IN
THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
SUIT
NO NICN/LA/292/2024
BEFORE HIS LORDSHIP,
HON. JUSTICE (DR.) 1. J. ESSIEN
DATE: 3rd March 2026
BETWEEN
MR. BIEKPI UWE AKAN
Claimant
AND
NIGERIAN
SECURITY PRINTING AND
MINTING
PLC.
Defendant
JUDGMENT.
The claimant commenced this action by a
complaint dated the 21/10/2024 and filed on the 22/10/2024. In the complaint
the claimant sought the following relieves from the court:
1. A DECLARATION
that by virtue of Section 318 of the Constitution of the Federal Republic of
Nigeria 1999 as altered, and the fact that the Central Bank of Nigeria holds
controlling shares in the Defendant’s establishment, the Defendant’s Company is
part of the Public Service of the Federation, which qualifies the Claimant as
Public Servant with endowed characteristic of permanence of tenure and years of
service.
2. A DECLARATION
that the disengagement of the Claimant from the services of the Defendant at
age 57 years, after 20 years of meritorious service, shortly before his due
retirement age on the flimsy excuse that his services were no longer required,
was wrongful, unconstitutional and void.
3. A DECLARATION
that the disengagement of the Claimant from the services of the Defendant at
the verge of his retirement, has robbed the Claimant of his legitimate
expectation of salary earnings up to his retirement date, as well as other due
retirement benefits and therefore constitutes unfair labour practice and
against international best practices
4. A DECLARATIQN
that by the principle of ubi jus ibi remedium, this Honourable Court is
entitled the right the wrong and injury caused to the Claimant, by converting
the Claimant disengagement from service to compulsory retirement from the
Defendant’s service.
5. A declaration
that in line with the Defendant’s Internal Memo dated 1st September 2014 on EXIT INCENTIVE PACKAGE FOR
MANAGEMENT STAFF. Being an extract of the minutes of 210th Board
Meeting of the Defendant, on compulsory retirement, the Claimant is entitled to
three (3) years approved total emolument as his compulsory retirement and exit
incentive.
6. THE SUM of N27,249,984.07
(Twenty-Seven Million, Two hundred and forty-nine thousand, Nine Hundred
and Eighty-four naira, seven kobo) being general and compensatory damages for
the Defendant’s frustration of the Claimant’s legitimate income earnings
expectation from August 2022 to September 2025 (his supposed retirement date),
but for his wrongful disengagement from service by the Defendant.
7. AN ORDER MANDATING
the Defendant to pay to the Claimant, the sum of N23,357,129.8 (Twenty-Three
Million, Three Hundred and Fifty-Seven Thousand, One Hundred and Twenty-Nine
Naira, eight kobo) as the Claimant’s entitled exit incentive being the
Claimant’s total emolument for 3 years as a compulsory retiree of the
Defendant.
8. A DECLARATION
that in line with Procedures No. 1.1.4 (ii) ( c) of the Defendant Procedures
for Disengaging Staff contained in page 4 of the Defendant’s Procedure Manual.
Corporate Services Directorate, the Claimant ought to be given and is entitled
to three (3) months salary in lieu of notice.
9. AN ORDER
MANDATING the Defendant to pay to the Claimant the sum of N837,538.26 (Eight
Hundred and Thirty-Seven Thousand, Five Hundred and Thirty-eight Naira,
Twenty-six kobo) being the Claimant’s entitled (3) three-months salary in lieu
of Notice.
10. A DECLARATION
that by virtue of the clear provision of Clause 33 contained in page 7 of the
Defendant’s Employee Manual, the Claimant who was asked to leave the company on
grounds that his services were no longer required, is not required to refund
the sum of N1,249,979.17 or any alleged sum as unearned allowances to the
Defendant.
11. A DECLARATION
that upon his disengagement from service, the Claimant is entitled to access
his pension, and the failure and refusal of the Defendant to issue the Claimant
the requested exit clearance letter to his Pension Funds Administrators, to
enable the Claimant who is above the age of 50 years to access the funds therein,
constitutes an act of cruelty, unconscionable and reprehensible conduct, which
has subjected the Claimant to unnecessary financial pains and hardship.
12. THE SUM of
N50,000,000.00 (Fifty Million Naira only) being exemplary damages for the
Defendant’s high-handed and reprehensible conduct in refusing to issue the
Claimant a clearance letter to enable the Claimant access the monies in his
Retirement Savings Account, thereby depriving the Claimant of a profitable use
of the monies in his pension account since the date of his disengagement from
service till date.
13. AN ORDER
MANDATING the Defendant to pay the Claimant’s deducted but unremitted pension
contribution for the period of June 2022, July 2022 and August 2022, at the
rate the of N97,411.62 per month, being a total sum of N292,234.86 (Two Hundred
and Ninety-Two Thousand, Two Hundred and Thirty-four Naira, eighty-six kobo) to
the Claimant.
14. 21% Interest
per annum on all judgment sums awarded by this Honourable Court until same is
fully liquidated.
15. Costs of the action as assessed by
the Honourable Court pursuant to Order 55 of the National Industrial Court
Rules 2017.
In support of this claims is the
statement of facts schedule of documents, Witness deposition of the claimant
and frontloaded documents. The originating process was served on the defendant
on the 24/10/2024. The defendant filed a statement of defence along with a
witness deposition on the 30/01/2025. In response to the statement of defence
the claimant filed a reply to the defence and a further witness deposition of
the claimant on the 17/2/2025. Pleadings in this action were deemed closed.
Hearing in this suit commenced on the 19/4/2025.
The claimant testified as CW1. He adopted his witness deposition and went on to
tender the following documents in evidence:
1.
Provisional offer of employment is
Exhibit BA-1
2.
Confirmation of appointment is Exhibit
BA-2
3.
Employees handbook is Exhibit BA-3
4.
Extract of minute of meetings of
28/8/2014 is Exhibit BA-4
5.
Memo on approval of exit incentive is
Exhibit BA-5
6.
The procedure for disengagement of staff
is Exhibit BA-6
7.
Letter of promotion is Exhibit BA-7
8.
Letter of disengagement is Exhibit BA-8
9.
Data page of claimant passport is
Exhibit BA-9
10
Claimant pay slip is Exhibit BA-10
11 Retirement Savings Account is Exhibit BA-11
The claimant was cross examined and
thereafter, the claimant closed his case.
The defendant opened their case on the
29/9/2025. Mutairu Haruna testified as DW1and the sole witness of the
defendant. The witness adopted his witness deposition and went on to tender the
following documents in evidence:
1.
Provisional offer of appointment is
Exhibit DW-1
2.
Confirmation of Appointment is Exhibit
DW-2
3.
Letter of disengagement is Exhibit DW-3
4.
Approval of incentive package is Exhibit
DW-4
5.
Employees Handbook is Exhibit DW-5
6.
Payment advice is Exhibit DW-6
7.
Query on unruly behaviour is Exhibit/Insubordination
is Exhibit DW-7
8.
Response to query is Exhibit DW-8
9.
Internal Memo dated the 19/7/2018 is
Exhibit DW-9
10
Internal Memo on report of disciplinary Committee is Exhibit DW-10
11
Letter of suspension is Exhibit DW-11
12
Query letter dated 11/9/2019 is Exhibit DW-12
13
Document of lateness in August 2019 is Exhibit DW-13
14 Reply
to query of lateness is Exhibit DW-14.
15
Response to reply to query dated 23/9/2019 is Exhibit DW-15
16
Document of un-earned allowances is Exhibit DW-16
17
Document of exemption from subvention of NSP&M PLC is Exhibit DW-17.
The
following document were objected to by the claimant counsel which objection was
to be taken as a preliminary issue in the final written addresses of the
parties.
1.
Certificate of incorporation is Exhibit
DW-18
2.
Memo and Article of Association of NSP&M
PLC, Exhibit DW-19
3.
CAC Status Report of NSP&M, Exhibit
DW-20
The defence witness was cross examined
and thereafter the defence closed their case. The suit was thereafter adjourned
to the 19/2/2026 for the adoption of the final address of counsel.
