IN THE NATIONAL INDUSTRIAL COURT OF
NIGERIA
IN
THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HER LADYSHIP HON. JUSTICE O. A. OBASEKI-OSAGHAE
DATE: March 4, 2026 SUIT
NO: NICN/ABJ/37/2021
BETWEEN
MR DANJUMA TUNDE
ABDULSALAM CLAIMANT
AND
FRIESLAND CAMPINA
WAMCO NIGERIA PLC DEFENDANT
REPRESENTATION
Kamal O. Fagbemi for the Claimant, with Thomas Ojo.
Oluwaseun A. Ajasa for the Defendant.
JUDGMENT
Introduction and claims
[1] The Claimant filed
this complaint against the Defendant on 5th February 2021 together
with the accompanying processes seeking the following reliefs:
i.
A Declaration that the back injury suffered by the Claimant (Lumbar Spondylosis)
arose out of the cumulative occupational exposure to lifting and carrying 50
bags of powder (25kg per bag) per day manually in the course of the Claimant’s
employment with the Defendant as a casual staff.
ii.
A Declaration that the Claimant is entitled to payment of compensation for the
injury sustained arising out of the cumulative occupational exposure to lifting
and carrying 50 bags of powder (25kg per bag) per day manually in the course of
the Claimant’s services to the Defendant as a casual staff.
iii.
A Declaration that the purported termination of the Claimant’s employment by the
Defendant is/was arbitrary and not in accordance with international best
practices and the law.
iv.
An Order of this Honourable Court directing the Defendant whether by
itself, its servants, agents, privies or assigns howsoever to pay the sum
of N60,000,000.00 (Sixty Million Naira)
only as compensation to the Claimant for the back injury (Lumbar Spondylosis)
sustained by him resulting from the cumulative occupational exposure to lifting
and carrying 50 bags of powder (25kg per bag) per day manually while in the
employment of the Defendant as a casual staff.
v.
An Order of
this Honourable Court restraining the Defendant whether by itself, its
servants, agents, privies or assigns however called from demanding for the
payment of the sum of N1,936,025.00 (One million nine hundred and thirty six
thousand twenty five kobo) from the Claimant’s account with Stanbic Asset
Managers as contained and claimed in the Terminal Benefits Computation –
FRIESLAND CAMPINA WAMCO NIGERIA PLC.
vi.
Damages in
the sum of N25,000,000.00 (Twenty-five Million) for their reckless action in
wrongfully terminating the Claimant’s employment as the Regional Sales Manager
of the Defendant.
vii.
10% interest
per annum of the cumulative judgment debt from the date of judgment till the
judgment is fully paid.
viii.
The cost of
this suit.
The
Defendant filed its statement of defence together with the accompanying
processes on 22nd June 2021. The Claimant filed a reply to the
statement of defence on 5th October 2021.
Claimant’s Case
[2] The Claimant’s case on the pleadings is
that he was employed by the Defendant as a casual staff (Powder Dumper) in its
milk factory department from April 2000 to April 2002. He was made permanent
staff by a letter dated 4th April, 2002 to take effect from 1st
April, 2002 that contained the terms of his employment. The Claimant averred
that the nature of his work as a powder dumper is to manually carry bags of
powder into the processing machine and dumped an average of 50 bags of powder
(measuring 25kg per bag) per day. The Claimant averred that he continued as a
powder dumper until 2006 when he was promoted and became the team leader of the
junior staff.
[3] The Claimant averred that shortly after, he
started experiencing back pain and informed
the Defendant who provided medical treatment under the HMO scheme. The Claimant states that he never experienced
back pain prior to his employment with the Defendant in 2000. He further stated
that he had been managing the said pain with drugs and sufficiently carrying
out his duties which led to his promotion to the positions: Co-coordinator from
2007 – 2011; Area Sales Manager from 2011 – 2017;National Visibility Manager
from 2017 – 2018; and Regional Sales Manager from 2018 – 2020. The Claimant
averred that the pain became more acute in 2012 and he experienced difficulty
in lifting his legs. In 2014 he experience a similar episode during his trip to
Kwara state which necessitated his visit
to ECHO LAB where an MRI scan was carried out on him by Dr. E. D. Simon, a
Consultant Radiologist and he was diagnosed with Lumbar Spondylosis with L5/S1
disc prolapse and nerve root compression. He stated that he had undergone
series of tests including MRI Scan, the last of which was in King’s Care
Hospital Ltd on the 27th day of October 2020 which confirmed the
earlier report by ECHO LAB.
[4] The
Claimant averred that on Tuesday, the 29th of September, 2020 he received
via his email, captioned “Organisation Realignment” dated 29th September, 2020
wherein he was informed that his services were no longer required by the
Defendant with effect from the 30th September, 2020 on the ground that the
management had decided to realign its business for efficient and sustainable
operation. The Claimant stated that prior to the termination of his employment
he was not queried for any wrong doing or misconduct; or made to appear before
any panel or committee relating to the discharge of his duties. He further
stated that the Defendant computed his final entitlements to include: salary up
till 30th September; three months basic salary in lieu of notice;
six months basic salary; payment in lieu of balance of 2020 cumulative annual
leave (9 working days); Employee Investment Scheme as at 1 January 2016 to 30th
September, 2020; payment in lieu of the 130 cartons of Peak milk; waiver of
unearned housing, transport, leave; car allowances and 3 months medical
treatment under the HMO Scheme.
[5] The Claimant averred that from his
pre-employment health examination record, he had no ailment or injury relating
to back pain and that Mrs. Bola Fadaka of the Human Resources (HR) Department,
and the current Sales Director, Mr. Adewale Arikawe are aware of his injury.
The Claimant averred that he is entitled to compensation for the injury
sustained by him during the subsistence of his employment with the Defendant.
