IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA
Date: 20th October 2022 SUIT NO. NICN/LA/608/2019
BETWEEN
JENNIFER OZINUM NWOVIKE … CLAIMANT
AND
1. SMASHINVEST INTEGRATED SERVICES LIMITED] … DEFENDANTS
2. MR. PAUL SMITH EIGBEFOH ]
JUDGMENT
1. By her originating processes dated and filed on 12th December 2019, the Claimant claims against the Defendants for:
a. A declaration that the Claimant’s employment with the Defendants was terminated under circumstances amounting to harassment, intimidation and wrongful termination of employment.
b. A declaration that the termination of the Claimant’s employment without notice and/or payment in lieu of notice amounts to flagrant disregard of the laid down procedures under the Labour Act, Cap L1, Laws of the Federation of Nigeria, 2004 and thereby makes the Defendant[s] liable in damages to the Claimant for wrongful termination of employment.
c. A declaration that the Defendants’ refusal to pay the Claimant her October 2019 salary is wrongful, oppressive, unfair and contrary to the provisions of the Nigerian labour laws.
d. A declaration that the query letter issued to the Claimant with penal sanctions culminating in the termination of the Claimant’s employment for associating with a former employee of the 1st Defendant is an infringement on the Claimant’s fundamental human rights to freedom from discrimination and freedom of association.
e. An order directing the Defendants to pay the Claimant her October salary and another one-month salary as payment in lieu of notice and the costs of logistics, flight tickets back and forth from Port Harcourt to Lagos, feeding, out of pocket expenses and accommodation in Lagos while the employment lasted, to wit: the sum of five hundred and seventy thousand naira [N570,000:00] being amount due and accruable to the Claimant.
f. An order directing the Defendants to pay to the Claimant special damages of the sum of eight hundred thousand naira only [N800,000.00] being the cost of litigation of this suit and legal representation.
g. An order directing the Defendants to pay to the Claimant, general and punitive damages in the sum of ten million naira [N10,000,000.00] for the psychological trauma, humiliation and deprivation of and loss of earnings which the Claimant suffered as a consequence of the Claimant abandoning her stable life and business in Port Harcourt to take up employment with the Defendants in Lagos.
h. Interest at the rate of 25% on the above claimed sums from the date of filing this suit until judgment is entered and interest at the rate of 10% from the date of judgment until the final liquidation of the judgment sum.
2. The Defendants were served with the originating processes on 18th December 2019, but they did not enter appearance or file a defence. On 19th February 2020, C. S. Okoye Esq., appeared for the Defendants and consented to the case being set down for trial for 18th March 2020. On 18th March 2020, the Claimant and counsel were present but the Defendants and counsel were absent and there was no explanation for their absence. Consequently, the Claimant was granted leave to prove her claim pursuant to Order 38 Rule 2[1], National Industrial Court of Nigeria [Civil Procedure] Rules, 2017. She adopted her statement on oath dated 12th December 2019 and tendered 14 exhibits. On application by learned counsel for the Claimant, the Defendants were foreclosed from cross-examining the Claimant and, since they had not filed a defence, the case was adjourned to 12th May 2020 for adoption of final addresses, and subsequently to 30th November 2020. When the case came up on 30th November 2020, C. S. Okoye Esq., learned counsel for the Defendants, asked for an adjournment to regularise the Defendants’ joint statement of defence, which application was granted and the case adjourned to 18th December 2020. On 18th December 2020, learned counsel for the Defendants asked for a further adjournment due to the absence of the Defendants, and the case was adjourned to 8th March 2021 for pending applications, continuation of trial or adoption of final addresses. On 8th March 2021, the Defendants’ counsel argued his three applications, two of which were granted as prayed, and the third application was granted in part. Thereafter, the case was adjourned to 21st April 2021 for hearing of Claimant’s application and continuation of trial, but the Court did not sit due to the JUSUN strike. After some adjournments, the case was fixed for 2nd March 2022 for continuation of trial. On 2nd March 2022, the Claimant adopted her additional statement on oath dated 19th January 2021 and the case was adjourned to 29th March 2022 for defence. The Defendants and counsel were absent on 29th March 2022 and, on application by learned counsel for the Claimant, were foreclosed from defending the suit. Thereafter, the case was adjourned to 15th May 2022 for adoption of final written addresses and subsequently to 28th September 2022. The Defendants and counsel were absent on 28th September 2022 and did not file any written address. Learned counsel for the Claimant proceeded to adopt the Claimant’s final written address dated and filed on 14th April 2022 and the matter was set down for judgment.