BRIEF FACTS IN ISSUE.
The case of the claimant as revealed
from the pleadings is that he was employed by the defendant sometimes in December
2002 and the appointment was confirmed. He worked with the defendant for twenty
(20) years and six (6) months before the defendant disengaged the claimant on
grounds that the claimant’s services were no longer required. By the
confirmation of his employment, he
automatically became a member of the defendant’s Gratuity Scheme with effect
from 6th March 2002. At the
time the claimant was terminated he was already 47 years old, remaining three
(3) years to reach his statutory retirement age of 50 years. It is his
contention that by disengagement of the claimant in the near time of his
retirement by termination, the claimant was robbed of his due terminal and exit
packages without any just cause in a company he has spent more than two
decades. The claimant states that his termination did not comply with the terms
of the disengagement as contained in the defendant’s Employee Handbook because
he was not given the required notice as a staff in the management cadre and was
also not paid his salary in lieu of notice.
The claimant states that for no just
reasons, the defendant refused to issue him exit clearance letter to enable him
access his pension funds even when the Defendant knew he had to rely on his
pension to support himself having been forced out of his employment without any
cushioning exit package at age 47 years. It is the claimant contention that by constitutional
arrangement, he qualifies as a Public Servant since the defendant’s establishment
is owned by an agency of Federal Government of Nigeria, hence the
characteristic of permanence of tenure in Public Services inure in his favour,
such hat he cannot be terminated for no
just cause, and accordingly seek the court to apply equity to convert his
disengagement by termination to compulsory retirement since he met the
criteria for compulsory retirement as
contained in the defendant’s
employment contractual documents. The claimant states that by reason of the
conduct of the defendant afore-stated; [that is terminating his employment
without compliance with the terms of the contract, failing to pay him his due
entitlements, and tacitly denying him access to his pension contributions , he
has been injured and seeks the intervention of this Honourable for redress as
per the reliefs claimed in this suit.
The defendant admits that the claimant
was employed as Assistant Manager in the Commercial Department. The defendant
admits that the claimant was not retired but was disengaged and that the
procedure for disengagement was duly followed when the claimant was paid a
month salary in lieu of notice. The defendant denies that the claimant
employment was regulated by the Civil Service Rules and that the defendant
reserves the right to terminate the appointment of the claimant at any
time. The defendant posits that the
claimant was duly terminated of his appointment and the court cannot convert
the termination to retirement. The defendant counter claims the sum of
N1,249,979.17. as unearned allowance paid to the claimant in advance. The
claimant has denied this claim of the defendant.
ISSUES FOR DETERMINATION.
The defendant/counter claimant final
written address is dated the 11/11/2025 and filed on the 14/11/2025. In the
address the defendant counsel has made argument on the objection raised as to
the admissibility of Exhibit DW-18, DW-19 and DW-20. i.e, the Certificate of
Incorporation, the Memo and Article, and the CAC status report of the defendant
at the trial. During the tendering of this documents the claimant counsel had
objected to their admissibility and reserved argument to the final address.
However, in the final written address of the claimant counsel filed on the
2/2/2026, the claimant counsel did not raise argument in opposition to the
admissibility of the said documents. This being the case the documents are
deemed properly admitted and shall be relied upon by the court if need be in
the course of this judgment.
The claimant in their final written
address formulated five (5) issues for determination, to wit:
1.
Whether upon the findings of this
Honourable Court that the Defendant’s company’s shares are substantially owned
by an Agency of the Federal Government of Nigeria, the Defendant’s Company does
not qualify as Public Service of the Federation as defined by Section 318(1) of
the Constitution of Nigeria 1999? If the Issue is answered in the Affirmative,
whether the Defendant’s Company, being regarded as public service in the eyes
of the law, are not bound by the general feature of permanence of tenure as
characterized in Public Service.
2.
Whether the Claimant has proved that his
disengagement was wrongful having fallen short of the conditions of service
governing his employment with the Defendant?
3.
Whether, having regard to the
uncontroverted provisions of the Defendant’s Staff Handbook on retirement, the
undisputed length of service and age of the Claimant, coupled with the
Defendant’s own admission that the reason given for his disengagement does not
fall within the permissible grounds of termination, this Honourable Court
ought, on the principle of ubi jus ibi remedium and in the interest of
justice, to award appropriate compensation to claimant so as to preserve and
enforce the accrued terminal benefits which would have been due to him had his
services been lawfully brought to an end ?
4.
Whether the Claimant has successfully
proved his entitlement to the reliefs sought in the suit
5.
Whether the Defendant/Counter-claim
successfully proved the reliefs sought in the counter claim?
On the other hand, the defendant
formulated formulated 4 issues for determination which are:
1.
Whether the Claimant has proved his entitlement
to the reliefs sought in this suit and has proved also that his employment with
the Defendant has a statutory flavour or is governed by the Public Service
Rules.
2.
Whether the Staff Handbook (Exhibit DW5)
and the management directive on unearned
allowances (Exhibit DW16) form part of the Claimant’s binding terms of
employment.
3.
Whether the Defendant has proved its
entitlement to the refund of the sum of N1,249,979.17 (One Million, Two hundred
and Forty-Nine Thousand, Nine Hundred and Seventy-Nine Naira, Seventeen Kobo]
only as unearned allowance.
4.
Whether the Claimant is entitled to the
relief of having his termination converted
to compulsory retirement.
I have carefully considered the issue
formulated by the counsel for the parties in their final written address, though
some of the issue are relevant but the issues does not directly address the
dispute in this action. From the pleadings of the parties and the issues in
contention, the court hereby formulates the following issues for determination.
(1) Whether
the termination of the contract of employment of the claimant at the time it
was done was in accordance with the terms of contract regulating the employment
relationship and whether the defendant could lawfully terminate the claimant
having regards to his status and years of service of the claimant without
payment of exit benefits.
(2) Whether
the claimant is entitled to the monetary and other relieves sought by the
claimant in this case.
(3) Whether
the defendant has proved his rights to the claim of unearned allowance in the
counter claim before this court.
ISSUE NO 1.
It is not in dispute that the claimant
in this action was employed vide Exhibit BA1 on the 9/1/2002 as Assistant
Commercial Manager. The appointment was confirmed by Exhibit BA2 on the
28/9/2002 to take effect from the 6/3/2002. The letter of confirmation in
paragraph 2 states,
‘As
a confirmed employee, you automatically become a member of the Company’s
Gratuity and Pension Scheme. With effect from 6th March 2002. You
should obtain from Human Resources Department (Pension Section), a copy of the
Trust Deed of the Scheme which contains a nomination form to be completed and
returned to the Section. You will be entitled to such benefits hitherto enjoyed
by you and others that may be approved from time to time by the Board of
Directors for those on your grade’.
The claimant counsel has argued that the
defendant company where the claimant worked is a Public Limited Company, with
the central Bank of Nigeria holding the controlling share. That by this fact,
and the effect of section 318 (1) (g) of the Constitution and the nature of the
claimant employment, the claimant is deemed to have been in the public service
of the federation. counsel argued that the status of the employment is imposed
by the constitution, counsel contend that public service employment is
characterised by permanence of tenure of employment and thus the nature of the
employment is status based and not contract based. This implies that the
feature applies across board and attaches to employment in public service
irrespective of the wordings of the handbook. He argued further that permanence
of tenure norm emphasizes security and continuity in office, except in
instances of removal for misconduct, discipline, or fraud related offences,
hence it restrains arbitrarily removal at pleasure, as was done to the instant
claimant, Counsel relied on the case of Adekoye V. N.S.P.M.C (2009)
5 NWLR (Pt1134) 322 at 342 paras A – B.
Counsel also contended that the feature
of permanence of tenure accords with international best practices in labour law
as the philosophy behind the International Labour Organization (ILO) Convention
No. 158 of 1982, Counsel urged the court to recognise the security of tenure of
employment of the claimant.