He averred that in November 2020, he went for the surgery at CIDERCREST
Hospital, Abuja paid by the Defendant under its HMO Scheme which he benefitted
for 3 months after the termination of his employment. He averred that since the
lapse of his access to the HMO Scheme he has been bearing the financial
responsibility of frequent checkups and purchase of drugs after surgery which
is an overwhelming financial burden on him. The Claimant stated that within a
month he spent a total sum of N75,000.00 (Seventy-Five Thousand Naira only) for
the purchase of drugs, medical checkup and consultancy fees. The Claimant averred that he is left with a
lifelong back injury the treatment and maintenance of which is expensive
without adequate compensation from the Defendant.
[6] The
Claimant averred that the reason of organization realignment given by the
Defendant for terminating his employment was not genuine or valid and is
against international best practices. He further stated that the termination of
his employment was because of his loyalty to the Defendant which did not go
down well with some bad elements in the Defendant’s management. The Claimant
averred that the termination of his employment was a witch-hunt; and that by
the Employee Compensation Act, he is entitled to compensation for his injury
(Lumbar Spondylosis) which he sustained in the course of his employment with
the Defendant.
[7] The
Claimant stated that he is entitled to the sum of N16, 342,989.11 (Sixteen Million three Hundred and forty-Two
Thousand Nine Hundred and Eighty Nine Naira Eleven Kobo) as outstanding salary,
emolument, allowances and other entitlements owed him less certain deductions.
He further stated that by the terminal benefits computation issued to him by
the Defendant, he is entitled to the sum of N1,936,025.00 (One million nine
hundred and thirty six thousand twenty five kobo), yet the Defendant demanded
the payment of the same sum of N1,936,025.00 from the Asset Managers Stanbic IBTC taking
back what was paid to him in lieu of 3 months’ notice.
[8]
Replying to the statement of defence, the Claimant averred that his last position Regional Sales Manager in Yola, Adamawa
State is still operational and occupied by the in-law of the Sales Director Mr.
Adewale Arikawe’s. He stated that the Defendant conducted the purported
organizational realignment to replace him hurriedly without following due
process, and that he did not accept what the Defendant paid, and he did not
sign a clearance form before the money was paid into his account. The Claimant averred that the injury that
started as back pains gradually metamorphosed to lumber spondylosis and he is
now permanently disabled and cannot stand or walk without any support. He
stated that he has not been compensated for the injury sustained. The Claimant
stated that he promptly notified Mrs. Bola Fadaka (Human Resources Department)
and Mr. Adewale Arikawe of the sales Department about the injury and there was
exchange of emails between the hospital, himself, Mrs. Bola Fadaka. He was
advised to go for surgery but he refused
because he was afraid of death or
permanent disability. The Claimant averred that he went for the surgery after
his separation utilizing the 3 months window of access to medical facilities
given by the Defendant, and the post-surgical maintenance has been financially
draining to him.
[9] The Claimant averred that his entire claim,
including reliefs 1, 2 and 4 are valid and are not statute barred. He stated
that the Defendant was incorporated under the Companies and Allied Matters Act,
and not under the Limitation Law of Lagos State. He further stated that
Limitation Law of Lagos state does not apply to employer/employee relationship.
[10]
The Claimant (CW) adopted his statements on oath. They were in the exact terms
of the pleadings and he relied on his admitted documents. In cross-examination,
the CW told the court that he was 32years in 2002 is now 56 years old. CW
stated that he received the sum of N1,938,025.01 as 3 months’ salary in lieu of
notice, and the sum of N864,014.11k as end of
service benefits after due deductions. CW admitted that he also received
the sum of N 9,559,331.18 which was paid into his account by the Defendant and
the Bank used the to offset his outstanding loan Guaranty Trust Bank which the
Defendant guaranteed. CW said he was discriminated against because some staff
received 24 months ex gratia payments while he received less with his injury.
CW told the court that he last worked in the powder factory on 28th
April 2006 after which he was transferred to Kano. He informed the Court that
he sustained the injuries between 2002 and 2006 in the Defendant’s factory and
that the Defendant provided HMO hospitals that he attended, and the Defendant
paid the bills.
[11] CW
confirmed that he was not in the Defendant’s factory in 2012 and 2014; and that
he was told that surgical intervention will rectify his back problem. He said
he did not have his medical reports in court. CW told the court that he had the
surgery and it was paid for by the HMO. CW confirmed that he was aware of
Covid-19 Pandemic that affected the world. CW stated that the reason for his
disengagement was realignment was not true as another person took over his
position after his exit.
Defendant’s
case
[12] The case of the Defendant on the pleadings is that the
Claimant was hired as Operator in its Milk Factory Unit from 1st to
28th February 2002 and subsequently as a Powder Dumper in April 2002
subject to a six-month probationary period after which his employment was
confirmed. The Defendant averred that as a multinational organization the
safety and health of its employees is its top priority and that it strives
continuously to improve its facility by ensuring the provision of tools that
ensure not only a highly conducive working environment, but also a safe system
of work currently unmatched by any other manufacturing concern in Nigeria, and
within the Global FrieslandCampina family. The Defendant averred that it undergoes
quarterly and annual routine regulatory inspections of its facility from
different regulatory agencies including the Manufacturing Association of
Nigeria, Federal and State Fire Service, Federal and State Ministries of Health;
[13]
The Defendant stated that it has a global systematic approach on safety
management which is focused on external benchmarking and continuous improvement
of safety measures to prevent work-place injuries. The Defendant further stated
that it complies with all relevant legal requirements, internal regulation,
industrial standards and international regulations, and that the manual
exertions alleged by the Claimant to have resulted in the alleged injury are
unknown to what is obtainable in its Facility. The Defendant averred that the Claimant did not at any
time during his employment report any injury or occupational hazard to the
Foreman/Line Manager of his shift or the HR Department, and that neither Mrs
Bola Fadaka of the Human Resources (HR) Department nor Mr Adewale Arikawe of
the Sales Department have knowledge of any injury purportedly sustained by the
Claimant in the course of his employment.
[14] The Defendant stated that it was not negligent
nor in any way responsible for the alleged deterioration of the Claimant’s
health as it complied with all health and medical standards and fulfilled much
more than its responsibilities to the Claimant. The Defendant
averred that
its employees have access to free medical treatment at designated health facilities
having subscribed to Health Management Organization (HMO) Schemes for all its employees
which the Claimant had access to even after the termination of his employment.