3. The Claimant is a legal practitioner, resident and practicing in Port Harcourt, Rivers State. On 24th September 2019 she received communications from the 2nd Defendant, who is the Managing Director and alter ego of the 1st Defendant, offering her a job opportunity in Port Harcourt which she accepted. In a subsequent telephone conversation, he directed her to resume in Lagos on 30th September 2019 as his personal assistant on a monthly salary of N120,000.00. She requested to be allowed to remain in Port Harcourt pending commencement of 1st Defendant’s business there, but the 2nd Defendant insisted she resumed in Lagos. She arrived Lagos on 29th September 2019 and resumed on 30th September 2019 and was issued a staff identity card, added to the staff WhatsApp group and staff management WhatsApp group; and her duties included being the eyes and the ears of the 1st Defendant. She was subsequently asked to act as legal officer of the 1st Defendant and assume the position of human resources officer while still functioning as personal assistant to the 2nd Defendant. According to her, she discharged the duties and was made to work on weekends and public holiday. On 18th October 2019, the appointment of one Mr Fortune Okugbe was terminated by the 2nd Defendant and, on her way home, in company of another staff, Miss Islamiyat Akindele, they met Mr Fortune Okugbe at Oando filling station close to the office who wanted to explain his situation to them, but they cut him short for fear of losing their jobs for associating with him and advised him to apologize to the 2nd Defendant. Almost immediately, she got a message from the 2nd Defendant asking for her whereabouts, and she informed him that she was still on her way home. On 19th October 2019, she got a WhatsApp message from the General Manager informing her to assemble with other staff at the office on Sunday, 20th October 2019 for an Acapella show at Eko Hotels, where they worked till the early hours of Monday, 21st October 2019. On getting to the office on Monday, she received a query alongside Islamiyat Akindele from the 2nd Defendant giving them about 30 minutes to respond. She answered the query, and a disciplinary panel was immediately constituted. After the hearing, she was asked to submit her staff identity card and leave the premises immediately without pay while her colleague was allowed to retain her job. She was also removed from the 1st Defendant’s WhatsApp platforms. She asserts that the 2nd Defendant’s attitude towards her changed after she rejected his offer to stay at his residence. She caused her lawyers to write to the 1st Defendant through the 2nd Defendant seeking compensation for wrongful termination of her employment. The 1st Defendant replied through its Solicitors denying liability. She states that the circumstances surrounding the termination of her employment amount to sexual harassment, gender-based discrimination and a gross infringement of her fundamental right of freedom of association. Hence this suit.
4. Learned counsel for the Claimant raised two issues for determination in the final written address dated and filed on 14th April 2022, to wit:
a. Whether with regards to the facts, circumstances and evidence led in this case, there is employer and employee relationship between the Claimant and the Defendants?
b. Whether with regards to the facts, circumstances and evidence led in this case, the Claimant is entitled to the reliefs sought?
Addressing the first issue, counsel sequenced the evidence of the Claimant and, adverting to Exhibits 1, 3, 4, 5, 6, 8, 11, 13 and 15, submits that from the totality of the evidence there existed an employment relationship between the Claimant and the Defendants. Relying on the case of Asafa Foods Factory Ltd v. Alraine Nigeria Ltd. & Anor [2002] LPELR-570[SC] 28-29, he submits that where evidence given by a party to any proceeding is not challenged by the opposite party who had the opportunity to do so, it is always open to the Court seised of the proceedings to act on the unchallenged evidence before it. Reference was also made to the case of Danladi v. Taraba State House of Assembly [2014] 11 SC 1 at 74. He argued that the general denial of existence of employment relationship between the Claimant and the Defendants in Exhibit 10 is not sufficient. Counsel submits that a contract of employment may be oral or in writing and may be inferred from the conduct of the parties. Reliance was placed on the cases of Iyere v. Bendel Feed and Flour Mills Ltd [2008] LPELR-1578[SC] and Mobil Producing Nigeria Unlimited & Anor v. Udo Tom Udo [2008] LPELR-8440[CA]. He states that the Court can infer from the Defendants’ conduct and express communications with the Claimant, that a contract of employment existed between September and October 2019. He urged the Court to hold that the Defendants are estopped from asserting the contrary.
5. On issue two, learned counsel explained that the Claimant has a valid cause of action for infringement of her fundamental human rights by the 2nd Defendant who sought to penalize her with termination of employment for associating with a former employee, and submits the law is trite that where there is a wrong, there must be a remedy on the authority of Ogbolosingha & Anor v. Bayelsa State Independent Electoral Commission & Ors [2015] LPELR- 24353[SC] 43. He contends that the Claimant also has a valid cause of action against the Defendants having acted on the 2nd Defendant’s representations by relocating from Port Harcourt to Lagos and incurring sundry financial liabilities. Relying on Shena Security Co. Ltd v. Afropak Nig Ltd & Ors [2008] LPELR-3052[SC], learned counsel submits that the damages recoverable in a case of wrongful termination of employment are losses which are reasonably foreseeable by the parties at the time of the contract as inevitably arising if one breaks faith with the other. Reliance was also placed on the cases of Cameroon Airlines v. Mike E. Ototuizu [2011] LPELR-8279[SC] and Mobil Producing Nigeria Unlimited & Anor v. Udo Tom Udo [supra] 45. Flowing from the above, counsel contends that the Claimant is entitled to be indemnified for the loss of earnings and expenses incurred as a result of the offers made to her by the Defendants which she acted upon by abandoning her private legal practice in Port Harcourt. The Court was urged to grant the reliefs sought.
6. I have carefully considered the processes in this suit, including the exhibits and Claimant’s final written address and, in my respectful view, the issue for determination is whether the Claimant has proved her case to entitle her to judgment on her claims or any of them?
The law is settled that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. See Section 131[1] of the Evidence Act, 2011 and the case of Ibezim v. Elebeke & Ors. [2022] 4 NWLR [Pt. 1819] 1 at 41. To determine the party on whom the burden of proof lies, Section 131[2] of the Evidence Act, 2011 provides that when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. Section 132 of the Evidence Act, 2011 adds that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Invariably, the Claimant who initiated this suit on a set of facts which she claims entitles her to judicial relief has the burden of establishing those facts and proving that those facts entitle her to the reliefs she seeks. See Sections 133[1] and 136[1] of the Evidence Act, 2011. Failure to discharge this burden will result in dismissal of the case. See Charles Okwudili Umera v. Nigerian Railway Corporation [2022] 10 NWLR [Pt. 1838] 349 at 387.
