IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ALOKOJA JUDICIAL DIVISION

                        HOLDEN IN LOKOJA

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI

DATE: 13TH JANUARY 2023                 SUIT NO: NICN/LKJ/11/2020

BETWEEN

MR. ABIMBOLA OLUFEMI OGUNJOBI………………………. CLAIMANT                                               

 

AND

1. INTERCON PRATNERSHIP LTD

2. ENGR. O. A. OGUNKEYEDE………………………………....DEFENDANT

 

REPRESENATION

Austine Oboni Esq for Claimant.

Oluseye Chukura Esq Defendants

 

JUDGMENT

1.      By a General Form of Complaint dated 6th day of July 2020, the Claimant prayed this Court for the grant of the following reliefs against the defendants;

1.   A declaration of this Honourable Court that the termination of Claimant’s employment with the 1st defendant company by letter dated the 3rd day of January 2020 is unlawful, null and void.

2.   The sum of N2, 172, 000.00 (Two Million, One Hundred and Seventy Two Thousand Naira) only being the total sum of all outstanding salaries and other emoluments owed to the claimant by the 1st defendant as at January 2020 when his purported termination was communicated to him.

3.   The sum of N15, 000,000.00 (Fifteen Million Naira) only, being general damages for hardship suffered by the Claimant throughout the period his due entitlements were withheld by the defendants and throughout the period of unlawful terminate on of his appointment with the 1st defendant.

4.   The cost of this suit.

2.   It is the claimant’s case that he was employed by the defendant in February 27, 2012 vide a letter of appointment on a basic salary of N50,000.00 per month and equally entitled to other emolument of N10, 750.00 per month after the expiration of the probation period of six month. He further averred that the 2nd defendant mandated him to perform the duties and functions of Secretary when it became vacant. The claimant also averred that sometime in March 2018 the 2nd defendant placed all the staff of 1st defendant on stood off and thereafter in April he was recalled, consequently resumed office and that upon his resumption he collated the monthly progress reports of the 1st defendant to ensure the company’s record was up to date. It is equally the averment of the claimant that sometime in September 2018, when the office of the Secretary became vacant again, he was saddled with the duties of the Secretary and assured by the 2nd defendant that he will be paid an additional N20, 000.00 per month. That he repeatedly wrote the 1st and 2nd defendants manually and via email demanding for his entitlement but instead he was issued with letter of termination. That he subsequently wrote the defendants through his solicitors demanding for his outstanding salaries and other emoluments which the defendants refused and or neglected to act upon till the time of filing this suit. The claimant contended that the purported termination of his appointment is illegal, null and void having not given notice to that effect and that he is entitled to continue his employment and having not breached any terms of the said employment.

3.   The defendants vide their joint statement of defence filed on the 16th day of August, 2021 averred that the claimant was employed as a contract staff for a period of two years and that the total emolument of the claimant was N10, 750.00 The defendants equally averred that the claimant and other staff of the Company were paid by instalment because as a contractor to Government, payment from the Ministry of works also comes by instalment and that the 2nd defendant being the Senior Engineer merely instructed the claimant to assist in the Secretarial work and offer to pay the claimant N5, 000.00 out of magnanimity acting solely at his own discretion, therefore personally liable to pay the claimant which he did. They further averred that all contract staff except managerial staff were laid off in March 2017 and 2018 due to paucity of funds from Federal Ministry of Works. Continuing, the defendants contended that at no time they jointly or severally undertook to pay the backlog of the claimant’s salaries and emoluments for the period he did not work to the exclusion of other staff. That the claimant never single handedly collated Company’s report and that the claimant is not entitled to any money as salary or emolument. The defendant continued that the claimant was never promoted while working for the 1st defendant and the sum of N20, 000.00 claimed to be paid as Secretary was a private arrangement between the 2nd defendant and the claimant without the approval and consent of the 1st defendant. Going further the defendants, averred that they admitted vide their letter in response to the claimant’s letter of demand that the amount accruable to the claimant is payment from May 2019 to January 2020 and that the claimant is entitled to the sum of N1, 061, 500 being his unpaid salaries and the sum of N80, 000.00 being private arrangement between the claimant and 2nd defendant which sum has been paid. That the claimant having been summarily dismissed for misconduct is not entitled to damages.

