IN THE NATIONAL INDUSTRIAL COURT

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HER LORDSHIP HON. JUSTICE (PROF) ELIZABETH A. OJI

 

DATE:  WEDNESDAY 29TH MARCH 2023                    SUIT NO:  NICN/423/2018

BETWEEN

MR. EMMANUEL MATHEW EKPESIDEM                                             APPLICANT

AND

GLAXOSMITHKLINE CONSUMER PLC                                                  RESPONDENT

 

Representation:

OK  Salawu with SA Salaudeen, for the Claimant

KH Yusuf for the Defendant

JUDGMENT

Introduction and Claims:

1.   On the 8th day of August, 2018, the Claimant filed this suit via the General Form of Complaint, together with the Statement of Facts, List of Claimant’s witnesses, the Claimant’s witness statement on oath, verifying affidavit, list of documents, all dated the same 8th day of August, 2018 and copies of the documents to be relied on by the Claimant at the trial of this suit.  On 11th January 2022, the Claimant filed an amended Statement of Facts by Order of Court dated 16th February, 2022. The Claimant claims against the Defendant as follows:

i.                    A DECLARATION that the lockout of the Claimant by which he could not enter the office of the defendant to perform his duties is illegal and unlawful.

 

ii.                 A DECLARATION that the unreasonable and unjustifiable denial of the Claimant’s promotion earned by the Defendant is illegal and unlawful.

 

iii.               A  DECLARATION that the Claimant cannot be locked out, or terminate his employment except in accordance with the laid down rules in strict compliance with the handbook and the extant law of the Federal Republic of Nigeria.

 

iv.               A DECLARATION that the lockout/termination of employment of the Claimant by the Defendant without following due process of law is unconstitutional, null and void.

                                   

v.                  AN ORDER directing the Defendant to pay to the Claimant all the salaries and allowances accruable to him during the illegal lockout meted against him from September, 2018 till the judgment is delivered in this suit.

 

vi.               AN ORDER of perpetual injunction restraining the Defendant either by themselves, agents, privies, allies or through any person however described from any further acts of locking out, termination of employment, and harassment for the purpose of locking out or interfering with the employment of the Claimant in any way or manner howsoever not in accordance with the law and regulations for termination of employment.

2.  In response to the Claims, the Defendant filed a Memorandum of Conditional Appearance dated 20th day of August 2018 and filed Statement of Defence dated 19th day of October 2018 together with a list of Defendant’s witness and Defendant’s witness statement on oath, list of documents and copies of documents to be relied on at the trial.   Trial commenced in the suit on 4th day of March, 2019, and was concluded on 15th February 2021. The Claimant gave evidence for himself by adopting his witness statement on oath deposed to on the 8thAugust, 2018 and additional statement on oath deposed to on 11th February 2019. The Claimant was cross-examined on 8th day of July 2021. During the examination in chief, the Claimant tendered in evidence the following documents:

1.      Exhibit C1  -  Offer of Appointment

2.      Exhibit C2  -  Employee Hand book

3.      Exhibit C3 - Letter dated 18th January 2007 from the Defendant to the Claimant tag distribution of Special Awards.

4.      Exhibit C4 -  Appreciation letter

5.      Exhibit C5 - print out text messages.

6.      Exhibit C6 -  bundle of email messages

3.  The Defendant’s witness, Mr. Alexandra Olukunle gave evidence on 15th November 2021 by adopting his witness statement on oath deposed to on 11th November, 2021 and was cross-examined accordingly. During examination-in-Chief the witness tendered in evidence the following documents:

 

1.      Exhibit D1—printed email messages dated 23rd of October 2017

2.      Exhibit D2— printed email messages dated 14th March 2018

3.      Exhibit D3 -- printed email messages dated 18th July 2018

4.      Exhibit D4 -- printed email messages dated 19th July 2019

5.      Exhibit D5—Defendant’s Policy

6.      Exhibit D6--- Suspension Letter

 

4.  At the end of trial, the Court ordered the parties to file their respective final addresses. The Final Written Addresses were adopted on 2nd March 2023.