7. Where the Claimant seeks declaratory reliefs, she must prove her entitlement to the declarations. Evidence which will support a legal right must be overwhelming, total, convincing and credible. The Claimant will succeed on the strength of her case and not on the weakness or absence of the defence. See Ilori & Ors. v. Ishola & Anor. [2018] 15 NWLR [Pt. 1641] 77 at 94 and Ibrahim v. Garki & Anor. [2017] 9 NWLR [Pt. 1571] 377 at 390. Nonetheless, the standard of proof remains the same, that is, proof on a balance of probabilities. See Section 134 of the Evidence Act, 2011.
8. It is equally trite law that in resolution of employment disputes, the Court will usually refer to the contract of employment, and any other stipulation incorporated or deemed to have been incorporated into the contract. The contract of employment is the bedrock on which an employee founds her case, and its success or failure depends entirely on the terms agreed or deemed to have been agreed by the parties. See Charles Okwudili Umera v. Nigerian Railway Corporation [supra] at page 386, Frank Jowan & Ors v. Delta Steel Company Ltd [2013] 1 ACELR 18 at 24 and Gbedu & Ors. v. Itie & Ors. [2020] 3 NWLR [Pt. 1710] 104 at 126. A claim for salary is in the nature of special damages which must be specifically pleaded and proved. See Adekunle v. United Bank for Africa Plc [2019] 17 ACELR 87 at 115 and Nigerian National Petroleum Corporation v. Clifco Nigeria Limited [2011] LPELR-2022[SC] 30.
9. While it is true that the failure of the Defendants to adduce evidence in proof of their statement of defence makes the Claimant’s evidence unchallenged and liable to be accepted and acted upon by the Court; that does not entitle the Claimant to automatic judgment. See the case of Elewa & Ors. v. Guffanti Nigeria Plc [2017] 2 NWLR [Pt. 1549] 233 at 248. The evidence presented by the Claimant must justify the grant of the claims. Where it is incapable of sustaining the claims, the Claimant has not discharged the burden of proof and the claim is bound to fail notwithstanding the absence of defence. See Erinfolami v. Oso [2011] LPELR-15357[CA] 18.
10. The Claimant seeks 8 reliefs which have been reproduced earlier in this judgment. She testified in proof of her claims and tendered 15 exhibits, marked Exhibits 1 to 15. These are Facebook messenger messages, WhatsApp chats with the GM on 18th and 19th October 2019, text messages of 14th October 2019, 1st Defendant’s WhatsApp Groups messages, WhatsApp chats between Claimant and 2nd Defendant, WhatsApp chats between Claimant and 2nd Defendant on 30/9/2019 and 7/10/2019, WhatsApp chats between Claimant and 2nd Defendant on 10/10/2019 and 11/10/2019, query dated 21/10/2019, Claimant’s Solicitors’ letter to 2nd Defendant dated 4/11/2019, 1st Defendant’s Solicitors’ reply dated 5/11/2019, audio recording transcript of the disciplinary hearing of 21/10/2019, photographs, rent receipts, bill of cost and SMS printout and certificate of compliance.
11. A summary of her evidence is that she was resident in Port Harcourt, Rivers State where she had her legal practice prior to employment by the 2nd Defendant, who is the Managing Director and alter ego of the 1st Defendant. On 24th September 2019, she received communications from the 2nd Defendant offering her a job opportunity in Port Harcourt which she accepted. The 2nd Defendant, in a subsequent telephone conversation, directed her to resume in Lagos on 30th September 2019 as his Personal Assistant on a monthly salary of N120,000.00. She requested to be allowed to remain in Port Harcourt pending commencement of business there, but the 2nd Defendant insisted she resumed in Lagos. Before 30th September 2019, the 2nd Defendant communicated with her via phone calls, WhatsApp chats and calls including late night calls. She informed the 2nd Defendant via WhatsApp of the difficulty in securing accommodation in Lagos and he offered to pay for a service apartment where he lives on condition that she proves herself, which she rejected. She arrived Lagos by Arik Air on 29th September 2019 at a cost of N35,000.00 and resumed on 30th September 2019 at the office of the 1st Defendant and was issued staff identity card, added to the staff and management team WhatsApp groups; and her duties included being the eyes and the ears of the 1st Defendant. She states that prior to her resumption, there was a major downsizing of staff by the 2nd Defendant. As a result, she was asked to fill the position of the legal officer while still functioning as personal assistant to the 2nd Defendant. At the same time, she assumed the role of human resources officer. Days after her resumption, the Head of Operations resigned. The 2nd Defendant called a staff meeting and directed that nobody should relate with her if they want to retain their jobs. In addition, the 2nd Defendant used threat of sack to compel everyone to come to work on 1st October 2019. On 11th October 2019, the 2nd Defendant asked her to prepare a document which should be ready before close of work and she did skipping her lunch and submitted the document to the 2nd Defendant at 6pm, packed his office belongings and left, but while still on her way home, the 2nd Defendant called and berated her for forgetting his tablet at the office. He subsequently called a management meeting to inform the staff of a comedy show called Acapella showing on 20th October 2019 at Eko Hotels which the 1st Defendant was co-sponsoring and directed the staff to prepare to work extra hours at the event. A memo was sent to staff to be at work on Saturday, 12th October 2019, at 10am for a meeting and it rained heavily on that day, but despite the flood she managed to get to the office about 11am. On arrival, she was greeted with all sorts of verbal assault by the 2nd Defendant who ordered that she should be queried and placed on 3 days’ suspension without pay. Later that day, she sent a message to him apologizing for her lateness, but he sent an email validating the suspension. On Monday, 14th October 2019, while still on suspension, she received a message from the General Manager directing her to resume work on 15th October 2019 on a working suspension and she complied. Earlier, on 10th October 2019, about 7.29am, the 2nd Defendant informed her via WhatsApp that he would have a meeting with five management staff at 9am and asked her to inform the others. At the meeting, he told the staff that they would thenceforth be the decision-making team of the 1st Defendant and would function independently of the other management staff. On 18th October 2019, he summoned an emergency meeting of the management team and invited one Mr Fortune Okugbe who was accused of maintaining