IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HER LADYSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE

 

DATE: DECEMBER 15, 2022                                         SUIT NO: NICN/LA/674/2013

 

MRS. NICOLINE TRESFON OGIDI NWANKWO                               CLAIMANT                        

             

AND

 

MRS. PRISCILLA OLLOH                                                                   DEFENDANTS

MR. AUGUSTINE OLLOH

 

REPRESENTATION

T.A.B. Oladipo SAN for the Claimant, with him Osita Mbamalu, Jude Ezea, D    Damilola Ojopagogo, Iyinoluwa.O.Nwaojei (Mrs).

Oluwafemi Atoyebi SAN for the Defendants, with him Ayo Olorunfemi SAN, Paul Omaidu, Folashade Callisto.

 

JUDGMENT

Introduction and claims

[1] The Claimant filed this complaint against the Defendants on December 27, 2013 together with the accompanying processes. By an amended complaint and accompanying processes filed on 20^th February 2018, she is seeking the following reliefs:  

1.      A Declaration that the determination of the claimant’s employment by the defendants’ letter dated 24^th October 2014 during her maternity leave period is unlawful or illegal and same was discriminatory against her on the ground of her gender and/or pregnancy, and therefore unconstitutional, null and void and in violation of international treaties and conventions.

 

2.      An Order for payment of exemplary or aggravated damages to the claimant by the defendants in the sum of N150 million.

The 1^st and 2^nd Defendants filed an amended statement of defence and a counterclaim, together with the accompanying processes on 16^th March 2018. They counterclaimed as follows:

i.                    Refund of the total sum of N12,973,352.00 made up as follows:-

 

a.      Advertorial, Consultancy and airfares                                         N504,659.00

b.      Rent and furnishing of apartment                                     N5,000,000.00

c.      Salary tax inclusive                                                               N2,250,000.00

d.      Hosting the claimant for lunch at different dates

during the interview                                                          N83,693.00

e.      Providing water treatment                                                 N135,000.00

f.        Cost of this action                                                                 N5,000,000.00

 

ii.                 The said sum together with 25% per annum from 2013 until judgment and thereafter, at 6% interest per annum until actual liquidation.

iii.                

Case of the Claimant

[2] The case of the Claimant on the pleadings is that she is a citizen of Holland and was married to Mr. Jonathan Odigi-Nwankwo a Nigerian citizen. The Claimant stated that before her marriage her maiden name was Nicoline Emilie Willemjin Tresfon; and their marriage was celebrated at the Marriage Registry Umuahia, Abia State Nigeria on 23^rd May 2013. The Claimant averred that as the wife of a Nigerian citizen, she was issued with a right of stay on or about 5^th June, 2013 by the Nigerian Government and she is entitled to Nigerian citizenship by registration having demonstrated readiness to live in Nigeria. The Claimant further averred that she is also entitled to the protection and rights available to every Nigerian citizen. The Claimant stated that the 1^st and 2^nd Defendants are the partners or proprietor of Starling School, an Educational Services Institution whose general nature of business is to operate nursery, primary and secondary schools but at all material times the School operates as a Primary School. 

[3] The Claimant averred that by a contract of employment made on or about 14^th February 2013 the Defendants employed her as Head Teacher of the School on contract for an initial period of 3 years with effect from 1^st May 2013 until same was illegally determined by a letter dated 24^th October 2013 and received on 30^th October 2013, to which she replied by letter dated 9^th November 2013. The Claimant further averred that under the terms of the contract, she is entitled to a gross salary of N4.5 million per annum, transport between her place of residence and workplace, furnished accommodation, medical insurance cover, and 30 days annual leave outside of the required 180 instruction days which shall correspond with the school calendar; and that   by law she is entitled to a total of 13 weeks maternity leave. The Claimant stated that she resumed duties with Starling School at Plot 19 Block 53 Adebayo Doherty Street, Road 14, off Admiralty Way Lekki Phase 1 Lagos, and as part of her duties organized the relocation of the School to plot 74 Block 11 Babatope Bejide Crescent, Lekki Phase 1 Lagos where she worked until the unlawful or illegal determination of her employment.

[4] Before her employment was determined, the Claimant stated that she had informed the 1^st Defendant that she was pregnant with Expected Delivery Date in October 2013 and that she planned to have the baby in Holland. It was agreed orally between them on the one hand, and between the 1^st Defendant and the Claimant’s husband that she would proceed on maternity leave from 24^th August 2013. The Claimant stated that at the end of the 2012/2013 school year, the school closed for holidays between July and September 2013; and after 4 week’s summer school organized by her she vacated the accommodation provided by the school at Lekki Lagos for the purpose of fumigating. As  it was not ready for occupation, she travelled to Abia State. The Claimant stated that while in Abia State she took ill and was admitted at the Federal Medical Center Umuahia, and afterwards on 8^th August 2013 she went through an emergency caesarean section to deliver her of a pre-term baby boy at 32 weeks with a birth weight of 1.6 kilogramme.

[5] The Claimant stated that the baby was placed in the intensive care unit at the Federal Medical Center, Umuahia for 60 days and he also received medical treatment at Medic Angels Clinic Ikeja Lagos for 2 days before their medical repatriation to Holland for further medical treatment. The Claimant averred that her husband sent an email on 9^th August 2013 to the 1^st Defendant informing her of the delivery of a pre-term baby boy and also of her condition and their son’s condition.  In a reply written on or about 15^th August 2013, the 1^st Defendant congratulated her, while at the same time acknowledging her health ordeals. The Claimant states that she was entitled to proceed on maternity leave with effect from 24^th August 2013 to 23^rd November 2013 as agreed or in the alternative from 8^th August 2013 (when she put to bed) to 7^th November 2013 in accordance with the oral agreement between the parties and her right under the Labour Act.

[6] The Claimant averred that by a letter written on or about 8^th September, 2013 to the 1^st Defendant, she informed the Defendants of the required standard of living in her official accommodation for purposes of the health and well-being of herself and her baby and requested better living conditions/environment and medical insurance cover, among others. The Claimant stated that she remained in Nigeria till about mid October 2013 due to her son’s health; and had to travel to Holland during her maternity leave period for better medical care for her son as the Hospitals lacked monitoring and investigative facilities.  The Claimant further stated that her medical doctor in Holland advised her to take at least 2 months to rest so as to recover from the caesarean section and the effect of malaria while she was in Nigeria; and her baby was admitted in the Hospital at Holland from 18^th October to 20^th December, 2013, during which he underwent surgical operation on his kidney. 

[7] The Claimant states that the Defendant’s letter of 24^th October 2013 determining her employment was written and delivered to her in Holland during the period of her maternity leave and was in violation of section 54 of the Labour Act 1971 and unlawful or illegal. She stated that the determination of her employment by the Defendants was connected or related to her gender as a woman and/or her pregnancy. The Claimant further stated that the Defendants discriminated against her in the determination of her employment on the ground of her gender and/or of her pregnancy in violation of section 42 of the Constitution of the Federal Republic of Nigeria 1999, international treaties and conventions. That determination is therefore unlawful or illegal, unconstitutional, null and void. The Claimant averred that she has therefore been put to loss and damage as she resigned her employment in Holland so as to relocate and live permanently in Nigeria. She averred that the determination of her contract of employment during her maternity leave period was calculated to enrich the Defendants and to release them from fulfilling their obligations under her contract of employment.

[8] In reply, and defence to the counter claim, the Claimant stated that Starling School, is an educational institution registered as a business name under the Companies and Allied matters Act 1990. The Claimant averred that in a written statement on oath previously sworn by the 1^st Defendant, she had deposed to the fact that Starling School was registered by both the 2^nd Defendant and herself, and that she ran the school as Director and Administrator.  The Claimant stated that it is not open to the Defendants to allege that they have been improperly pleaded, and that they are estopped from alleging that they are not the legal entities known as Starling School. The Claimant stated that she and her husband had been living together in Holland since 2012, and on 29^th October 2012 they celebrated their marriage at Ogidi’s compound, Umuobia, Olokoro, Umuahia South, Abia State under native law and custom. The Claimant stated that the celebration of their marriage at Christ Embassy Church in the Hague was by choice, that photographs of the native law and custom marriage, and Church marriage certificates were given to the 1^st Defendant.

[9] The Claimant stated that as a citizen of Holland by birth, no marriage is required to live with her husband or to address herself as his spouse, and after their co-habitation she had a choice of whether to use her maiden name, Tresfon or her husband’s last name Ogidi-Nwankwo or a combination of both. Furthermore, that their Registry marriage in Nigeria during the school’s mid-term break on 23^rd May 2013 was at the request of Defendants who needed  evidence of marriage celebrated in Nigeria to save Starling School from huge costs associated with expatriate quota, hence a copy of the marriage certificate was given to the 1^st Defendant upon her return from Eastern Nigeria.