That the Claimant’s allegation of personally managing
pain with drugs despite his HMO Scheme is due to the fact that notice of such
pain was not brought to the knowledge of the Defendant during the course and
out of his employment.
[15] The
Defendant averred that the Claimant’s alleged cause of action in relation to
the purported injury has long abated and the Claimant lacks the locus standi to
pursue the cause of action and the attendant claims because they are statute
barred and caught up by Section 9 of the Limitation Law of Lagos State 2015. It
stated that the role of the Claimant as a Powder
Dumper in the Defendant ceased on 28th April 2006 and his new role
as Promo Team Leader from 3rd May 2006 up until his last promotion
to Regional Sales Manager had been largely managerial/administrative, and of a
sedentary nature. The Defendant stated the time lag of 15 years has accrued since
April 2006 when the Claimant ceased to be a
Powder Dumper; and that this action was commenced on 5th February
2021. The Defendant stated that the cause of action arose between
2002 and 2006 and that it abated and became statute barred in 2009.
[16]
The Defendant averred that at
different times it undertook business re-alignment decisions to ensure sustainability
during the COVID-19 Pandemic which resulted in positive and negative HR actions
within its operations. The Defendant averred that during these periods and in
full consultation with all relevant local labour unions and recourse to terms
of employment contracts, there occurred voluntary and involuntary cessation of
employment. The Defendant stated that part of the realignment was the reshuffling and quasi-outsourcing
of its marketing and sales force to ensure sustainability and efficiency during
the pandemic. That other persons with better employment and performance track
record also left its business within the period, and that the organization
realignment resulting in cessation of employment was not specifically aimed at
the Claimant.
[17] The Defendant averred that it has paid the
Claimant his End of Service (EOS) benefits and has adequately compensated him
for his services in the course of his employment and upon the cessation of his
employment. The Defendant averred that it is not indebted to him, and it is not
part of the policy and procedure to extend HMO services to employees after
cessation of employment. That however, a 3 months ex-gratia extension of HMO
Scheme was offered to employees whose roles were subsumed under the
organization realignment exercise as a palliative measure in curbing the raging
effects of the prevalent COVID-19 Pandemic.
[18] The Defendant stated that the Claimant until the
cessation of his employment was a staff in the Leadership Team category of the
Defendant and as such is not privy to the collective agreement, bargaining and negotiations
which it had with the labour unions representing the members of the Senior
Staff category whose roles were subsumed under the organization realignment
exercise after the Claimant had long ceased
to be in its employment. The Defendant stated that compensations and terminal
benefits which are paid to employees whose roles are subsumed under
organization realignment exercises are not
always based on negotiations and agreements with labour unions because some
staff categories and grade levels like that of the Claimant do not belong to any labour union, however, computation and payment of terminal
benefits are strictly subject to the terms of their contracts of employment and the Employee Handbook.
[19] The Defendant stated that it usually pays its
employees some allowances upfront upon the indication of interest of such
employees and that the Claimant was one of such employees to whom the Defendant
paid unearned allowances that automatically became deductible from his terminal
benefits upon cessation of employment. The Defendant stated that it paid the
Claimant the sum of N1,936,025.00 in lieu of notice upon termination of employment
on 29 September 2020; N864,014.11 as
End of Service benefit, totalling N2,800,039.11 (Two Million, Eight Hundred and
Thirty Two Naira Eleven Kobo). The Defendant further stated that the Asset
Managers (Stanbic IBTC) paid the sum of N9,559,331.18 (Nine Million
Five Hundred and Fifty Nine Thousand Three Hundred and Thirty One Naira
Eighteen Kobo) to the Claimant being his Employee
Investment Scheme (EIS) benefits, gratuity and interest; and that it cannot
take back any sum from the EIS
benefits already paid to the Claimant. The total sum of N12,359,370.30K (Twelve
Million Naira Three Hundred and Fifty-Nine Thousand, Three Hundred and Seventy
Naira, Thirty Kobo) was paid to the Claimant.
[20] The Defendant stated that upon cessation of his
employment the Claimant breached its final clearance policy by maliciously and unlawfully retaining in his custody an official car, mobile
phone, Hewlett-Packard Laptop issued to him while he was in its employment which contain critical business information, all items which the
Claimant did not relinquish to the Defendant until 5 months after his exit. The
Defendant further stated that it is not within it knowledge or operational
procedure for a General Manager to perform HR functions and as a matter of
significance, Musa Bulama does not and did not play any role at any point in
time in the cessation of the Claimant’s employment.
[21]
The Defendant called two witnesses, Mr. Quassim Ibikunle (DW1) Machine Operator
and Jennifer Anagbado (DW2) Reward Manager. They both adopted their statements on oath. DW1 testified that the
Defendant employed him on the 2nd of April 2002 as an Operator and that
he and the Claimant were in the set of that year. He told the court that the
legal department gave him the information in this case.
DW2
told the court that she was employed by the Defendant in September 2021 and was
not in the Defendant employment when the Claimant was employed as a Powder
dumper. DW2 told to court that Mr. Ademola Arikawe is still with the Defendant
and is the Managing Director of the Defendant’s Ivory Coast office and that he
told her he is not aware of the Claimant’s injury. DW2 confirmed that she knows
Mrs. Bola Fadaka the Industrial Relation and Employee Relation Manager and that
she is still in the Human Resource Department. DW2 stated that Mrs Bola Fadake
told her that she is not aware of the Claimant’s injury. DW2 told the court
that Mr Musa Bulama was still a staff of the Defendant and he told her that he
is not aware of the Claimant’s injury. DW2 informed the Court that as a HR Officer,
she has the records of the Defendant company. DW2 said her statement on oath
was signed at the court Registry in Abuja.
Final
Address
[22]
The Defendant’s final
address is dated and filed 28th March 2025. The Claimant’s final
address is dated 15th April 2025 and filed on the same day. The
Defendant’s reply on point of law is dated 26th May 2025, and filed
the same day. The Parties adopted their respective addresses and made oral
submissions.
