IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

 

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

 

Dated: 27th day of January, 2021     SUIT NO:  NICN/YEN/400/2016

 

BETWEEN:

KALAGBO MOSES (Deceased)

MRS BLESSING KALGBO (substitute for the deceased party)--------CLAIMANT

 

AND 

 

1. BAKER HUGHES INCORPORATED

2. BAKER HUGHES COMPANY LIMITED--------------------DEFENDANTS

 

Representations: 

George T. Ogara with O. O. Olajide, O.G. Nweke and U.M. Eze for the Claimant 

O.I. Nwanya with Emeka Ozuzu for the Defendants.

 

Judgment.

This suit was commenced by way of a General form of Complaint filed on the 15th of November, 2016 along with verifying affidavit, statement of facts, list of witnesses, witness statement on oath, list of documents and copies of documents to be relied upon at trial. 

The suit was originally before the late Hon. Justice A. Ibrahim before same was transferred to this court sometime in November 2018. 

It should also be reckoned that this suit was originally against three defendants to which the Defendants filed a motion in relation to the propriety of parties in suit NICN/PHC/68/2017 and this court by a ruling delivered on the 13th of February, 2019 struck out the name of 1st Defendant in person of Martin Craighead. The Ruling applies mutatis mutandis on every other case wherein the said motion was filed including the instant case.  

That said, arising from the statement of fact, the Claimant is claiming jointly and severally against the Defendants the following:

A declaration that the action of the defendants in terminating the claimant’s contract of employment with defendants by a summary dismissal letter dated 6/2/2015 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 the Labour Act, CAP L1, Laws of the Federation of Nigeria, 2004.

 

An order of court setting aside the summary dismissal letter dated 6/2/2015 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 the Labour Act, CAP L1, Laws of the Federation of Nigeria, 2004.

 

The sum of N44, 026, 408.14(Forty Four Million, Twenty Six Thousand, Four Hundred and Eight Naira, Fourteen Kobo) only being the total amount due to the claimant from the defendants Voluntary Release Program and the Redundancy Package applicable in the defendants’ West Africa Geomarket.

 

Pre Judgment interest of twenty five per cent (25%) per annum on the sum of N44, 026, 408.14(Forty Four Million, Twenty Six Thousand, Four Hundred and Eight Naira, Fourteen Kobo) from 6/2/2015 till judgment and post judgment interest of twenty five (25%) per annum from date of judgment till the payment of the said sum.

 

The sum of USD $2600 (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.

 

Pre Judgment interest of twenty five per cent (25%) per annum on the sum of $2600 USD from 6/2/2015 till judgment and post judgment interest of twenty five (25%) per annum from date of judgment till the payment of the said sum.

 

The sum of N1,000,000 (One Million Naira) being cost of this suit.

 

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.

 

Reacting to the claims the initial 3rd Defendant who is now the 2nd Defendant, filed a statement of defence on the 23rd of February, 2017 along with a list of witnesses, witness statement on oath, list of documents and copies of the listed documents to be relied upon at trial.

Thereafter, the 1st and 2nd Defendant filed a joint amended statement of defence on the 9th of November, 2020 along with list of witnesses, witness statement on oath and list of documents.

 

Upon the foregoing, trial commenced in this suit on the 14th of May, 2019 with the Claimant (Kalagbo Moses) opening his case. The said Claimant was himself called as the sole witness as CW1 and he adopted his witness statements on oath marked as C1(a) and C1(b). Through the said CW1, 11 documents were tendered in evidence as Exhibits C2 – C12 with Exhibits C4, C5, C6, C9 and C11 being admitted under protest. 

Arising from the statement of fact and witness statement on oath, the case of the deceased Claimant is that he was employed by a Contract of employment dated 04/9/1998 as Technician Trainee and by the said Contract of Employment, the Deceased agreed to be bound by the Terms and Conditions of Employment for Staff of the defendants and other policies applicable to the West Africa Geomarket and other Geomarkets. Claimant states that the Contract did not at any time provide for redundancy and/or redundancy package due to downturn in business activities however, the Defendants issued a letter and Notice of Redundancy dated 06/2/2015 wherein, he was informed that his employment had become redundant. Claimant added that prior to the issuance of the notice of redundancy, a Voluntary Release Program for employees of the defendants in the West African Geomarket was scheduled to hold in all the Countries that make up the West Africa Geomarket which included Nigeria, but the  Defendants failed to launch same in Nigeria and also failed to pay the Voluntary Release Package (VRP) to him as paid to other workers in Democratic Republic of Congo, Gabon and other Countries in the West Africa Geomarket, hence this suit.

 

Upon cross examination, CW1 posited that he is claiming N44million which is the amount he was supposed to receive while he admitted collecting N4million upon the termination of his employment contrary to his contract of employment. 

 

Upon the discharge of CW1, the Claimant closed his case while the Defendants adopted their defence in NICN/YEN/328/2016 which was opened by calling one witness in person of Richard Babaoye as DW1 who adopted his witness statement on oath marked as D1. Through the said DW1, 3 documents were tendered and admitted in evidence as Exhibit D2 – D4. 

Arising from the amended statement of defence and witness statement on oath, the case for the Defendant  is that the Deceased Claimant is not entitled to any Redundancy Package or Voluntary Release Program Policy Package as the latter was a discretionary program which was then proposed by the 2nd defendant’s affiliates in Gabon, Congo and Cameroon wherein an ex gratia payment was to be made to their employees who voluntarily agreed to be released from employment as a result of the dwindling revenue of the Companies caused by low prices of crude oil in the global oil and gas industry hence the need to cut operational cost and recurrent expenditure. The program was a mere plan in those Countries and was never implemented nor was it ever introduced in Nigeria at all hence, the reliance on the so called Voluntary Release Program (VPR) by claimant is strange as same is not part of nor was it incorporated in the Claimant’s contract of employment with the 2nd defendant. The Defendants further averred that all due processes as provided under the law were followed in laying off the Claimant especially as it relates to his final benefits. They added that while the Claimant does not belong to any workers or trade union as it relates to his employment with the 2nd defendant, the redundancy exercise was exhaustively discussed and negotiated prior to his redundancy and he was paid his final benefits. The Defendant concluded that the Claimant’s claim are unfounded, baseless, frivolous, malicious, misconceived, speculative, bogus, extortionate and based on sentiments

 

Upon cross examination, DW1 admitted that the Defendants carried out a redundancy exercise which affected the Claimant and that the exercise complied with company policy and Labour Act. He added that the policy is as contained in the Claimant’s contract of employment while admitting that the word ‘redundancy’ is not written in section 3.3 but it implies termination. He posited that the Voluntary Release Program is not a Policy of the 1st Defendant as it is a discretionary program. DW1 also stated that there was no introduction of Country Severance Policy and as HR Manager in Nigeria, he cannot speak of the implementation of the Voluntary Release Program in Congo even though the 1st Defendant is the parent company to the Congo and Nigeria Branches. He added that the benefit was computed upon a two week pay per year of service and that there was no union representative of the workers at the time of redundancy hence, there was no discussion with any union representative. He also stated that the Claimant was not paid salary since the issuance of the notice of redundancy as he is no longer a staff.  