 [10] The claimant stated that she was contacted by the Defendants’ recruiter and invited to apply to Starling School. After the application to Starling School and over a period of time, she had several telephone and video interviews with the 1^st Defendant and the recruiter on her curriculum vitae and credentials. She stated that the Defendants after being satisfied with her response at the interviews further invited her to Nigeria at their expense for a presentation and a rigorous interview on 13^th February, 2013. The interview team examined all her original credentials including degrees, diplomas, certificates and referral letters, and she was assessed on a very broad range of issues, including her education, training, teaching and management experience. The Claimant stated that she had been a teacher at Montessori Preschool Waalsdrop, part-time teacher for creative workshops at Pink Pepper Language and Creative Workshop Institute, and teacher and activity Supervisor at DAK Kindercentra which is both a day care as well as primary or elementary school for children between ages two and twelve.

[11] The claimant stated that the defendants had reasonable opportunity to verify her qualifications with due diligence. That by the job description that accompanied her contract, it was not her duty to teach core academic subjects to Teachers or prepare lesson notes for them.  She averred that the Defendants’ allegations that she lacked the requisite skill to lead the school were all an after-thought and a subterfuge to dismiss her, occasioned by her demand for good and healthy living conditions and accommodation, and that the termination motive is manifest from their counsel’s letter dated 28^th October, 2013. The Claimant stated that the expenses in the counter claim are not reasonable. She stated that the accommodation was sparsely furnished, and she left the furniture there when she vacated the flat. The cost of dinner was not incurred on account of her own meal. The water treatment plant was installed for provision of water treatment for the school and was not dedicated to her flat. The Claimant stated that the counter claim is frivolous and requires strict proof of her liability. She stated that the Defendants are not entitled to 25% interest on the sum claimed.

 [12] Mr Odunayo Bamodu, the Court’s Deputy Chief Registrar (CW1) was subpoenaed to produce the 1^st Defendant’s statement on oath sworn to on 28 February 2014. The deposition was produced and admitted in evidence as exhibit C1.

[13] The Claimant (CW2) testified in support of her case. She adopted her statements on oath. They were in the exact terms of the pleadings, and she relied on her admitted documents. In cross-examination, the Claimant informed the Court that she is a Dutch National and has a Dutch Passport. She stated that she does not have a Nigerian Passport. The Claimant told the Court that the interview for the job in Starling School was February 2013 and that her name on the date of the interview with the Defendant was Nicoline Tresfon Ogidi-Nwankwo. The Claimant stated that she was already married to Mr. Ogidi-Nwankwo in Igbo tradition as at the date. She stated that before then she was already married in the Netherlands; and that the 1^st Defendant wanted her to have a Court marriage in Umuahia because she said it would make things easier. The Claimant said she disclosed in the form she filled that she was married in 2013.  She stated that her baby was born premature on 8^th August 2013 in Umuahia, Nigeria. The Claimant said she was not aware that she was pregnant as at the time of the interview but later found out in March 2013 and she informed the 1^st Defendant in April 2013 who said there would no problem and allowed her continue with her work. The Claimant confirmed that she did not give the school a medical report before resumption.

[14] The Claimant (CW2) stated and that she started work on 2^nd May 2013, and her probation period was 6 months to terminate the 1^st week of November. She said she applied for the role of Head Teacher at Starling School and that she had been working as a Teacher at Dak. The Claimant told the Court that she provided reference letters. She told the Court that her Manager at Dak informed her that she was never contacted for a reference. The Claimant said she heard there had been contact after this suit was instituted. She expressed surprise that the reference stated that she was not employed as a Teacher. She explained that Dak is a learning center and expressed surprised to hear it is not a school, and that she was not a teacher in Dak. The Claimant stated that the 1^st Defendant failed to contact her Manager whom she asked her to contact. The Claimant told the Court that she went to Lagos General Hospital for her medicals when she arrived as instructed by the 1^st Defendant and got a medical report she submitted to the School. She said she was not aware that her medical report was an issue as it was not discussed with her.

[15] The Claimant said she was given official accommodation that was sparsely furnished. She stated that at some point when the accommodation was due for fumigation, she was told to arrange her own accommodation during the fumigation and she was not told how long she would need to be out of the accommodation during the period of fumigation. The Claimant said the 1^st Defendant suggested that she go and visit her relations on Ojo-Badagry and she refused. She told the Court that the 1^st Defendant did not offer her a hotel to stay during the fumigation. She said she did not come back to the accommodation because she delivered prematurely and left Nigeria.

Case of the 1^st and 2^nd Defendants

[16] The 1^st and 2^nd Defendants case on the pleadings is that they have been improperly impleaded as parties because they are not the legal entity known as “Starling School” with whom the Claimant allegedly contracted. The Defendants further state that the contract of employment contracted between the Claimant and Starling School is an illegal contract and void ab initio, the Claimant having misrepresented her name in executing the contract of employment, and as such the contract is illegal and not enforceable under Nigerian law. The Defendants stated that the Claimant was not married to Mr. Jonathan Ogidi Nwankwo at the material time she executed the contract of employment with the school and held herself out at such. The averred that the Claimant’s true name when she applied for the position of the Head Teacher of the School and executed the contract of employment was “Nicoline Emilie Willemijn Tresfon”  and not “Nicoline Tresfon Ogidi Nwankwo” as she was not married to Mr. Jonathan Ogidi Nwankwo as at 14/2/2013.

[17] The Defendants stated that it was subsequent to the execution of the contract of employment that the clamant got married to Mr. Jonathan Ogidi Nwankwo in Holland on 20/4/2013, which she latter re-married the same Mr. Jonathan Ogidi Nwankwo in Nigeria on 23/5/2013.  The Defendants stated that the rights and protection offered to Nigerian citizens and registered citizens of Nigeria under Nigerian law do not apply to the enforcement of an illegal contract in any manner whatsoever. The Defendants stated that there is no contract of employment between them and the Claimant; nor did they employ the Claimant under any contract of employment. They stated that it was Starling School that employed the Claimant, which employment was void ab initio by reason of the Claimant’s fundamental misrepresentation. The Defendants stated that the 1^st Defendant  acting in her capacity as a Proprietress of Starling School (an Educational Institution duly registered as a business name under the Companies and Allied Matters Act, 2004) only signed a letter terminating the Claimant’s employment on behalf of the school.

[18] The Defendants averred that the commencement date of the contract of employment was 01/05/2013, but the Claimant resumed work on 03/05/2013 for an initial probationary period of 6 (six) months. They stated that the school was not aware of the Claimant’s misrepresentation of her name and qualification as a teacher when the 1^st defendant interviewed her on 13/02/2013, prior to the school employing her on 14/02/2013.  That after the Claimant resumed, the school organized an in-house training for its Teachers sometime around 21/05/2013 wherein the Claimant was to serve as the instructor to the teachers on contemporary knowledge in preparing modern lesson notes in various academic subjects. The Claimant avoided teaching core academic subjects such as English Language, but she only focused on soft skills such as craft and dancing, which are extra-curricular activities. The Defendants stated that the feedback of the training session indicated that the Claimant had little or no competence in teaching core academic subjects as well as preparing lesson notes for the subjects. The Claimant therefore lacked the capacity, know-how, professional training and/or competence to impart any knowledge as a Head Teacher on any teacher of the school. 

[19] The Defendants stated that the Teachers stopped approaching the Claimant for any guidance in relation to their work as it was obvious to them that she had no professional training, background and/or knowledge to improve their capacities as Teachers. The Defendants stated that this shortcoming as well as other deficiencies in effectively discharging her responsibilities as a Head Teacher necessitated the 1^st Defendant making enquiries from DAK Kindercentra, the claimant’s immediate past employers prior to her joining Starling School; and the school duly informed the claimant of the pending enquiry as to her qualification from DAK kindercentra by the letter dated 08/10/2013. The 1^st Defendant stated that she was advised by email that the Claimant was a child care worker at their institution which was a child care organization. Upon discovering the Claimant’s misrepresentation, the school properly terminated her employment.

[20] The Defendants stated that in spite of the Claimant’s misrepresentations, the school still paid her salary for the month of August 2013 as well as the month of September, being payment in lieu of notice of the termination of her employment. The Defendants stated that the terms of the Claimant’s contract provides that her employment which commenced on 01/05/2013 was under probation for an initial period of six (6) months, which could be further extended.  That the claimant’s employment was in its fifth (5) month probation when it was duly terminated on 24/10/2013. The Defendants averred that the school’s employment procedure required the Claimant to undergo medical examination prior to being employed, which requirement the Claimant declined to go through on the basis that she would send her medical report from Holland. She sent an illegible document as her medical report by her doctors in Holland, which wasn’t sufficient to provide her with any medical insurance cover in Nigeria.

[21] The Defendants admitted that some months after resuming work with the school, the Claimant informed the 1^st Defendant that she would travel to Holland to deliver her child, and when she eventually did have her child, the 1^st Defendant felicitated with her. That as required under section 54(a) of the Labour Act, the claimant did not provide a medical certificate issued by a certified medical practitioner at any time during her pregnancy to inform the school that she would be under confinement for any period of time owing to or as result of her pregnancy. The Defendants stated that the school in line with the terms of the contract of employment provided the Claimant with a suitable official accommodation which was rented and furnished at the cost of about Five Million Naira (N5,000,000.00). The Defendants stated that the Claimant indicated her preference for the apartment where she was eventually housed; and the school provided the Claimant with an official car fueled by the school and a Driver during the duration of her employment. 