[23]
The
Defendant submitted one issue for determination:
[24] Learned counsel on the issue of limitation
referred to Section 9 of the Limitation Laws of Lagos State 2015 and submitted that claims 1, 2, and 4 are
statute barred. He submitted that the general position of law is that where the
law provides that an action be brought within a prescribed period in respect of
a cause of action accruing to an
aggrieved person, proceedings should not be brought after the
time prescribed. That any action brought outside the prescribed period offends
the provisions of the law and affects the competence of the court to entertain
same. He submitted that where an action is statute-barred, the Claimant who would have
had a cause of action automatically loses the right to enforce same by the
judicial process because the time laid down by the limitation law for
instituting such an action has elapsed citing the Eboigbe v. NNPC
(1994) 5 NWLR (PT. 347) 649. He stated that in a bid to
establish whether a claim or action is statute barred, the writ of summons as
well as the statement of claim are the processes that will be considered citing
Woherem
v. Emeruwa (2004) 3 NWLR (PT. 890) AT 417.
[25] Learned counsel stated that the
Claimant’s pleadings shows that, reliefs 1, 2, & 4 are founded on injury
allegedly suffered by the Claimant between the year 2002 to 2006. That, a
computation of the time between when the Claimant sustained the injury which is
the time when the cause of action accrued and the filing of this action shows
that the action was filed after three (3) years and would have
been statute barred since 2009.
Counsel averred that claims 1, 2, & 4 of the Statement of Facts
dated 29th January 2021 are statute-barred and is not maintainable
against the defendant
and cited Ibrahim v. Judicial Service
Committee (1998) 1 SCNJ 255 AT 272-273, Egbe v Adefarasin (1987)
1 NWLR (PT. 47) 1. He submitted that the court lacks jurisdiction to entertain those claims, same being
statute barred and urged the court to make an order dismissing those claims so
that the proceedings of the court as it relates to those claims will not be
rendered a nullity.
[26] Learned counsel
on reasonable cause of action submitted that a reasonable cause of action is a
factual situation stated by the Claimant which if substantiated, entitles him
to a remedy against the Defendant; and that a claim must rest on and be supported
by a cause of action citing State v.
Ilori (1983) 1 SCNLR 94; Rinco Construction
Co. Ltd. v Veepee Industries Ltd. & Anor (2005) LPELR-2949(SC). Counsel submitted
that the statement of facts has not disclosed any legal controversy that
is fit for determination by this court. He argued that the facts in the
Claimant’s pleadings are premised on speculation, conjecture and suspicion
interspersed with malice, and he cited Ekeng & Anor v Polaris Bank Ltd & Ors (2020) LPELR-51386 (CA).
[27] Learned counsel
submitted that on the evidence adduced, the Claimant failed to prove injury, a
breach of the Defendant’s duty of care, or negligence citing Mufutau v Adeniyi (2021) LPELR-55612 (CA).
He referred to section 68 of the EA and submitted that the Claimant did not
call an expert witness to testify in support of his medical reports but simply
dumped documents on the court referring to A.C.N.
v Nyako (2015) 18 NWLR (Pt 1491) 426-427 paras C-B. He submitted that the
termination of the Claimant’s employment was lawful and not arbitrary due to
reorganizational alignment which is provided in section 20 of the Labour Act
and backed by the Supreme Court decision in Skye
Bank Plc v Adegun (2024) LPELR-62219 (SC). He submitted that ex gratia
payments are discretionary and not as of right referring to Busari Giwa & Ors v Wema Bank Nig Plc
(2021) LPELR-54851 (CA) for the definition of ex gratia payments. He then
urged the Court to dismiss the suit with substantial costs.
[28] The Claimant
submitted two issues for determination as follows:
1)
Having regard to the facts and circumstances of this
case, whether the termination of the Claimant’s employment on the 29th
September 2020 was not wrongful? and;
2)
Having regard to the relevant laws, state of
pleadings and the totality of the evidence led, whether the Claimant is not
entitled to the reliefs sought?
[29] Learned counsel
began by addressing the issue of jurisdiction. He submitted that the claims of
the Claimant are not subject to the provisions of the Limitation Law of Lagos
State; and that the Limitation of Lagos State is not applicable to any claim
arising from labour, conditions of work, health and safety referring to section
7 of the National Industrial Court Act (NICA) 2006. He further submitted that
the NICA 2006 being a Federal Legislation supercedes and prevails over a State
Law in case of conflict and referred to section 4(5) of the 1999 Constitution.
He submitted that the Claimant’s case is predicated on Section 254C of the 1999
Constitution (as amended) and that there is no limitation law regarding the
subject matters within the jurisdiction of the Court. He argued that the
relationship between the Claimant and the Defendant was not carried out under
the Lagos State Law but under the Federal Laws namely 1999 Constitution, Companies
and Allied Matters Act (CAMA), NICA 2006, Rules of Court 2017, Employee
Compensation Act.
[30] Learned counsel
argued that the limitation law is harsh and rigid and not within the contemplation
of the NICA 2006. He submitted that the claims of the Claimant are equitable
claims and by section 13(1) of the Limitation law of Lagos State, section 8, 9,
and 11 shall not apply to any claim for specific performance of a contract,
injunction, or other equitable reliefs, and he cited Sifax (Nig) Ltd v Migfo (Nig) Ltd (2016) 7 NWLR (Pt 1510) 10. He
submitted that the Claimant’s pleadings disclose a reasonable cause of action.
[31] Learned counsel submitted
on issue 1 that it is settled law that where an employee complains that his
employment was wrongfully terminated, he has the onus to prove the wrong by placing
before the court, the terms and conditions of the contract of employment, and proving
in what manner the said terms were breached by the employer citing the case of Oforishe v. NGC (2018) 2NWLR (PT. 1602) 35
at 61, Katto v. CBN (1999) 6 NWLR (PT. 607) 390 at 405. He argued that the terms and condition of the contract of
employment was not placed before the court and pleaded in the statement of
fact. It was his contention that the Defendant did not deem it expedient
to call the vital witnesses the General Manager, and Mr Adewale Arikawe. He
submitted that
evidence which could be and is not produced would, if produced, be unfavourable
to the person who withholds it citing Olusanya v. Osinleye (2013) 12 NWLR (Pt. 1367) 148 SC, P. 164, Paras
D-F. He submitted that the evidence of DW1 and DW2 amount to hearsay
evidence which is inadmissible citing A.G
Rivers State v. A.G. Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31 SC p. 148,
paras B-C.