 

Consequent upon the adoption of the defence in the sister case of NICN/YEN/328/2016, the Defendants closed their case while matter was adjourned for adoption of final written address. 

 

Consequently, the Defendants filed their final written address on the 9th of November, 2020 and arising therefrom, Counsel to the Defendants, O.I. Nwanya Esq. formulated two issues for determination to wit:

Whether by virtue of his contract of employment and or any other available documents the Claimant is entitled to any further payment from the Defendants’ Companies besides what he has already received from the Companies as his final/redundancy benefits upon his disengagement from the Companies.

 

Whether the Claimant has placed any credible evidence before the Honourable Court such as would entitle him to his claim for the so-called Redundancy Package and Voluntary Release Program (VRP) and medical contribution said to have been implemented in the other Defendants’ West African Geomarket/Companies.

 

In arguing issue one, counsel submitted that the payment provided under Clause 3.4 (d) of the Claimant’s Exhibit C3 (contract of employment) must necessarily be taken to be the payment which the Claimant/Employee is entitled to receive in any event of severance or termination of his employment. 

Counsel added that while the above Clause did not mention any particular form of severance or termination of employment that will entitle the employee to the end of service payment therein, once the services of an employee is brought to an end through any means whether redundancy or otherwise, (apart from dismissal), the payment provided under clause 3.4 (d) shall be applicable and shall constitute the terminal benefits of the Claimant/Employee.

Counsel argued further that there is no special type of payment available in law for an employee who has been declared redundant apart from what is provided to be paid under his contract of employment. He cited the case of ISHENO V. JULIUS BERGER (NIG.) PLC. [2003] 14 NWLR (PT.840) PG. 294.

Counsel also added that the Claimant admitted that he received redundancy payment upon his redundancy on 6/2/2015 both through his statement on oath and during cross examination and facts admitted need no further proof. He cited  Section 123 of the Evidence Act, 2011.

Counsel also cited the case of Samuel Isheno v. Julius Berger Nigeria Limited. [2008] 6 NWLR (Pt. 1084) Page 582 at 604 paragraph F - H to posit that no employee is entitled to two different heads of severance benefits at the same time from the same employer.

Counsel added that an employee’s severance payments are not determined arbitrarily or by speculation or by sentiments. He cited the case of Agbi v. Ogbe [2006] 11 NWLR (Pt. 990) Pg. 65 at 99.

With regards to the procedure for redundancy, counsel argued that it is not in dispute that the Claimant’s employment was brought to an end by way of redundancy under section 20 of the Labour Act and while the Labour Act spells out the procedure to be followed by the employer who intends to terminate his employee by way of redundancy, the Defendants duly followed the procedure in the course of disengaging the Claimant. 

 

Counsel added that the Claimant admitted under cross examination that he was not a member of any employee trade union at the time of his employment in the Defendants’ Companies which means that there was no trade union representatives of the Claimant with whom the Defendants’ would have entered into discussions as per the impending redundancy since the Claimant did not belong to any.

 

Counsel submitted that the evidence before the Court indicates that there was communication between the Claimant and his supervisor/manager in respect of his redundancy prior to the issuance of the notice of redundancy to the Claimant. he referred to the first paragraph of Claimant’s Notification of Redundancy (Exhibit C8) and paragraph 4 (b) of the Claimant’s second witness statement on oath.

 

Counsel also argued that there is no iota of evidence before the Court on the side of the Claimant to show that the principle of “first in” “last out” was not applied by the Defendants in the course of his disengagement from the Defendants Companies notwithstanding the fact that an employer may not necessarily lay off newer employees if he feels that they are more beneficial in the overall commercial interest of the organization. Counsel cited Section 20 (1) (b) of the Labour Act and the case of Council of The Enugu State University of Science & Technology & Anor V. Ude (2014) LPELR-23013(CA).

Counsel posited that the circumstances and evidence before the court creates a high probability that the procedure under the law relating to redundancy was followed as it relates to the Claimant as the burdens of proof in civil cases are discharged on the balance of probabilities. He cited section 34 of the Evidence Act, 2011.

 

Counsel argued that the Claimants disengagement was not abrupt or summarily done as Exhibit C8, the Notification of Redundancy, shows that there was previous communication pertaining to the Claimant’s redundancy with his supervisor and the Claimant was in addition paid one month salary in lieu of notice.

 

In arguing issue two, counsel contended that facts pleaded to which there is no evidence in support are deemed to have been abandoned. He cited the case of Ajikanle v. Yusuf [2008] 2 NWLR (Pt. 1071) Page 301 at 306 ratios 1, 2, & 3.

Counsel added that for the Claimant to succeed in his claim for entitlement to the outrageous redundancy and other packages under the so-called VRP program, he should, at least be able to satisfy the court that: 

 

His employer initiated such a program

That the program was initiated for his benefit

That he subscribe or signed up for the program 

That he was not paid 

That other employees were paid. 

 

Counsel posited that there is no credible evidence before the Court to show that the Claimant’s employer initiated the said Voluntary Release Program (VRP) in Nigeria and Exhibit C7 which the Claimant relied upon in this regard is not reliable as it has no nexus with the Claimant.  

He added that the Exhibit does not bear the Defendants’ letter head or name and same was not signed by any one identified to be a director or official of the Defendants’ Companies while positing that there is also no evidence to show the Court that the Claimant subscribed to VRP program by voluntarily releasing his employment such as would have made him entitled to benefit from the program. Counsel cited Section 131(1) of the Evidence Act, 2011.

 

With regards to Article 4 of the Termination of Employment Convention, 1982 (C158), counsel contended that assuming without conceding that the above convention was ratified and incorporated into the body of Nigerian laws, there is nothing in that Article or the entire convention that helps the case or claims of the Claimant as the convention itself implicitly recognizes the right of an employer to terminate an employee for economic (operational) reasons.

 

Counsel added that the Equal Remuneration Convention 1951 (No. 100) has nothing to do with the claims of the Claimant in this suit while also submitting that the main objective of the Equal Remuneration Convention is to curb discriminatory remuneration practices as it affects women who are engaged in the same types of jobs with men. 

 

Counsel contended further that Exhibit C6 lacks probative value and the court ought to reject same accordingly as a company’s revenue may only and officially be discovered through its annual report or through its bank statement of account or through company’s publication.