[22] The Defendants averred that the school fulfilled its obligations as an employer by providing amenities that would make the Claimant comfortable in discharging her obligations, without being aware of the Claimant’s fraudulent conduct. That at the end of the 2012/2013 session, the accommodation had to be fumigated, which the Claimant was duly informed about. As an alternative arrangement, a temporary accommodation at a hotel was provided for her to stay in for a few days due to the fumigation, but the claimant informed the 1^st Defendant that she would be visiting her husband’s relative at Ojo/Badagry and so she had no need for the temporary hotel accommodation. The Defendants stated that the Claimant raised complaints about some of the facilities which the school had provided for her which it addressed, and also informed the Claimant of the pending response to the school’s enquiry from her immediate past employers in respect of her qualification and teaching experience. 

[23] The Defendants stated that the claimant’s employment was lawfully terminated when the school discovered that she misrepresented her suitability and qualification for employment, the school having observed that the Claimant lacked the experience, knowledge and requisite skill to head the school as was required of her as she was never a Teacher but a child care worker and could therefore not function effectively and satisfactorily in her role as the Head Teacher of the school. The particulars of misrepresentation are that the Claimant misrepresented her name in filling the application form for the position of Head teacher with Starling School on 13/2/2013; executing the contract of employment on 14/02/2013, the Claimant misrepresented her name; in applying for the position of Head Teacher the Claimant misrepresented that she was a teacher at Dak Kindercentra whereas she was a child care worker.

[24] The Defendants deny that the Claimant is entitled to exemplary or aggravated damages and/or that the termination of her employment was done in order to release the school from its obligations under the contract of employment.  Rather, by reason of the claimant’s misrepresentation of her name and qualification for the job, it is the school that has suffered loss and incurred huge financial and material costs as follows: renting an apartment to house the claimant and furnishing same at the cost of N5,000,000.00 (Five Million Naira); expending the sum of N2,250,000.00 (Two Million, Two Hundred and Fifty Thousand Naira) as claimant’s salary for the period of May to August, 2013 and for September 2013 being one month’s salary that was paid to the claimant in lieu of the notice of the termination of her employment; Provision of official car to the Claimant which suffered severe wear and tear by reason of the use of car by the Claimant and her husband.

[25] On the counter claim, the Defendants adopted the statement of defence and further stated that even though the Claimant/Defendant to the counter claim was and is still married to a Nigerian, she assured the school that she was desirous of coming back to Nigeria, her country of domicile because of her Nigerian husband. The Defendants stated that the School expended the sum of N504,659.00 in adverts, airfares and other incidental expenses to bring the Claimant/Defendant to the counter-claim to Nigeria. The Defendants/Counter-claimants stated that the School had the belief that the Claimant/Defendant to the counter-claim was a trained and qualified teacher with sufficient experience and exposure to head the school, and therefore, the school was deceived into offering her the employment, renting and furnishing an apartment for her within the school premises, and expended the sum of about Five Million Naira (N5,000,000.00) to hire and furnish an apartment for her. The Defendant/Counter claimants stated that the school made a total salary payment of the sum of N2, 250,000.00 (Two Million Two Hundred and Fifty Thousand Naira); the sum of N125,000.00(One Hundred and Twenty Five Thousand Naira ) on hotel bills in February 2013 when she came to attend her interview. The Defendants stated that 1^st Defendant/counter-claimant had in February 2013 taken the Claimant/Defendant to the counter-claim to Cactus for dinner on the 4^th of February, 2013 and expended a total sum of N83,693.00 on her; water treatment plant at her official accommodation at the cost of N135,000.00.  The Counter Claimants claim a refund of the said sums.

 [26] The 1^st Defendant (DW) testified. She adopted her statements on oath. They were in the exact terms of the pleadings, and she relied on the Defendants admitted documents. The 1^st Defendant informed the Court that she considers herself as a successful educator, and a diligent person. She denied that the Claimant was a successful Head Teacher. The 1^st Defendant told the Court that the Claimant did not present herself for evaluation so she did not evaluate her in writing. She admitted that she wrote a letter dated 8^th October 2013 to the Claimant (exhibit D4); and said her comment to the Claimant in the letter that she worked effectively was a general comment. The 1st Defendant confirmed that the Claimant was interviewed before she was employed, and that she engaged the services of an agency to employ the Claimant. She stated the name of the Recruiter as Armstrong Samuel Adayi; and she said she could not remember if the Lawyer on the Governing Board of the School Felix Nwadialo prepared the employment contract.

[27] The 1^st Defendant (DW) stated that the Claimant was not the only person who applied for the position. She confirmed that the Claimant was interviewed in Nigeria. She said the Recruiter was a member of the interview panel, she was a member and two other persons brought by the Recruiter. DW stated that the 2^nd Defendant was an observer at the interview and did not ask any questions. She said that the school also provided good living conditions for the Claimant, and that she was displeased the Claimant accused the School of not doing this because it was not true. The 1^st Defendant confirmed that she received a letter from the Claimant’s lawyer Seni Ajayi accusing her of not providing good living conditions for the Claimant, and that he harassed her and inundated her with telephone calls. She denied she terminated the Claimant’s employment because of her demands for better living conditions.

[28] The 1^st Defendant (DW) told the Court she wrote a request to Dak kindra center for a reference on 3^rd July 2013 and it had been pending for three months but she did not have the proof of DHL payments and delivery because they are missing. She said it was followed up by a second request by email that was before the Court. DW confirmed that she accused the Claimant of gross incompetence in her letter dated 25^th May 2013. She denied that she falsified facts against the Claimant, and that it was a phantom letter to discredit the Claimant in the build up to the case. The 1^st Defendant admitted that it was after this she wrote to the Claimant telling her she was effective and competent on 8^th October 2013.

Final Address

 

[29] The Defendants final address is dated 8^th July 2022 and filed on the 13^th July 2022. The Claimant’s final address is dated 15^th August 2022 and is filed on same day. The Defendants reply on point of law is filed on 25^th August, 2022.  In adopting the final addresses, learned Senior Counsel to each party submitted that the other party’s final address was filed out of time, and urged the Court to strike same out. This Court will not shut its eyes to the final addresses already adopted by parties before this issue was raised. I rule that the final address of each party was properly filed within the time frame; and competent as the final submissions of each party.

 

[30] Learned counsel to the Defendants submitted five issues for determination:

 

1.      Whether it can be said that the instant action is competent in view of the obvious failure to sue/name the Claimant’s purported employer, “Starling School”, as a party in this suit which bothers on alleged unlawful termination of the Claimant’s employment?

 

2.      Whether the Claimant can rightfully predicate the instant action on the purported contract of employment dated 14/02/13 (exhibit D1) which is not binding on the Defendants by reason of gross misrepresentation of facts by the Claimant in relation to her real name and qualification/suitability for the role of a Head Teacher?

 

3.      Whether the termination of the Claimant’s employment by Starling School via the letter dated 24/10/13 (exhibit D5) during her probationary period was unlawful or illegal and discriminatory on the ground of her gender and/or pregnancy and therefore unconstitutional, null and void and in violation of international treaties and conventions?

 

4.      Whether it can be said that the Claimant has discharged the burden of proof placed on her by law and therefore entitled to any of the reliefs endorsed on the Amended General Form of Complaint and Amended Statement of Facts filed on 20/02/18?

 

5.      Whether it can be said that the Defendants have discharged the burden of proof placed on them by law and therefore entitled to the reliefs endorsed on the Amended Statement of Defence and Counter-Claim dated/filed on 16/03/18?

 

[31] Learned Senior Counsel on issue 1 submitted that the action by the Claimant against the Defendants in their personal capacities is incompetent because there is no evidence to show the existence of any contract of employment or any other contract for that matter between the Claimant and the Defendants. He submitted that the employment contract was entered between the Claimant and Starling School which has not been made a party to this action. He referred to Order 33 Rule 22 of the Rules of Court and submitted that the Claimant cannot ignore/jettison the Rules of Court and just proceed randomly against the Defendants, especially when the pleadings has not disclosed any cause of action against the Defendants in their personal capacities; and that Rules of Court must be obeyed citing Owners Of MV Arabella v Nigeria Agricultural Insurance Corporation [2008] 4-5SC (PT. II) 189 at 204, Iyke Medical Merchandise v Pfizer Inc (2001) LPELR-1579 (SC). He submitted that the action is not properly constituted as the proper parties are not before the therefore the Court has been divested of jurisdiction to entertain the claim by reason of the Claimant’s failure to sue the Defendants in the firm’s name citing Madukolu v Nkemdilim (1962) 2 SCNLR 341.