[32] Learned counsel
submitted that the organizational realignment has not been proved, and that on
the evidence, the termination of the Claimant’s employment was borne out of
malice and bad faith and not as a result of COVID-19 pandemic because the
claimant was the best staff in the defendant’s company. He argued that the
Defendant has not given a valid reason for the termination of the Claimant’s
employment as required by Article 4, and Article 13, of the ILO Termination of
employment Convention, 1982 (No.158). He submitted that the Defendant failed to
comply with the provisions of section 20 of the Labour Act requiring the
employer to inform the employees of a redundancy and pay redundancy benefits.
He submitted that redundancy procedures must comply with statutory and
contractual obligations to be lawful citing citing John Holt Plc v Nzeribe (2018) LPELR-43942(CA). It was his
contention that the Defendant failed to pay the Claimant compensation
stipulated in Article 10, ILO Termination of employment Convention, 1982 (No.158),
and was discriminated against in the ex gratia payment made to him. He then
urged the Court to grant all the Claimant’s reliefs
Reply on points of law
[33] Learned counsel
to the Defendant in his reply on point of law submitted that the Lagos State Limitation Act is applicable to this case as the
issue of limitation goes to jurisdiction citing Denca Services Limited v. Ifeanyi Chukwu (Osundu)
Co. Ltd [2013] LPELR-22005 (CA) Ataloye & Ors v. The Executive
Governor Of Lagos State & Ors. [2013] LPELR-21962 (CA), Sonuga v
Onanuga & Ors [2019] LPELR-49421 (CA). He
submitted that it is settled law, that a
company is a juristic person and can only act through its agents or servants.
Any agent or servant can give evidence to establish any transaction entered into
even where the official giving the evidence is not the one who actually took
part in the transaction on behalf of the company. He cited Alhaji Abba Saleh
v Bank of the North Ltd (2006) LPELR-2991(SC) at P. 11, paras. B-C, Senator
Godwin & Anor v. Ikedi Godwin Ohakim & Anor (2009) LPELR-4206 (CA),
Interdrill (Nig) Ltd & Anor v. UBA PLC (2017) LPELR-41907 (SC)
DECISION
[34] I have carefully considered the processes filed by the parties, the
evidence led, the submissions of counsel and authorities cited. I will begin
with the issue of jurisdiction, as it is fundamental, and the life-blood and bedrock of all
trials, see Yau- Yau v APC (2024) 8 NWLR (Pt 1941) 403 SC, Inakoju v Adeleke (2007) All FWLR (Pt 353) 3
at 87. Jurisdiction is the
authority of the court to adjudicate over the questions that gave rise to the
cause of action; and without jurisdiction, the trial will amount to an exercise
in futility and a nullity, see Okolonwamu v Okolonwamu (2019) 9 NWLR (Pt
1676) 1 at 21, para A; GTB v Toyed (Nig) Ltd (2016) LPELR-4181 (CA), Odom v
P.D.P (2015) 6 NWLR (Pt 1456) 527 at 548, paras C-D.
[35] The Defendant has submitted that reliefs 1, 2, and 4 the Claimant is
seeking are statute barred having been filed outside the limitation period
provided in section 9 of the Limitation law of Lagos State reproduced as
follows:
(1) Actions claiming damages for negligence, nuisance, or breach of duty
(whether the duty exists by virtue of a contract or of any such provision),
where the damage claimed by the Plaintiff for negligence, nuisance, or breach
of duty consists of or includes damages in respect of personal injuries to any
person.
(2) Subject to the provision of this section, no action to which this
section applies will be brought after the expiration of (3) three years from
the date which the cause of action accrued.
[36] The above is a
limitation law that restricts the right of a litigant to access the Court. The
limitation of action in a given subject matter is a statutory period after
which a lawsuit cannot be instituted or brought in court. A statute of
limitation is a law that bars claims after a specified period has elapsed. It
establishes a time limit for suing in a civil case based on the date when the
claim accrued. The overriding purpose of limitation laws is to require diligent
prosecution of known claims, and is expressed in the latin maxim “interest rei publicae ut sit finis litium”
which is to the effect that litigation shall be automatically stifled after a
fixed length of time, irrespective of the merits, see Yau- Yau v APC supra, Bello v Yusuf (2019) 15 NWLR (Pt
1695) 250. Therefore, the submissions by learned counsel to the Claimant in
paragraphs 3.4, 3.8 to 3.14 of the final address that the limitation law is not
applicable to claims arising from labour, employment, conditions of health and
safety; and that the limitation law is not in contemplation of the National Industrial
Court Act 2006 and Section 254C of the 1999 Constitution (as amended) are
rejected for not being the position of the law.
[37] A court is only competent to
entertain a case where the subject matter of the case is within its
jurisdiction, there is no feature in the case which prevents the Court from
exercising its jurisdiction, and the case comes before the Court initiated by
the due process of law upon the fulfilment of any condition precedent to the
exercise of jurisdiction. See Madukolu v
Nkemdilim [1962] 2 SCNLR 341, Oloriode
v Oyebi (1984) 1 SCNLR 390, Duru v Yunusa (2010) 10 NWLR (Pt.1201) 80 at
101-102, Hope Democratic Party v Obi (2011) 12 MJSC 67. The effect
of limitation law is that legal proceedings cannot be properly or validly
instituted after the expiration of the prescribed period. It removes the right
of action leaving the Claimant with an unenforceable claim, see Aba v The Board of Directors NIPOST & Anor (2023) 5 NWLR (Pt. 1878)
475 SC Yau-Yau v APC supra. The Supreme Court in Karshi v. Gwagwa [2022] 9 NWLR (Pt. 1834)
139 at 162, Paras A-D held that where the preliminary
objection on limitation is determined along with the originating processes, the
trial Court is bound to look at all the processes before it for consideration. I
will therefore consider all the processes, the pleadings, and evidence adduced
at the trial in the determination of whether or not reliefs 1, 2, and 4 are statute
barred or not.