4.   On the 8th day of December, 2021, trial commenced with the claimant opening his case and testifying as the sole witness for himself. He adopted his witness statement on oath as his evidence and exhibits A-A9 were tendered through him. He was subsequently cross-examined by the defence after which he closed his case. As it is customary to do, the defence equally opened their case and called a sole witness, one Engr. Ogunkayode who adopted his written statement on oath as his oral testimony in this case. DW was subsequently cross-examined by Counsel on behalf of claimant after which the defence closed their case.

The defendants on the 7th day of January, 2022 filed their joint final written address wherein counsel on their behalf raised five issues for determination of this Court to wit;

i.                    Whether the claimant’s employment is an ordinary master/servant employment.

ii.                 Whether in the circumstances of this case the claimant is entitled to notice before he can be dismissed.

iii.               Whether the claimant can be reinstated

iv.                Whether in the circumstances of this case the claimant is entitled to damages for his dismissal; and

 

v.                  Whether the claimant is entitled to payment for the period he was laid off.

The defendants before making submissions on the issues submitted that this Court lacks requisite jurisdiction to entertain this suit. It is their contention that the issue of jurisdiction can be raised at any stage of the proceedings even on appeal and even before the Supreme Court. He cited in support of his assertion the case of Persons, Name Unknown v. Sahris Int’l Ltd. [2019] 13 NWLR (Part 1689) 203 and APC v. Lere [2020] 1 NWLR (Part 1705)254. It is equally their argument that failure of service of Originating process on the 1st defendant at its Head office has robbed this Court of the jurisdiction to entertain this suit. He cited in support the case of Obeya v. Bank of Industry Ltd [2020] LCN 15358 and Maukolu v. Nkemdilim [1962] All NLR 581.

   5.  Taking the issues together, learned Counsel submitted that the employment of the claimant is an ordinary master/servant employment with no statutory flavor thus a master can terminate the employment relationship any time for any reason or for no reason. He cited in support of his assertion the case of Olanrewaju v. Afribank Plc [2001] FWLR (Part 72) 2008. He also submitted that where a servant is found guilty of misconduct as in the instant case, he may be summarily dismissed and that where an employee alleges that his master has wrongfully terminated his employment, it is his duty to prove the allegation. He cited in support the case of Nigerian Airways v. Gbajumo [1992] 5 NWLR (Part 244) 735. Moving on, counsel submitted that it is only in employment laced with statutory flavor that an employee who was unlawfully dismissed that may be reinstated and not ordinary master/servant employment. He cited in support of his assertion the case of Shitta Bay v. Fed. Civil Service Commission [1981] 1 SC 40. Learned counsel concluded that the claims of the claimant are outrageous, misconceived and speculative. He urged the Court dismissed same with substantial cost.

   6. The Claimant filed his final written address on the 4th day of March 2022 wherein Counsel on his behalf raised sole issue for determination of the Court viz;

Whether the claimant has proven his case to be entitled to the relief sought before this Court.

Learned claimant’s counsel submitted that the claimant has made out his case by law to entitle him to the reliefs sought before the Court. More so the claim of the claimant is for his entitlements wherein part has been paid leaving the balance. He cited in support the case of Attorney General Cross River State v. Okon [2007] All FWLR (Pt. 395) 370 C.A. It is equally the submission of learned counsel that the claimant is entitled to be paid for job done/money earned. That the claimant’s employment was wrongfully terminated hence he is entitled to damages. He cited in support the case of Samuel Iyiola Ogundipe v. Nigerian Telecommunications Limited & 2 Ors [2016] All FWLR (Pt. 817) 613 and FBN v A.G. Federation [2019] All FWLR (Pt. 1015) 270 SC Particularly Holding 9&14. On the issue of N1, 061, 500.00 being the total final payment as posited by the defendants, Counsel urged the Court not to accede to it as the claimant was recalled wherein he was made to function as both Engineer on site as well as Secretary and it is clearly shown by exhibits A4 and A5. That from the totality of the evidence the 1st defendant has failed to show that the employment of the claimant was validly terminated as required by law. He urged the Court to enter judgment in favor of the claimant by granting all his claims and ordering unconditional payment of the claimant’s balance and damages forthwith.