[32] Learned Senior Counsel on issue 2 submitted that the contract of employment is not binding on the Defendants because the Claimant misrepresented facts regarding her name as she was not legally married to Mr Jonathan Ogidi Nwankwo when she signed the employment contract. That furthermore, there is no proof that the Claimant is married to him under native law and custom citing Mrs. Scholastica Anionwu & Anor V. Nnanyelugo Onuora Anionwu & Anor (2009) LPELR-8754(CA). It was his submission that the Defendants were deceived on account of various misrepresentations and that exhibit D2 is unassailable proof that the Claimant is not a teacher. That due to fraudulent nature off the misrepresentations by the Claimant, the Defendants are at liberty to treat exhibit D1 as though it never existed in the first place and such a position taken by the Defendants is not open to any challenge by the Claimant. He referred to Black’s Law Dictionary 9^th Edition at page 1091 for the definition of misrepresentation, Nuhu Dalyop Mwadkon vs. The Plateau State Polytechnic Council & Anor (2020) LPELR-49660 (CA), Albert Afegbai v Attorney General Edo State & Anor (2001) LPELR-193 (SC) and that the Claimant has no legal, equitable or moral rights to benefit from her own wrongdoing.

 

[33] Learned Senior Counsel on issue 3 submitted that the school has unfettered rights to terminate the Claimant’s employment at the end of the probationary period without notice as provided in exhibit D1 citing Nitel Plc & Anor v Akwa (2005) LPELR-5971(CA) (PP. 24-26 Paras B), Alhaji Baba v Nigerian Civil Aviation Training Centre Zaria & Anor. (supra), Ondo State University & Anor v Dr Ezekiel Adekunle Folayan (1994) LPELR-2673 (SC). He submitted that it is not the duty of a court to rewrite a contract for the parties citing  Saleh Maiborkono v Alhaji Abubakar (2017) LPELR-44413 CA.

 

[34] Learned Senior Counsel on issue 4 submitted that there is no evidence to support the Claimant’s claim in her pleadings and deposition that the termination of her employment was unlawful or illegal and discriminatory on the ground of her gender and/or pregnancy. That pleadings are not evidence citing Central Bank of Nigeria v Aite Okojie (2015) LPELR-24740 (SC). He submitted that entitlement to maternity leave under the Labour Act is not automatic and it is not the case of the Claimant that she produced any medical certificate to the school indicating that she would be confined for six weeks. He argued that the medical reports from Medic Angels dated 11/10/13, the Federal Medical Centre, Umuahia dated 07/10/13, and the Claimant’s medical certificate dated 15/10/13 issued by W.A. Diker pleaded and tendered by the Claimant during trial cannot be the “Medical Certificate” contemplated by section 54 (1) (a) of the Labour Act. It was his contention that in a master/servant relationship, the employer has the right to hire and fire citing Obanye v. Union Bank (2018) LPELR-44702 (SC) (Pp. 24-27 paras. F) that the termination of the Claimant’s employment was lawful. 

 

[35] Learned Senior Counsel submitted that there is no factual or legal basis for the claim of N150 Million exemplary or aggravated damages. That assuming without conceding that the termination of the Claimant’s employment was wrongful, she will not be entitled to any monetary compensation because none is provided in exhibit D1. He further submitted that the Court has no jurisdiction to award damages outside the terms of exhibit D1 citing Obanye v. Union Bank (2018) LPELR-44702 (SC) supra and that there is no legal justification for the award of monetary compensation. He contended that the appropriate order to be made is one of dismissal citing Mrs Ethel Orji v Dorji Textile Mills Nigeria Limited & Ors (2009) LPELR-2766 (SC).

 

[36] Learned Senior Advocate on issue 5 submitted that the basis of the Counter-Claim is that the Defendants were induced into offering the Claimant a job as a Head Teacher based on her misrepresentations when she knew or ought to have known that she was not competent to perform the relevant job functions and that the school would act on her misrepresentations. He argued that the Defendants have adduced credible/concrete evidence in support of the counter-claim and are therefore entitled to the counter claim, damages, and full refund of the expenses incurred on account of the Claimant’s misrepresentations citing Albert Afegbai v. Attorney-General Edo State & Anor (2001) LPELR-193(SC), Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158. He urged the court to grant the counter-claim. He submitted that it is clear from the foregoing that the parties’ choice of law is Nigerian law and not international conventions and treaties relied on by the Claimant relying on Hyd Road & Others Tech Limited & Anor v Abia State Government & Anor (2014) LPELR-24375 (CA).

[37] Learned Senior Counsel to the Claimant in response submitted three issues for determination:

1.            Whether the determination of the Claimant’s employment by the Defendants’ letter of 24^th October 2013 during maternity leave was discriminatory on the grounds of sex and/or pregnancy, and in violation of the claimant’s rights under international conventions and treaties, unlawful or illegal.

 

2.            If yes, is the Claimant entitled to exemplary or aggravated damages in the amount claimed?

 

3.            Whether from the totality of their pleadings and evidence the Defendants have established entitlement to the damages claimed.

 

[38] Learned Senior Counsel submitted that the Defendants have not denied that they are the Partners/Proprietors of Starling School, a business name registered under the Companies Allied Matters Act 2020; rather they have admitted their Partnership and Proprietorship relying on Order 30 Rule 6(1) of the Rules of Court 2017. He submitted that the absence of the words “carrying on business under the name and style of Starling School” in the title of the suit becomes a matter of practice or form, and not of substance and as the Defendants have not shown how they have been misled in any material particular at all, he urged the Court not to apply or construe order 13 rule 22 of the NICN Rules 2017 in such a manner as to prejudice the claimant referring to s.23 of the Interpretation Act 1964. He submitted that as the Defendants in their pleadings allege that they are not the legal entity known as Starling School with whom the Claimant contracted, they lack the locus standi to argue the defence of misrepresentation as it is only open to Starling School to challenge the validity of the contract for misrepresentation. Therefore, the Defendants lack the locus standi to raise the defence or maintain the counter claim on behalf of Starling School citing Bolaji v Bamgbose (1986) 4 NWLR (Pt 37) 632.

 

[39] Learned Senior Counsel on issue 1 submitted that it is proved that the Claimant is Female, a Dutch citizen married to a Nigerian and born on 22^nd May 1975. That on the evidence adduced the Defendants by themselves and their job recruitment consultants, Starling School Board of Governors thoroughly and professionally conducted series of oral and written job interviews for the Claimant over an extended period from December 2012 to February 2012 by telephone and video conferencing while she was in Holland, and in person in Lagos. He submitted that on the totality of the evidence, the Claimant has proved that she was pregnant and informed the 1^st Defendant that she was pregnant; and on 8^th August 2013 during the Starling School end of year holiday, an emergency caesarean section was carried out on the Claimant to deliver her pre-term baby boy at 32 weeks with a birth weight of 1.6 kilogram. Her husband informed the 1^st Defendant of the birth of the baby, and the medical condition of the Claimant. The baby was placed in an incubator in the intensive care unit at Federal Medical Center for 60 days, Medic Angel Clinic Ikeja Lagos for 2 days before the medical repatriation of mother and child to Holland on 13^th October 2013. The Claimant complained about her living conditions, and the Defendants determined her employment by letter dated 24^th October 2013, addressed to and received by the Claimant on 30^th October 2013 in Holland while she was recovering from childbirth, during her trip to seek further medical care for her self and her baby.

 

[40] Learned Senior Counsel submitted that it is unreasonable in all circumstances to contend as the Defendants Counsel has done in that the Claimant is not entitled to maternity leave. He cited the decision of the High Court of Lagos in Suit No: LD/757/2007 Mrs Ndidi Adegbite v Standard Chartered Bank Nig Ltd (unreported) to uphold the Claimant’s contractual right to maternity leave to the effect that “young women should not be discouraged from becoming mothers and taking time away from work on maternity leave; in effect discouraging their sex as women”. He submitted that the claimant also has a statutory right to maternity leave by virtue of Article 16 (1) of the African Charter on Human and Peoples Rights (ACHPR), and Article 24 and 25(1) of the Universal Declaration of Human Rights (UDHR). He submitted that what may amount to reasonable evidence of the word “confinement” used in Section 54(4) of the Labour Act   

might vary from case to case depending on the circumstances of each woman.

 

[41] Learned Senior Counsel submitted that the Claimant has a vested right to remain in employment during the maternity leave and the Defendants cannot lawfully deprive her of her employment or any right that has accrued to her during the maternity leave, or to diminish her vested right to remain in employment during the maternity leave. He  referred to the decision of the European Court of Justice  in CNAVTS v Thibault (1998) ECR-1 2011; or (1998) IRLR 399 cited in Discrimination Law by Michael Connolly (2011) 2nd Ed, para 4-049 at 122 that  to deprive  a woman on maternity leave her annual assessment, and the resulting possibility of promotion amounted to sex discrimination. He urged the court to hold that the false statements in exhibit D5 that the Claimant had abandoned her employment during maternity leave were inexorably related to or connected with sex and/or pregnancy, and further that same is not right in law and contrary to the UNDR AND ACHPR because a woman cannot lawfully be accused of abandoning her job while she is on maternity leave.

