IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AWKA JUDICIAL DIVISION

HOLDEN AT AWKA.

BEFORE HIS LORDSHIP HON. JUSTICE J. I. TARGEMA, PhD

DATE: JULY 9, 2026                                

SUIT NO: NICN/AWK/42/2021

 

 

BETWEEN  

Mr. Nwodo Edwin Ugochukwu                          -     Claimant 

 

AND

International Breweries Plc                                 - Defendant

 

REPRESENTATION

V.A Nebedum, Esq., Claimant.

Avemaria Okeke Molokwu, Esq., for Defendant.

 

JUDGEMENT

INTRODUCTION

  1. The claimant commenced this action by a complaint filed on 14th of December 2021 and accompanied with the statement of facts, list of witnesses, witness statement on oath, list of documents to be relied upon at the trial and copies of the documents. By the compliant and statement of facts, the claimant is claiming against the defendants the following reliefs:
    1. A declaration that the termination of the claimant’s employment by the management of International Breweries Plc without meeting the conditions precedence as set out in the Employee’s Handbook of AbInBev and before placing the claimant on redundancy is null and void.
    2. An order of Court directing the Defendant to restore the claimant in his former position at International Breweries Plc, Onitsha Plant.
    3. The sum of Thirty Million Naira (?30,000,000) only for breach of contract of employment.

Or An Alternative Order

  1. Directing the defendant to compute and pay in full the gratuity of claimant amounting to Ten Million Naira (?10,000,000).
  2. The cost of this suit.

 

  1. At the trial, the claimant testified on his behalf as CW1 and tendered Exhibits CW1 to CW11. Mr. David Nwogwugwu testified as CW2 and tendered one documents which were admitted in evidence and marked Exhibit CW2/1. For the defendant, Mr. Onyedikachi Mbagwu, testified as DW and tendered Exhibits DW1 and DW2.

 

  1. At the close of trial, parties were directed to file and serve their respective final written address. On the day of adoption of written addresses, the 1st defendant final written address dated 23rd August,2021 and filed on 24th August, 2021 was duly adopted as 1st defendants’ argument and submission in defence of the 1st defendant and urges the Court to discountenance and dismiss the claimants’ claim entirety. The final written address of 2nd and 3rd defendants dated 25th October 2021 and filed on 26th October, 2021 was deemed adopted by Order 38 Rule 3 (3) of NICN Rules 2017. Learned counsel, on his part, firstly sought to withdraw relief 13 (d) and (e) of his statement of facts and to rely on the relief (a), (b), (c), (g) and (h) only. The application was duly granted as prayed. Learned counsel to claimants then proceeded to adopt the claimants’ written address dated 13th October, 2021 and filed on 13th October, 2021 as their final arguments and submissions before the Court and urged the Court to grant the reliefs sought save for the ones withdrawn, the defendant did reply on points of law.

 

THE CASE BEFORE THE COURT

  1. The claimant was an employee of the defendant by way of corporate restructuring/merger and acquisition of the former employee of the claimant named Intafact Beverages Limited, that upon corporate restructuring of Intafact Beverages Limited and following the then merger and acquisition of three entities, the claimant was subsequently transferred to International Breweries Plc. Hereinafter called the defendant. That the claimant’s efforts/innovations, diligence, skill, etc. resulted in lots of accolades to wit credit passes in annual performance evaluation report of the Engineering department of the company, which gave crdence t the claimant and his team (maintenance team); that the claimant during employment/engagement with the defendant did devoted his efforts, time, sleep, technical knowhow, and God given natural knowledge to save cost for the defendant which the defendant acknowledged in several respect by rewarding the claimant. 

 

  1. The claimant went on that his acts that improvised the business of the defendant and saved cost for the defendant includes as can be seen in paragraphs 7(a)-(I iii) and 8 of the claimant’s statement of claim; that the claimant out of amazement and shock coming from the sudden redundancy which he only learnt of after he got a call immediately he came out of his bathroom, that he was urgently needed at the defendants (sic) parastatal, only to be handed a document signed that he was affected by the redundancy exercise carried out by the management of the defendant; that the claimant wrote severally and served some letter of protests to the defendant management which they deliberately ignored. Therefore, leading to the claimant instituting a legal action against the defendant in this Honourable Court for justice to be done even though the heavens may fall. The claimant refers the Court to paragraphs 9-11 of his statement of claim and also Exhibits CW5, CW7, CW9 and CW10.