 

CASE OF THE CLAIMANT

5.  The Claimant was employed by the Defendant sometimes in 2005, on a temporary status and his employment was changed to permanent vide a letter dated 26th January, 2009.    The Claimant performed creditably well in the service of the employment of the Claimant and was promoted from Customer Service and Invoicing Officer to Customer Service and Invoicing Supervisor.  His new role as customer service and invoicing officer entails: supervision of warehousing, invoicing distributions and inventory of the Defendant’s products at Agbara in Ogun State and Ilupeju Lagos State.  The Claimant performed creditably well and was due for promotion based on improvement plan given to him in the year 2015.  Sometime in 2015, the Customer Service and Logistics department in the Defendant’s 0ffice were undergoing serious challenges in terms of short of personnel to manage the affairs after almost all the staff in the department left and joined Suntory business.  One Oluwakayode Sowade who was Nigeria’s supply chain lead overseeing the Defendant’s business in Nigeria had a meeting with the Claimant and one Victor Nwaiwu of Import and Export department, and pleaded that the Claimant and the Victor stay back and ensure sanity in the Customer Service and Logistic and Import and Export Department during the trying period and promised to ensure they were promoted.  In December 2015, Victor Nwaiwu was promoted and Mr. Kayode Sowade apologized to the Claimant and pleaded that his promotion will be announced in January, 2016.  Mr. Kayode Sowade could not fulfil the promise despite that the fact that the Claimant had earned the promotion before he was relieved of his appointment in the month of March, 2016.  One Mr. Kaan Kumbet was brought in to replace Mr. Oluwakayode Sowade in April 2016, and the issue of the Claimant’s promotion was brought to his notice and he in turn promised to look into it.  Sometime in November, 2016, Mr. Kaan Kumbet directed the Claimant to see the Human Resources (Oziofu) to collect his promotion letter.  To the Claimant’s surprise, the Human Resources Manager failed to give the Claimant any promotion letter but rather gave the Clamant a reduced role as Customers Service and Invoicing Officer.  The issue of Claimant’s promotion was brought to the attention of his new line manager Njenqa Kamande Supply Chain Lead East and West Africa.  The new line manager gave the Claimant a new Key Performance Indicator (KPI) vide an email. The Claimant met up with the new (K.P.I) given to him in 2017, but yet was not given promotion as agreed.  The Claimant was in constant demand of the promotion earned but was unjustifiably denied by the Defendant.  One Ayokunle Adedeji who is an outsourced staff of Tusen Staff but was under the Claimant’s supervision reported a case of harassment against him in March 2017 to the Management.  It was brought to his attention by the Human Resources and was reported to the Management in United Kingdom in line with the company’s policy.  The Claimant states that it is the Management at headquarters that will investigate and sanction on such allegation if need be.  The Claimant was contacted by one Zarah I. Adil who was assigned to investigate the incident by the Management in the United Kingdom in respect of the allegation.  The Claimant was contacted by the head office in the United Kingdom for his side of story and promised to get back to him after the completion of the investigation and an email was sent to him through the human resources in Lagos to that effect.  The Claimant was still awaiting the outcome of the investigation from the United Kingdom office, when they sent an email to the Defendant to stop any action pending their investigation.  The security officers of the Defendant in clear breach of the terms and conditions of the Claimant’s employment on the 2nd day of August, 2018, locked the Claimant out of the Defendant facility and warned him never to come around any of the Defendant’s facilities pending the time he will hear from the management in the United Kingdom.  The Defendant has since 2ndAugust, 2018 locked out the Claimant illegally from the Defendant’s office as against the Policy of the Defendant.