 

With regards to statement on oath of the Claimant, counsel contended that in the course of trial and during cross examination the Claimant stated that he made and signed two statements on oath which he adopted as his evidence in support of this suit while it is however on record that the two statements allegedly made, signed and adopted by the Claimant bears two radically different signatures.

He added that a document which does not bear the writing or signature of the maker is worthless and cited the case of BRIGHT & ORS V. IWUOHA (2018) LPELR-43758 (CA); UBN PLC V. TOYINBO (2008) LPELR-5056(CA).

 

With regards to documents tendered by the Claimant, counsel contended that the entire documents tendered by the Claimant in evidence are photocopies and the failure of the Claimant to lay the requisite foundation before tendering the said documents renders them incompetent and therefore inadmissible under the law. Counsel urged the court to reject the documents accordingly and cited Sections 86 & 89 (C) of the Evidence Act.

 

He added that Exhibits C7 and C9 are documents generated from a computer however the Claimant in tendering them failed to comply with Section 84 (4) of the Evidence Act. 

 

Counsel concluded by positing that the paramount objective of the Court is to do justice to the cases before it and to all the parties before it and justice must be based on the law, facts and evidence duly placed before the Court and not otherwise. He urged the Court to accordingly dismiss the suit with substantial cost against the Claimant.

 

In reaction to the foregoing, Claimant filed his final written address on the 13th of November, 2020 and arising therefrom, counsel to the Claimant George T. Ogara Esq. formulated  2 issues for determination to wit:

1. Whether the Defendants violated the provisions of the Labour Act and International Labour Organisation Convention Protocols in declaring the Claimant redundant in the course of their Contract of Employment.

 

2. Whether the Claimant is entitled to redundancy payment in accordance with the Voluntary Release Program Policy of the Defendants West Africa Geomarket.

 

In arguing issue one, counsel posited that the ingredients required to be proved in a case of this nature has been aptly summarized by the Supreme Court of Nigeria in the case of B. A. MOROHUNFOLA v. KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 N.W.L.R. paragraph 145 at 525 – 526 where the court highlighted materials facts required to be pleaded where the plaintiff is seeking a declaration that the termination of his appointment is a nullity to include:

 (a) He is an employee of the Defendants.

(b) How was he appointed and what are the terms and condition of his appointment

(c) Who can appoint him and who can remove him

(d) What are the circumstances appointment can be determined.

(e) That his appointment can only be terminated by authority (in line with the law)

 

With regards to the 1st and 2nd condition, counsel contended that the Claimant pleaded EXHIBIT CO2(sic) to show that Clause 3.6, 5.6 and 5.8 therein created obligations in the contract of employment between the Claimant and the 1st and 2nd Defendants and are enforceable against all the  Defendants.

 

Counsel added that the Claimant further reinforced his status as an employee by EXHIBIT 4 (Employment verification) and that combined effect of Exhibit CO1, CO2, CO3, CO4, CO5 and CO6(sic) is that they all establish the fact that the Claimant was employee of the Defendants.

 

Counsel argued further that Clause 3.1, 3.2, 3.3, 3.4(a)(b)(i)(ii)(c)(d) and 3.5 of EXHIBIT CO2 clearly  defines the various modes, circumstances, tenor and procedure for the determination of the Claimant’s contract of employment with the Defendants and same does not provide for “redundancy” or redundancy exercise.

 

Counsel also posited that Clause 5.1 of EXHIBIT CO2 provides that Nigeria Law is the governing law in the execution of the contract of employment between the parties and since Exhibit C02 does not provide for redundancy, then the Nigerian law is operative. Counsel cited Section 20(1)(2)(3) of the Labour Act, CAP. L1, Laws of the Federation of Nigeria, 2004 and the case of PEUGEOT AUTOMOBILE NIGERIA LTD. v. SOLIU OJE & ORS. (1997) 11 N.W.L.R. Part 530 page 425 at 431 on the meaning of redundancy. 

 

Counsel also referred to Article 14 of the Termination of Employment Convention, 1982 (No. 158) provides which was tendered as Exhibit C11 and added that by the incorporation of International Labour Convention Treaties and Protocols in the Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration), the said Treaties and Protocols are now part of the Nigerian corpus juris. He cited section 254(c),1,(f)(h), 2 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Order 14A Rule 1(1) and (2) of the National Industrial Court Rules, 2017 and Section 70 of the Evidence Act, 2011.

 

Counsel submitted that 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 on redundancy  (i.e. S20 of the Labour Act) and International Treaty (Article 14 of  EXHIBIT CO11).

 

Counsel contended that the “notification” in section 20(1)(a) of the Labour Act is mandatory and the Defendants are required to comply strictly. He cited the cases of NATIONAL JUDICIAL COUNCIL & ORS. vs. MR. JUSTICE C. P. N. SENLONG & ORS. (2010) LPELR –4582 (CA) and STEYER NIGERIA LTD. v. B.M. GADZAMA & ANOR. (1995) 7 N.W.L.R. Pt. 407 page 305 at pages 336-337, paragraphs G-D.

 

With regards to negotiation of redundancy payment, counsel contended that defendants admitted payment of two weeks basic salary as redundancy payment which shows that no negotiation of redundancy payment was convened by the Defendants after declaring the Claimant redundant.

Counsel contended that the two weeks basic salary paid to the Claimant is a violation of principles of calculation of Redundancy payment which takes into consideration length or service, age and health before declaring the claimant redundant. He cited the cases of LLOYD v. BRASSEY (1969) 2 Q.B. 98 at page 102 and WYNESS SOUTH REPPS HALL BROTHER FARM LTD. (1968) LTR 406.

 

Counsel posited that the acceptance of the redundancy payment based on two weeks and the one month salary in lieu does not amount to waiver as there was a protest. Counsel cited the case of NIGERIAN TELECOMMUNICATIONS LTD. v. CLIFFORD IKARO (1994) 1 N.W.L.R. (Pt. 320) page 350 at page 366 paragraph E.

 

Counsel added that due to the protest and controversy generated therefrom, the Defendants agreed to pay “COUNTRY SEVERANCE PACKAGE” (EXHIBIT CO10). He posited that the non-payment of the redundancy payment under the Voluntary Release Program Policy of the 1st and 2nd Defendants in the West Africa Geomarket and the introduction of Country Severance Policy amounts  to discrimination and a violations of ILO Convention C100 on Equal Remuneration.

 

In arguing issue two, counsel submitted that the Voluntary Release Program policy of the Defendants in the West Africa Geomarket is the only redundancy policy by the Defendants and by virtue of clause 5.8 of Exhibit CO2, both the Claimant and the Defendants are bound by the Baker Hughes Incorporated (BHI) payment policies.

 

Counsel added that the payment of salary is a right which subsists until the employment of the Claimant is lawfully terminated by the Defendant and that had the Defendants not taken the unlawful procedure in terminating the Claimant’s employment by declaring the Claimant redundant and thereby preventing the Claimant from discharging his duties, the Claimant would have earned salary. He cited the case of B. A. MOROHUNFOLA v. KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 N.W.L.R. (Pt. 145) at page 506 Ratio 7.