  7.     After a careful perusal of the originating process in this suit, the accompanying documents, the statement of defence along with the accompanying documents and exhibits tendered in this suit, I am of the view that the issues that would best determine this suit are;

       1.Whether this Court is clothed with the requisite jurisdiction to entertain this case.

       2. Whether the claimant has justified his claims to be entitled to the reliefs sought.

8.   In respect of issue one, the defendants in their final written address challenged the jurisdiction of this Court to entertain this matter. This according to them is in view of the non service of the originating process at their Head Office. The question of jurisdiction is vital to the survival of an action in a Court of law. A defect in competence of a Court is not intrinsic but rather extrinsic. See the cases Akande v. Jegede [2022] 14 NWLR (Pt. 1623) 125; Gbeje v. Oke [2018] 10 NWLR (Pt 1627) 382@393, Paras B-C. This explains why the issue of jurisdiction is a threshold issue. Thus, once the competence of a Court of law is challenged, the Court is duty bound to first assume jurisdiction to determine its competence to entertain and determine the suit. See the cases of Sylva v. INEC [2015]16 NWLR (Pt 1486)576@623, Paras A-D and; Mil Adm, Delta State v. Olu of Warri [1997] 7 NWLR (Pt 513)430@457, Paras A-B. This is because a proceeding no matter how well conducted without jurisdiction is a nullity. It is the defendants’ contention that the claimant ought to have served the 1st defendant in this suit at its head office in Ibadan and that failure to serve processes as required by law is fundamental vice that deprives the Court of Jurisdiction. The law is trite that what regulates the service of Court process is the Rules of Court at both Federal and State levels. See Mobil Prod. (Nig.) Untd v. Davidson [2020] 7 NWLR (Pt. 1722) 1 CA; Agip (Nig.) Ltd v. Agip Petroli Intl [2010] 5 NWLR (Pt. 1187) 348 @ 389, Para C and O.U. The Rules of this Court specifically guides this Court as regards service of processes. The Rules of this Court by Order 7 Rule (1) (h) provides for what will be proper service where a person to be served is a Company. It provides thus;

           (h) (i) if a person is a company or the other body corporate, by serving a             copy of the document or process on a senior or responsible employee of a company or body corporate at its registered office or its principal place of business within the Judicial Division in which the dispute first  arose or, if there is no employee willing to accept service, by affixing a copy of the document or process to the main door or place of business or by posting same on the wall or the fence of the residence or place of business”.

The above provisions of the Rules of this Court is very clear and is to the effect that a Company may be served through a Senior or responsible employee of the Company at its registered office or its principal place of business within the Judicial Division in which the dispute first arose or by pasting the process to the main door or place of business. It is thus clear from the above captured provision of the rule of this Court that service may be effected on the Company at its place of business other than its registered office. The defendants are not contending none service of the originating process on the 1st defendant but that the service ought to be made at its Head office not the branch office. I find at page 41 of the record of this Court that the originating process was served on DW, Abimbola Ogunkeyede who is the Chief Resident Engineer//Project Manager, obviously a Senior Officer at the Lokoja Office of the 1st defendant. This has clearly satisfied the requirement of the rules of this Court as it relates to service on a Company. It is not compulsory under the Rules of this Court for the 1st defendant to be served at its Head office, processes may be served on any Senior or responsible Officer of the Company, which has been complied with in this case. It is in the light of this that I find that the mode of service adopted by the claimant is proper service, thus the preliminary objection raised by the defendants is discountenanced for lacking in merit. I so hold.

    9. To the merits of the case, it is apparent in this case that the employment relationship between the claimant and the 1st defendant is that of Master servant relationship. The law is of common that in such employment relationship parties are bound by the contract of the employment, which may be reduced into the letter of employment, employees Handbook or may be implied. The termination of the employment has to be in compliance with the terms and conditions of the contract. Union Bank v. Salaudeen [2017] LPELR-43415 CA and Ibama v. S.P.D.C (Nig.) Ltd [2005]17 NWLR (Pt. 954) 364.  A breach of the said contract will amount to a wrongful termination of the employment. See the case of Atanda H. v Saffeiddine Transport Ltd [2007] LPELR-8303 (CA).