The defendant response to this position
is that the claimant contract of employment was governed strictly by contract –
Exhibits BA1 (Offer), BA2 (Confirmation), and the Staff Handbook (Exhibit DW5).
That There is no statute regulating his appointment or removal. Therefore, the
relationship is one of master and servant. Counsel relied on Exhibits DW18,
(the Certificate of Incorporation), DW19 (The memo and Article of Association
of the defendant company) and DW20, the (Status Report of the defendant with the
CAC). Counsel argued that the mere fact the CBN, a government agency, is a
majority shareholder does not automatically cloth the Defendant with the toga
of a government parastatal or subject its employment contracts to the Public
Service Rules. Counsel argued further that for employment to have statutory
flavour, the statute or regulation creating it must specify the terms and
conditions and outline the procedure for termination. Counsel relied on the
case of Iderima V. Rivers State Civil Service Commission (2005)16 NWLR
(Pt. 951) 378, Counsel finally argued
that the claimant was under a master servant employment relationship. That the
defendant could terminate the claimant for any reason and for no reason at all
provided he pays the required notice or salary in lieu of notice. Counsel
relied on the case of Olaniyan V. University of Lagos (1985) 2 1VWI,R
(Pt. 9) 599, and Kenneth Onivuka. V. Nigerian Bottling Company Ltd (2022)
LPELR-58711(CA),
I have carefully considered the argument
put forward by the counsel for the parties, I have also considered the evidence
adduced at the trial of this suit. Let me start by stating that the status of
an employment is determined by law. The law has also defined the character of
employment and the consequences that attend that character of employment. It is
not in dispute that the defendant Nigerian Security Printing and Minting PLC
has the Central Bank of Nigeria as having the controlling shares in the
company. Exhibit DW19 i.e the Memo and Article of Association of the defendant
tendered by the DW1 show that the Central Bank of Nigeria has the controlling
shares in the defendant. DW1 during cross examination admitted that the Central
Bank of Nigeria is the majority shareholder in the defendant. DW1 also admitted
that the CBN is an agency of the Federal Government of Nigeria. This admission
raised question as to the status of the claimant as an employee of the
defendant which the Federal Government of Nigeria has a controlling share. This
question is resolved by the provisions of section 318 (1) of the 1999
constitution which defines public service of the federation to mean;
The
service of the Federation in any capacity in respect of the Government of the
Federation, and includes service as-
(g)
staff of any company or enterprise in which the Government of the Federation or
its agency owns controlling shares or interest.
The above provision of the constitution
as the grundnorm which is supreme to all other laws, takes precedence over any
other reference to the employment status of the claimant or any other law or
regulation. Confronted with a similar scenario the Supreme Court per Onnoghen
JSC in the case of Adekoye V.
N.S.P.M.C (2009) 5 NWLR (Pt1134) 322 at 342 paras A – B, Held;
From
the above, it is very clear that by constitutional arrangement the 1st
respondent/cross-appellant as well as its members of staff form part of the
public service of the Federation and that the 1st respondent in
particular is an agency of the Federal Government and It is not disputed that
the Federal Government owns a controlling shares in the 1st
respondent /cross appellant. Therefore, hold the view that the 1st
respondent/cross appellant is an agency of the Federal Government contrary to
the views of the lower court
It does not matter that the claimant is
not expressly referred to as public servant or that he does not work in the
core civil service structure of the federation. It does not also matter that
his employment is not regulated by the civil service rule as the defendant has
urged this court to consider. What matter most is that the claimant is an
employee in the public service of the federation as defined by section 318(1)
of the 1999 Constitution, The claimant enjoys security of tenue of employment.
The implication is that security and continuity in his employment is
guaranteed. The claimant cannot therefore be arbitrary terminated of his
employment at the pleasure of the defendant except in instances of removal for
gross misconduct. In instances where the removal is possible or is sanctioned,
strict compliance with the procedure for removal must be followed. In other
words, strict compliance with the rules
and procedure for termination must be followed.
It is a misconception for the defendant
to argue that because the defendant is incorporated under the CAMA as evidenced
by Exhibit DW18 the claimant employment relationship is that of master servant.
I must also note that the claimant in this action is not claiming that his
contract of employment is laced with statutory flavour. Rather, the claimant
argument is that the contract of employment is one that is characterised with
permanency and security of tenure by reason of section 318(1)(g) of the 1999 Constitution.
Therefore, the argument of the defendant that the claimant contract is not
laced with statutory flavour and that for employment to have statutory flavour,
the statute or regulation creating it must specify the terms and conditions and
outline the procedure for termination is not the subject matter of claim before
the court. The argument is off the point.
The defendant counsel has also argued
that the defendant could terminate the claimant for any reason and for no
reason at all provided he gives the required notice or pay salary in lieu of
notice. Counsel relied on the case of Olaniyan V. University of Lagos ‘supra.’ On this argument the defence counsel has
missed the point by a very wide margin. Labour law has undergone both judicial
and legislative activism over the centuries. Motive has now become a very
relevant factor in determining the validity of a termination of employment. In
the case of Skye Bank Plc V. Adegun (2024) 15 NWLR (Pt.1960). The
Supreme Court stated;
The
new jurisprudence in labour relations cannot be ignored as the law is not
static. The circumstances of each case and the motive of the employer is now a
considerable factor in cases of wrongful dismissal. The dismissal must have
been because of the employee’s capability or qualifications, because of misconduct,
because the employee was redundant, because continued employment would
contravene a law, or because of “some other substantial reason”. If the
employer has an argument based on one of these categories, then the court
evaluates whether the employer’s actual decision fell within a “reasonable
range of responses”, i.e. that a reasonable employer could have acted the same
way. Thus, the review standard lies in between an outright perversity, or ‘Wednesbury
unreasonableness’ test and a forthright reasonable person’s test.
The old common law rule that the master
has the power to terminate the employment of the servant at any time and for no
reason at all has since been jettisoned to the achieves of labour jurisprudence.
Such principles are only useful for the purpose of historical study of the
evolution of labour law. Unfortunately, the defence counsel is ignorant that
that principle is no longer applicable in labour law. As part of the adoption
of International Labour Standard, section 245C-(2) vest in this court the power
to apply international conventions in labour matters it provides:
Notwithstanding
anything to the contrary in this Constitution, the National Industrial Court
shall have the jurisdiction and power to deal with any matter connected with or
pertaining to the application of any international convention, treaty or
protocol of which Nigeria has ratified relating to labour, employment,
workplace, industrial relation or matters connected therewith
This section vest in this court the
jurisdiction to apply the ILO Convention No 158 of 1982 (Convention on the
Termination of Employment No. 158).
This
convention provides:
The
employment of a worker shall not be terminated unless there is a valid reason
for such termination connected with the capacity or conduct of the worker or
based on the operational requirements of the undertaking, establishment, or
service
The defendant counsel has argued that the
court should not rely on the convention because it offends section 12 of the
1999 Constitution since it has not been domesticated. Counsel also contends
that the claimant counsel did not plead the convention. This argument does not
represent the law and practice. The duty to apply International Convemtions treaties
and protocols is a constitutional mandate vested in the court. It is the duty
which the court must observe in the process of adjudication. Our practice does
not preclude a Judge from citing a law which has not been referred to by
counsel in their pleadings and argument. Claimant counsel need not cite
Convention 158 before the court can apply it. Furthermore because of the
wording of section 245(C) (2) which uses the phrase; ‘Notwithstanding anything
contained in this Constitution’ The operation of section 12 of the constitution
is automatically subject to section 245C (2). This court therefore is vested
with the jurisdiction to apply Convention 158 of 1982. This Convention
effectively abolishes the old common law rule that a master has the power to terminate
an employment at any time for no reason
at all. Therefore. the law now is that in terminating an employment the
employer has a duty to state the reason for the termination and go ahead to
justify the reason given for the termination. The above finding of the court is
very critical in the determination of the legality or otherwise of the
termination of the employment of the claimant which is the subject matter of
this action.