 

With regards to award of interest, counsel posited that the law is that post judgment interest is awarded at the discretion of the Court and does not require to be specially pleaded. He cited the case of MRS. ENO UMO v. MRS. CECILIA UDONWA (2012) LPELR-7857 (CA).

 

Counsel concluded by urging the court to hold that the Claimant is entitled to redundancy payment under the Voluntary Release Program Policy of the Defendants in the West Africa Geomarket and resolve issue 2 in the affirmative.

 

By way of reply on point of law filed on the 2nd day of December, 2020, counsel to the Defendants contended that there is no evidence before the Court to either show that Nigeria is a signatory to the Termination of Employment Convention, 1982 (No. 158) or that the said Convention was ratified by the National Assembly as part of our body of laws counsel cited the cases of ABACHA & ORS V. FAWEHINMI (2000) LPELR-14(SC); TOLANI V. KWARA STATE JUDICIAL SERVICE COMMISSION & ORS (2009) LPELR-8375(CA); NNAJI V. NFA & ANOR (2010) LPELR-4629(CA) and Section 12 (1) of the 1999 Constitution of Nigeria (As Amended).

 

Aside from the foregoing, the rest of the reply is a rehash of the argument is relation to the compliance with section 20 of the Labour Act and voluntary release program.

 

Counsel concluded by urging the Court to accordingly dismiss the suit with substantial cost against the Claimant.

 

In view of all the foregoing, I have carefully evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses and reply on point of law. 

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the issues for determination by this court are to wit:

Whether or not the determination of the employment of the Claimant by the Defendants is wrongful, unlawful and liable to be set aside. 

Whether or not in view of the evidence before this court, the Claimant is entitled to the reliefs sought.  

Before resolving the issues for the determination of this suit, it is expedient to address the status of the exhibits admitted under protest in the course of trial in this suit. 

With regards to Exhibit C2 – C12 which were tendered through CW1, counsel to the Defendants contended that the documents are photocopies and that no foundation was laid in tendering them. He cited sections 86 & 89 (C) of the Evidence Act to contend that the documents are inadmissible.

In addition to the foregoing, counsel to the Defendants also contended that exhibits C5, C6, C7 and C10 – C12 are computer generated documents which fail to comply with section 84 (4) of the Evidence Act.

Counsel to the Claimant on his part contended that relevance to the issues before the court is the basis of admissibility and that the documents were pleaded in the statement of fact. 

Consequently, I have taken a look at Exhibit C2 – C12 and find rightly so that the said documents were pleaded in the Claimant’s list of documents with each of the documents referred to in the statement of fact. 

While it is indeed trite that relevancy is what governs admissibility, see OYEBODE & ANOR v. GABRIEL & ORS (2011) LPELR-8693(CA), all the documents tendered and marked as Exhibit C2 – C12 are considered relevant having been connected to the fact in issue as it relates to the employment of the deceased with the Defendants. However, with regards to the fact that they are photocopies, I reckon that by the general provision of the Evidence Act, an original document is legally regarded as primary evidence while the photocopy tendered is the secondary. In that regard, section 85 of the Evidence Act provides to the effect that the contents of documents may be proved either by primary or by secondary evidence. While section 89 states the circumstance under which the secondary documents can be tendered, the Claimant in the instant case did not lay foundation to establish the circumstance which impels him to tender the photocopy. 

With regards to Exhibits C5, C6, C7 and C10 – C12, Claimant made no rebuttal as to the fact that they are computer generated and indeed, there was no certification as to how they are produced in compliance with section 84 (2) and (4) of the Evidence Act.  

Notwithstanding the foregoing, I find that the failure to lay foundation in tendering all the documents and the failure to certify Exhibits C5, C6, C7 and C10 – C12 is not fatal to admissibility in the instant case, particularly in view of the relevance of the said documents. It is also upon the foregoing consideration that I find it apposite to invoke the provision of section 12 (2) (b) of the National Industrial Court Act 2006 by virtue of which this court can depart from the Evidence Act in the interest of justice. 

Consequently, the said exhibits C2 – C12 are accordingly admitted in evidence. 

Having said that, I also find it apposite to consider the contention of counsel to the Defendant with regards to the statements on oath filed by the Claimant and marked as C1(a) and C1(b). In this regard, counsel to the Defendant contended that the Claimant made and signed two statements on oath which he adopted as his evidence in support of this suit while it is on record that the two statements allegedly made, signed and adopted by the Claimant bears two radically different signatures.

Counsel added that it is strange for a single individual to have two or three different signatures and urged the Court to discountenance the Claimant’s witness statements on oath dated 28th of October, 2016 and 7th of August, 2018 for being incompetent and defective having not been made by any identifiable person.

 

In reacting to the foregoing, counsel to the Claimant submitted that the argument of the Defendant should be discountenanced, as the identity of the Claimant is not in question.

 

In resolving the foregoing contention, I have taken into account the fact that the Claimant as CW1 identified the witness statements on oath before this court and posited that they were both sworn before this court before they were adopted. The signature of the Commissioner for oaths before whom it was sworn also lends credence to the presumption of regularity. Therefore, the variance in the signature signed at the time of making the statement on oath is immaterial and bears no capacity in rendering the said statements on oath incompetent. See OKPA v. IREK & ANOR (2012) LPELR-8033(CA).

 

Consequently, the contention of counsel to the Defendants in relation to the statements  on oath of the Claimant being incompetent is considered to be lacking in merit and accordingly discountenanced.   

 

Having said that, I now turn to address the issues formulated for the determination of this suit, which generally is to ascertain whether termination of the Claimant’s employment was wrongful so as to enable the claimant to the reliefs sought.

 

In more specific terms, issue one is formulated bearing in mind the claims of the Claimant including urging the court to declare the action of the Defendants in terminating the employment of the Claimant as unlawful, wrongful, a breach of contract of employment and a violation of the Labour Act. 

The highlight of facts relating to the foregoing is that the while the contract of employment issued to the Claimant does not make provision for redundancy, the Claimant was summarily dismissed via the issuance of a letter dated 06/2/15 and titled “Notification of Redundancy” and consequent upon which the Claimant was not paid in accordance with the Voluntary Release Program as obtainable in Defendant’s companies situate in other African Countries. 

In the light of the foregoing, I must start by stating clearly that the resolution of issue one is dependent firstly upon determining the nature of employment relationship that existed between the parties. In this regard, the court in FEDERAL MEDICAL CENTRE, IDO-EKITI & ORS v. MICHAEL (2012) LPELR-20406(CA) restated the three categories of employment thus: 

“In N.I.I.A. v. Ayanfalu (2007) 2 N.W.L.R. part 247 at 265 this court enumerated the three categories of employment as follows:

(a) A pure master/servant relationship under the common law.