 

[42] Learned Senior Counsel submitted that on the evidence, the Claimant had not only been treated with degradation or debasement, but she had also been treated disparately or with distinction or exclusion on the basis of sex and pregnancy, the resultant effect of which has impaired her right to equal treatment in the defendants’ employment. He submitted that the allegations of misrepresentation of the Claimant’s name, marital status,   qualification have not been proved, as the Defendants failed to establish  how the alleged misrepresentation was material and induced them to enter into the contract referring to Kuforiji v VYB Ltd & Anor (1981) 6-7 SC 25 at 40. He submitted that the allegations are dehumanizing, dishonouring and a scandalous defence; and they are retaliatory and in pursuance  of the Defendants discrimination against the Claimant as a pregnant woman. It was his submission that the defendants have violated the claimant’s right to freedom from discrimination relying on Adegbite v. Standard Chartered Bank Nig supra, Standard Chartered Bank Nig. Ltd. v Adegbite (2019) 1 NWLR (pt. 1653) 348), Suit No: NICN/LA/492/2012 Ejieke Maduka v. Microsoft Nig. Ltd, Miss Tolani v Kwara State Judicial Service Commission (2009) LPELR-8375 (CA).

 

[43] Learned Senior Counsel in arguing issue 2 referred to the principles espoused in Eliochin v. Mbadiwe (1986) 1 NWLR (pt. 14) 47 at page 65,^,  and FRA Williams v Daily Times of Nigeria (1990) 1 NWLR (pt. 124) 56 in assessing the damages. He urged the Court to be guided by the principle of law applicable to damages for breach of the claimant’s rights to freedom from discrimination relying on the damages awarded in Ndidi Adegbite and Ejieke Maduka cases (supra) He urged the Court to show its readiness to always punish sex and pregnancy discrimination for the sheer enormity of the violation and its displeasure to the Defendants’ unrepentant misogynist, oppressive, arbitrary, malicious and outrageous actions, and their sheer devaluation of the claimant’s dignity as a woman and Dutch nationality so as “to reflect a ‘deeper appreciation’ in the community of the hurt and humiliation experienced by victims” in the large amount to be awarded: Creighton & Stewart’s Labour Law (2016) 6^th ed. Para. 20.33 at pages 660 – 661.  He therefore urged the Court to uphold her claim with post judgment interest of 25% per annum until the date of payment relying on order 47 rule 7 of the NICN Rules.

 

[44] Learned Senior Counsel on issue 3 submitted that the counter claim ought not to succeed if the Court upholds Claimant’s arguments as to locus standi or their objection to the proper parties. He submitted that the defendants have failed to specially plead and strictly prove the damages claimed.  He submitted that the claimant is not liable to any sum at all, and that some of the heads of claim are illogical while others have not been proved. He then urged the Court to grant the Claimant’s claims and dismiss the counter claim with substantial costs.

 

[45] The Defendants reply on point of law is a re-argument of their final address. It is not a reply on point of law. Consequently, it is hereby discountenanced.

 

 

                                                            Decision

 

[46] I have carefully considered the originating processes, the evidence, the submissions of counsel and authorities relied on in the final address. At this juncture, I will begin with the preliminary issue/objection by the Defendants wherein they contend in their pleadings (statement of defence) that “they have been improperly impleaded as parties because they are not the legal entity known as Starling School with whom the Claimant allegedly contracted”. Exhibit C2 is the Certificate of Registration of the Business Name ‘Starling School’; and the 1^st and 2^nd Defendants are named as Partners. Exhibit C1 is a statement on oath sworn to by the 1^st Defendant on 28^th February 2014 in which she made the following deposition; “That Starling School was registered by myself and my husband Mr Augustine Olloh in 2005 but I am the director and the administrator of the school as I run and maintain the school.” In cross-examination, the 1^st Defendant stated: “Mr Augustin Olloh is a nominal Proprietor”. Exhibits C1 and C2, and the oral evidence of the 1^st Defendant reveal that the Defendants are Partners and Proprietors of Starling School.

 

[47] The Defendants’ base their objection on the provisions of Order 13 R 22 of the   Rules of this Court 2017 reproduced:

 

Any two or more persons claiming or alleged to be liable as partners and doing business within the jurisdiction may sue or be sued in the name of the firms, if any, of which they were partners when the cause of action arose; and any party to that action may in such case apply to the Judge for a statement of the names and addresses of the persons who were partners in the firm when the cause of action arose, to be furnished in such manner, and verified on oath or otherwise as the Judge may direct.

 

 The word ‘may’ used is not only permissive, but applicable only to permit an action by or against the Partnership; and is not to prohibit the Claimant from instituting an action against the Defendants who as natural persons are juristic persons that can sue or be sued. Fawehinmi v NBA (No 2) (1989) 2 NWLR (Pt 105) 558, see the commentary on the in pari materia provision Order 81 Rule 1 The Rules of the Supreme Court of England. Furthermore, Order 13 Rule 25 of the Rules of this Court 2017 states:

 

The above Rules in this part of this Order shall apply to proceedings between a firm and one or more of its partners and between Firms having one or more partners in common, provided such Firm or Firms carry on business within the jurisdiction.

 

[48] The Defendants are juristic persons, they are the Proprietors running their business as Starling School. By the deposition of the 1^st Defendant, she is the Director, the Administrator, and she runs and maintains Starling School. The pleadings and evidence reveal that the 1^st Defendant had personal dealings with the Claimant, pre-employment, and during the employment. I find that the 1^st Defendant personally signed the employment contract on behalf of Starling School; and that the Defendants are Starling School. I hold that the proper parties are before the Court. The Court has jurisdiction to entertain this matter. This objection is overruled.

 

[49] The law is settled that whoever desires the court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist, section 131 (1) & (2) of the Evidence Act 2011, see Calabar Co-operative Ltd v Ekpo [2008] 1-2 SC 229 at 255.  The relevant documents the parties have placed before the court include the contract of employment (exhibit C3 & D1), the Claimant’s marriage certificates (exhibit C4 & D14), the birth certificate of the baby (exhibit C6), email from Mr. Jonathan Ogidi- Nwankwo (exhibit C5), Federal Medical Centre medical report (exhibit C7), the Claimant’s curriculum vitae (exhibit C14), the Claimant’s application form (exhibit D31), the Claimant’s certificates (exhibit C43 to C48), references   (exhibits C15, C16, & C17), reference email trail (exhibit D2), termination letter (exhibit D5), reply to termination letter (exhibit C42), Claimant’s medical certificates (C53, C54, D7,), request for a different living place in Lekki, (exhibit C39), the 1^st Defendant’s academic certificates and workshop attendance certificates (exhibits D24-D26 & D28-D30).

 

 

 

[50] The issues that arise for determination are as follows:

 

1. Whether the Claimant misrepresented her name in executing the contract of employment?

 

2. Whether the termination of the Claimant’s employment by the 1^st Defendant after childbirth and while on maternity leave was discriminatory on grounds of gender and/or pregnancy; unlawful and in violation of constitutional provisions, international conventions and treaties?

3. Whether on the pleadings and evidence the Claimant ought to be entitled to the reliefs she is seeking? 

4. Whether the Defendants have proved the counter claim?

 [51] Learned Senior Counsel to the Defendants has submitted that the Defendants are not bound by the terms of the employment contract and that it cannot be the foundation of any valid court action because the Claimant misrepresented her name and qualifications and as such it is an illegal contract and void ab initio. The basis for the allegation of misrepresentation of the Claimant’s name by the Defendants is that the Claimant was not legally married to her husband Jonathan Ogidi Nwankwo as at 14/02/13 when the employment contract was executed by the parties; and that her true and correct name is as seen on her curriculum vitae Nicolene E.W. Tresfon. Therefore, she had no right to include Ogidi-Nwankwo as part of her name. The Claimant’s evidence is that that she and her husband had been living together in Holland since 2012, and that: “As a Dutch citizen, no marriage is required for me to live with my husband or to address myself as his spouse in Holland, and after our co-habitation I had a choice of whether to use my maiden name, Tresfron or my husband’s last name Ogidi-Nwankwo or a combination of both. My husband and I are happy with this state of affairs”. This evidence is unchallenged by the Defendants.

 

[52] The employment contract is between Starling School and Mrs./ Ms Nicolene E.W. Tresfon-Ogidi-Nwankwo. The Claimant’s names on the employment contract are a combination of her maiden name and her marital name. I find that the Claimant did not misrepresent her name to the Defendants, be it Mrs or Ms as the Defendants knew the Claimant’s personal relationship status with her husband Jonathan Ogidi Nwankwo at the material time. The 1^st Defendant was therefore not deceived as to the identity of the Claimant when she signed the employment contract as ‘Nicoline Tresfon-Ogidi-Nwankwo’; and she signed as ‘Priscilla N. Olloh Director on behalf of Starling School’. Furthermore, there is no evidence that the Claimant drafted the employment contract. Rather, the employment contract was prepared by the Defendants and given to the Claimant who came into Nigeria for the interview that took place on 13/02/13 to execute on 14/02/13: ‘READ, APPROVED, ACCEPTED AND EXECUTED BY (EMPLOYEE)’  as clearly seen on the execution portion of the employment contract, and in the presence of the Defendants Recruiter/Consultant Armstrong Samuel Adayi.