communication with the disengaged operations manager. He threw him out of the premises and said the same treatment awaited Miss Islamiyat Akindele. On the same day, he told her that he trusts her a lot and needs her ears on the ground. She also informed him of her accommodation challenges. He told her to get somewhere else and he would refund the amount spent since she did not want to stay with him. As a result, she secured a room self-contained apartment. On her way home on 18th October 2019 in company of Miss Islamiyat Akindele they met Mr Fortune Okugbe at Oando filling station close to the office who wanted to explain his situation to them, but they cut him short for fear of losing their jobs and told him to apologize to the 2nd Defendant. Almost immediately, she got a message from the 2nd Defendant on WhatsApp inquiring about her whereabouts, and she informed him that she was still on her way home. On 19th October 2019, she got a WhatsApp message from the General Manager directing her to assemble with other staff at the office on Sunday, 20th October 2019 for the Acapella show at Eko Hotels. She arrived Eko Hotels about 4pm and all the staff dressed for the event with a mandate to bring investors to the 1st Defendant to recoup the money spent on the show. They worked nonstop from when they arrived until 1.30am on Monday, 21st October 2019. The 2nd Defendant called her after the show into his car while arrangement was made for other staff to be conveyed to a hotel near the 1st Defendant’s office to enable them resume early. On getting to the office that day, she received a query alongside Islamiyat Akindele from the 2nd Defendant giving them about 30 minutes to respond. She answered the query, and immediately the 2nd Defendant constituted a disciplinary panel where she was asked to read out her response to the query which she did, and thereafter she was asked some questions. At the end of the hearing, Islamiyat Akindele retained her job while she was asked to submit her staff identity card and leave the premises immediately. She was not paid her October salary and was not given any notice of dismissal or payment in lieu of notice. She was also immediately removed from the 1st Defendant’s WhatsApp platforms. According to her, the 2nd Defendant’s attitude towards her changed when she rejected his offer to stay at his residence. After her disengagement, she briefed her lawyers who wrote to the Defendants demanding compensation for wrongful termination of employment. The Defendants replied through their Solicitors on 5th November 2019. She asserts that the circumstances under which her employment was terminated amount to sexual harassment, gender-based discrimination and a gross infringement of her fundamental human rights of freedom from discrimination and freedom of association. She received a bill of N800,000.00 from her Solicitors as cost of litigation and has suffered psychological trauma and humiliation due to the Defendants’ failure to pay her as and when due.
12. In her additional statement on oath, she reiterated her earlier evidence and insists that she was not employed as a trainee and the 2nd Defendant assured her that he would open a branch of the 1st Defendant in Port Harcourt to be headed by her. According to her, the 2nd Defendant is the MD/CEO and alter ego of the 1st Defendant and he often boasted that no one could question his authority and he has unrestricted powers to hire and fire at will without any legal consequence. She explained that part of her responsibility as the human resources officer was to redesign the HR structure of the 1st Defendant and she was yet to conclude it before her disengagement. She states that the Defendants did not at any time inform her that she was on one month training without pay and it is not true that she was on standby pending creation of a vacancy by another employee who was to proceed on study leave. She insists that she was issued a staff identity card and asked to surrender it upon disengagement; and she was made to assume the position of Executive Personal Assistant to the 2nd Defendant, legal adviser, human resources officer and attended staff management meetings; and the 2nd Defendant communicated regularly with her via phone calls, WhatsApp, Facebook Messenger and SMS even at odd hours before and during the course of her employment and she was made to work on weekends and public holidays. She said the 2nd Defendant sent an apology via SMS on 19th November 2020 on behalf of the 1st Defendant without any efforts to pay her claims. She states that she rented a mini-flat at the rate of N250,000.00 per annum on the directive of the 2nd Defendant. She states that she was granted access to the 1st Defendant’s WhatsApp platforms, issued a query and made to face a disciplinary panel as proof that she was in the employment of the Defendants and the disciplinary panel did not establish any of the allegations against her, and she was not dismissed for gross disobedience of lawful authority. She was not cross examined.
13. The critical question which this Court is called upon to answer is whether there was an employment relationship between the Claimant and the Defendants? This question is accentuated by the 1st Defendant’s Solicitors’ letter, Exhibit 10, wherein it disclaimed any employment relationship with the Claimant. Generally speaking, a contract of employment does not follow any specific pattern. It can be oral, written, partly oral and partly written. It may also be inferred from the conduct of the parties. See Nigerian Employment and Labour Relations Law and Practice by Chioma Kanu Agomo, pages 70-71 and the cases of Iyere v. Bendel Feed and Flour Mill Ltd [2008] 7-12 SC 151 at 163 and Shena Security Co. Ltd v. Afropak [Nig.] Ltd & Ors [2008] 4-5 SC [Pt. II] 117 at 128. The Labour Act, CAP L1, Laws of the Federation of Nigeria, in Section 91, defines a contract of employment as any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other persons agrees to serve the employer as a worker. The section also defines an employer as any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of that first-mentioned person and the personal representatives of a deceased employer. The statutory definition of employer is extensive, but central to both definitions is the word ”agreement”. The basic elements of contract offer, acceptance, consideration and capacity to contract must be present. Where the contract of employment is unwritten, as in this case, the intention of the parties can be ascertained by reference to the oral evidence of the parties and surrounding circumstances. See Mobil Producing [Nig.] Unlimited & Anor v. Udo Tom Udo [2008] 36 WRN 53 at 93.