10.    Claimant by his relief 1, is asking the Court to declare that the termination of his employment is unlawful, null and void. The claimant vide his paragraph 30 of his witness statement on oath contended that the purported termination of his appointment is illegal having not been given any notice. The defendants on the other hand vide paragraphs 25 and 26 of their statement of defence and paragraphs 27 and 28 of their witness statement on oath posited that the claimant was summarily dismissed for misconduct. It is pertinent at this stage to consider Exhibit A8 which is the purported letter of termination titled “Termination of appointment” dated 3rd January, 2020 relevant portion reproduced herein below;

                                       Termination of Appointment

            I am directed by the Chairman Intercon Partnership Ltd after reviewing all your cursing, abuse, insubordination and crass disobedience to the Chief Resident Engineer on the Engineering Supervision Consultancy of the Project Contract No. 5885 Section IV-Kotonkarfe-Lokoja Road Dualisation to dispense with and terminate your services as Resident Engineer on this latter project from 21st of December 2019 when the Chief Resident Engineer directed all staff to quit the site…”

11.     It is clear from the above letter that the Claimant’s employment was terminated and not dismissal as the 1st defendant alleged. It is equally evident on the letter that the termination was backdated the effective date of the claimant’s termination as 21st December 2019, while the date on the letter is 3rd of January 2020. Now the question that comes to mind is, can the above be said to be in line with the position of law as regards termination of employment? I answer in the negative. It is trite that termination letter must necessarily take effect from the date on the letter or the date the employee receives the letter or a future date mentioned in the letter. See the case of Udegbunam v. F.C.D.A [1999] 5 NWLR (Pt. 449) 474 P. 485 Paras. E-F; Akinbola v. Ministry for FCT & Anor [2018] LPELR-45848 CA. It is settled law that dismissal or termination of employment cannot be with a backdating effect as in the instant case. Thus, the back dating of the termination of claimant’s employment is wrongful.        

          Further to the above, I also find that although exhibit A which is his offer of contract appointment dated 27th February 2012 did not expressly/specifically provide for how employment relationship of both parties can be determined. In the case of Araromi Rubber Estates Ltd v. Orogun [1999] 1 NWLR (Pt. 586) 302, the Appeal Court held that in a contract of employment where there is totally no written agreement as to the period of notice of termination of the contract of employment, notice given must be reasonable notice. See also the case of U.B.N. Pl v. Soares [2012] 1 NWLR (Pt. 1312) 550. The law is settled that in a contract of employment as in the instant the employer is obliged to give notice of termination or salary in lieu of notice. See the case Nfor v. Ashaka Cement Co. Ltd [1994] 1 NWLR (Pt. 319) 222 CA. The Apex Court in the case of Idufueko v. Pfizer Products Ltd [2014] 12 NWLR (Pt. 1420) 96 @ P. 119 Para. D; went further and held that where a period of notice for termination is not stipulated in a contract of employment, it behoves the trial Court to apply the test of a reasonable man to imply the period of notice that could have been adequate in the circumstances, having regard to the nature of the employment, the length of service and status/position of the employee. The 1st defendant ought to have given the claimant notice or pay him a month salary in lieu of same having served the 1st defendant as a Pupil Engineer for 8 years. This is also in tandem with Section 11(1)(d) of the Labour Act, CAP L1 LFN 2004.  There is nothing before the Court to show that the claimant was given notice or paid salary in lieu of notice upon termination of his employment vide a letter dated 3rd January, 2020. It is in the light of the above that I find and hold that termination of claimant’s employment is wrongful. Consequently, claimant’s relief 1 succeed.