 

[53] Clause 19.4 of the employment contract provides that the employer may terminate the employment contract on ground of misrepresentation. This provision relates to discipline and disciplinary measures; and not to the validity of the employment contract to render it illegal or void ab initio as submitted by the defendants. I hold that the Claimant did not misrepresent her name. The employment contract is valid, and it is binding on the parties.

 

[54] The Defendants have made the Claimant’s name and marital status an issue in this dispute in paragraphs 5, 6, and 7 of the Amended Statement of Defence as follows:

 

1.      In further denial of paragraph 1 of the Amended statement of facts the Defendants state that contrary to the Claimant’s assertion, she was not married to Mr. Jonathan Ogidi Nwankwo at the material time when she executed the purported contract of with the school and held herself out at such.

 

2.      Further to the preceding paragraph, the Defendants avers that the Claimant’s true name when she applied for the position of the Head Teacher of the School executed the purported contract of employment was “Nicoline Emilie Willemijn Tresfon” and not “Nicoline Tresfon Ogidi Nwankwo” as she was not married to Mr. Jonathan Ogidi Nwankwo as at 14/2/2013.  The Defendants plead and shall rely on the bio data page of Claimant’s international passport at the trial.

 

3.      It was subsequent to the execution of the purported of contract of employment that the Claimant allegedly got married to Mr. Jonathan Ogidi Nwankwo in Holland on 20/4/2013, which she latter re-married the same Mr. Jonathan Ogidi Nwankwo in Nigeria on 23/5/2013. The Defendants hereby plead and shall rely on the claimant’s two marriage certificates at the trial.

[55] In my considered view, this is simply a sanctimonious issue on morality by the Defendants. This is because in the employment contract, marital status, or the state of being married, or unmarried, is not a term of the employment contract. The Claimant in her reply joined issues with the Defendants, and in paragraphs 4, 5, & 6 of her additional statement on oath states:

 

4.      In response to the allegation that I misrepresented my name, I state that my husband Jonathan Chukwuma Ogidi-Nwankwo and I had been living together in The Hague, Holland since 2012, and on 29^th October 2012 we celebrated our marriage at Ogidi’s Compound, Umuobia, Olokoro, Umuahia Sourth, Abia State under native law and custom. The subsequent celebration of marriage at Christ Embassy Church, The Hague, Holland was by choice. Copies of our native law and custom and Church marriage certificates given to the 1^st Defendant, are now produced shown to me. Wedding photographs also are now produced shown to me.

 

5.       As a Dutch citizen, no marriage is required for me to live with my husband or to address myself as his spouse in Holland, and after our co-habitation I had a choice of whether to use my maiden name, Tresfon or my husband’s last name Ogidi-Nwankwo or a combination of both. My husband and I are happy with this state of affairs.

 

6.      The marriage celebrated by the parties at the marriage registry in Nigeria during the School’s mid-term break on 23^rd May 2013 was at the request of Defendants for evidence of marriage celebrated in Nigeria to save Starling School costs that may ordinarily be incurred in applying for expatriate quota if I am not the wife of a Nigerian, hence a copy of my registry marriage certificate was also delivered to the 1^st Defendant upon my return from Eastern Nigeria.

[56] Paragraph 6 above of the Claimant’s deposition is uncontroverted and it speaks for itself. The Claimant’s identity was never in question. There is no law in Nigeria that prohibits a female, an unmarried woman, or a married woman from answering her maiden or family name, a combination of her maiden and marital name, her marital name alone, or any name she so desires. I find that the Defendants have raised this issue because the Claimant is female. In other words, it is because of her gender that her name and marital status is made an issue in this dispute.

  

[57] The Claimant has complained that her employment was terminated while she was on maternity leave, and that the termination is connected to her gender and her pregnancy and that this is discrimination and in violation of Section 42 of the 1999 Constitution, international treaties and conventions. The Defendants deny this and state that the Claimant’s employment was terminated because she misrepresented her name, and misrepresented that she was a teacher at Dak Kindercentra, her immediate past employment whereas she was a child care worker. I have already found above that the Claimant did not misrepresent her name.  

 

[58] I will reproduce the letter of termination (exhibit D5) written by the 1^st Defendant. It  is dated 24^th October 2013, and not 24^th October 2014 wrongly stated in the main head of claim:

 

24^th October, 2013

Mrs/Ms Nicoline E.W. Tresfon- Ogidi Nwankwo,

NR 36,

2525 ZV

The Hague

Netherland

 

Dear Mrs Nicoline E.W. Tresfon- Ogidi Nwankwo

 

TERMINATION OF APPOINTMENT

 

Please be informed that your services are no longer required by the school.

 

Reports that we received from Dak Kindercentra where you claimed to have worked as a teacher and supervisor, reveal that you were a (child care worker) and worked at various child care centers. It is obvious that Dak Kindercentra is definitely not a school as they said so in a subsequent mail to us.

 

The school resumed on the 9^th of September 2013 and you did not report for duty and has (sic) abandoned your job.

 

Consequently, in exercise of our rights under clauses 1, 3 and 19(4) (a) of the Contract of Employment, we regret to inform you that the contract is hereby terminated. The accounts department has been directed to pay to you the sum of Six Hundred and Ninety Thousand Naira (N690,000.00) being two month’s salary less taxes on compassionate grounds.

Thank you

Yours faithfully,

Mrs Priscilla Olloh

Director.

 

[59] The Claimant rejected this letter in her reply to the 1^st Defendant exhibit C42. The 1^st Defendant has given two reasons for the termination of the Claimant’s contract of appointment in the letter. The law, and international best practices in labour, employment and industrial relations imposes on the employer (Defendants) a duty to justify the reason given for the termination of the employee’s (Claimant) employment, see Olatunbosin v NISER Council [1988] 3 NWLR (Pt 80) 25. It is the law that whoever desires the Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist, section 131 (1) & (2) of the Evidence Act 2011, see Calabar Co-operative Ltd v Ekpo [2008] 1-2 SC 229 at 255. It is also the law that civil suits are decided on the balance of probabilities, on the preponderance of evidence. The burden of proof is not static but shifts from side to side. The onus of adducing further evidence is on the person who will fail if such evidence is not adduced, Danjuma v S.C.C. Nig Ltd [2017] 6 NWLR (Pt 1561) 175 at 206 para C, Osuji v Ekeocha [2009] 16 NWLR (Pt 1166) 81 at 116, Fadlallah v Arewa Textile Ltd [1997] 8 NWLR (Pt 518) 546 at 556.

 

[60] I will begin with the first reason in the letter. The uncontroverted facts reveal that the Claimant was headhunted by the Defendants and their Recruiter who saw her motivational letter (exhibit C13), and her curriculum vitae (exhibit C14) posted on line for a position as a Teacher in the Shell Petroleum Development Company Nigeria. She was contacted by the Recruiter and the 1^st Defendant and invited to apply to Starling School. She had several telephone and video interviews with the 1^st Defendant and the Recruiter on her curriculum vitae and credentials. Thereafter, the Defendants invited her to Nigeria at their expense for a presentation and interview on 13^th February 2013. She attended the interview where she made a presentation; and the Panel examined her credentials, referral letters, and interviewed her on her education, training, teaching and management experience. The Claimant was successful at the presentation and interview; and she was offered the position of Head Teacher. The employment contract was signed the following day 14^th February 2013.  

 

[61] The Claimant holds a BA Degree in Languages and European Studies, Higher Diploma in Pedagogy and Child Development, Certification in Child Education and Childcare Management from DAK Childcare and Pedagogy Institute, and several other training certificates in Communication, Child Education and Development, Pedagogy  which are all in evidence. I find that the Claimant is very well educated. The Claimant states in her curriculum vitae (exhibit C14) that she is “currently enrolled for rapid course in primary school teaching”; and that her employment from “2006 to Present” is Teacher and Activity Supervisor at DAK Childcare and Pedagogy Institute (underlining mine), Part-time teacher for creative workshops at Pink Pepper Language and Creative Workshop Institute, Primary School Teacher at Montessori Preschool Waalsdrop.  The Claimant in her application form (exhibit D31) also states that she is a ‘Teacher and Activity Supervisor’. I find from the Claimant’s curriculum vitae (exhibit C14) and her application form (exhibit D31) that she did not state that Dak Kindercentra is a School.  Rather, she states in her curriculum vitae that her employer is “DAK Childcare and Pedagogy Institute”. In cross-examination, the claimant testified that she was a Teacher at DAK. There is no evidence placed before the Court by the Defendants that “DAK Childcare and Pedagogy Institute” does not exist.