The evidence before this court is that claimant
was employed as Assistant Commercial Manager in 2002 and the appointment was
confirmed vide exhibits BA-1 and BA-2 respectively. The claimant continued in
the employment earned promotion and as at 12/5/2017, the claimant was promoted
to the rank of Manager in the commercial department of the defendant. By a
letter dated the 28/7/2022 and tendered as Exhibit BA-8 title ‘DISENGAEMENT’ the
employment of the claimant was terminated. Paragraph 2 of the said letter reads:
‘We
wish to inform you that your appointment is hereby terminated with effect from
31st July 2022 as your services are no longer required. (underlining
for emphasis)
The question is whether by exhibit BA-8
partly reproduced above, the termination was justified under the circumstances
of this case. And whether in terminating the appointment of the claimant the
defendant complied with the terms and condition of the employment.
Let me quickly note that the parties are
at consensus ad idem, that
employment contract between the parties was governed by Exhibit BA-1,
BA-2, BA-3, BA-4, BA-5 and BA6. These
documents are also tendered by the defendant as Exhibit DW-1 DW-2, DW-4, DW-5.
For the purpose of clarity, I would refer to the exhibits in this judgment as
marked as B series (i.e as tendered as claimant evidence.
It is in evidence that as at the time of
termination of the claimant employment, the claimant had put in 20 years in the
service of the defendant. The claimant was 57 years old and had 3 years to
clock 60 years at which age he would have retired from the employment of the
defendant. Let me state that the nature
of employment of the claimant was one which was imbued with the character of permanency
or security of tenure. The letter of appointment, Exhibit BA-1 lay credence to
this position. Paragraph 2 of the letter states:
Other condition of appointment are
as follows:
(2)
The appointment is pensionable after 10 years of service and may be terminated
upon giving one month’s notice in writing or by either party or payment of one
month notice in writing or by either party or payment of one month salary in
lieu of notice.
Further to this stipulation, paragraph 2
of Exhibit BA-2 (the letter of confirmation states;
As a
confirmed employee, you automatically become a member of the Company’s Gratuity
and Pension Scheme, with effect from 6th March 2002. You should
obtain from Human Resources Department (Pension Section), a copy of the Trust
Deed of the Scheme which contains a nomination form to be completed and
returned to the Section. You will be
entitled to such benefits hitherto enjoyed by you and others that may be
approved from time to time by the Board of Directors for those on your
grade. On your part, we expect you will
do your utmost to give the best of your services to the Company.
From the above mentioned exhibits the
intention of the parties was that the claimant would continue in the employment
until he retires at 60 years or may choose to voluntarily retire after putting
in 10 years in the service of the
defendant. This is so because in Exhibit BA-5 which is also Exhibit DW-4 (tendered by the defendant) which is an
extract form the minutes of the 132nd Exco Meeting of the defendant
held on the 4/11/2014 stipulates in paragraph 2 (1) the modes to exit the
defendant company thus;
(1)The following
are the modes of exit in the company:
i. Reaching 35 years of service.
ii. Reaching 60 years of age.
iii. Attaining 8 years tenure of office
by a Management Staff.
(2)After extensive
deliberation, it was approved that the criteria for staff to qualify for exit
package is only limited to the following mode of exit in the Company:
i. Statutory retirement
ii. Compulsory retirement.
iii. Death
Statutory retirement as mentioned in
Exhibit BA-5 can only find expression and be interpreted or understood within
the context of section C (27) of Exhibit BA-3 (i.e the employee handbook of the
defendant).
(b) provides;
An employee who serves for 10 years and
above and is within the ages of 45 and 59, has the discretion to retire subject
to management approval. He shall, for reasons of effective succession, be
required to give three (3) months’ notice or pay or be paid three (3) months’
salary in lieu of such notice.
The above adumbrated provisions of the
employee handbook affirm the security of tenure of the claimant employment. It
is the finding of this court that upon working for the defendant for 20 years
with the option available for the claimant to retire from the employment, as
provided from the above quoted Exhibit BA-3, the claimant became entitled to take
the benefit of a statutory retirement under Exhibit BA-3. Furthermore, the
combined effect of the contents of Exhibit BA-1 (the letter of appointment) and
Exhibit BA-2 (the letter of confirmation which grants pensionable status to the
claimant on the date of confirmation confers on the claimant the right to claim
the benefit of a statutory retiree. It is the finding of this court that the
claimant and indeed any staff of the defendant who has served for 10 years and
who is entitled to take the benefit of voluntary retirement, by the extant
provisions of the employee handbook Exhibit BA-3 cannot be terminated under the
reason of ‘service no longer required’ At best the defendant haven known that
the claimant has put in above 10 years and in this case 20 years ought to have
asked the claimant to voluntarily retire from its service. A voluntary retiree
is entitled to gratuity and not salary in lieu of notice. The defendant in this
case completely misunderstood the import of its own regulations and term of employment
as shown on Exhibit BA-1, BA-2, BA-3, and BA-5 and proceeded as if the claimant
was an employee that the defendant could
terminate by giving one month notice. This could not be possible because the
claimant employment had become pensionable. The termination of the employment
of the claimant was characterised by arbitrariness. The Supreme Court in the
case of Skye Bank Plc V. Adegun
‘supra’ warned against arbitrariness in the following words:
Employer
has the duty to ensure that it does not enigmatically raise it executive stick
in oppression of the employee and it is important that every employer must be
careful not to abdicate or abuse its powers. It has been held that employers
and public bodies are required by law, at all times, to act in good faith,
reasonably and fairly towards people and matters under their charge in all
circumstances, the law does not permit employers to act arbitrarily.
The claimant could only be terminated on
the ground of misconduct which was not the case. It is the finding of this
court that the termination of the employment of the claimant by Exhibit BA-8
was wrongful. It was an unfair labour practice for the defendant to terminate
the claimant employment after the claimant has put in 20 years in the service
of the defendant and had become a pensionable staff of the defendant.
The defendant in the letter of
termination stated that the reason for the termination is ‘your services are
no longer required.’ The defence counsel has argued that because the
employment relationship was that of master servant the defendant had the right
to terminate the employment without any reason. I have already found in this
judgment that the contract of employment by the provision of section 318 (1) of
the 1999 Constitution was a public service of the federation and therefore
subject to the security of its tenue, The reason given for the termination is no
longer applicable in labour law. In other words, the old common law position has since been
abrogated by the ILO Convention No 158 of 1982 (Convention on the Termination
of Employment No. 158), the defendant ought to have clearly stated the reason
for the termination and go ahead to justify the reason in this proceeding for
the termination. The defendant instead of complying with this requirement
rather blew hot and cold. While on the one hand the defence counsel argued that
by Exhibit BA-1 and BA-2 the claimant complied with the terms of the employment
contract by paying one moth salary in lieu of notice as shown in Exhibit DW-6.
However, the defendant clearly glossed over the fact that as proved by Exhibit
BA-7, the letter of promotion, the claimant had moved into the management cadre
in the defendant employment upon his promotion to the rank of Manager in the
Commercial Department effective from 1st March 2017. The claimant
who testified as CW1 during cross examination testified that as a management
staff, he was entitled to 3 months notice or three months salary in lieu of
notice. The claimant relied on Exhibit BA-3 which is the same as Exhibit DW-5
(the Employees Handbook.). In section 34 under the heading of ‘RESIGNATION’
stipulate that;
An
employee may resign his employment upon giving one (1) month notice or pay the
Company one (1) month basic salary In lieu of notice. Similarly, the Company may give an employee
one (1) month notice that his/her services are no longer required or pay him/her
one (1) month basic salary In lieu of such notice. However, Management staff are to give three
(3) months notice or pay three (3) months basic salary in lieu of notice. Similarly,
the Company may give a Management staff three (3) months notice or pay him/her
three (3)months basic salary In lieu of such notice. (underlining for emphasis)
In fragrant disregard of its own
regulation the defendant witness and the defence counsel argue that the one
month notice or salary in lieu of notice which the claimant paid as per Exhibit
DW-6 was what the claimant was entitled to, this is not the case. Though the
section deals with resignation, the defendant company cannot resign from
itself. Therefore, that section which specifically mentions management staff
was intended to provide for the direct opposite of situation where the company
intended to exercise its right to terminate the employment in circumstances
where termination applies. A situation which does not apply in the
circumstances of this case since the claimant could not be terminated except
for gross misconduct bearing in mind, that the claimant had become a
pensionable staff of the defendant. This position is affirmed by clause 11(f)
in page 22 of Exhibit BA3. The clause specified/list nine (9) instances that
where the defendant is empowered to exercise the power to terminate an
employee. Termination on grounds of ‘service no longer required’ is not one of
the instances. The defendant witness
during cross examination admitted this much when asked.