(b) Employment where the office is held at pleasure.

(c) Employment protected by statute.

See also Olaniyan v. Unilag (1985) 2 N.W.L.R. part 9 at page 599 and Shitta-Bay v. F.P.S.C. (1981) 1 S.C. at page 40.'' Per FASANMI, J.C.A (Pp. 12-13, paras. E-A)

In the instant case, the Claimant averred that he was employed by the Defendants via a contract of employment which was tendered as Exhibit C3. The said employer of the Claimant is specifically the 2nd Defendant, a private limited liability company. 

The effect of the contract of employment executed by the Defendants and the Claimant makes it irrefutable that the nature of employment existent between both parties was one of master-servant relationship under the common law. 

I must also state that one hallmark of master-servant employment is the possibility of the employment relationship coming to an end at the instance of either party as the court in the case of 7UP BOTTLING COMPANY PLC V. AUGUSTUS  (2012) LPELR-20873(CA) held that:

"It is established in the instant case that the relationship between the Appellant and the Respondent was that of master and servant. Thus, 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. So long as he acts within the terms of the employment, his motive for doing so is irrelevant. In any event in case of breach, the employee's remedy lies in damages calculated on the basis, of what he would have earned for the period of notice agreed for ending the employment. If a contract of employment gives either party to the contract the right to bring the employment to an end with or without notice, the motive which impels either party to lawfully terminate the contract is irrelevant." Per ABBA AJI, J.C.A (Pp. 20-21, paras. D-A)

 

I must add that the rationale behind the foregoing is as stated by the court in OBAJE v. NIGERIA AIRSPACE MANAGEMENT AGENCY (2013) LPELR-19958(CA) where the court held that:

“A court cannot impose or foist an employee on an unwilling employer. See Union Bank Of Nigeria Ltd v Ogboh (1995) 2 NWLR (Pt. 380) 647 @ 664, Ziideeh v Rivers State Civil Service Commission (2007) 3 NWLR (Pt. 1022) 554; (2007) LPELR-3544(SC)." Per IYIZOBA, J.C.A. (P. 26, paras. C-E).

In addition to the foregoing, it must be stated that an employee who alleges wrongful termination of employment bears the burden of proof of such wrongful termination and the court has made certain what is required to be placed before the court as held in the case of U.T.C. NIGERIA LTD. v. PETERS (2009) LPELR-8426(CA) that:

"It is a fundamental and well settled principle, that the terms and conditions of employment is the bedrock on which any claim predicated thereupon ought to squarely rest. Thus, where an employee as in the instant case, complains of a wrongful termination of his employment, he has the onus- (i) To place before the trial court the terms of the contract of employment; (ii) To prove the manner in which the said terms were breached by the employer thereof. See GARUBA V. KIC LTD (2005) s aft e17) 160; JOMBO V. PEFM (2005).14 NWLR (part 945) 443; AKINFE V. UBA PLC (2007) 10 NWLR (Part 1041) 185 at 196 paragraph H; 199 -200 paragraph G-C." Per SAULAWA, J.C.A (P. 41, paras. A-D).

 

Having said that, I reckon that in the instant case, the contention of the Claimant is that his employment was wrongfully and unlawfully terminated upon being issued a summary dismissal titled ‘Notice of Redundancy’ dated the 06/2/2015.

While the Claimant tendered contract of employment before this court as Exhibit C3, the said letter of summary dismissal was tendered as Exhibit C8 and find that same is indeed titled ‘Notice of Redundancy” and the content of the said letter read thus:

06 FEBRUARY. 2015

KALAGBO MOSES

SAP #44321

 

Dear Moses

NOTIFICATION OF REDUNDANCY

Baker Hughes Company Limited (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. This redundancy is due to a downturn in business activities which significantly impacts the company. 

Your redundancy is effective Friday, February 6, 2015. You will be entitled to full termination benefit 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 benefits cheque from the HR Department in Port-Harcourt.

On behalf of the Management of Baker Hughes Company Limited, I would like to thank you for your previous years services to the Company and we wish you all the very best with your future endeavours.

Please kindly acknowledge receipt of this letter by signing and dating the endorsed duplicate copy.

For Baker Hughes Company Limited

Signed.

Upon a consideration of the foregoing, it is evidently clear that the employment of  the Claimant was determined on the basis of redundancy rather than being summarily dismissed. In this wise, section 20 (3) the Labour Act stipulates that: 

"redundancy means an involuntary and permanent loss of employment caused by an excess of manpower”.

The court in distinguishing redundancy from other forms of determination of employment stated in PEUGEOT AUTOMOBILE NIGERIA LTD. V. OJE & ORS. (1997) LPELR-6331(CA) that:

"Redundancy in service in my view, is a mode of removing off an employee from service when his post is declared "redundant" by his employer. It is not a voluntary or forced retirement. It is not a dismissal from service. It is not a voluntary or forced resignation. It is not a termination of appointment as is known in public service. It is a form unique only to its procedure where an employee is quietly and lawfully relieved of his post. Such type of removal from office does not, in my view, carry along with it any other benefit except those benefits enumerated by the terms of contract to be payable to an employee declared "redundant." Per MOHAMMED, J.C.A. (P. 15, paras. A-D).  

In the instant case, the contract of employment between the Claimant and the Defendant (Exhibit C3) does not contain stipulations or terms as it relates to declaring an employee redundant as was done in the case of PEUGEOT AUTOMOBILE NIGERIA LTD. V. OJE & ORS (supra). Hence, the provision of the Labour Act can be considered as the Claimant’s counsel contended that the provision of the Labour Act was not complied with. 

 

The provision of the labour Act with regards to redundancy is as captured in section 20(1) and (2) which states that:

 

(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 employer 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 cases, for the compulsory payment of redundancy allowances on the termination of a worker's employment because of his redundancy.

 

With regards to (a), the Claimant admitted during cross examination that he did not belong to any trade union at the time of his employment and for this reason, the counsel to the Defendant is right in contending that there was no trade union or workers’ representative to be informed of the impending redundancy.  

In addition, I reckon that the Claimant was informed through his supervisor as stated in the notice of redundancy issued to the Claimant before his employment was declared redundant. See paragraph 1, line 2 and 3 of Exhibit C8. 

 

With regards to section 20 (1)(b), notwithstanding the fact that the Claimant bears the burden of proving that the Defendant failed to comply with the principle of last in; first out, a burden which was not in any way discharged, I must state that the principle is subject to other factors of relative merit, including skill, ability and reliability, hence it is not a stricto senso rule as it is subjective rather than objective. 