 

[62] The 1^st Defendant has put in evidence her own educational qualifications and certificates, a BSc Degree in Education, Masters Degree in Business Administration, and other certificates of courses she has attended locally and in the United Kingdom. I find the 1^st Defendant to be very well educated, and an experienced Educator. She was a member of the Panel that conducted the Claimant’s interview. She saw and read the curriculum vitae of the Claimant, her motivational statement, and examined her certificates. The 1^st Defendant along with others on the interview Panel decided the Claimant was suitable for the job, the position of Head Teacher; and she was offered the position. The 1^st Defendant in her letter to the Claimant dated 8^th October 2013 (exhibit D4), states: “In effect, you have only served a probationary period of three months which you worked effectively and the month of August when the school was on holidays.” This is a commendation by the 1^st Defendant. In cross-examination, the 1^st Defendant said “ It is a general comment.” I find from this commendation that the Claimant who worked effectively as Head Teacher did not misrepresent her position as ‘Teacher and Activity Supervisor’ at DAK or her qualifications. This in my view is evidence that the Claimant was suitably qualified to be Head Teacher.

 

[63] The 1^st Defendant in cross-examination testified that she wrote a letter on 3^rd July 2013 requesting for a reference from DAK the Claimant’s immediate past employer. There is no evidence of the DHL delivery of the letter before the Court. The responses by DAK to her enquiries for a reference are dated Tuesday October 8, 2013 and Wednesday October 9, 2013 as seen in the email trail (exhibit D2). The HR Adviseur of DAK states in her email:

 

In your letter, you refer to our company as ‘school’. But I must say that our organization, Dak Kindacentra, is a childcare organization (daycare for children in the age 0-4 and after school care/activities for children in the age of 4 -12).

 

This no doubt this corroborates the Claimant’s statement in her curriculum vitae that her employer is - ‘DAK Childcare and Pedagogy Institute’.

 

[64] The HR Adviseur also states that the Claimant worked within the organization from September 2008 until March 1^st 2013 as a ‘Childcare Worker’ and was ‘suitable for the job’.  Now, how does the 1^st Defendant who by her testimony is diligent and a successful educator; and in my view well exposed (by her Degrees and United Kingdom certificate courses) expect this Court to believe that the Claimant’s training and career in Childcare in a Pedagogy Institute in a European Country will not involve any teaching (imparting knowledge in children); particularly when you consider the Claimant’s educational qualifications, training and cognate experience. Put in another way, does the 1^st Defendant expect this Court to believe that she is unaware that a career in Childcare in a Childcare and Pedagogy Institute in Europe is not devoid of teaching children? The attempt by the 1^st Defendant to downgrade the Claimant’s skills in the letter of termination does not hold water; not with her commendation of the Claimant as having “worked effectively.” The Defendants have failed to justify the first reason given in the letter of termination.

 

[65] The 2^nd reason given for terminating the Claimant’s employment is that she abandoned her job. The evidence reveals that the Claimant had informed the 1^st Defendant that she was pregnant in April 2013 with expected delivery date in October 2013 and that she planned to have her baby in Holland. I believe the Claimant. The School closed for holidays between July and September 2013. After the four weeks summer school organized by the Claimant, she vacated her official accommodation as it was to be fumigated and she travelled to Umuahia Abia State. While in Abia State, the Claimant took ill and was admitted at the Federal Medical Center Umuahia. On 8^th August 2013 an emergency caesarean section was carried out on her to deliver her pre-term baby boy at 32 weeks with a birth weight of 1.6 kilogram (exhibit C6). The baby was placed in an incubator in the intensive care unit at Federal Medical Center, and he also received medical treatment at Medic Angel Clinic Ikeja Lagos (exhibit C7). The Claimant’s husband informed the 1^st Defendant of the birth of the baby, and the medical condition of the Claimant (exhibit C5). The 1^st Defendant congratulated the Claimant. This evidence is unchallenged and the court must accept it, see Ogbe v Asade [2011] 18 NWLR (Pt 1172) 106 at 131 SC, Omoregbe v Lawani [1980] 3-4 SC 108.

 

[66] Now, with the sudden birth of the baby before term at 32 weeks, the Claimant’s maternity leave is deemed to have commenced on 8^th August 2013. I so hold. The evidence adduced reveals that the Claimant (while on maternity leave) wrote a letter to the 1^st Defendant on 8^th September 2013 (exhibit D3) requesting for a suitable and standard accommodation for the health and well-being of herself and her baby as recommended by the Doctors for various medical reasons (exhibit C7). The 1^st Defendant denied that the Claimant was not provided with good living conditions and was displeased with the accusation stating that it was untrue. The Claimant travelled to Holland in mid October 2013 for better medical care for herself and her son. The medical certificate of her Doctor in The Hague is dated October 15, 2013 (exhibit C53), and states that because of medical reasons she is not able to work and needs at least 2 months to recover from the caesarean section and the effect of malaria infection. The Claimant also testified that her son was admitted in Hospital in Holland from 18^th October to 20^th December, 2013, during which he had surgical operation on his kidney. This is unchallenged Ogbe v Asade supra, Omoregbe v Lawani [1980] 3-4 SC 108.

 

[67] The Claimant’s employment was terminated on the 24^th October 2013, and the letter delivered to her in Holland when she was on maternity leave. The Claimant by reason of the emergency caesarean section carried out on her on 8^th August 2013 commenced her maternity leave on that day. This is a fact known to the 1^st Defendant. The Claimant was on maternity leave and could not be back at work on the day her employment contract was terminated. I find that the Claimant did not abandon her job; and I so hold. The Defendants have not justified the 2^nd reason they have given for terminating the Claimant’s employment contract.

 

[68] By the terms of the employment contract, the Claimant’s probation was for an initial period of six months. The Claimant was on probation, and on maternity leave when the 1^st Defendant terminated her employment. The question to be answered is whether Nigerian Labour Law, international conventions and treaties, and international best practices permit the Defendants to terminate the Claimant’s employment when she is on maternity leave. This is crucial, as the Claimant has complained of discrimination against her on the ground of her gender and/or pregnancy. This is the kernel of this dispute. Section 254C-(1) (f), (g), (h), and 254C-(2) of the 1999 Constitution empower this Court as follows:

 

254C-(1) Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-

(f) relating to or connected with unfair labour practice or international best practices in labour, employment industrial relation matters;

(g) relating to or connected with  any dispute arising from discrimination or sexual harassment at workplace;

(h) relating to or connected with or pertaining to the application or interpretation of international labour standard.

 

254C-(2) Notwithstanding anything to the contrary in this Constitution, the  National Industrial Court shall have jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith.

 

[69] Having been so empowered, the Court has a duty and an obligation to apply international conventions, and international best practices in the resolution of labour and employment disputes as decided by the Court of Appeal in Sahara Energy Resources Ltd v Oyebola (unreported) CA/L/1091/2016 judgement delivered 3 December 2020. I will have recourse particularly to the United Nations Convention on The Elimination of All Forms of Discrimination against Women (CEDAW); ILO Discrimination  (Employment and Occupation) Convention 1958 (No 111) which have been ratified by Nigeria and are in force; Articles 2 and 5 of the African Charter on Human and Peoples Rights (Ratification and Enforcement Act) which is domesticated; and as evidence of international best practice ILO Maternity Protection Convention 1919 (No 3), revised in Convention 2000 (No 183); and Section 54 (1) (a), & (b), and (4) (b) of the Labour Act CAP LI  Laws Of The Federation of Nigeria 2004  of in the resolution of this dispute.

 

[70] The Supreme Court in Abacha v Fawehinmi [2000] 6 NWLR (Pt 660) 228 at 315 (para C), and 344 (para H) has held that ‘conventions and treaties create rights and obligations not only between Member States themselves but also between citizens and Member States and between ordinary citizens’; and that ‘the spirit of a convention or a treaty demands that the interpretation and application of its provisions should meet international and civilized legal concepts’. Furthermore, by the provisions of Section 19 (c) and (d) of the 1999 Constitution (as amended), the foreign policy objectives of Government shall be respect for international law and treaty obligations, and elimination of discrimination in all its manifestations. It is pertinent to state that the International Labour Organisation (ILO) conventions, the recommendations of its committee of experts, the application of ‘International Labour Standards’ (ILS) which has a range of instruments and decisions of varying degrees that include the conventions, declarations and resolutions of the ILO Conference; customs, protocols, and treaties are point of universal reference in relation to international best practices and its ascertainment.

 

[71] I will now consider Section 54 (1) (a) and (b) and (4) (b) of the Labour Act. It provides:

(1) In any public or private industrial or commercial undertaking or in any branch thereof, or in any agricultural undertaking or any branch thereof, a woman-

(a) shall have the right to leave her work if she produces a medical certificate given by a registered medical practitioner stating that her confinement will probably take place within six weeks;

(b) shall not be permitted to work during the six weeks following her confinement;

         (4) Where a woman-

(a) is absent from her work in pursuance of subsection (1) (a) or (b) of this section;    or

(b) remains absent from her work for a longer period as a result of illness certified by  a registered medical practitioner to arise out of her pregnancy or confinement and to render her unfit for work, then, until her absence has exceeded such a period (if any) as may be prescribed, no employer shall give her notice of dismissal during her absence or notice of dismissal expiring during her absence.

