalid. Moreover, the Defendant did not prove any of them. The claimant alleged that motive for termination is clearly victimization because the Claimant was inherited from another company.
At the close of the Claimant’s case, counsel for the defendant informed the court that the defendant is not calling any witness;and that the defendant will rest its case on the claimant’s case.Counsel were then ordered to file written addresses beginning with the Claimant, since the defendant did not call any witness.
➥ ISSUE(S)
I. Whether or not the Claimant has proved his case on the balance of probability and should succeed in all his claims against the Defendant in this suit?
➥ RESOLUTION(S) OF ISSUES
[CASE SUCCEEDS, IN PART]
↪️ ISSUE 1: IN CLAIMANT’S FAVOUR.
[THE DEFENDANT HAS FAILED TO GIVE REASON FOR THE CLAIMANT’S TERMINATION
‘The defendant despite this damning evidence from the claimant did not deemed it necessary to file defence and adduced evidence in rebuttal, in the circumstance I accept the evidence if the claimant to the effect that he did not fail any examination on intelligence to warrant termination of his appointment on that ground. It is the law that where an employer has given reason why the employment of an employee was terminated, the employer has a bounden duty of satisfying the court of the reason for termination. The law is well settled that once employer gives a reason for terminating or dismissing an employee, the burden lies with him to justify the said reason. See KUNLE OSISANYA v. AFRIBANK NIGERIA PLC 2007 ALL FWLR PART 360 1480SC, 2007 12 SC 317, SPDC LTD v. OLARENWAJU 2008 LPELR-046SC, 2008 12 SC PTIII 27, ANGEL SHIPPING DYEING LTD v. AJAH 2000 13 NWLR PT 685 551. The defendant in the case at hand has failed to live up to its duty by refusing and neglecting to file defence and adduce evidence, establishing the reason given for the termination of claimant’s employment as contained in exhibit CW1B. This means that the defendant does not have evidence of proof of the assertion contained in the letter of termination exhibit CW1B.’
‘From the pleaded facts and evidence adduced by the claimant I am satisfied that the termination of the claimant’s employment was not in line with international best practices and it amount to unfair labour practices contrary to article 4 of the ILO Convention 158 of termination of appointment. The claimant’s relief A for the sum of ₦128,160.00 three months’ salary in lieu of notice succeed and is hereby granted. The defendant in the final written address has argued that granting of relief A will amount to the court being charitable organization, acting like father Christmas. This contention cannot hold water as the claimant has specifically claimed for relief A, it is only when a claim not claimed is granted that the court can be termed to be a father Christmas.’]
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✓ DECISION:
‘For avoidance of doubt the order of the court is as follows:- The termination of claimant’s employment as per exhibit CW1A1-2, is wrongful in law for giving only 6 days’ notice as against two weeks’ notice provided in the contract of service. The reason for termination having not been established by the defendant to the satisfaction of the court has rendered the termination contrary to international best practices, as per Convention No. 158 of the International Labour Organization (ILO). The defendant is hereby ordered to pay to the claimant the sum of ₦128,160.00 (One Hundred and Twenty Eight Thousand One Hundred and Sixty Naira) only, for wrongful termination and unfair labour practice. Relief B, fails for lack of prove of entitlement of same and lack of quantum entitled to. Relief C, has equally failed to be proved and same is dismissed. The defendant shall pay to the claimant cost assess at the sum of ₦200,000.00 (Two Hundred Thousand Naira) only. All monetary awards in this judgment shall be paid within 21 days failing which it shall attract 10 % interest per annum. Judgment entered accordingly.’
➥ FURTHER DICTA:
⦿ TERMINATING EMPLOYEE’S EMPLOYMENT FOR NO REASON AT ALL
The new bold dispensation in labour law in Nigeria started in the case of Petroleum and Natural Gas Senior Staff Association of Nigeria v. Schlumberger Anadrill Nigeria Ltd (2008) 11 NLLR (Pt. 29) 164. In that case the Court applied the provision of Article 4 of the ILO Convention and held that the common law principle that gives an employer the right to terminate a contract of employment without reason is unfair labour practice. The Court per Adejumo, J. held as follow: “The respondent also argued that it has the right to terminate the employment of any of its employees for reasons or no reason at all. While we do not have any problem with this at all, the point may be made that globally it is no longer fashionable in industrial relations and practice to terminate an employment without adducing any reason for such a termination.” — Justice S. Kado.
⦿ DEFENDANT RESTS HIS CASE ON CLAIMANTS CASE
In the case at hand, the defendant though participated in the hearing did not file defence nor called any witness in defence of the case. This means that the defendant rest its case on the claimant’s case. Therefore, this action will be decided based on the facts as presented by the claimant. — Justice S. Kado.
⦿ HOW TO PROVE ENTITLEMENT IN LABOUR CASE
To prove an entitlement, the employee must refer the Court to the exact provisions of the law, instrument or document that conferred the entitlement. See Otunba Gabriel Oladipo Abijo v. Promasidor (Nig.) Ltd unreported Suit No. NICN/LA/602/2014 the ruling of which was delivered on 17th January 2017 and Mr Mohammed Dungus and ors v. ENL Consortium Ltd [2015] 60 NLLR (Pt. 208) 39. To prove the quantum of the sums claimed, the rule regarding proof of special damages must be adhered to. This is because, the claim for “entitlements and/or benefits”, being monetary sums, is a claim for special damages. See Kelvin Nwaigwe v. Fidelity Bank Plc unreported Suit No. NICN/LA/85/2014 the judgment of which was delivered on 24th January 2017. — Justice S. Kado.