 

With regards to section 20 (1) (c), I reckon that Claimant tendered Exhibit C10 which is purportedly an email by the Human Resources Department of the Defendants. Although the veracity of the document as an email is in doubt as the document does not reflect date and the email address which the message was sent from and that which it was sent to, nevertheless, the content of the document states to the effect that there was an interactive town hall meeting over what should be paid to employees  whose position has been declared redundant. The effect of the said Exhibit C10 is that the Claimant cannot turn around to say that there was no negotiation of what is to be paid as redundancy payment.

 

The foregoing in addition to the finding that the Claimant was duly notified via exhibit C8 that the reason for rendering his employment redundant is due to the downturn in business activities, and he is to be paid one month salary in lieu of notice and terminal benefit as stated in his employment agreement makes the determination of the Claimant’s employment to be proper and valid. 

For the sake of clarity, I must state that being a contract regulated by common law, the employer reserves the right to determine the employment relationship with the employee even on ground of redundancy not minding the fact that same was not contemplated or expressly stated in the contract of employment as long as the employer duly notifies the employee or make payment in lieu of the notice in addition to paying the employee whatever he is entitled to. 

 

In the instant case, I reckon that with regards to redundancy payment which section 20(1) (c) urges the employer to use his best endeavor to negotiate, the Claimant posited that he was paid two weeks basic salary as redundancy package and one month salary in lieu of notice instead of paying him under the Voluntary Release Program(VRP) that was launched and implemented in other countries. In this regard, while the Claimant did not specifically establish how the money paid to him was computed on two weeks’ pay as redundancy benefit, I am mindful of the admission of DW1 during cross examination to the effect that the severance payment was based on two weeks’ pay per year of service.

 

In relation to the foregoing, I reckon that exhibit C9 tendered by the Claimant perhaps in proof of what was paid to him does not reflect any payment of two weeks’ salary as redundancy benefit, although one of the itemized payments was termed “terminal benefit” put at 3016175.490 (sic) 

 

Putting the foregoing into perspective, I find that the Claimant’s contention is largely with regards to redundancy payment as contemplated to be paid by the Labour Act  and upon a consideration of the entire set of facts and evidence before this court, I must state in clear terms that what was paid to the Claimant upon declaring his employment redundant was what would normally be paid to an employee whose contract of employment was terminated rather than a negotiated sum which ought to be tagged as ‘redundancy payment’. For avoidance of doubt, clause 3.3. (d) (i) of exhibit C3 which is the Claimant contract of employment stipulates that:

 

“If this agreement is terminated by the Company, all accrued benefits (i.e. leave days) shall be calculated on a pro-rata basis and paid to the Employee in addition to the following end of service severance pay:

 

The Employee shall be entitled to 2 weeks pay (i.e. annual Base Salary*2/52) per year of total Company service calculated from the Employee’s Deemed Date of Employment.

Putting the foregoing clause into perspective and juxtaposed with exhibit C9 which is the slip of computed  earning paid to the Claimant, I find that the slip contains no such tagging as ‘redundancy payment’.  

 

In this regard, I must say that I am not oblivious of the argument of counsel to the Defendants to the effect that once the services of an employee is brought to an end through any means whether redundancy or otherwise, (apart from dismissal), the payment provided under clause 3.3 (d) shall be applicable and shall constitute the terminal benefits of the Claimant/Employee.  

 

The foregoing argument when evaluated against the description of the nature of redundancy by the court in the case of PEUGEOT AUTOMOBILE NIGERIA LTD. V. OJE & ORS. (1997) LPELR-6331(CA) and the provision of section 20(1) (c) of the Labour Act will fail. This is in view of the fact that the Court distinguished redundancy from other forms of termination while the Labour Act contemplates a separate payment of money to be regarded as ‘Redundancy payment’ which the Defendants did not provide for. 

I also reckon the argument of counsel to the Defendant to the effect that no special payment will be paid to an employee declared redundant apart from what is stated in his contract of employment. In this wise, counsel cited the case of ISHENO V. JULIUS BERGER (NIG.) PLC. [2003] 14 NWLR (PT.840) PG. 294. 

 

Upon a consideration of the said authority cited, I must state that the said authority contemplates a situation where the contract of employment has specified a certain payment for employees whose employment is declared redundant and same must be distinguished from the instant scenario where the contract of employment says nothing about payment for declaring an employee redundant. It must be borne in mind that it is in such situation that the Labour Act mandates the employer to use his best endeavor to negotiate redundancy payment. 

 

For avoidance of doubt, the court in the case of FRANK JOWAN & ORS. v. DELTA STEEL COMPANY LTD. (2010) LPELR-4377(CA) declined the application of the provisions of section 20 of the Labour Act in determining what the employees should have earned upon their employment being declared redundant simply because the condition of service had expressly made provision for redundancy payment. 

 

In addition, it must be reckoned that in the case of Peugeot Automobile Nigeria Ltd. v Oje & Ors (supra), the condition of service made separate provision for ‘redundancy payment’ and the claim in the said suit was for ‘ex-gratia payment’ and not a claim for redundancy payment which had been paid by the employers.

 

In the light of the foregoing, the evidence before this court, particularly exhibits C3 (the contract of employment), Exhibit C8 (the notice of redundancy) and Exhibit C9 (computed earning paid to Claimant) shows that there was no payment specifically made to the Claimant to be reckoned as ‘Redundancy Payment’ as contemplated by section 20 (1) (c) of the Labour Act. Consequently, the Defendants is found to have complied with the contract of employment in the termination of the Claimants employment but failed to comply with the Labour Act in terms of payment for the redundancy. 

 

That said, I must make it abundantly clear that the failure to negotiate and make a payment tagged as ‘redundancy payment’ does not render the redundancy of the Claimant ineffectual as contemplated and argued by counsel to the Claimant. This is because the negotiation and payment for redundancy was not made a condition precedent by the Labour Act. For avoidance of doubt, section 20 (1) (c) states thus:

 

“the employer 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” (emphasis mine).

 

The foregoing provision contemplates that the negotiation by the employer shall be with an already ‘discharged worker(s)’ who are not protected by regulation made by the Minister. In this regard, the court in AROMOLARAN v. AGORO (2014) LPELR - 24037 (SC) held thus:

"I must say that the duty of the Court is to interpret the words contained in the statute and not to go outside the clear words in searching of an interpretation which is convenient to the Court or to the parties in the process of interpretation. The Court will not embark on a voyage of discovery. Where a statute is clear and unambiguous, as this case, this Court will follow the literal rule of interpretation where the provision of the statute is clear and no more.” Per GALADIMA, JSC, p. 25, paras. B – F.

 

Consequent upon the foregoing, while it is the finding of this court that redundancy payment was not specifically made to the Claimant, I also find that the termination of the Claimant’s employment via a letter dated 06/2/2015 and titled ‘Notification of Redundancy’ is not unlawful nor wrongful as it is not in violation of the Claimant’s contract of employment and therefore not liable to be set aside. 