 

CASE OF THE DEFENDANT

6.   It is the case of the Defendant that the Claimant has often performed below expectation; which led to the Defendant’s decision to assign the Claimant’s duty to another team to avoid risk to business.  There has not been any time that the Defendant had shortage of personnel to manage the affairs of any department in the company. The promotion in the Defendant’s company is subject to a rigorous appraisal system by the management and satisfactory performance.  The Claimant, having worked below expectation cannot be entitled to promotion and it was communicated to him by the mail of 23rd October, 2017.  The Defendant Company is an independent legal entity in Nigeria with its own management based in Nigeria, and the overseas parent company has very limited control over the Defendant.  The Management at the overseas headquarters of the Defendant had instructed the management of the Defendant in Nigeria to set up an investigative panel to look into the allegation of harassment levelled against the Claimant by one Ayokunle Adedeji.  There was no instruction whatsoever directing the Defendant to stop all forms of actions against the Claimant pending the conclusion of their investigation.   Subsequently, the local Management in a bid to initiate the disciplinary process against the Claimant, invited the Claimant to sign the letter, but he refused to sign it. It is the Defendant’s case that the Claimant was never thrown out of the premises of the Defendant and in fact, it was the Claimant who is known with exhibiting threatening behaviour and aggressive attitude towards his colleagues and juniors at the Defendant Company.  As a result of the Claimant’s incessant threatening behaviour and aggressive attitude, after several warnings, the Defendant placed the Claimant on a one-month paid suspension and there was no time when the Human Resources Manager or any staff of the Defendant Company ever threatened the Claimant as a result of the Claimant’s refusal to sign any document.

REPLY TO DFENDANT’S STATEMENT OF DEFENCE

7.   The Claimant in response to the Defendant’s statement of defence states that he had always been competent and diligent in his work and the Defendant on several occasions showed appreciation of his excellent performance in enhancing the progress of the Defendant Company.  The Claimant states that the Defendant has never issued him with any paid suspension.  The Claimant replied that the allegation of incessant threatening behaviours and oppressive attitude being alleged by the Defendant is false and that he was not given fair hearing before he was locked out of the Defendant Company.

SUBMISSIONS ON BEHALF OF THE DEFENDANT

8.   The Defendant, in its Final Written Address raised three issues for determination as:

1.      Whether the Defendant has disciplinary powers over the Claimant.

2.      Whether the action of the Claimant amounts to abandonment of duty and constructive discharge.

3.      Whether the Claimant has proved his case to entitle him to the reliefs sought.

 

 

9.  On issue one, “Whether the Defendant has disciplinary powers over the Claimant”, the Defendant argued that a cursory looking at exhibits D3, D4, D5 and D6, the Court can deduce that the Claimant had been contravening the Defendant’s policy and the Defendant on several occasion warned the Claimant.  The Defendant states that it only suspended the Claimant for a period of one month with full payment so that the Claimant would not interfere with the investigation.  The Defendant submits that investigative suspension is not a breach of fair hearing, relying on the case of Ayewa v. University of Jos (2000) 6 NWLR (Pt. 659) 142 at 144 and that the power to discipline the Claimant is solely at the discretion of the Defendant and the Courts hardly interfere with it; relying on the case of Union Bank v. Salaudeen (2017) LPELR 43415 CA .   

 

10.  On Issue two; whether the action of the Claimant amounts to abandonment of employment and constructive discharge, the Defendant argues that failure on the part of the Claimant to entertain the invitation of the Defendant via the text messages sent to Exhibit C5 (The mobile telephone Tecno T465 Sim No. 08100847045) and the failure of the Claimant to resume work at the expiration of the one month as provided for by Exhibit D6 (Suspension letter dated the 2nd August, 2018) amounts to abandonment of employment and constructive discharge.