14. What is the evidence in support of employment relationship? This is contained in paragraphs 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 19, 20, 26, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 47, 53, 54, 55, 56, 58, 59, 60 and 61 of the Claimant’s statement on oath dated 12th December 2019 and Exhibits 1, 2, 3, 4, 6, 7, 8, 11 and 15. The Claimant’s evidence has been summarised elsewhere in this judgment. Suffice to say that it is clear from Claimant’s evidence that the 2nd Defendant offered her employment on a monthly salary of N120,000 which she accepted. The 2nd Defendant also directed her to resume in Lagos on 30th September 2019 and she complied. On assumption of duty on 30th September 2019, she was shown her office, given a staff identity card and added to 1st Defendant’s staff and management team WhatsApp platforms. She acted as personal assistant to the 2nd Defendant, legal officer and human resources officer. She participated in many management meetings and discharged all assigned duties. She was queried and made to face a disciplinary panel before her employment was terminated. These facts evince an employment relationship between the Claimant and the Defendants. There is no doubt that the basic elements of contract, offer, acceptance and consideration, are present. Consideration in a contract of employment is the salary and benefits which an employee earns on the one part and the services which an employer receives on the other part. See Mobil Producing [Nig.] Unlimited & Anor v. Udo Tom Udo [supra] at page 93 and Employment & Labour Law in Nigeria by Elizabeth A. Oji and Offornze D. Amucheazi, page 77. In addition, the parties have the requisite capacity to contract, and it can be inferred from the communications between the parties that they intended to create legal relations. Exhibits 8 and 11 constitute admission of existence of employment relationship between the Defendants and the Claimant, although the 2nd Defendant seems to suggest in Exhibit 11 page 3 that the Claimant was employed by the 1st Defendant. However, based on the definition of employer in Section 91 of the Labour Act, the role played by the 2nd Defendant in the entire transaction and the fact that, undeniably, he is the alter ego of the 1st Defendant, he is equally the Claimant’s employer. It needs to be said that Section 7[1] of the Labour Act is a mandatory provision and an employer cannot rely on its default to impugn an employment relationship. See Mobil Producing [Nig.] Unlimited & Anor v. Udo Tom Udo [supra] 115. Therefore, I find as a fact that the Claimant was an employee of the Defendants. Arising from the foregoing, I hold that the Defendants are estopped from denying that the Claimant was their employee. See Section 169 of the Evidence Act, 2011.
15. The next question is whether the Claimant has proved her claim to entitle her to judgment? The crux of the Claimant’s action is wrongful termination of her employment and breach of her fundamental rights of freedom from discrimination and freedom of association. The Claimant’s evidence in support of the allegation of wrongful termination of employment is in paragraphs 58 to 63 of her statement on oath dated 12th December 2019 and Exhibits 8, 11 and 4. A summary of her evidence is that she received a query on 21st October 2019 for having a meeting with a disengaged staff in breach of the company’s rules. She answered the query and was made to face a disciplinary panel same day before her employment was terminated. She was not paid her salary for the month of October and salary in lieu of notice of termination. These facts are unchallenged and I accept it as correct. The settled principle of law is that there inheres in an employer the right to terminate the services of its employee, for he who hires can fire. At common law, an employer is at liberty to terminate the employment of its employee for good or bad reason or for no reason at all. Nevertheless, current labour jurisprudence dictates that an employer must give a valid reason for terminating the employment of an employee connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service. See Article 4 of the ILO Termination of Employment Convention, 1982, [No. 158] and the unreported case of Imuwahen Egbe v. Gokada Rides Limited, Suit no. NICN/LA/561/2019, pages 22-23, which judgment was delivered on 28th July 2022. This is the current international labour standard and international best practice in labour and employment which this Court is authorised to apply. See Duru v. Skye Bank Plc [2015] 59 NLLR [Pt. 2017] 680 at 724 and Section 254C[1][f] and [h] of the Constitution of the Federal Republic of Nigeria, 1999, as amended. In the instant case, the Claimant’s employment was terminated verbally and with immediate effect. No reason was given for the termination of her employment and she was not paid any salary in lieu of notice. What can be deduced from the query and proceedings of the disciplinary panel is that her employment was terminated for breach of the 1st Defendant’s rules which is dubbed ‘gross misconduct’ in the query. While misconduct is usually what the employer classifies as misconduct, see Oyedele v. Ife University Teaching Hospital Complex Management Board [1990] 6 NWLR [Pt. 155] 194 at 199, generally, any action which violates the employer’s laid down rules and conditions of service is misconduct. See Chinedu Oguejiofor v. Access Bank Plc [2020] LPELR-49583[CA] 35-36. However, gross misconduct is conduct of grave and weighty character which undermines the confidence that should exist between the employee and the employer. It also means working against the deep interest of the employer. See Ahmed v. Ahmadu Bello University & Anor [2016] LPELR-40261[CA] 21. In my respectful view, the allegation against the Claimant does not qualify as gross misconduct, and it is not such as should be punished with summary dismissal. See New Nigerian Bank Ltd v. Francis Obevudiri [1986] 3 NWLR [Pt. 29] 387 at 396-397. Assuming it is, there is no evidence that the Claimant was dismissed. In the circumstance, the Court is at liberty to treat it as a case of termination of employment. Where, as in this case, there is no agreed mode of termination of employment, the Court will presume that the contract of employment would be terminated by reasonable notice given by either party. What is reasonable notice depends on the nature of the contract, and the status of the employee in the establishment. See Shena Security Co. Ltd v. Afropak [Nig.] Ltd & Ors [supra] at page 143. The Claimant, in the instant case, is a legal practitioner and acted as personal assistant to the Chief Executive Officer, legal officer and human resources officer, and was a member of the management team. By every standard, she was a senior staff, and one month’s notice would be reasonable notice. I so find and hold. The Claimant’s employment was terminated without notice and without payment of salary in lieu of notice. What is more, she was not paid for the period she worked. Where notice is required to terminate the employment and the notice is not given or salary paid in lieu of notice, the termination of employment is wrongful. See Reliance Telecommunications Limited v. Adegboyega [2017] LPELR-48360[CA] 12-13. Based on the foregoing, I find and hold that the termination of the Claimant’s employment is wrongful.