[38] In deciding whether a case is
statute barred or not, the court has to look at the originating process
alleging when the wrong was committed that gave rise to the cause of action,
and comparing that date with the date the complaint (in this instance) was
filed. If the date on the originating process is beyond the period allowed by
the limitation law, the action is statute barred, see Abdullahi v Loko
(2023) 6 NWLR (Pt 1881) 445, Karshi v Gwagwa (2022) 9NWLR ( Pt. 1834) 139, JFS
Investment Ltd v Brawal Line Ltd & Ors (2010) LPELR 1610 (SC), Elabanjo v
Dawodu (2006) 6-7 SC 24, Yau- Yau v APC supra. Ibrahim
v Judicial Service Commission [1998] 14 NWLR (Pt 584) 1.. A
cause of action is said to be statute barred if in respect of its proceedings
it cannot be brought because the period laid down by the limitation law has
elapsed. See Egbe v Adefarasin (1987) 1 NWLR (Pt 47) 1 at 20, Udoh Trading
Coy Ltd v Abere (2001) 11 NWLR (Pt 723) 114.
[39] It is the evidence of the Claimant
that between 2002 and 2006 he sustained injuries in the Defendant’s factory
caused by lifting 50 bags manually per day when he was a powder dumper; and
that the last time he worked in the Defendant’s powder factory was 28th
April 2006 and he began experiencing back pain thereafter in 2006. I find no
evidence before the Court that the Claimant made a report of his injury (ies)
or any occupational hazard to his Line Manager or to the HR Department of the
Defendant. Rather, the evidence reveals that the Claimant was promoted and transferred
to Sales and Marketing Department as Promo Team Leader effective 3rd
May 2006, and he further enjoyed promotion to the position of Co-ordinator
between 2007 – 2011; Area
Sales Manager between 2011 – 2017;
National
Visibility Manager between 2017 – 2018; and
Regional
Sales Manager between 2018 – 2020.
[40] From the pleadings and evidence,
the cause of action arose in year 2006 when the Claimant began experiencing
back pain. This action was instituted on 5th February 2021 outside
the three years period of accrual of cause of action stipulated in the
Limitation law.
[41] The position of the law is that
where a Claimant who might have had a legitimate cause of action brings such an
action outside a limitation period created by statute, the action is statute
barred and he loses his right to enforce the cause of action by judicial
process because the period of time laid down by the limitation law for
instituting such action has lapsed. The effect of an action that is statute
barred is that it renders the action barren, sterile and incompetent, see Dr.
Moses Anolam & 7 Ors v Federal University of Technology Owerri & Ors (2025) LPELR-80027 SC; Aba v The Board of Directors NIPOST & Anor (2023) 5 NWLR (Pt 1878) 475, Karshi v Gwagwa (2022) 9 NWLR (Pt
1834) 139, Michael Idachaba & ors v University of Agriculture, Makurdi
& 4 Ors (2021) LPELR-53081 (SC), Oko-Jaja v FCSC & Ors (2022) LPELR-
57627 (CA)
[42]
The Court is deprived of jurisdiction to entertain the Claimant’s complaint/claims
that he sustained a factory injury in 2006 upon which reliefs 1, 2, and 4 are
predicated. They are statute barred, and hereby dismissed.
[43] Now,
the main claim of the Claimant is relief 3 and it is declaratory. The burden of
proof in establishing declaratory reliefs to the satisfaction of the Court is
heavy in the sense that such declaratory reliefs are not granted even on
admission of the Defendant where the Claimant fails to establish his entitlement
to the declaration by his own evidence. In other words, a declaration of right
against the Defendant cannot be made on admission, neither can it be made in
default of pleadings or failure to file a defence. The Claimant has to succeed
on the strength of his own case only if the Court is satisfied by cogent and
credible evidence, see Dumez v Nwakhoba
(2008) 18 NWLR (Pt 1119) 361 at 373-374, GE International Operations Nig Ltd v
Q Oil & Gas Services Ltd [2016] 10 NWLR (Pt 1520) 304.
[44] It
is the law that in the determination of employment rights, it is the employee who
complains that his/her employment contract has been breached that has the
burden to place before the Court the terms and conditions of his/her employment
that provides for his/her rights and obligations; and the manner such terms and
conditions were breached. See Buka Modu Aji v Chad Basin Development
Authority & Anor [2015] 3-4 SC (Pt. III) 1 at 15, Nigeria Security Printing
& Minting Plc v Charles Umoh [2022] LPELR-56924 (CA). The Claimant has
placed before the court the following documents; offer of employment (Exhibit
C1), organizational re-alignment (C5), terminal benefits computation (C6), visibility
manager (Exhibit C10). The Defendant has
placed before the Court its Solicitor’s letter (Exhibit D1), payment advice
(Exhibit D2), terminal benefits computation (D3).
[45] The Claimant asserts that the
termination of his employment by the Defendant is unfair, actuated by malice
and is not in accordance with international best practices. It is pertinent to reproduce the letter of
separation as follows:
29 September 2020
Dear Tunde,
Organization Realignment
We write to inform you that Management
has decided to realign its business for efficient and sustainable operation.
This realignment has affected your role
with the Company. Consequently, we
regret to inform you that your employment services with FrieslandCampina WAMCO Nigeria Plc are
no longer required with effect from 30 September 2020.
Your final entitlement will be as
follows:
1.
Salary
Your
salary and allowance up till and including 30th September 2020.
2.
Notice pay
Three
months basic salary in lieu of notice
3.
Ex Gratia
6
months basic salary
4.
2020 Annual
Leave Balance
Your
2020 cumulative annual leave balance is 9 working days: payment will be made in
lieu of the cumulative working days (if any)
5.
Gratuity/EIS
Your
accumulated gratuity (if any) and Employee investment Scheme as at 1 January
2016 to 30th September 2020 will also be paid.
6.