Q. When you terminate an employee, do
you normally give him the right to
explore an option to resign or
retire?
A. There are different modes of
termination or dismissal I believe he should
have exercise the right before
termination
Q. Take a look at clause 11(f) in page
22 of Exhibit BA3. The clause
specified the instances or
circumstances under which an employee may
be terminated?
A. Yes
Q. Please for emphasis could you please
read the out to the court the
instances an employee should be
terminated?
A. Witness read out the provisions in
Exhibit BA-8.
Q. Show this court any paragraph
in the claimant’s disengagement letter
that allege any of the offenses
which a staff can be terminated.
A. Non of the grounds in Clause 11 is
stated in the disengagement letter
Exhibit BA-8
It is clear that the defendant did not
terminate the claimant under the instances or circumstances under which an
employee may be terminated under the Employee Handbook.
On this score it is the finding of this
court that that the termination of the employment of the claimant and the
payment of one month salary in lieu of notice was wrongful. The termination was
a clear violation of the employment rights of the claimant. It amounted to
unfair labour practice and ought to be struck down by the court. The letter of
termination otherwise tiled ‘disengagement’ in Exhibit BA-8 is hereby set
aside.
I have carefully examined Exhibit BA-8
the letter of termination. The reason given by the defendant in disengaging the
claimant was that the claimant’s ‘services are no longer required’. By
Article 30 (a)(iv) of Exhibit BA-3 (the employee hand book) this reason
qualifies as redundancy because redundancy may arise ‘where for any other
reason, the person’s services are no longer required’. It is also apt to note
that in the memo dated 4tth November 2014 (Exhibit BA5). Paragraph 1 (c)
(iv) of the said letter, list ‘No opportunity for further development’,
as one of the conditions that will ignite a compulsory retirement of an
employee. I agree with the submission of the claimant counsel that by stating
that claimant’s services were no longer required, the defendant was basically
inferring that there is no opportunity any longer for further development of
the claimant in the defendant’s employment. It is the finding of this court
that this is the appropriate circumstances where the defendant ought to have
invoked the disengagement procedure of ‘Compulsory Retirement’ pursuant to
Exhibit BA-5 in view of the fact that the claimant had already put in 20 years
of service for the defendant and the claimant employment had become pensionable
and in line with paragraph 27 (c) of the Employee handbook Exhibit BA-3
The claimant was 57 years when he was
terminated in July 2022. By July 2025, the claimant ought to have been
compulsorily retired from the services of the defendant. The claimant therefore
seeks an order converting the termination to compulsory retirement. The
defendant counsel in his address has argued that this court has no powers to
make this order. Counsel seem not to have read and understood the import of
section 14 of the NIC Act. Which provides:
The
Court shall in the exercise of the jurisdiction vested in it by or under this
Act in every cause or matter, have power to grant, either absolutely or on such
terms and conditions as the Court thinks just, all such remedies whatsoever as
any of the parties thereto may appear to be entitled to in respect of any legal
or equitable claim properly brought forward by the Court so that, as far as
possible, all matters in dispute between the parties may be completely and finally
determined and all multiplicity of legal proceedings concerning any of those
matters avoided.
Further to the above provision, this
court under section 19 of the NIC Act in all other cases where it has
jurisdiction is given the power to make ‘appropriate order’ to meet the justice
of the case. I must not also fail to add that this is a case where the
equitable maxim of ‘UBI JUS IBI REMEDIUM ought to apply. Therefore
section 15 of the NIC Act enjoins this court to apply the principles of equity
where there is a conflict or variance between the rules of equity and the rules
of common law with reference to the same matter, the rules of equity shall
prevail in the court so far as the matters to which those rules relate are
cognizable by the Court. With this
equitable jurisdiction of this court and the powers to make appropriate orders
in deserving cases, this court is vested with the powers to make the orders
sought by the claimant under this head. Accordingly, it is the order of this
court that that the termination of the employment of the claimant be and is
hereby converted to Compulsory Retirement in accordance with Exhibit BA-5, paragraph
27 (c) of the Employee handbook Exhibit BA-3. with full benefit.
The claimant in this action has claimed
the sum of N N837,538.26 as three months salary in lieu of notice. To grant
this relief would mean that the unlawful termination of the claimant employment
has been remedies by the payment of the 3 months salary in lieu of notice. This
court cannot fall into the temptation of granting that relief. This is because
I have already held that the employment of the claimant could not be terminated
because the employment had become pensionable. The effect and the finding of
this court is that the employment is deemed to have continued up to when the
claimant was to retire at the age of 60 years.
The defendant in attempt to blow cold on
the other hand has attempted to justify the termination by bringing evidence of
previous instances of queries, replies and other disciplinary actions taken
against the claimant while in the employment of the defendant. The defendant
tendered Exhibits DW7 to DW15. Particularly in Exhibit DW-11 the claimant was
placed on one month suspension. This documentary evidence is in the archives of
the employment history of the claimant and rightly they should remain there.
Those evidence has nothing to do with the facts and circumstances of this case.
The termination of the employment of the claimant by Exhibit BA-8 did not make
any reference to any disciplinary infraction or misconduct as a reason for the
termination of the employment of the claimant. The defendant witness during
cross examination was asked
Q. Take a look at Exhibit BA8
(Disengagement letter) the reason stated in
the disengagement letter was that
his services were no longer required?
A. it is correct
Q. The letter of disengagement did not
make reference to any offence or
misconduct against him? If it did,
refer the court to any paragraph of the
letter.
A. the letter did not make any reference
to any offence or misconduct
The above evidence is an admission that
the claimant was not terminated
base on any misconduct. Therefore, any
evidence of misconduct goes to no issue and must be discountenanced for being
irrelevant. Let me also say that
when an employee has served a
disciplinary punishment as in Exhibit DW-11, all matter relating thereto are
buried and the employee is given a clean bill of health. Such evidence cannot
be used as a basis to justify a termination where it is not mentioned or form
part of the reason for termination. It is the finding of this court that Exhibits
DW7 to DW15 are of no evidential value to this proceeding and goes to no issue.
The exhibits are hereby discountenance.
ISSUE NO 2.
Whether the claimant is entitled to the
monetary and other relieves sought by the claimant in this case.