16. The Claimant also contends that the circumstances of the termination of her employment amount to harassment, intimidation, gender-based discrimination and an infringement of her fundamental rights of freedom from discrimination and freedom of association. The first point to note here is that the Claimant lumped distinct causes of action together, as a result, there is no sufficient pleading to ground the disparate claims. Order 14 Rule 1, National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 sets out facts which a party claiming sexual harassment or workplace discrimination should plead. For clarity, it is reproduced here:
“1. (1) Where in an action before the Court, a Claimant alleges sexual harassment at the workplace, the Claimant or the Claimant’s counsel may in the complaint, indicate whether the sexual harassment is:
(a) Physical conduct of a sexual nature: such as unwanted physical contact, ranging from touching to sexual assault and rape, strip search by or in the presence of the opposite sex, gesture that constitutes the alleged sexual harassment; and/or
(b) A verbal form of sexual harassment: such as unwelcome innuendoes, suggestions and hints, sexual advances, comments with sexual overtones, sex related jokes or insults, or unwelcome graphic comments about a person’s body, unwelcome and inappropriate enquiries about a person’s sex life and unwelcome whistling at a person or group of persons, any document, material or exhibit in further support of the claim; and/or
(c) A non-verbal form of sexual harassment which includes unwelcome gestures, indecent exposures, and unwelcome display of sexually explicit pictures and objects; and/or
(d) Quid pro quo harassment where an owner, employer, supervisor, member of management or co-employee undertakes or attempts to influence or influences the process of employment, promotion, training, discipline, dismissal, salary increments or other benefits of an employee or job applicant in exchange for sexual favours.
(2) Where in an action before the Court, a Claimant alleges workplace discrimination, such Claimant shall state whether the alleged workplace discrimination is on any of the following grounds:
(b) religion,
(c) gender,
(d) marital status,
(e) family situation,
(f) genetic heritage,
(g) ethnic origin,
(h) political or ideological convictions,
(i) union affiliation,
(j) tribe,
(k) handicap or disability,
(l) health,
(m) pregnancy, and
(n) any other ground.
(3) The Claimant shall also in the complaint, indicate the activity, (including the mode, manner, correspondence and communication) that constitutes the alleged workplace discrimination.”
17. The pleading on the alleged sexual harassment is in paragraphs 12 and 13 of the statement of facts to the effect that the 2nd Defendant offered to pay for a service apartment where he lives alone which she rejected it because it was laced with ambiguities. Notwithstanding the Claimant’s imputation, there is nothing in her pleading or evidence which supports the allegation of sexual harassment in the work place. The allegation of gender-based discrimination is equally not made out in the pleading and evidence. The relevant pleading is paragraphs 60 and 61 of the statement of facts which is reproduced as paragraphs 60 and 61 of her statement on oath to the effect that her co-accused was allowed to retain her job while she was sacked. In the first place, her co-accused is a female, so the issue of gender-based discrimination does not arise. Secondly, there is no evidence on the disciplinary hearing of her co-accused to determine her culpability. The third issue is breach of her freedom of association. There is evidence that the query and subsequent disciplinary hearing were based on the fact that the Claimant was found with a disengaged staff on 18th October 2019 near the office. Her explanation that the meeting was not pre-meditated was ignored. While it is true that a misconduct is what the employer classifies as misconduct, and the 2nd Defendant had restrained his employees from communicating with disengaged staff, the totality of the evidence shows that this directive infringes on the Claimant’s fundamental right to freedom of association enshrined in Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 as amended; and cannot form the basis for termination of her employment. It is a settled principle of law that every contract must of necessity be read subject to statutory or constitutional provisions. See Mrs. Folarin Oreka Maiya v. The Incorporated Trustees of Clinton Health Access Initiative, Nigeria & Ors [2012] 27 NLLR [Pt. 76] 110 at 168.
In the premise, the lone issue is resolved in the affirmative.
18. This leads me to a consideration of the reliefs. The first claim is for a declaration that the Claimant’s employment with the Defendants was terminated under circumstances amounting to harassment, intimidation and wrongful termination of employment. A claim for declaration is not granted as of course or on the basis of admission by the adverse party. See Charles Okwudili Umera v. Nigerian Railway Corporation [supra] at page 390. The Claimant must satisfy the Court by credible evidence that she is entitled to the declaration. See GE International Operations [Nig.] Ltd v. Q Oil and Gas Services Limited [2016] 1-3 SC [Pt. III] 150 at 181-182. I found in the preceding paragraph that the issue of harassment has not been proved. Equally, the allegation of intimidation was not proved. I adopt my reasoning and conclusion in the preceding paragraph and hold that this claim has not been established.