 

The effect of the foregoing finding is that issue one is resolved in favour of the Defendants and against the Claimant. 

 

That said, I turn to issue two which is in effect to address the reliefs sought by the Claimant and two of which are declaratory in nature. With regards to the declaratory reliefs, I must posit that the law is settled that a party claiming declaratory relief bears the burden of proving that he is entitled to same and the entitlement does not generally take into account the weakness of the case of the Defendant as the Claimant must succeed on the strength of his own case.  In this regard, the court in Ndu v. Unudike Properties Ltd (2008) 10 NWLR (Pt.1094) 24 at 29, Para G (SC) held that:

"A plaintiff who seeks a declaratory relief must adduce credible evidence to establish his entitlement to the declaration, and should not rely on the admissions in the pleadings of the defendant. Olisa v. Asojo (2002) 1 NWLR (Pt.747) 13." Per Mikailu JCA.

 

Having said that, the first declaratory relief sought by the Claimant is relief 1 which reads: “A declaration that the action of the defendants in terminating the claimant’s contract of employment with defendants by a summary dismissal letter dated 6/2/2015 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 the Labour Act, CAP L1, Laws of the Federation of Nigeria, 2004”.

 

The basis upon which the Claimant urged this Court to grant the said declaratory relief is  that he was issued a notification of redundancy and same is unlawful, wrongful and a breach of contract of employment. 

 

The contentions arising from the issuance of the notification of redundancy has been dealt with while addressing issue one to the effect that the contract of employment does not contain provisions relating to redundancy and the Defendants did not breach any provision of the contract of employment. 

 

In addition, this court found that the Defendants did not breach the provisions of the Labour Act save for the failure to pay a specific sum tagged as ‘redundancy payment’ and the said payment is not a condition precedent to issue the notice of redundancy. Consequently, the termination of the Claimants employment is not unlawful, wrongful, a breach of the contract of employment nor a breach of the provision of the Labour Act and upon the general resolution of issue one, it is the irresistible conclusion of this court that the Claimant is not entitled to the declaration sought in relief one and same is accordingly refused. 

 

Relief 2 is for “An order of court setting aside the summary dismissal letter dated 6/2/2015 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 the Labour Act, CAP L1, Laws of the Federation of Nigeria, 2004”.

 

The foregoing relief is without doubt dependent on relief 1 which has been refused particularly in the face of the finding that the letter of notice of redundancy is not a letter of summary dismissal and is neither illegal, nor a breach of the contract of employment or the Labour Act. 

Consequent upon the finding that the Claimant is not entitled to the declaratory relief sought in relief 1, relief 2 which seeks for the setting aside of the notice of redundancy is accordingly refused.   

 

Reliefs 3 and 5 are claims related to the sum for which the Claimant contends that he is entitled to upon being issued the notice of redundancy. The said reliefs are:

 

3. The sum of N44, 026, 408.14(Forty Four Million, Twenty Six Thousand, Four Hundred and Eight Naira, Fourteen Kobo) only being the total amount due to the claimant from the defendants Voluntary Release Program and the Redundancy Package applicable in the defendants’ West Africa Geomarket.

 

5. The sum of USD $2600 (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.

 

The facts in relation to the foregoing reliefs as posited by the Claimant is that the Defendant failed to implement and pay him Redundancy Package applicable in the Geomarket and entitlements in the Voluntary Release Program (VRP). Claimant added that under the said VRP, he would have been paid N41,159,673.73 (65% of annual gross for 16 years and 4 months completed); N2,866,734.41 by the 9 months gross salary under the Voluntary Release Program Package and the sum of $2,600.00 being the one year medical contribution cost at hand.

   

In attempt to prove the claim, Claimant tendered several exhibits which includes Exhibit C3 which is the contract of employment dated the 1st June, 2007 and executed between the Defendant and the Claimant; Exhibit C4 which is the employment verification of the Claimant dated the 12th of February, 2015; Exhibit C5 is West Africa Geomarket Leadership Announcement dated 30th November, 2015; Exhibit C6 is the Defendants’ Geomarket Revenue and profit Margin in 2015 while  Exhibit C7 is the VRP Mandate agreement and Exhibit C8 is the Notice of Redundancy issued to  the Claimant dated the 6th of February, 2015. 

 

In reaction to the contention that the Claimant ought to have been paid under the Voluntary Release Program package, the Defendant contended that the Voluntary Release Program was a discretionary program which was then proposed by the 2nd Defendant’s affiliates in Gabon, Congo and Cameroon wherein an ex gratia payment was to be made to their employees who voluntarily agree to be released from employment as a result of the dwindling revenue of the Companies caused by low prices of crude oil in the global oil and gas industry hence the need to cut operational cost and recurrent expenditure. The program was a mere plan in those Countries and was never implemented nor was it ever introduced in Nigeria at all.

 

It is in view of the foregoing that I have evaluated the evidence placed before this Court by the Claimant. In this regard, I find foremost that while the 2nd Defendant is a subsidiary Company, other subsidiaries of the parent company are set up as a Geomarket as established by Exhibits C2, C5 and C6. That notwithstanding, Exhibit C3 which is the contract of employment of the Claimant does not contain any term relating to Voluntary Release program and none of the documents tendered by the Claimant establishes the fact that the Defendants is obligated to implement a Voluntary Release Program under which the Defendants are to pay the Claimant the computed sums as claimed.

 

In addition to the foregoing finding, a proper evaluation of the evidence shows that Exhibit C7 is applicable to employees in Congo and not Nigeria, a fact which the Claimant admits. The said Exhibit C7 was addressed to ‘BHI All Congo’ and while it remains doubtful whether the said program was carried out or not, the Voluntary Release Program mentioned in exhibit C8 was planned to be launched on 14th December, 2015 and was to run from 14th – 22nd December, 2015 while the Claimant was since declared redundant with effect from the 06th of February, 2015. 

 

Having said that, I must posit that I am not oblivious of the argument of counsel to the Claimant in contending that the Claimant and Defendants are bound by the Defendant’s payment policy as contemplated by Exhibit C2 and that by Article 1 of ILO Convention C100, the established redundancy policy of the Defendants is the Voluntary Released Program policy as pleaded in paragraph 19 and Exhibit CO7(sic).

 

With regards to being bound by Policy, I must state that the evidence before the court does not establish that the Voluntary Release Program was a policy of the Defendant within the content of Exhibit C3 and cannot be so imposed going by the simple fact that it was introduced in Congo or any other country. There is nothing on the face of Exhibit C7 to portray same as a redundancy payment contemplated by both parties. 