The claimant claims the sum of N27,249,984.07
(Twenty-Seven Million, Two hundred and forty-nine thousand, Nine Hundred
and Eighty-four naira, seven kobo) being general and compensatory damages for
the Defendant’s frustration of the Claimant’s legitimate income earnings expectation
from August 2022 to September 2025 (his supposed retirement date), but for his
wrongful disengagement from service by the defendant. The evidence adduce
before this court is that the claimant was 57 years when the defendant in
breach of the terms of employment terminated the employment of the claimant. I
have already found in this judgment that the termination was wrongful. The
claimant before the termination had put in 20 years in the service of the
defendant. He would have continued in the employment up to 50 years but for the
wrongful act of the defendant. The defendant witness has also admitted that the
reason for the termination of the claimant did not fall into any of the
categorized circumstances deserving exit by termination. The witness also admitted
that the claimant had the discretion to retire but could not exercise same
because he was terminated. The unlawful Act of the defendant has prematurely
cut short the working life and lawful earnings of the claimant. The sum of N27,249,984.07
sought by the claimant is the salary which he would have earned until he
retires on attaining the age of 50 years, but for the unlawful action of the
defendant. In other words, this is the salary the claimant would have earned
from August 2022 to September 2025. I recall that in this judgment, this court
had refused the grant of 3 months salary in lieu of notice which would have
remedied the unlawful breach. The right to claim this relief and the power to
grant same has been sanctioned by the Supreme Court in the celebrated case of Skye Bank Plc V. Adegun (2024)
15 NWLR (Pt.1960) 1 at 48 paras G – H, Ogunwunmiju JSC held inter alia
The new labour jurisprudence with the 3rd
Alteration to the 1999 Constitution and provisions of the law in that regard,
particularly section 7(6) of the National Industrial Court Act mandates that
every court in the land shall have recourse to good or international best
practices in labour or industrial relations. I do not think the courts should
continue to use the former settled position of the law which is that no matter
how hurtful unreasonable or wrongful the termination of appointment is, the
employee is only entitled to one month’s salary in lieu of notice to determine
the quantum of damages. Every case must be determined on its facts. In British
Airways V. Makanjuola (1993) 8 NWLR (Pt. 311) Pg, 276 at 288 per Ubaezonu
JCA, the court awarded the equivalent of two years salary to the employee whose
employment was wrongfully terminated after unfounded allegations of malpractice
which carried a stigma on the character of the employee and made it difficult
for him to get another job. The facts of that case are very similar to the
facts of this case. There is no doubt that the policy of the legislature to
introduce new labour relations principles and international best practices into
the adjudication of the law in employment and labour relations in yet a fluid
policy, merely pointing the judex to the new road to follow, there must not be
confusion”,(underlined ours for emphasis)
The Supreme Court went on to say at
pages 29 – 30 paras G – E, thus:
It is
implicit in the terms of the contract contained in exhibits 2 and 13 that the
respondent was entitled to continue in his employment with the appellant until
the employment is brought to an end in accordance with the terms of the
contract of employment. Where a contract of employment is brought to an end by
the employer contrary to the terms agreed therein, the quantum of damages
awardable therefore cannot be based on the remuneration of the employee during
the period of notice prescribed in the agreement for either party to terminate
the agreement. The employer cannot enjoy the benefits he would have enjoyed if
the contract had been brought to an end in accordance with the contract. Having
brought the contract to an end in breach of the contract, the damages payable
by it cannot be restricted to only one month salary in lieu notice, which is
what it would have been liable to pay if it had terminated the employment as
prescribed in the contract. To limit the damages payable by the employer to one
month salary in lieu of notice in this case, would amount to enabling it to benefit
from its wrongful act in breach of the contract. It is an inveterate rule of
equity of great antiquity that equity will operate to prevent a party from
benefiting from his or her wrongful act. It would be oppressive and unjust to
the employee to award him or her damages on a basis prescribed in the contract
of employment for termination of his employment in breach of that contract.
Having brought his employment to an end outside the terms of the contract the
employer cannot restrict the quantum of damages awardable for the employee to
the terms prescribed in the contract. The quantum of damages awardable to the
employee in such a situation should be in accordance with the general law on
contract on award of damages for breach
of contract, which
would involve a consideration of the consequential loss
that has arisen or would arise from the breach of the contract of employment
having regard to the monthly wage, current age of the employee and the due date
of retirement.
With this pronouncement the Supreme
Court has given a road map on the award of damages for breach of contract of
employment. With the understanding that claimant was wrongfully terminated
without recourse to the number of years he served the defendant, his age at the
time of his wrongful termination, and his due date of retirement. This
court finds that the claimant is entitled to this relief. Accordingly, Judgment
is entered in the sum of N27,249,984.07 being the salary the claimant
would have earned from August 2022 to September 2025 (his date of retirement)
The claimant in Relief No 7 also claims
the sum of f N23,357,129.8 (Twenty-three Million, Three Hundred and Fifty-Seven
Thousand, One Hundred and Twenty-Nine Naira, eight kobo) as the claimant’s
entitled exit incentive package, being the claimant’s total emolument for 3
years as a compulsory retiree of the defendant. This relief is founded on the defendant’s
Internal Memo dated 1st September, 2014, which is an extract of the
minutes of 210th Board Meeting of the defendant, on compulsory
retirement, under which the claimant posits he is entitled to three (3) years
approved total emolument as his compulsory retirement and exit incentive.
In proof this entitlement, the claimant pleaded
the fact relating to this relief and gave evidence in paragrap19, 20, 21, 22 of
his witness deposition It was his testimony that that several of his colleagues
who retired from the defendant’s employment in the year 2000 were paid their 3
years total emolument and gratuities as exit packages. He listed the names of
the staffs. The claimant computed his total emolument to include Basic Salary N
3,350,153.04, Transport N897,321.96, Utility N103,029.00, Meal N435,255.96, Housing
1,545,015.23, Furniture N1,180,998.13, Children Education Allowance
N273,937.25. The total of which came to N7,785,710.57. He testified that when
the last figure is multiplied by 3 years the total exit package is N23,357,129.8.
He relied on his pay slip tendered as Exhibit BA-10 in proof of his basic
monthly salary.
The claimant counsel in his final
address argued that by converting the termination of his employment to
compulsory retirement, he is entitled to the 3 years remuneration as exit
incentive package, pursuant to Exhibit BA-4 and BA-5. In response to this
evidence the defendant in paragraph 37 of their defence merely denied the assertion
and posits that the statement of the claimant is a fiction of the claimant
imagination. The defendant defence to this evidence is evasive. The defendant is
deemed to have admitted the evidence of the claimant on this issue. The figures
stated by the claimant were never contradicted or challenged by the defendant.
In the case of Audu v Okeke (1998) 3 NWLR (Pt. 542) 373 whereat
pages 383 – 383 Paras H – B, the Court echoed thus on the point:
‘In the case of AIhaji Surulere Kadiri Araba V. Salihu Elegba (1986)
1NWLR (Pt.1 6) at 333 it was held
that where oral evidence is given on items classified as special damages in
line with the pleadings and such evidence is unchallenged those items are
deemed to have been duly proved. It was further held that non-production of
receipts to further prove the unchallenged oral evidence is not fatal to the
plaintiffs claim. See. Boshali V,
Allied Commercial Exporters Ltd, (1961) All NLR (Pt.4) 917; (1961) 2
SCNLR 322. In the case of Incar Nigeria Ltd. & Anor V. Mrs. R. A.
Adegboye (1985) 2 NWLR (Pt. 8) 453 this court held that when in a claim for
damages the party claiming gives evidence to support his claim for specific amount
which evidence is unchallenged or uncontradicted by the other party, the trial
Judge would be entitled to accept the evidence in support of the amount and
award the same’
I have carefully examined Exhibit BA-4
the minute of the 210th Board meeting of the defendant held on the 28/8/2014,
the defendant in paragraph 3 of the Internal Memo decided thus:
Consequently,
the Board magnanimously considered this issue and resolved as follows;
i)
That henceforth the standing policy of
retirement benefit for subsequent management staff be harmonized with the same
scenario used for those retired in 2012 by applying the three (3) years
approved total emolument.
ii)
That this scenario should equally be
applied to those retired in 2014 and any short-payment in that regard should be
ratified immediately.
Also, in Exhibit BA-5 i.e. the 132nd
Exco Meeting of the defendant, It was the resolution of the defendant that for
staff to be entitled to the payment of exit package, the mode of exit shall be
by (a) statutory retirement, (b) compulsory retirement (c)by death.
On the strength of the above cited
authorities and the evidence adduced by the claimant in proof of this head of
claim, coupled with the deemed admission of this head of by the defendant, judgment
is hereby entered in the sum of N23,357,129.08k (Twenty-three Million.