11.  On Issue three; whether the Claimant has proved his case to entitle him to the reliefs sought, the Defendant submits that the Claimant had failed to prove his case on a balance of probability.  The Defendant argued that the totality of the evidence before this Court is against relief one.  They argue that the Claimant, who failed to adhere to the instruction of the Defendant to sign the document to initiate disciplinary action, cannot say he was locked out.  On relief two, the Defendant argued that they have been able to prove that promotion of staff members in the Defendant Company is the prerogative of the management; following a critical appraisal of the employees’ performance and contribution to the company’s growth.  The Defendant submits on the second relief that it is trite law that Courts do not promote employees from one grade to another, relying on the case of Nwoye v FAAN (2019) LPELR-46402.  On relief three and four, the Defendant submits that they have earlier argued on the right of an employer to discipline an employee, therefore this relief should fail.  The Defendant argued that the Claimant has not proved or shown to this Court that his employment has been terminated by the Defendant; instead, the Claimant himself discharged himself from the service of the Defendant.  They argue that the Claimant also failed to show or provide the Court with the laid down procedures or the Defendant’s Employee Handbook, and how it was breached.  On relief five, the Defendant argued that the Claimant confirmed under cross examination that he did not honour the invitation by the Defendant and that he stopped going to the office of the Defendant.  The Defendant submits that an employee who has wilfully abandoned his work cannot claim against an employer, salaries from the period he stopped working till date. The Defendant submits that the law is that an employee is not entitled to salaries and allowances for services not rendered; relying on the case of Kuti v. NSITFMB (2016) 67 NLLR (Pt. 240) 426.  On relief six, the Defendant argued that the Claimant cannot seek to deny the Defendant its disciplinary powers with this relief as the law is that injunctive relief cannot be granted against an employer from disciplining an employee; relying on the case of Ayabam v Benue State Government & Ors (2016) 64 N.L.L.R (Pt. 227) 438.

SUBMISSONS ON BEHALF OF CLAIMANT

12.  The Claimant in his Final Written Address raised three issues for determination as follows:

1.      On the face of exhibit D6 vis a vis the evidence adduced by parties, whether the right to Fair Hearing of the claimant was not breached by the Defendant before he was illegally locked-out.

2.      Whether the allegation against the claimant was proven to warrant the purported suspension of the claimant as stated in Exhibit D6.

3.      Given the state of pleadings and evidence adduced by the parties whether the Claimant is entitled to the reliefs sought as the amended statement of claim.

13.  Issue one - On the face of exhibit D6 vis a vis the evidence adduced by parties, whether the right to Fair Hearing of the claimant was not breached by the Defendant before he was illegally locked-out?  The Claimant submits that six days after he was locked out of the Defendant company, and the Defendant was served with the advance copy of his Complaint issued by this Honourable Court in this suit, one Tolulope Igbenabor of Human Resources Department sent a text message to him on the 8thof August, 2018, informing him that he was being invited to disciplinary hearing on Friday 10thof August, 2018 between10:00am and 11:00am at the Defendant’s office at Ilupeju Lagos.  The Claimant argues that the text message, which is the content of exhibit C5, contradicts the Defendant’s position in exhibit D6 (suspension letter). The Claimant further argues that the Defendant did not refute his assertion that he did not receive exhibit D6 and that the content of exhibit C5 was an afterthought on the part of the Defendant to cover up the wrongful locking out of the Claimant.

The Claimant argues that from the text message in exhibit C5 inviting him to attend a disciplinary hearing, and exhibit D6, the Disciplinary Panel had punished the Claimant by suspending him, before extending invitation to the Claimant to appear before them on 10th August, 2018.  The Claimant submits that it is a clear breach of his fundamental right as enshrined in Section 36 of the 1999 Constitution of Federal Republic of Nigeria (as amended).

14.  Issue two is “whether the allegation against the Claimant was proven to warrant the purported lockout/suspension of the Claimant?  The Claimant argues that he has proved his case on a ‘preponderant of probability’ and is entitled to all the reliefs sought.  On relief one, the Claimant argued that paragraphs 25, 26, 27, 28, and 29 of his evidence was not challenged by the Defendant in all the length and breadth of its defence and even under the fire of cross-examination, thus the Court is duty bound to rely on the evidence as evidence admitted.  The Claimant further submits that it clear from his evidence that he came back to the office 1st, 2nd 3rd 4th and 5th day after he was locked out from the office and was denied access by the security men, and without allowing him any opportunity to access documents on his system in relation to this case, more particularly the mail asking the Defendant to hold any action so as to allow the parent company in the United Kingdom to conduct and carry out investigation on the allegation against the Claimant.  On relief two, the Claimant argued that it is in evidence before this court that his other colleagues were promoted and when he demanded for promotion, he was given another target with a promise that once it was met, he will be promoted. The Claimant submits that it is the law that once a promise is made and the other party relying on the promise and worked towards it, the person who made the promise is estopped from rescinding on the promise. The Claimant relied on section 169 Evidence Act 2011.  On reliefs three, four and five, the Claimant, in response to the Defendant’s submission that he abandoned his work, argued that there is no evidence before this Court to show that upon the purported expiration of one month suspension, the Defendant recalled the Claimant to resume work and the Claimant failed to do so. 