[72] Article 4 of ILO Maternity Protection Convention 1919 (No 3) provides that

 Where a woman is absent from her work in accordance with paragraph (a) or (b) of Article 3 of this Convention or remains absent from her work for a longer period as a result of illness medically certified to arise out of pregnancy or confinement and rendering her unfit for work, it shall not be lawful, until her absence shall have exceeded  a maximum period to be fixed by the competent authority in each country, for her employer to give her notice of dismissal during such absence, nor to give her notice of dismissal at such time that the notice would expire during such absence.

[73] These provisions stipulate that a woman on maternity leave shall not be dismissed, or given notice of termination of her appointment during her maternity leave period. In other words, any action to be taken against a woman on maternity leave is to be suspended by the employer until the expiration of her maternity leave, and when she returns to duty. This is irrespective of whether the woman (employee) is on probation, or not on probation, or a confirmed staff. This is the express provision of the Law, and it is international best practice, and international labour standard. Section 54 of the Labour Act is in conformity with international best practice and standard. The Defendants Lawyer in his letter (exhibit D12) mentioned that the Claimant informed the Defendants that she would have her baby in Holland, taking her leave at the time of her delivery, and continue her job on her return. This is evidence that the Claimant intended to return to her duties and did not intend to abandon her job. The Claimant’s employment was terminated after she wrote to the Defendants on 8^th September 2013 (exhibit D3) requesting for a different and suitable living accommodation in Lekki, re-evaluation of her health insurance and work vehicle.

[74] The 1^st Defendant in an earlier deposition (exhibit C1) made the claimant’s pregnancy an issue by stating that she concealed it, and that she is not entitled to maternity leave while on probation. These issues are also mentioned in exhibit D12 written by the Defendants Lawyer.

[75] Article 1 (a) of ILO Discrimination (Employment and Occupation) Convention 1958 (No 111) states:

 

1.      For the purpose of this Convention the term discrimination includes—

(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.

 

The United Nations Convention on The Elimination of All Forms of Discrimination against Women (CEDAW) defines discrimination as:

 

Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural civil or any other field.

 

Articles 2 and 5 of the African Charter on Human and Peoples Rights (Ratification and Enforcement Act) provide:

 

(2) Every individual shall be entitled to the enjoyment of the rights and  freedoms recognized and guaranteed in the present Charter without  distinction of any kind such as race, ethnic group, colour, sex, religion,   political or any other opinion, national and social origin, fortune, birth or  other status.

             (5) Every individual shall have the right to the respect of dignity inherent in a  

human being and to the recognition of his legal status. All forms of exploitation, and degradation of man particularly slavery, slave trade, torture, cruel inhuman or degrading punishment and treatment shall be prohibited.

 

[76] From the evidence adduced, the Claimant has reasonable grounds to believe that her gender, pregnancy and child birth, her name, her marital status, and her way of life and culture as a Dutch woman has resulted in the treatment she has received from the Defendants. This has disadvantaged her in employment with the Defendants, and has resulted in the loss of her job. This is an act of discrimination by reason of her being a woman, and thereby subjected to a disability in breach of her fundamental right to freedom from discrimination on account of sex/gender. Discrimination on account of pregnancy, confinement and related medical conditions is demonstrated by the fact that only women are affected, see Mrs Folarin Oreka Maiya v Incorporated Trustees of Clinton Health Access Initiative Nigeria [2012] 27 N.L.L.R (Pt 76) 110. Furthermore, the right to work with dignity, a decent work agenda, is a universally recognized basic human right, see the Supreme Court of India decision in Vishaka and Others v State of Rajasthan and Others 13 August 1997, [1997] 6 SCC 241.

[77] In applying the three international instruments, I find that the Claimant’s employment was terminated as a result of her gender, her pregnancy, the birth of her child, her name and marital status; and I so hold. The Claimant’s right against discrimination in employment and the work place has been violated, see Ejieke Maduka v Microsoft Nigeria Limited & 2 Ors (2014) NLLR (Pt 125) 67. The termination of the Claimant’s employment when she was on maternity leave is unlawful and in violation of constitutional provisions and international conventions and treaties. I so hold.

[78] The Claimant has asked for an award of exemplary or aggravated damages. Exemplary damages are awarded in very restricted and enumerated situations as a punitive measure where malice or gross disregard for the law is proved - see Chief Williams v. Daily Times of Nigeria [1990] 1 NWLR (Pt. 124) 1, G.F.K.I. (Nig.) Ltd v. NITEL Plc (2009) 13 NWLR (Pt.1164) 344 at 373. Learned Senior Counsel to the defendants has submitted that the sum of N150 Million has no factual or legal basis as the measure of damages is prima facie the amount that the Claimant would have earned had the employment continued according to the contract. Section 7(6) of the National Industrial Court Act 2006 empowers the Court to have due regard to good or international best practice in labour or industrial relations, and what amounts to good or international best practice in labour is a question of fact. In construing this provision together with the constitutional provision in Section 254C(1) (f) the Third Alteration Act 2010, the Court of Appeal in Sahara Energy Resources Ltd v Oyebola supra per Ogakwu JCA succinctly stated the legal position of these new provisions in the determination of the issue of quantum of damages as follows:

 

The above provisions enjoin the National Industrial Court in the exercise of its jurisdiction, to “have due regard to good or international best practices in labour or industrial relations”. The importance of this novel provision, in my deferential view, is that the National Industrial Court, in considering the measure or quantum of damages is to do so in accordance with “good or international best practices in labour or industrial relations”, which shall be a question of fact. It will be stating the obvious to say that prior to the Third Alteration, when employment and labour matters were handled by the High Courts, there was no obligation to apply and follow good or international best practices. It is an innovative provision which seems to be directed at enthroning an entirely new employment and labour jurisprudence. It will be disregarding this innovation if we continue to deal with the measure of damages in total disregard of the changes wrought to the law by legislation. The proper attitude of the court when confronted with an innovation introduced by way of an amendment to an existing law or a new statute simpliciter (in this case, the Third Alteration to the 1999 Constitution and the National Industrial Court Act of 2006) was enunciated in the case of BANK OF ENGLAND vs. VAGLIANO BROTHERS (1891) A. C. 107 at 144-145 (per Lord Herschell) as follows:

"I think the proper course in the first instance is to examine the language of the statute and to ask what is the natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start by enquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.”

The above passage was quoted with approval by the Supreme Court in NDIC vs. OKEM ENTERPRISES (2004) 10 NWLR (PT 880) 107. Indeed, the note of caution sounded by this Court in NASARAWA STATE SPECIALIST HOSPITAL MANAGEMENT BOARD vs. MOHAMMED (2018) LPELR (44551) 1 at 20-21 on the imperative of treating or applying older case law authorities that pre-date the Third Alteration Act with extreme circumspection, bears re-echoing here.

 I must state that the cases referred to by learned Senior Counsel on quantum of damages pre-date the Third Alteration Act and so are inapplicable on quantum of damages.

[79] The Claimant’s rights have been violated. She deposed to the fact that she cannot get a Job in Holland again as a Teacher because any prospective employer requires a referral from Starling School, and in the circumstances she cannot approach the Defendants. That as such she has been deprived of practicing her profession which she loves, and has had to retrain in a new profession as a maternity nurse. Before her re-training she could not work and had to depend on social benefits from the Dutch Government. The Claimant was not cross-examined on this evidence. It is unchallenged. There can be no doubt that the Claimant lost her source of income by the actions of the Defendants. Her pride, her dignity, and her sense of self worth have been injured by the actions of the Defendants. Her contract was for an initial period of three years, and renewable. Her annual gross salary in the employment contract was N4,500,000.00 (Four Million, Five Hundred Thousand Naira) per annum.

[80] I think an award of general damages which the Claimant is entitled to will meet the justice of this case. Consequently, and on the authority of section 19 (d) of the National Industrial Court Act, 2006, I award the sum of N13,500,000.00 (Thirteen Million, Five Hundred Thousand Naira) being the equivalent of three years gross salary as general damages in favour of the Claimant.

[81] For all the reasons given above, the Defendant’s counter claim fails. It has not been not proved by the Defendants/ Counter claimants. It is dismissed in its entirety.

 

[82] I hereby declare and make the following orders:

 

1.      I Declare that the determination of the Claimant’s employment by the Defendants’ letter dated 24^th October 2013 during her maternity leave period is unlawful, and is discriminatory against her on the ground of her gender, pregnancy and child birth, and therefore unconstitutional, null and void and in violation of international conventions and treaties.

 

2.      I order the Defendants to pay the sum of N13,500,000.00 (Thirteen Million, Five Hundred Thousand Naira) as general damages to the Claimant.

 

3.      Costs of N500,000.00 (Five Hundred Thousand Naira) awarded the Claimant on the main claim.

 

4.      Costs of N500,000.00 (Five Hundred Thousand Naira) awarded the Claimant on the counter claim.

All sums are to be paid within 30 days. Thereafter any sum outstanding shall attract simple interest at the rate of 15% per annum until fully liquidated.

Judgement is entered accordingly.

 

                                                            ____________________________         

                                                            Hon Justice O.A Obaseki-Osaghae