19. The second relief is for a declaration that the termination of the Claimant’s employment without notice and/or payment in lieu of notice amounts to flagrant disregard of the laid down procedures under the Labour Act, Cap L1, Laws of the Federation of Nigeria, 2004 and thereby makes the Defendant[s] liable in damages to the Claimant for wrongful termination of employment. The pleading in support of this claim is paragraphs 60, 61, 62 and 63 of the statement of facts which are reproduced as paragraphs 60 to 63 of Claimant’s statement on oath. I found elsewhere in this judgment that parties did not agree on the mode of terminating the contract of employment, in which case, the Court will imply that the employment would be terminated by reasonable notice given by either party; and being a senior staff, one month’s notice is adjudged reasonable; but her employment was terminated without notice and without payment of salary in lieu of notice; and consequently wrongful. I adopt my reasoning and conclusion in paragraph 15 above and hold that this claim has been proved.
20. The third claim is for a declaration that the Defendants’ refusal to pay the Claimant her October 2019 salary is wrongful, oppressive, unfair and contrary to the provisions of the Nigerian labour laws. There is unchallenged evidence that the Claimant worked for the Defendants from 30th September 2019 to 21st October 2019 when her employment was terminated. There is equally unchallenged evidence that she was not paid her salary for October 2019 at the time of her disengagement. See paragraphs 15, 16, 19, 20, 28 to 42, 53 to 62 of her statement on oath. Although, the Defendants filed a joint statement of defence, they failed to call a witness to prove their defence, which is deemed abandoned. See Madaki & Ors. v. Kingham [2015] LPELR-25696[CA] 25. In any event, from the statement of defence, the basis of Defendants’ refusal to pay Claimant’s salary for October 2019 is that she was not a staff. This defence is not tenable as I found in paragraph 14 above that the Claimant was an employee of the Defendants, and entitled to salary for the month of October 2019. The salary of an employee is sacred and cannot be withheld without reasonable cause. See Chemical and Non-Metallic Products Senior Staff Association v. Benue Cement Company Plc [2005] 2 NLLR [Pt. 6] 446 at 470. Having worked for the Defendants from 30th September 2019 to 21st October 2019, the Claimant is entitled to her salary, and the refusal by the Defendants to pay it is wrongful, oppressive and unfair. I adopt my reasoning and conclusion in paragraph 14 above and hold that this claim has been proved.
21. The fourth claim seeks a declaration that the query letter issued to the Claimant with penal sanctions culminating in the termination of the Claimant’s employment for associating with a former employee of the 1st Defendant is an infringement on the Claimant’s fundamental human rights to freedom from discrimination and freedom of association. I found elsewhere in this judgment that the claim for discrimination has not been proved but that the totality of the evidence shows that the 2nd Defendant’s directive infringes on the Claimant’s fundamental right to freedom of association enshrined in Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 as amended; and cannot form the basis for termination of her employment. I adopt my reasoning and conclusion in paragraphs 16 and 17 above and hold that this relief succeeds in part.
22. The fifth claim is for an order directing the Defendants to pay the Claimant her October salary and another one-month salary as payment in lieu of notice and the costs of logistics, flight tickets back and forth from Port Harcourt to Lagos, feeding, out of pocket expenses and accommodation in Lagos while the employment lasted, to wit: the sum of five hundred and seventy thousand naira [N570,000:00] being amount due and accruable to the Claimant. The settled principle of law is that in resolution of employment disputes, the Court will usually refer to the conditions of service [if any] in deciding the rights and obligations of the parties thereto. See Gbedu & Ors. v. Itie & Ors. [supra]; and a claim for salaries and expenses being in the nature of special damages must be specifically pleaded and strictly proved. See Adekunle v. United Bank for Africa Plc [supra]. I found in paragraphs 15, 19 and 20 above that the Claimant is entitled to her salary for October 2019 and one month’s salary in lieu of notice of termination of her employment. However, in respect of the claims for logistics and accommodation, there is nothing in her contract of employment justifying the claim. The Claimant has not proved that it is a term of her contract of employment or a practice of the Defendants. A mere promise by the 2nd Defendant to defray the cost of her accommodation cannot, in these circumstances, create an entitlement. Moreover, Exhibit 13 shows that the rent paid is from November 2019 to October 2020 which dates are subsequent to termination of her employment. This claim succeeds in part.
23. Relief six seeks an order directing the Defendants to pay to the Claimant special damages of the sum of eight hundred thousand naira only [N800,000.00] being the cost of litigation of this suit and legal representation. A claim for solicitors’ fee is a claim in special damages which must be pleaded in detail and strictly proved. See Nigeria Breweries Plc v. David Audu [2009] LPELR-8863[CA] 48. The pleading in support of this claim is paragraph 69 of the statement of facts, which is reproduces as paragraph 69 of the Claimant’s statement on oath. Also, in support of the claim is Exhibit 14, captioned bill of cost. Exhibit 14 is an invoice. There is no evidence of negotiation and agreement on the sum claimed. There is equally no proof of part-payment of the sum claimed and the basis of computation of the sum of N800,000 is not manifest from the evidence. It has been said that a Court of law is not a charitable organisation or father Christmas which distributes largesse to all and sundry. See Shena Security Co. Ltd v. Afropak [Nig.] Ltd & Ors [supra] at page 150. The claim for Solicitors’ fees has not been substantiated and consequently fails. Nevertheless, cost follows event in litigation and a successful party is entitled to her costs. See DHL International Nigeria Limited v. Eze-Uzoamaka & Anor. [2020] 16 NWLR [Pt. 1751] 445 at 500. Also, this Court has unfettered discretion to award cost which discretion must, in all circumstances, be exercised judicially and judiciously. See Order 55 Rule 1 of National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 and Nigerian Bank for Commerce and Industry & Anor. v. Alfijir [Mining] Nigeria Ltd. [1999] 12 SC [Pt. II] 109 at 123-124. I hold that the Claimant is entitled to the cost of this action. From the Court’s record, the Claimant spent about N26,360 as filing fees, and was present three times and represented by counsel nine times in this proceeding. Consequently, cost of N250, 000.00 [two hundred and fifty thousand naira] is awarded in favour of the Claimant against the Defendants.