Three Hundred and Fifty-Seven Thousand, One Hundred and Twenty-Nine Naira,
eight kobo.) being the claimant exit entitlement package
The claimant seeks and order directing
the defendant to pay the claimant’s deducted but unremitted pension
contribution for the period of June 2022, July 2022 and August 2022, at the
rate the of N97,411.62 per month, being a total sum of N292, 234.86 (Two
Hundred and Ninety-Two Thousand, Two Hundred and Thirty-four Naira, eighty-six
kobo) to the claimant. In proof of this
claim the claimant testified in paragraph 28 of his deposition that the defendant
failed and neglected to remit to my Pension Account number PEN100183853798, the
pension deducted from my salary for the period of June, July, and August 2022. He
stated that his pension contribution per month was N97,411.62. The 3 months in
issue totals the sum of N292,234.86 (Two Hundred and Ninety-Two Thousand, Two
Hundred and Thirty-four Naira, eighty-six kobo). He relied on his retirement
savings Account tendered as Exhibit BA-11 which show that the deducted pension
were never remitted for the stated months. The evidence given in proof of this
was never controverted by the defendant. The settled position of the law is
that where evidence adduced in support of an issue is not challenged under cross-examination, the court is bound to
accept and rely on such unchallenged evidence. See Alagbe & Anor, Vs.
Lawal (2015) LPELR – 41897 (CA). See also Nigerian Maritime Services
Ltd. Vs. Afolabi (1978) 2 SC. 79.
By failing to remit the pension deducted
from the salary of the claimant, the defendant was in breach of the provisions
of section 11(6) an (7) of the Pension Reform Act 2014. The section stipulates
that ‘an employer who fails to deduct or remit the contributions within the
time stipulated in sub-section (3) (b) of this section shall, in addition to
making the remittance already due, be liable to a penalty to be stipulated by
the Commission’. The section further imposes a fine of 2 per cent of the total
contribution that remains unpaid for each month or part of each month the
default continues. The amount of the penalty shall be recoverable as a debt
owed to the employee’s retirement savings account as the case may be.
I am satisfied that the claimant is
entitled to the sum of N292,234.86. The
defendant shall pay the above stated sum
to the claimant the sum shall attract interest at the rate of 2% from
June 2022 to the date of judgment being the period the default has
continued.
The claimant in this action also claims
in relief No.11 a declaration that upon
his disengagement from service, the claimant is entitled to access his pension,
and the failure and refusal of the defendant to issue the claimant the
requested exit clearance letter to his Pension Funds Administrators, to enable
the claimant who is above the age of 50 years to access the funds therein,
constitutes an act of cruelty, unconscionable and reprehensible conduct, which
has subjected the claimant to unnecessary financial pains and hardship.
Therefore, in claim No 12, the claimant seeks an order for the payment of the
sum of N50,000,000.00 (Fifty Million Naira only) being exemplary damages
for the defendant’s high-handed and reprehensible conduct in refusing to issue
the claimant a clearance letter to enable the claimant access the monies in his
Retirement Savings Account, thereby depriving the claimant of a profitable use
of the monies in his pension account since the date of his disengagement from
service till date.
The duty to ensure that a retired staff
of the defendant get their pension is a statutory duty imposed by the
provisions of section 7(1) of the Pension Reform Act. The section stipulates
that holder of a retirement savings account shall, upon retirement or attaining
the age of 50 years, whichever is later, utilize the amount credited to his
retirement savings account for his benefit. The duty to ensure that a retiree
has access to his retirement savings is that of the employer.
The evidence adduced before this court
is that when the claimant appointment was unlawfully terminated by the
defendant, the claimant had put in 20 years of service to the defendant. The
claimant was 47 years and has only 3 years to turn 50 years for which he would
have retired honourably. The defendant in breach of the terms of employment
unlawfully terminated the employment. I have already found that the termination
was unlawful. I have already converted the termination to compulsory retirement
with full benefit. If the defendant had not unlawfully terminated the
employment, the claimant would have been able to access his pension. The
defendant to further perpetuate their unlawful act refused to give the claimant
exit clearance to enable him to access his retirement savings account. I want
to state that even if the claimant termination was lawful the claimant right to
access his contributed pension could not have been taken away by the fact of
the termination. This is so because he was entitled to have access to his
lawful savings. After the unlawful termination, the defendant continued to
perpetuate their wrongful act by refusing to give the claimant exit clearance
to access his retirement savings account. During cross examination DW-1 admitted
this infraction when the following question was put to him:
Q. It is true that the claimant has not
accessed his pension because you
refused to give him his exit letter
A. He has not fulfilled the condition
for the issuance of the exit letter.
Q. What was the condition precedent he
did not fulfil.
A. It was the policy of the company that
all exiting staff must refund all
unearned allowance this he has not
done.
Q. Look at paragraph 33(e) on page 17 of
Exhibit BA-3 what does it say.
A. It says that if a staff exits on any
other grounds other than disciplinary
measures unearned allowance would
not be deducted.
It is also in evidence during cross
examination of DW1 that in Exhibit BA-8 the letter of termination did not
allege any act of misconduct as a reason for the termination of the employment
of the claimant. This evidence clearly show that there was no justification for
the defendant to refuse to give the claimant exit clearance. The claimant was
terminated on the 31st July 2022 at the age of 47 years by this year
the claimant would be 61 years. He has become a senior citizen whose life is
delicate. He has still not been able to access his pension. I want to state
that the defendant act of preventing the claimant from accessing his pension is
not only wicked but callous. The unlawful act of the defendant is a serious
violation of the pension rights of the claimant as guaranteed by the
constitution. Section 173 (1) of the 1999 Constitution provides:
(1)Subject
to the provisions of this Constitution, the right of a person in the public
service of the Federation to receive pension or gratuity shall be regulated by
law.
(2)Any
benefit to which a person is entitled in accordance with or under such law as is
referred to in subsection (1) of this section shall not be withheld or altered
to his disadvantage except to such extent as is permissible under any law,
including the Code of Conduct.
The defendant by their unlawful conduct
not only withheld the pension rights of the claimant they also altered that
right to the disadvantage of the claimant in this action. The defendant has by
their unlawful conduct denied the claimant of decent livelihood at the age of
over 50 years. The claimant is entitled to the damages claimed for the
defendant’s high-handed and reprehensible conduct in refusing to issue the
claimant a clearance letter to enable the claimant access the monies in his
Retirement Savings Account, The defendant shall pay the sum of N40,000,000.00
(Forty Million Naira) to the claimant as exemplary damages .
It is also hereby ordered that the
defendant shall within 7 days from the date of this judgment issue an exit
clearance letter to the claimant Pension Fund Administrator to enable the
claimant access his pension.
ISSUE NO 3
Whether the defendant has proved his
rights to the claim of unearned allowance in the counter claim before this
court.
The defendant in this suit counter claims
the sum of N1,249,979.17 (One Million, Two Hindred and Forty-Nine Thousand,
Nine Hundred and Seventy-Nine Thousand, One-Hundred and Seventy-Nine Naira,
Forty-Two Kobo)only being unearned allowances paid to the Claimant in advance.
He contend that this claim is rooted in Exhibit DW-5 which is the minute of the
meeting of the 20th Corporate Governance and Performance Review
Committee if the defendant. The document is dated the 19/4/2013 addressed to
the MD&CE and copied to Executive director (F&S/CFO), The Executive
Director (Ops-Abuja) and the General Manager Audit. The memo states,
UNEARNED ALLOWANCES
‘The Committee directed that henceforth
all unearned allowances must be deducted from staffs entitlement on exit from
the company, for example, annual leave, housing allowance, furniture grant etc’.
The defendant position is that the claimant
is fully aware of the Internal Memo. Counsel for the defendant argued that by
Paragraph 1 of Section C of the Staff Handbook Exhibit BA-5 which stipulates
that employees are subject to these rules and any additional ones laid down by
the Company from time to time… all of which shall form the conditions of
service of the company.