REPLY ON POINT OF LAW TO THE CLAIMANT’S FINAL ADDRESS

15.  The Defendant, in Reply on Point of Law stated that the Claimant was placed on investigative suspension for one month with full pay pending the conclusion of investigation and that Courts have consistently held that investigative suspension pending investigation or disciplinary hearing is not a breach of fair hearing.  The Defendant submits that it is on record that the Claimant was subsequently invited to appear before a Disciplinary Panel, but the Claimant chose not to honour the invitation. 

DECISION

16.  I have considered the processes filed in this matter, the evidence led, the exhibits admitted and the arguments of Counsel.  I hereby set down the following issues for determination:

(i)                If the Defendant has disciplinary powers over the Claimant?

(ii)              If exhibit D6 is known to the Claimant?

(iii)            If the Claimant’s right to fair hearing was breached by the suspension?

(iv)            If the Claimant is entitled to the reliefs he seeks in this suit.

 

17.  Issue one set above seeks to establish if the Defendant in this suit has disciplinary powers over the Claimant.  This has become necessary because, while not challenging the authority of an employer, generally, to discipline its employee, the Claimant sought to make the case that it was the parent company in the United Kingdom that should conduct the investigation on the allegations against him, and not the subsidiary in Nigeria for the purpose of fairness and unbiased investigation into the matter.  I have considered exhibit C1 – Offer of Appointment – issued to the Claimant by the Defendant – GlaxoSmithKline Consumer Nigeria Plc.  It does not state anywhere that the Defendant offered the said employment as a subsidiary of any other company.  I have also considered exhibit C2 – Employee Handbook.  It does not make any reference to disciplinary procedure by any United Kingdom ‘parent’ company.  It grants the Defendant powers of discipline over its staff under its ‘Disciplinary Procedure’. It also contains penalties for misconduct and gross misconducts. Exhibits C3 and C4 were all issued to the Claimant, by the Defendant.  From the exhibits tendered by the Claimant, the Defendant is clearly the Claimant’s employer, and does not share the power to discipline, with any other body.  It is trite that the employer has the right to discipline any erring employee in the interest of the organization or institution, although it may be otherwise if the contract of employment either expressly or impliedly rules out recourse to discipline by the employer.  See NEPA v. Olagunju [2005] 3 NWLR (Pt. 913) 602.  I therefore hold that the Defendant has disciplinary powers over the Claimant. 

 

18.  Issue two is if exhibit D6 is known to the Claimant? Exhibit D6 is the letter of suspension issued by the Defendant, to the Claimant.  The Claimant’s case is that he was never placed on any one month suspension with one month pay; and that exhibit D6 is an afterthought, written after he commenced this action.  The Defendant, on the other hand, asserts that in a bid to initiate disciplinary process against the Claimant, it invited the Claimant to sign the letter, but he refused to sign same.  I have considered the evidence of both parties in this case.  I find Claimant’s assertion that he was not aware of exhibit D6, inconsistent with his evidence in chief.  At paragraphs 25 to 27 of his witness statement dated 8th August 2018, the Claimant stated as follows:

             

25.  That to my chagrin on the 2nd August, 2018, the Human Resources Manager called and asked me to sign a document for setting up investigation and disciplinary panel in respect of the allegation of harassment levelled against me in March 2017 by one Ayokunle Adedeji.

 

26.  That I refused to sign the said document on the ground that the allegation is currently under investigation by the Management in the United Kingdom and correspondence had been sent to the Human Resources to refrain from taking any action on it pending the conclusion of the investigation.

 

27.  That when I refused to sign the document, the Human Resources Manager thereafter asked me to submit all the Defendant’s documents in my custody and leave the Defendant’s premises.

The statement above corroborates Defendant’s evidence that the Claimant was served exhibit D6, and he refused to collect it.  I am convinced by the above stated portion of the Claimant’s evidence, that though he refused to acknowledge exhibit D6; he was aware of the letter of suspension.    