24. The next claim is for an order directing the Defendants to pay to the Claimant, general and punitive damages in the sum of ten million naira [N10,000,000.00] for the psychological trauma, humiliation and deprivation of and loss of earnings which the Claimant suffered as a consequence of the Claimant abandoning her stable life and business in Port Harcourt to take up employment with the Defendants in Lagos. Again, the Claimant lumped distinct causes of action together. While a claim for damages is a claim for monetary compensation for injury suffered, a claim for loss of earnings is in the class of special damages which must be specifically pleaded and proved. See Alliance International Ltd v. Saam Kolo International Enterprises Ltd [2022] 14 NWLR [Pt. 1851] 471 at 492-493. The pleading and evidence necessary to support the claim for loss of earnings are lacking. No doubt, this Court has powers to award damages in deserving cases, see Section 19[d], National Industrial Court Act, 2006; but the apex Court noted in Shena Security Co. Ltd v. Afropak [Nig.] Ltd & Ors [supra] at pages 149-150, that damages recoverable in cases of wrongful termination of employment are losses which are reasonably foreseeable by the parties at the time of the contract as inevitably arising if one breaks faith with the other, but it does not take account of speculative or sentimental values, and the Court in awarding damages will not include compensation for injured feelings. The damages claimed in this case are not reasonably foreseeable consequence of breach, and it is consequently refused.
25. The last claim is for interest at the rate of 25% on the above claimed sums from the date of filing this suit until judgment is entered and interest at the rate of 10% from the date of judgment until the final liquidation of the judgment sum. Although, there is no pleading in support of this claim, and a relief claimed in a suit should ordinarily flow from the pleading, see Umeanozie v. First Bank of Nigeria Plc [2016] LPELR-41038[CA] 13 and Chukwuemeka Anyafulu & Ors v. Maduegbuna Meka & Ors [2014] LPELR-22336[SC], there is sufficient judicial authority for the proposition that this Court can, in the peculiar circumstances of this case, award interest as a consequential relief. In Kano Textiles Printers Plc v. Alhaji Ahmed Tukur [1999] 2 NWLR [Pt. 589] 78 at 84, Ige, JCA, posits that:
“…where a case has been brought on commercial matters and where in ordinary commercial practice money would, on the facts, have been paid some time ago, it ought to carry interest. …Even where the interest is not claimed specifically in the writ of summons and statement of claim, the court can award interest as a consequential order.”
In the same vein, Aderemi, JCA [as he then was], in Adeyemi v. Lan & Baker [Nig] Ltd [2000] 7 NWLR [Pt. 663] 33 at 51-52, opines that award of interest in that circumstance is equitable compensation. Hear him:
“… it is very equitable that when money is owing from one party to another and that other party is driven to have recourse to legal proceedings in order to recover the amount due from him the party who is wrongfully holding onto the money from the other ought not, in justice, be allowed to benefit by having that money in his exclusive possession and enjoying the use of same when that money, as in the instant case, ought to be in the possession of the other party … who is entitled to its use, having not been supplied with rice for which it put down the money. That award of interest is equitable compensation.”
Therefore, I hold that the Claimant is entitled to pre-judgment interest for the earned salary and salary in lieu of notice, the Defendants having deprived her of the use of same after cessation of her employment without reasonable cause. In addition, this Court is empowered by Order 47 Rule 7 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 to award post-judgment interest at a rate not less than 10% per annum. The Claimant claimed interest at the rate of 25% from the date of filing this suit until judgment is entered and interest at the rate of 10% from the date of judgment until the final liquidation of the judgment sum. Having found that the Claimant is entitled to interest in the peculiar circumstances of this case, I hold that the interest shall be at the rate of 10% per annum which is the minimum interest the Court can award from 12th December 2019 until judgment and thereafter at the same rate until the total judgment sum is fully liquidated.
26. In the final analysis, reliefs 2 and 3 succeed and are granted. Reliefs 4, 5, 6 and 8 are granted in part. Reliefs 1 and 7 fail and are dismissed. For the avoidance of doubt, judgment is entered in favour of the Claimant against the Defendants as follows:
a. It is declared that the termination of the Claimant’s employment without notice and without payment of salary in lieu of notice is wrongful.
b. It is declared that the Defendants’ refusal to pay the Claimant her October 2019 salary is wrongful, oppressive and unfair.
c. It is declared that the query issued to the Claimant with penal sanctions culminating in the termination of her employment for associating with a former employee of the 1st Defendant is an infringement of her fundamental right of freedom of association.
d. It is ordered that the Defendants pay the Claimant the sum of N240,000 [two hundred and forty thousand naira] being her salary for the month of October 2019 and one month’s salary in lieu of notice.
e. It is ordered that the Defendants pay the Claimant cost of this action assessed at N250, 000.00 [two hundred and fifty thousand naira].
f. It is ordered that the Defendants pay interest on the sum of N240, 000 [two hundred and forty thousand naira] at the rate of 10% per annum from 12th December 2019 until judgment and thereafter at the same rate on the entire judgment sum from today until the judgment sum is fully liquidated.
Judgement is entered accordingly.
………………………………………….
IKECHI GERALD NWENEKA
JUDGE
20/10/2022
Attendance: Parties absent.
Appearances:
Patrick Mbata Esq for the Claimant
Okoye Chukwuemeka S. Esq. for the Defendant