In response to this claim, the claimant
on the other hand also seeks an order that by virtue of the clear provision of
Clause 33 contained in page 7 of the Defendant’s Employee Handbook Exhibit Ba-3,
the claimant who was asked to leave the company on grounds that his services
were no longer required, is not required to refund the sum of N1,249,979.17 or
any alleged sum as unearned allowances to the defendant. Clause 33(e) of
Exhibit stipulates:
If
the Management asks a staff to leave the company, by any means
other than in disciplinary matters unearned allowances and salary will not be
deducted.
The claimant counsel argues that going
by the context of the above stipulation, it was the defendant that asked the claimant
to go. Thus, he is not supposed to return the earned allowance paid in advance.
I have carefully considered the argument
of counsel for the parties as elucidated in their final addresses. Let me start
by reiterating again that I have already held that the termination of the
employment of the claimant was wrongful. I have also made an order converting
the termination to compulsory retirement. Therefore, on these 2 findings the
issue of refund of the earned allowance should not even arise as the claimant
is deemed to have continued in that employment. That aside, it is apt to note
that both Exhibit BA-3 and DW-16 were issued in 2013 The defendant wants this
court to hold that Exhibit DW-16 was issued to replace the content of Exhibit
BA-3. The operational dates of the two document become a very material evidence
which the defendant ought to have put before the court. The defendant failed to
satisfy this requirement of proof. DW1 during cross examination admitted that
Exhibit BA-3came into operation in 2013, but failed to state the month and date
it was to take effect. This would have made this court to understand whether
the Staff handbook predates Exhibit DW-16 which was made on the 19/4/2013. I
agree with the submission of the learned counsel for the claimant Mr. Otobong
Umoh Esq, that the court cannot begin to speculate on which of the documents
should take precedence since both were made in 2013. The rule being that courts
have a duty not to indulge in guesswork or speculation in their adjudication of
causes or matters. See the case of Toafic Sule & Ors V. Zainab P.
Sule & Ors (2019) LPELR-47178(CA). It was the duty of the claimant
to provide that missing link in the evidence adduced in support of this counter
claim.
The effect of this omission lies in the
well stated principle of construction which principle is that any legislative
provision or document which seeks to deprive the person of his rights, be they
personal or proprietary rights, must be strictly construed against the person
relying on the power of deprivation, see Bendex Eng, V. Efficient Pet. (Nig.)
Ltd. (2001) 8 NWLR (Pt. 715) 333. In essence it is the finding of this
court that since there is absence of clear and apparent evidence that Exhibit
DW-16 had taken away the vested pecuniary benefit in Clause 33(e) of Exhibit
BA-3, this court hereby resolves this
against the counter-claimant.
On the strength of the above findings of
the court and the authorities cited above this court hereby finds that the
defendant has failed to proof the counter claim that the claimant is under a
duty to refund that sum of N1.249.979J7 (One Million, Two Hundred and Forty-Nine
Thousand, Nine Hundred and Seventy-Nine Naira, seventeen kobo) as earned
allowance. On this score this court hereby makes the declaration sought for in relief
No. 10, to the effect that a
declaration that by virtue of the clear provision of Clause 33(e) contained in
page 7 of the defendant’s Employee Manual, the claimant who was asked to leave
the company on grounds that his services were no longer required, is not
required to refund the sum of N1,249,979.17 or any alleged sum as unearned
allowances to the defendant.
This claims of the claimant in this
action succeeds. Judgment is entered in favour of the claimant in the following
terms;
1. A DECLARATION
that by virtue of Section 318 of the Constitution of the Federal Republic of
Nigeria 1999 as Altered, and the fact that the Central Bank of Nigeria holds
controlling shares in the d56efendant’s establishment, the defendant’s company
is part of the Public Service of the Federation, which qualifies the claimant
as Public Servant with endowed characteristic of permanence and security of
tenure and years of service in the service of the defendant.
2. A DECLARATION
that the disengagement of the Claimant from the services of the Defendant at
age 57 years, after 20 years of meritorious service, shortly before his due
retirement age on the flimsy excuse that his services were no longer required,
was wrongful, unconstitutional and void and a violation of the ILO Termination
of Employment Convention 158 of 1982.
3. A DECLARATION
that the disengagement of the claimant from the services of the defendant at
the verge of his retirement, has robbed the Claimant of his legitimate
expectation of salary earnings up to his retirement date, as well as other due
retirement benefits and therefore constitutes unfair labour practice and
against international best practices
4. A DECLARATIQN
that by the principle of ubi jus ibi remedium, this Honourable Court is empowered
to the right the wrong and injury caused to the claimant, by converting the claimant
disengagement from service to compulsory retirement from the defendant’s
service.
5. A DECLARATION
that in line with the Defendant’s Internal Memo dated 1st September
2014 on Exit Incentive Package for Management Staff. Being an extract of the
minutes of 210th Board Meeting of the Defendant, on compulsory
retirement, the Claimant is entitled to three (3) years approved total
emolument as his compulsory retirement and exit incentive.
6. The defendant
shall pay to the claimant the sum of N27,249,984.07 (Twenty-Seven
Million, Two hundred and forty-nine thousand, Nine Hundred and Eighty-four
naira, seven kobo) being general and compensatory damages for the Defendant’s
frustration of the Claimant’s legitimate income earnings expectation from
August 2022 to September 2025 (his supposed retirement date), but for his
wrongful disengagement from service by the Defendant.
7. The defendant
shall pay to the claimant the sum of N23,357,129.8 (Twenty-Three Million, Three
Hundred and Fifty-Seven Thousand, One Hundred and Twenty-Nine Naira, eight
kobo) as the Claimant’s Exit Incentive Package being the claimant’s total
emolument for 3 years as a compulsory retiree of the defendant.
8. Claim No 8 and
9 are refused and accordingly dismissed.
10. A DECLARATION
that by virtue of the clear provision of Clause 33(e) contained in page 7 of
the Defendant’s Employee Manual, the Claimant who was asked to leave the
company on grounds that his services were no longer required, is not required
to refund the sum of N1,249,979.17 or any alleged sum as unearned allowances to
the Defendant.
11. A DECLARATION
that upon his disengagement from service, the Claimant is entitled to access
his pension, and the failure and refusal of the Defendant to issue the claimant
the requested exit clearance letter to his Pension Funds Administrators, to
enable the claimant who is above the age of 60 years to access the funds
therein, constitutes an act of cruelty, unconscionable and reprehensible
conduct, which has subjected the claimant to unnecessary financial pains and
hardship and has denied the claimant a decent life as a retiree.
12. It is also
hereby ordered that the defendant shall within 7 days from the date of this
judgment issue an exit clearance letter to the claimant Pension Fund
Administrator to enable the claimant to access his pension.
13. The defendant
shall pay to the claimant the sum of N40,000,000.00 (Fifty Million Naira only)
being exemplary damages for the defendant’s high-handed and reprehensible
conduct in refusing to issue the claimant a clearance letter to enable the claimant
to access the monies in his Retirement Savings Account, thereby depriving the claimant
of a profitable use of the monies in his pension account since the date of his
disengagement from service till date.
14. The defendant shall
pay the claimant’s deducted but unremitted pension contribution for the period
of June 2022, July 2022 and August 2022, at the rate the of N97,411.62 per month,
being a total sum of N292,234.86 (Two Hundred and Ninety-Two Thousand, Two
Hundred and Thirty-four Naira, eighty-six kobo) to the claimant. The above sum
shall attract interest at the rate of 2% from June 2022 to the date of
judgment.
15. The sums hereby
awarded shall attract interest at the rate 20% from the date of this judgment
until the Judgment debt is fully liquidated.
16. The defendant
shall pay a cost of N5,000,000 (Five Million Naira) to the
to the claimant.
The defendant shall comply with the
terms of this judgment with 7 days from the date of this judgment. Judgment is
hereby entered.
____________________________________
HON. JUSTICE (DR.) ISAAC J. ESSIEN
[I1] (Presiding Judge)
REPRESENTATION
(1) Otobong S. Umoh Esq with Ibrahim
Moruf Esq. and O. Aribisala Esq for the
claimants
(2) O. Ogunjimi Esq. with Adeyinka Esq for
the defendant.