19.  Issue three - If the Claimant’s right to fair hearing was breached by the suspension?  The Claimant’s Counsel, after arguing that the Claimant was not issued with exhibit D6, further argued that assuming he was, that exhibit D6 fell short of the requirement of fair hearing, in that it defeats itself.  According to the Claimant, the Defendant could not have issued exhibit D6, pursuant to the outcome of the investigations and disciplinary hearing, when it invited him to a disciplinary hearing on Friday 10th August 2018, via text message as contained in exhibit C5.  Claimant’s contention is that he was not given fair hearing, before he was suspended via exhibit D6.  In the Defendant’s argument, the Defendant states that exhibit D6 was specific that the suspension is for a month with pay, and was an investigative suspension and not a punitive suspension.  They argue that if it was passed as a sanction, it would not have been with pay. The Defendant referred to Bimbo Atilola, the learned author of “Recent Developments in Nigerian Labour and Employment Law” (Hybrid Consult, Pages 71-72) who opined that:   

Suspension at the workplace may be punitive/disciplinary, investigative or administrative. It is punitive or disciplinary where it is meted out as a sanction for a misconduct, for instance 2 weeks suspension without pay for repeated late coming to work. It is investigative or administrative where an employee is suspended from work to enable the employer investigate an alleged misconduct against him. This measure is commonly invoked upon the suspicion that the employee’s continued presence in the office may hinder or impede effective investigation of the alleged misconduct. In both cases of suspension, the employee suspended is still deemed to be in employment though some of his workplace rights and privileges may be in abeyance.

 

20.  I agree with the Defendant that exhibit D6 was done to enable the Defendant further investigate the allegations against the Defendant.  I use the term ‘further’ because exhibit D6 clearly gives initial information to the Claimant about an infraction reported against him.  The trail of emails show that the Claimant had opportunity to respond to the correspondences with a Zarah Adil, also referred to in Claimant’s evidence.  These correspondences were in January 2018.  Exhibits D3 and D4 are further emails between the Claimant and the Defendant, on the Defendant’s ‘Write Right’ policy.  Though this judgment is not considering whether the ‘Write Right’ policy was infringed by the Claimant, exhibits D3 and D4 show that Claimant made his input on the issue.  Apart from granting the Claimant the opportunity to respond to initial allegation of infraction of the Company’s policies, the suspension evidenced in exhibit D6, was clearly investigative.  Exhibit D6 reads as follows:

 

Dear Matthew,

Suspension

As a result of the outcome of the investigation and disciplinary hearing carried in respect of allegation of threatening behaviour and aggressive attitude, you placed on 1-month suspension effective 2nd August 2018.

Please remember the following during the period of the suspension.

n  You can only come to the office upon invitation by Human Resources.

n  You are not expected to transact any business on behalf of GSK during the period of the suspension.

n  During the suspension period, you will receive your monthly salary.

Handover all company in your care to the Human Resource.

 

21.  Though the Claimant denied receiving the above letter, I have already found that he was aware of the letter, and refused to accept, perhaps because he was under the impression that the Defendant had no disciplinary powers over him; which I have found not to be so.  Further, I do not find any conflict between exhibit C5 inviting the Claimant to a disciplinary hearing and exhibit D6, suspending the Claimant for one month, for the purposes of investigating an alleged infraction.  The appellate Courts have held that there may be need for the employee to be suspended, in order to prevent interference with the investigation or probe of the alleged misconduct committed by the employee.  The Court buttressed this in the case of  Longe v FBN Plc [2006] 3 NWLR (pt. 967) 228, where the Court stated that:

 

I want to ask myself whether he ought to have been heard before his suspension. The Appellant was suspended and eventually removed because it became necessary to do so in the interest of the respondent’s business. It is a desperate situation that demands drastic action. It cannot wait for legal finesse such as fair hearing or natural justice. That can wait! The interest of the Respondent’s business is of paramount consideration and the Appellant will not be entitled to fair hearing before a suspension.