Terminal
purchase of Milk
You
are entitled to a terminal purchase of 35 x 2 = 130 carton of Peak Evap at
staff price payment will be in lieu of the 130 cartons at the current
ex-factory price of N7,149.10
7.
Waiver
In
addition to the above, the company has agreed to waive your unearned housing,
transport, leave and car allowances (as applicable) out of your indebtedness to
the company. The rest of your indebtedness will however be deducted before
payment is made.
8.
Computation
of Terminal Benefit
Please
find attached the computation of your terminal benefit which forms a part of
this documentation.
9.
Pension
Benefits
Please
contact your chosen pension manager, they would explain to you how and when to
make your claims.
Attached is your terminal benefit
statement and the employee clearance form to facilitate the submission of any
company property in your possession.
Furthermore, we wish to inform you that
we offer employees leaving the company under the Redundancy exercise the opportunity
to continue to enjoy medical treatment under the HMO scheme for three month
from date of exit. Please indicate on
the space provided over leaf whether you wish to avail yourself of this
opportunity or not.
We thank you for your services with this
company and wish you success in your future endeavors.
Yours faithfully
FrieslandCampina
WAMCO Nigeria PLC
Tope-Philip
Aikhuemelo
Human
Resource Director.
[46] The
issues that arise for determination are as follows:
1.
Whether the Defendant has justified the reason for the termination of the
Claimant’s employment?
2.
Whether the Defendant complied with the Labour law and International Best
Practices?
3. Whether on the pleadings and the
evidence the Claimant is entitled to the reliefs he is seeking?
[47] The law imposes on the Defendants a
duty to establish the reason for termination to the satisfaction of the Court,
see Skye Bank Plc v Mr Adedokun Adegun
(2024) 15 NWLR (Pt 1960) 1 SC, Olatunbosin
v NISER Council [1988] 3 NWLR (Pt 80) 25, Afribank Nigeria Plc v Osisanya
(2000) 1 NWLR (Pt 642) 598. The reason given in the letter is “to realign its business for efficient
and sustainable operation.” 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, see sections 131 (1) & (2) and 132 of the Evidence
Act 2011 (as amended), Igiriogu v Sharon Properties Ltd (2025) 5 NWLR
(Pt1984) 615 SC, Adeyemi V A.P.C (2024) 4 NWLR (Pt 1927) 63. The
burden of proof of re-alignment, redundancy, and compliance with local laws and
international best practices is on the Defendant.
[48] The Supreme Court in Skye Bank Plc v Mr Adedokun Adegun supra, and the Court of Appeal in Sahara Energy Resources Ltd v Oyebola (2020) LPELR-51806 (CA) held that the
National Industrial Court of Nigeria has a duty and an obligation to apply
international best practices in the resolution of labour and employment
disputes having been so empowered by Section
254C (1) (f) & (h) 1999 Constitution. Section
7 (6) of the National Industrial Court Act 2006 empowers the Court to have due
regard to good or international best practices in labour or industrial
relations, and what amounts to good or international best practices in labour
is a question of fact.
[49]
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. The ILO Termination of
Employment Convention 1982 (No 158)
is evidence of international best practice and international labour standards
in termination of employment. Article 4 provides that the employment of a
worker shall not be terminated unless there is a valid reason connected with
the capacity or conduct of the worker or based on the operational requirements
of the undertaking, establishment.
[50]
Furthermore, by Article 13, ILO Termination of Employment Convention 1982 (No 158), when the employer contemplates
termination for reasons of economic, technological, structural or similar
nature, the employer shall provide the workers representatives in good time
relevant information including the reasons for the termination contemplated. Recommendation
166 provides that the employer as early as possible must consult workers and
their representatives before decisions are finalized. Consultation requires
meaningful engagement on measures to be taken to avert or to minimize the
termination, and measures to mitigate the adverse effects of any termination on
the workers concerned, such as finding alternative employment.
[51] Section
20 of the Labour Act CAP L1 Laws Federation of Nigeria 2004 reproduced hereunder
provides as follows:
(1) In the event of redundancy-
(a) the employer shall inform the trade
union or workers representative concerned of the reasons for and the extent of
the anticipated redundancy;
(b) the principle of “last in, first
out” shall be adopted in the discharge of the particular category of workers
affected, subject to all factors of relative merit, including skill, ablilty
and reliability; and
(c) the employer shall use his best
endeavours to negotiate redundancy payments to any discharged workers who are
not protected by regulations made under subsection (2) of this section.
[52] The evidence of DW2 is that the Defendant at different times undertook business
re-alignment decisions to ensure sustainability during the COVID-19 Pandemic in
full consultation with the relevant local labour unions that resulted in lay
offs; and that part of the organization realignment
was the reshuffling and quasi-outsourcing of the marketing and sales force
operations to ensure sustainability and efficiency during the pandemic. DW2 testified
that the organization realignment resulting in cessation of employment was not
specifically targeted at the Claimant as other employees also left within the
period. Under cross-examination, no question was put to DW2
by the Claimant’s counsel on the material issues of operational re-alignment, the
role of Regional Sales Manager, allegations of malice and witch hunt. Failure
to cross-examine a witness on a material fact is an acceptance of the truth of
the evidence of the witness over that fact.
[53] In this instance, I take the failure of
the Claimant’s counsel to cross examine DW2 on these material facts as an
acceptance that he does not dispute the evidence of DW2 that there was operational
re-alignment and/or restructuring during the material time of Covid -19
Pandemic in the Defendant, see Mohammed v State (2025) 11 NWLR (Pt 1999)
241, Olowu v Building Stock Ltd (2018) 1 NWLR (Pt 1610) 343, Iwunze v FRN
(2013) 1 NWLR (pt 1334) 119, Nitel v Ikpi (2007) 8 NWLR (Pt 1035) 96. I am
satisfied that the Defendant has established the reason of organization
re-alignment that resulted in the separation of the Claimant. This is a valid
reason for staff lay offs, termination and/or separation; and I so hold. The
Claimant’s allegation that the organization re-alignment by the Defendant’s
management was targeted at him is unproven.