⦿ THE RELATIONSHIP BETWEEN AN EMPLOYER AND AN EMPLOYEE IS GOVERNED BY THE TERMS OF CONDITION
In Oak Pensions Ltd v. Olayinka [2017] LEPLR-43207(CA); [2018] 12 ACELR 85, the Court of Appeal stated, thus: “The law still remains that the relationship between a master and his servant or employer and his employee, is a contractual one and it is governed and regulated by the terms and conditions of the contract between them. NEPA v. Adesaaji (2002) 17 NWLR (797) 578; Momoh v. CBN (2007) 14 NWLR (1055) 504; Osakwe v. Nig. Paper Mill Ltd (1998) 10 NWLR (568) 1; PAN v. Oje (1997) 11 NWLR (530) 625. The law is also settled that the rights, obligations and liabilities of the parties to such a contract, are to be determined on the basis of the terms and conditions to which they have freely and voluntarily agreed to govern and regulate the relationship between them. S. S. Co. Ltd v. Afropek Nig. Ltd (2008) 18 NWLR (1118) 77; Amodu v. Amode (supra); Calabar Cement Co. Ltd v. Daniel (1991) 4 NWLR (188) 750; Katto v. CBN (1999) 6 NWLR (607) 390. — Justice S. Kado.
⦿ UNFAIR LABOUR PRACTICE PRINCIPLES WILL NOT OVERRIDE THE CONTRACTUAL TERMS OF PARTIES
Unfair labour practice or international best practices may arise in the course of employment or in a trade dispute or industrial relations, but cannot rightly and properly be imported into the terms and conditions of a contract of service freely entered into for a servant-master relationship. The rights, entitlements and obligations of the parties in such a relationship, are in law and equity, to be and are governed by the terms and conditions voluntarily agreed to by the parties and not by sentimental conjunctures of what is fair or unfair conduct in the relationship in complete disregard of the terms and conditions. The issue of unfair labour practice or international best practice would not arise in the exercise of a right vested in the parties by their own voluntary agreement on how to end or determine the relationship between them. The Supreme Court, in the case of Nwobosi v. ACB Limited (1995) 6 NWLR (404) 658 @ 674, held that:- i. “Once it is established that a relationship of master-servant exists, then it carries with it all its attendant consequences, one of which is the right of a master to terminate the services of his servant according to the terms of the contract between them.” See also Amodu v. Amode (1990) 5 NWLR (150) 356. — Justice S. Kado.
⦿ SPECIAL DAMAGES CANNOT BE GRANTED TO THE CLAIMANT BECAUSE SPECIAL DAMAGES WAS NOT PROVED
The claimant from paragraph 5.17, 5.18, 5.19 of the final written address seems to be relying on deemed admission as a result of absence of pleading and evidence from the defendant. However, the law is settled beyond reproach that special damages must be specifically pleaded and specially proved by credible evidence and not by admission or in default. 63. The law is well settled that claims for severance benefits/entitlement are claims for monetary sums, which means that they are claims for special damages. See 7UP Bottling Company Plc v. Augustus [2012] LPELR-20873(CA), which held that the claims for gratuity, pension, housing fund and salary are all special damages and must be strictly proved; and that each of the said items must be proved to the satisfaction of the Court as the Court is not entitled to make its own estimate of same – it must be proved with credible evidence and without such proof no special damages can be awarded. See NNPC v. Clifco Nigeria Ltd [2011] LPELR-2022(SC) is quite forcefully in holding that a claim for special damages cannot succeed because it is admitted as special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with general damages. They are exceptional and so must be claimed specially and proved strictly. That the fact that it appears to be admitted does not relieve the party claiming it of the requirement of proof with compelling evidence as special damages are exceptional in character and so there is no room for inference by the Court. It is unreasonable to consider a claim for special damages reasonable in the absence of proof. A claim for special damages succeeds on compelling evidence to justify it and not on the sums claimed appearing reasonable to the Court. See further Mr Ignatius Anyanwu and ors v. Mr Aloysius Uzowuaka and ors [2009] LPELR-515(SC); [2009] 13 NWLR (Pt. 1159) 445 SC.
⦿ SEVERANCE BENEFIT IS NOT PROVED BY THE CLAIMANT
There is nothing in the pleading and evidence before the court to establish entitlement to this head of claim. The claimant has not referred this court to the provisions of the contract of service that make him to be entitled to severance benefit and what amount he can claim, the failure of the claimant to supply the necessary facts that the court can look at to determine this claim is fatal to the claim.The claimant has not told this court which instrument grants him 7.5% of his salaries as severance benefit. The claimant in his contention in paragraph 5.23 of the final written address has admitted that the service agreement exhibit CW1A1-2, does not have provision for severance package. But he is relying Article 12 of ILO convention. The claimant had not as well told this court the amount that can be claimed as per Article of ILO Convention No. 158. With the state of evidence this court is not in a position to know the entitlement of the claim as to severance benefit. The court cannot speculate. In the absence of evidence as to quantum of severance benefit, the claimant has not proved his entitlement to Relief B, same is hereby dismissed. — Justice S. Kado.
➥ LEAD JUDGEMENT DELIVERED BY:
Honourable Mr. Justice Sanusi Kado
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