See also Akinyanju v University of Ilorin (2005) 7 NWLR Pt. 923.  In the case of Ayewa v. University of Jos (2000) 6 NWLR (pt. 659) P. 142, Uwaifo, J.S.C. in his contribution agreed with the lead judgment delivered by Belgore, J.S.C. and stated thus:

The main issue in this matter is whether a servant who is suspended by his master so as to investigate allegations of impropriety leveled against him can have a recourse to the fundamental rights provision to prevent that suspension from operating. The lower Court has decided that such a scenario is not appropriate for asserting breach of fundamental rights. I endorse that view. This is a matter of master and servant. The law is that a master can suspend his servant when necessary and there can be no issue of breach of fundamental rights.

 

From the above cases, I find that there was no breach of fair hearing, in the suspension of the Claimant, as done by exhibit D6.  I so hold.

 

22.  Issue four - If the Claimant is entitled to the reliefs he seeks in this suit.  To resolve this issue, I shall take the reliefs sought by the Claimant, seriatim. 

 

i.                    Relief (i) is for A DECLARATION that the lockout of the Claimant by which he could not enter the office of the defendant to perform his duties is illegal and unlawful.  From the evidence before me in this matter, Claimant has been unable to establish that he was locked out by the Defendants.  Evidence before me shows that the Claimant was asked, on the 2nd of August 2018, to sign for a letter communicating to him the commencement of disciplinary proceedings against him, and he refused.  Whereas the Claimant states that after that he was pushed out of the Defendant’s premises, and not allowed for the subsequent four days to enter the premises, to perform his duties.  The Defendant on its part states that after refusing to sign for exhibit D6, the Claimant left the premises.  The evidence further shows that the Defendant sent a text message to the Claimant, inviting him to the office on the 8th day of August, 2018 – six days after the suspension.  By this time, the Claimant had also filed this action.  I do not find the circumstances of this case to be consistent with a lock out.  On a preponderance of evidence, this relief is not proved.  I therefore decline to make the Order sought for lack of proof.

 

(ii)  Relief (ii) is for A DECLARATION that the unreasonable and unjustifiable denial of the Claimant’s promotion earned by the Defendant is illegal and unlawful.  I have considered the Claimant’s evidence buttressing the fact that his earned promotion was unreasonably and unjustifiably denied.  The Claimant gave evidence that his other colleagues were promoted and when he demanded for promotion, he was given another target and told that once he met it, he would be promoted. The Claimant relied on section 169 Evidence Act 2011 to argue that having worked hard to meet the target, he ought to be promoted.  The said Section 169 Evidence Act 2011 provides as follows:

when one person has either by virtue of an existing court judgment, deed or agreement or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such believe, neither he nor his representative in interest shall be allowed in any proceeding between himself and such person or such person’s representative in interest to deny the truth of that thing.

 

The Defendant contends, on this issue, that promotion of staff members in the Defendant Company is the prerogative of the management following a critical appraisal of the employees’ performance and contribution to the company’s growth. The Defendant tendered exhibits D2 and D3 in support of their assertion that the Claimant’s performance for the relevant period in question was below par.  Exhibit D2 (Mail of 14th March, 2018), placed the Claimant on a Performance Improvement Plan (PIP) so as to help the Claimant meet up with his Key Performance Indicators (KPI).  The Claimant did not tender any document to prove that he met the targets given to him, for the period.  I do not see how section 169 of the Evidence Act becomes applicable, to guarantee the Claimant, a promotion.

Additionally, It has been held that promotion is neither automatic nor as of right in Abenga v. Benue Judicial Service Commission [2006] 14 NWLR (Pt. 1000) 610.  In the case of Nwoye v. FAAN [2019] 5 NWLR (Pt. 1665) 193 at 218, paras. B-C, per Kekere-Ekun, JSC, the Supreme Court held that. “Promotion from one level or position in an organization to another is not a right but a privilege, which is earned. An employer cannot be compelled to promote its employee no matter the good opinion the employee might have of himself”.  In delivering the Leading Judgment, Sanusi, JSC said:

To my understanding, in this relief, the plaintiff was simply asking the trial Court to, in a disguised way, promote him to a position contemporaries are holding and/or make him to benefit from the salaries and other entitlements of his supposed contemporaries then holding the rank of Assistant Electrical Superintendents. It is elementary to say that the trial Court is not the plaintiff’s employer. Since his employers i.e. the defendant/respondent, had never so promoted him or grant him that relief more especially because no evidence was led before it to show that he really deserved or is entitled to that anticipated promotion or rank. Perhaps it is sequel to that, that the trial Court in refusing to grant that relief held as below: – “This relief is like making a “tall order” promotion is a privilege granted an employee at the discretion of the employer thus the Court cannot compel an employer to promote his employee…” It is my candid view therefore, that the trial Court was right in refusing to grant Relief No. 2 and by extension the Court below is also correct in upholding the trial Court’s refusal to grant the said Relief No. 2

From the above, this relief cannot be granted.  I need to add that the NICN has held that given the present dispensation of application of international best practice, while promotion is neither automatic nor as of right, once an employee can show an entitlement to promotion and that the denial of the promotion by the employer was vindictive and/or mala fide, then the rule in The Shell Petroleum Development & 5 ors v. E. N. Nwawka & anor [2001] 10 NWLR Pt. 720 64 against a Court interfering in the internal administration of employers will give way to an inquiry into the issue; and if the Court finds that in truth the denial of promotion was vindictive and/or mala fide or that the employee was victimized, then the employee would get a verdict.  That is however not the case, in this case.

 

(iii)          The Claimant’s (iii) relief is for A  DECLARATION that the Claimant cannot be locked out, or terminate his employment except in accordance with the laid down rules in strict compliance with the handbook and the extant law of the Federal Republic of Nigeria.  I have already found that the Claimant failed to prove that he was locked out.  This relief therefore fails.

 

(iv)          Relief (iv) is for A DECLARATION that the lockout/termination of employment of the Claimant by the Defendant without following due process of law is unconstitutional, null and void. From the evidence before this Court, the Claimant did not make a case for termination of employment.  In fact, the Claimant was issued a suspension letter on the 2nd of August, 2018, and by the 8th of August 2018, he had already filed this suit; challenging the suspension.  No mention or evidence was led to establish termination of employment.  This relief also fails.

 

(v)             Relief (v) is for an AN ORDER directing the Defendant to pay to the Claimant all the salaries and allowances accruable to him during the illegal lockout meted against him from September, 2018 till the judgment is delivered in this suit.  I have already held that the Claimant did not establish that he was locked out.  This relief therefore fails.

 

(vi)          Relief (vi) is for AN ORDER of perpetual injunction restraining the Defendant either by themselves, agents, privies, allies or through any person however described from any further acts of locking out, termination of employment, and harassment for the purpose of locking out or interfering with the employment of the Claimant in any way or manner howsoever not in accordance with the law and regulations for termination of employment.  As already found, the Claimant has not established that he was either locked out or terminated by the Defendant.  This relief fails.

 

23.  What the Claimant sought in this suit was to stop the Defendant from commencing disciplinary procedures against him.  In the contract of employment, both parties have rights and responsibilities that accrue to them, by virtue of that relationship.  The employer has the right to discipline any erring employee in the interest of the organization or institution, although it may be otherwise if the contract of employment either expressly or impliedly rules out recourse to discipline by the employer. That is not the case here.  See NEPA v. Olagunju [2005] 3 NWLR (Pt. 913) 602.  As held in Shell Pet. Dev. Co. (Nig.) Ltd v. Omu [1998] 9 NWLR (Pt. 567) 672; it is a disruption of an ordinary employer’s business to fetter him with an injunction not to discipline his servant. The practice of employees filing for interim, interlocutory or even perpetual injunctions to stop disciplinary processes is accordingly wrong.   See for instance the case of Dr Cecilia Arinye v. The University of Lagos unreported Suit No. NICN/LA/305/2017, the judgment of which was delivered on 6th February 2018.

 

This suit fails in its entirety.  Cost is set at N100, 000.00 against the Claimant.

 

Judgment is entered accordingly.

 

 

 

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Hon. Justice Elizabeth A. Oji PhD