Parties are bound by the clear terms of their agreement and the court is in no position to create terms for the parties other than to interpret and give effect to what has been expressly agreed. In the case of OLANREWAJU COMMERCIAL SERVICES LTD v. SOGAOLU & ANOR (2014) LPELR-24086(CA) the court held that:

 

"It is settled law that parties are bound by the terms of contract contained in an agreement without subtraction or addition. The court has no power to rewrite the contract See Afrotec v. Mia and Sons Ltd (2000) 12 SC pt II pg. 1 at 15, Ibama vs. SPDCN Ltd (2006) 7 WRN pg. 160." Per NDUKWE-ANYANWU,J.C.A. (P.15,paras.A-C).

 

With regards to the reliance on Article 1 of ILO Convention C100, without much ado about the argument relating to ratification or domestication of the convention, I must state that as contended by  counsel to the Defendants, the convention can in no way be used to compel the Defendants to pay to the Claimant the monies paid to employees in Congo or other countries without proof that the said Voluntary Release Program was implemented in those countries, or that the monies under the program was paid. That is without minding the fact that the convention was intended to bring about equal pay for men and women without discrimination rather than to enforce universal program for a conglomerate of companies.  In the case of CORPORATE AFFAIRS COMMISSION v UNITED BANK FOR AFRICA PLC & ORS (2016) LPELR-40571(CA) the court held that:

"It has been said, as a matter of fact and law that the primary duty of a judge is to expound and not to expand the law. In any case, the fundamental duty of the Court is to bring to the fore, the intention of the legislature as expressed in a statute and nothing more”.

 

Consequent upon the foregoing, there is no concrete basis upon which the sums claimed in reliefs 3 and 5 can be granted as they have not been sufficiently proved to be an obligation on the Defendants for same to be paid in the event of declaring the employment of the Claimant  redundant and the said reliefs are accordingly refused. 

 

Reliefs 4 and 6 being pre-judgment interest sums put at Twenty – Five percent (25%) per annum are predicated specifically on the sums claimed in reliefs 3 and 5 which have been refused for the considered reasons. Apart from the fact that the Claimant has not placed any proof before the court to establish that there exist an agreement as to accruable interest on the claimed sums, upon the refusal of the said reliefs 3 and 5, it is consequential that the reliefs 4 and 6 as pre-judgment interests will fail and they are accordingly refused.   

 

Relief 8 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 foregoing relief was sought based on the averment of the Claimant that 1st and 2nd defendants have concluded plans with General Electric Company, U.S.A. to take over the defendants and contends that the merger is to preclude the Claimant from being paid his redundancy allowance and Voluntary Release Package. 

Although the Claimant did not tender any exhibit in proof of the merger, the Defendants denied the divestment of the 2nd Defendant’s concerns to General Electric. The Defendants added that assuming the facts about divestment is true, same will not affect any claim which the Claimant can prove against the 2nd Defendant as General Electric would have acquired both the asset and liabilities of the 2nd Defendant.

 

In view of the foregoing, I must foremost state that "It is well settled that an injunction is not a remedy for a completed act." Per KEKERE-EKUN, J.C.A (P. 42, paras. E-F) see FRIDAY & ORS V. THE GOVERNOR OF ONDO STATE & ANOR (2012) LPELR-7886(CA). This indicates that there must first be an order setting aside the merger, before the order of perpetual injunction can be made. Although the possibility of making such order is inhibited by the fact that the two companies alleged to have merged are not Nigerian Companies; the 2nd Defendant which is the Nigerian Company is a subsidiary with a distinct entity and there is no evidence that it is involved in any form of merger whatsoever. 

 

Having said that, it is clear to all and sundry that the Claimant has failed to establish the fact that he is entitled to a Voluntary Release Package which the Defendants are obligated to pay to him, just as there is total failure of proof of any merger which would affect the Claimant’s interest. Consequently, there is no basis upon which the perpetual injunction sought can be granted and same is accordingly refused.

 

That said, while the Claimant is refused the claim for the payment of the sums claimed under a Voluntary Release Program for dearth of evidence upon which same could be awarded, I must state that this court earlier found that the monies paid to the Claimant bears no tagging of ‘redundancy payment’ as contemplated by section 20 (1) (c) of Labour Act and same is generally a terminal benefit under the contract of employment. 

 

Consequently, upon the finding that the provision of Labour Act is to guide the declaration of the Claimant’s employment as redundant, the Defendant remain obligated to pay to the Claimant an identifiable sum as redundancy payment and in the absence of same being captured in the contract of employment, this court is guided by the provision of section 19 (d) of the National Industrial Court Act, 2006 to make an award of the said redundancy payment by way of damages. For avoidance of doubt, the said section 19 provides thus:

19.The Court may in all other cases and where necessary make any appropriate order, including-

(d) an award of compensation or damages in any circumstance contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear; (emphasis mine).

 

For the sake of clarity, the award of redundancy payment by way of damages is in contemplation of section 20 (1) (c) of the Labour Act, Cap L1, LFN 2004 which statutorily obligates the Defendant to use its best endeavor to negotiate and make redundancy payment to the Claimant upon being discharged from his employment on ground of redundancy. 

  

Consequent upon the foregoing, this court accordingly make an order directing the Defendants to compute a two week salary per year of service and pay same to the Claimant as Redundancy payment. 

 

Relief 7 is for the sum of N1,000,000.00 (One Million Naira) being cost of this suit. In this regard, the claim for cost is at the discretion of the court though to be exercised judicially and judiciously. The court in NNPC v. CLIFCO NIG. LTD. (2011) LPELR-2022(SC) posited with relation to award of cost that:

 

"The award of cost is entirely at the discretion of the court, costs follow the event in Litigation. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement. In making an award of costs the court must act judiciously and judicially. That is to say with correct and convincing reasons. See Anyaegbunam v. Osaka (1993) 5 NWLR pt.294 p.449 and Obayagbona v. Obazee 1972 5 SC p.247" Per. RHODES-VIVOUR, J.S.C (P. 26, paras. E-G).

 

In the light of the foregoing, I find that the Claimant is successful in the extent to which this court has found and held that the Defendants failed to make a specific payment tagged as ‘redundancy payment’ in accordance with the Labour Act while it is evidently clear that the Claimant is unsuccessful in regards to the declarations and pecuniary claims as presented before the court. 

It is in this wise that this Court finds it apposite to hold that parties bear their respective cost of litigation, the consequence of which is that relief 7 which is for cost fails and is accordingly refused.  

 

Having considered all the reliefs, it is without a doubt that issue two is partly resolved for and largely against the Claimant. The case of the Claimant is accordingly found to be meritorious in the extent to which this court has awarded the redundancy payment in accordance with the Labour Act.  

 

In the final analysis, apart from the award made by this court, the rest of the claims as presented by the Claimant are considered to be lacking in merit and they are consequently dismissed.

 

Judgment is accordingly entered.

 

I make no order as to cost. 

 

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.