[54]
The question is whether the Defendant having decided to terminate the Claimant’s
employment on grounds of organizational re-alignment, applied international
best practices in conformity with International Labour Standards? The Defendant
asserts that it had “full consultation with all relevant local labour unions
and recourse to terms of employment contracts.’ Now, the Claimant who is a
management staff is precluded from membership of a trade union by the
provisions of section 3 (3) & (4) of the Trade Unions Act CAPT14 Laws
Federation of Nigeria 2004. Also see MTN
Nigeria Communications Plc v PTECSSAN (unreported) Suit No: NICN/ABJ/177/2023
judgment delivered 26th April 2024; Basil Ositadinma Mbanefo & Ors v
Judicial Service Commission of Anambra State (2012) 26 NLLR (Pt 73) 122. Therefore,
any consultation with local labour unions does not extend to him. This, the
Defendant admitted.
[55] There
is no evidence that the Defendant informed the Claimant that he was at risk of
redundancy due to the organizational re-alignment. There is no evidence that there
was any consultation or discussion with the Claimant about representations he
may wish to make about his separation, redundancy, opportunities for
alternative employment options within the Defendant that he might be interested
in pursuing, severance package, reasons for proposed redundancy. Instead, the
Claimant suddenly received the letter of termination by email on 29th
September 2020, where he was informed that organizational realignment has affected his role in
the Defendant company, and that his services will
no longer be required with effect from the following day, 30th September 2020. It is
no surprise that the Claimant was shocked and dissatisfied with this treatment
after he had put in 18 (Eighteen) years of service in the Defendant with no
disciplinary issues.
[56] The
Defendant that asserts that its system of operations is of global standards and
its working environment unmatched within the Global FrieslandCampina family.
Why then did it fail to inform and consult the Claimant about his impending
redundancy, and enter into consultation and negotiations with him, being a
management staff who does not belong to a trade union as stipulated in Section
20 (1) (c) of the Labour Act? It is
important to state that job loss is a very sensitive issue particularly where
the job loss is involuntary and not due to the fault of the employee. I
re-state that engaging in a consultation process with the employee, or workers
representative is mandatory with the use of the word “shall” in Section 20 of
the Labour Act; and consultation is
mandatory and a benchmark for International Labour Standards (ILS), and
international best practice, see ILO
Termination of Employment Convention
1982 (No 158), and Recommendation 166.
[57]
Consultation
creates a fair and supportive approach aimed at managing the issues that may
arise when a redundancy is declared. Procedural fairness in the process of
disengagement prevents needless litigation. I find that it is the failure of
the Defendant to consult and meaningfully engage the Claimant who was a
Management staff in line with the law and international best practices that
makes his separation seemingly unfair and in bad faith; the Claimant having
served the Defendant for 18 years and 6 months with no disciplinary issues. The response
of the Defendant as contained in its Solicitor’s letter (Exhibit D1) to the
Claimant’s Solicitors letter did not give any room for any discussions on the
issues raised regarding the Claimant’s separation and severance benefits in the
statement in the letter reproduced as follows:
Our
Client has established itself through its ardent commitment to its ethos of
existence consistently adhering to global best practices in its operations
including but not limited to labour matters between itself and its employees,
past and current.
[58] I
hold that the Defendant’s failure to consult the Claimant is a breach of the
provisions of Section 20 of the Labour Act, rendering the process procedurally
unfair; and it is contrary to international best practices, the International
Labour Organisation (ILO) decent work agenda with the four strategic objectives
of the promotion of rights at work, employment, social protection, and social
dialogue, see Aloysius v Diamond Bank Plc
(unreported) Suit No: NICN/LA/292/2013 judgment delivered 21 February 2018. Relief 3 succeeds.
[59]
The Claimant has complained that he was unfairly treated and discriminated
against in the severance benefits paid to him. His contract of employment as a
managerial staff is not in evidence to enable a determination of what his
terminal benefits should be in the event of a redundancy. Furthermore, there is
no evidence that staff in the same leadership category as he was received up to
27 months ex gratia payment while he was given 6 months ex gratia payment. In
any event, it is the evidence of the Claimant that he knows
that ex gratia payments are discretionary and not a right. I find from the
evidence that the total sum paid to the Claimant as severance benefits after
deduction of his indebtedness is N12,359,370.30 (Twelve Million, Three Hundred
and Fifty Nine Thousand, Three Hundred and Seventy Naira, Thirty Kobo). Reliefs
5, 6, and 7 have not been proved. They are refused.
[60] The Claimant is seeking an award of damages. An award of general damages is awarded to remedy a
wrong where the Claimant successfully establishes liability against the
Defendant, see Access Bank Plc v Ugwuh
(2013) LPELR-20735 (CA), Fagge v Tukur (2007) All FWLR (Pt 387) 876 at 900 Para
A-B. It is established that the Defendant failed to comply with the
provisions of Section 20 of the Labour Act, and international best practices,
and labour standards. The Claimant
is therefore entitled to an award of general damages pursuant to the provisions
of section 19 (d) of the National Industrial Court Act 2006. I award the sum of
N7,744,092.84 (Seven Million, Seven Hundred & Forty Four Thousand, Ninety
Two Naira, and Eighty Four Kobo) the equivalent of 12 months basic salary as
general damages.
[61] For all the reasons
given above, I hereby declare and
make the following orders:
1. It is Declared that the failure of
the Defendant to consult the Claimant, negotiate severance benefits in the process of
declaring him redundant and terminating his employment is against the
provisions of Section 20 of the Labour Act CAP L1 LFN 2004, and it is not in
accordance with international best practices.
2. The Defendant is ordered to pay
general damages to the Claimant in the sum of N7,744,092.84 (Seven Million, Seven Hundred & Forty Four Thousand,
Ninety Two Naira, and Eighty Four Kobo).
3.
Costs awarded the Claimant in the sum of N750,000.00.
All sums
are to be paid within 30 days. Thereafter any sum outstanding will attract
interest at the rate of 10% per annum until fully paid.
Judgment
is entered accordingly.
____________________________
Hon
Justice O.A.Obaseki-Osaghae