12.       Claimant by his relief 2 is claiming the sum of N2, 172, 000.00 as his outstanding salaries and other emoluments as at January 2020 when his purported termination was communicated to him. It is the contention of the claimant vide his paragraphs 8, 9, 12, 18, 19, 20, 21 and 23 of the statement of facts that the defendants owed him the sums enumerated therein. The defendants in opposition stated that the claimant is only entitled to the sum of N1,061, 500.00 and N80,000.00 unpaid salaries/private arrangement with 2nd defendant which sum has been paid. Claims of this nature fall within the realm of special damages. The law is settled that special damages must be specifically pleaded and strictly proved, the Court is not entitled to make its own estimate of such claim or engage in logical deductions. See the cases of Nwangwu v. F.B.N. Plc [2022] 1 NWLR (Pt. 1812)427 SC; Mobil Prod. (Nig.) Untd v. Davidson [2020] 7 NWLR (Pt. 1722) 1 CA; Ajigbotosho v. Renolds Const. Co. Ltd [2019] 3 NWLR (Pt. 1659) 287 P. 297 Para A SC. Relying on the above position of the law, it is my humble view that once the claimant in a suit pleads the amounts as outstanding salaries in his pleadings i.e. statement of facts and written statement on oath and strictly proved same by cogent and verifiable evidence he will be entitled to the grant of same.  However, the claimant in the instant case who wants the Court to believe that the defendants are owing him outstanding salaries and other emoluments have failed to produce cogent and credible evidence to convince and or persuade the Court to agree with his assertion. In support of his assertion, he tendered Exhibit A5, A6, A7 and Exhibit A9. A careful perusal of the exhibits tendered by the claimant shows that exhibit A5 is an appreciation letter/request dated 12th July 2019 and exhibit A9 titled “breakdown of Mr. Ogunjobi Abimbola Olufemi’s (Resident Engineer 1) entitlement salaries and emoluments is originated by the claimant and exhibit A6 and A7 are letters from the 1st defendant addressed to the Honourable Minister, Federal Ministry of Power, Works & Housing. None of these documents in specific terms constitutes a prove of his claim. Although the defendants admitted of owing him the sum of N1,061, 500.00 and N80,000.00 but claimed to have paid him. The claimant had the opportunity to either challenge or controvert this assertion by filing a reply to their defence but failed, the import of which is a tacit admission of the defendants’ assertion. Claimant did infact, admit under cross examination that he was paid the sum of N1,061,08 by the 2nd defendant as his outstanding salary but asserted that he is still being owed the sum of N990,000. This is a clear indication that claimant was paid his outstanding salaries. It is therefore, from all stated supra that I find that the claimant failed to substantiate his claim with credible, cogent and verifiable evidence. Consequent upon which I hold that claimant’s relief 2 fails.

13.       Regarding relief 3, the claimant claims the sum of N15, 000, 000.00 as general damages. The position of the law is well settled that an award of General damages follow course when there is a wrong. See the case of N.C.C v Motohpone Ltd [2019] 14 NWLR (Pt. 1691) 1 SC; and Cameroon Airlines v. Otutuizu [2011] 4 NWLR (Pt.1238)512 SC. The main object of an award of damages is to compensate the claimant for damages loss or injury he has suffered. It is equally trite that an award of General damages is purely at the discretion of the Court which heard all the parties and could easily determine what would amount to reasonable compensation to a party entitled to such an award. See the case of Akaolisa v. Akaolisa [2022] 13 NWLR 9Pt. 1848) 487 SC. I have reasoned hereinbefore that the defendants did not comply with the terms of contract in terminating claimant’s employment in the instant case. The Court has also held supra that the defendant has failed to give notice to the claimant or pay one month salary in lieu of notice. It is in the light of this that I make an order for the payment of claimant one month salary in lieu of notice in the sum N50, 000.00

14.       The claimant by his relief 4 claims for the cost of action. The law is settled that cost including cost of action is at the discretion of the Court provided the discretion is exercised judicially and judiciously. See the case of Yakubu v. Min. Housing & Environment Bauchi State [2021] 12 NWLR (Pt. 1791) 465 CA and Order 55 of the National Industrial Court Civil Procedure Rules 2017. I find from the facts of this case that it is one deserving of an award of cost, in view of the fact that had the defendants determined the employment of the claimant as required by law he wouldn’t have been put through the unnecessary expenses/stress of litigation. It is in the light of this, that I exercised my discretion in favour of the claimant in awarding the sum of N100, 000.00 to the claimant as cost.

15.    All the judgment sum is to be paid within 30 days from today failing which it is to attract 21% simple interest per annum. 

16.    Judgement is accordingly entered.                                      

                                               

Hon. Justice O.O. Oyewumi

Presiding Judge.