 

  1. The claimant continued that his gratuity whose was due wasn’t even considered nor paid the said gratuity having completed the minimum years required to work for the defendant which is five (5) years. The claimant refers the Court to paragraphs 12-15 of his statement of claim. That after several efforts from the claimant to making sure that the defendant fulfilled her own part of the terms and conditions of his employment inherent in the employee Handbook of ABInBev contract of employment, by providing the claimant with his complete housing allowance and gratuity which fell on deaf ears and were to no avail; that the claimant had no other option than to resort to the last hope of the common man which is this Honourable Court.

 

  1. To the defendant, the claimant was employed as Artisan in the Packaging Department on the 30th day of March, 2015; that the defendant (sic) remained in the service until his disengagement on the 19th day of June, 2020; that the claimant exited the employment following a redundancy exercise by the defendant under the redundancy clause in the Employee’s Handbook 2019 and the Collective Agreement of the Food, Beverage and Tobacco Senior Staff Association effective 13th November 2019; that the claimant (sic) paid the sum of ?1,309,983.54 (One Million, Three Hundred and Nine Thousand, Nine Hundred and Eighty Three Naira, Fifty Fourt Kobo) to the claimant as his exit/severance package, including the gratuity. That the defendant signed the exit checklist as confirmation of acceptance of his legitimate exit from the defendant’s employment; and defendant denied any further liability to the claimant. 

 

THE SUBMISSIONS OF DEFENDANT BEFORE THE COURT

  1. The defendant submitted lone issue for determination namely:

Whether the claimant has proved his case so as to be entitled to the reliefs sought in this suit.

 

  1. The defendant submitted that it is claimant’s case that the defendant failed to follow due process in the termination of his employment; that the termination was improper and illegal and that the redundancy exercise by the defendant was unlawful; that the redundancy in service is a mode of removing an employee from service when his post is declared redundant by his employer. It is a unique procedure whereby the employee is lawfully relieved of his appointment. Thus, the conditions applicable to redundancy are quite different from those applicable to retirement or other conventional modes of relieving an employee from service such as termination, resignation or dismissal. See Ovivie v. Delta State Co. Ltd (2023) NWLR (Pt. 1904) 2023. See also section 20(3) of the Labour Act.

 

  1. The defendant continued that the parties are ad idem that the claimant was relieved of his employment under redundancy agreement. It is evidence that the defendant merged with Intafact Beverages Ltd - then employer of the claimant, that after the merger, there became a need to downsize due to the business challenges faced by the defendant; that it is clearly stated in Exhibit DW1 conclusion of redundancy discussions between the Food Beverages and Tobacco Senior Staff Association (FOTOB) of 13 November, 2019. See the clause cited as “Rationale for the Exercise.” That the authenticity of the FOTOB agreement was not challenged by the claimant. Exhibit DW1 was explicit on the reason for the redundancy. In fact, the claimant led evidence to also show that there was a merger of three companies which produced the defendant, International Breweries Plc.; that there is evidence that the defendant faced some business challenges, and the restructuring was necessary. By the collective agreement, 110 employees were affected by the redundancy exercise; that the terms of Exhibit CW6 are unambiguous. The defendant made it clear that it reviewed its operation s and business processes and that his role had become redundant. It also stated the benefits which the claimant was entitled to at the time of the redundancy exercise, and they were paid accordingly. This is sufficient evidence by the defendant to show good faith. 

 

  1. The defendant submitted that the evidence of CW2 collapses in the face Exhibit CW6; that there is no rebuttal by the claimant that the defendant failed to acknowledge the entitlement of the claimant to the benefits mentioned therein. What we have in evidence is the actual payment of the sum of ?1,309,983.54 (One Million, Three Hundred and Nine Thousand, Nine Hundred and Eighty Three Naira, Fifty Four Kobo) to the claimant as his entitlement and the performance of other obligations stated in Exhibit CW6; that the material contradictions in any evidence or between the evidence of the witnesses for one party to a case destroy the credibility of such evidence; that the testimonies of witnesses are said to be contradictory when they give inconsistent accounts of the same event. They cast serious doubts on the case presented as whole by the party on whose behalf the witnesses testified, or as to the reliability of such witnesses. See Robert v. IGP (2021) 7 NWLR (Pt. 1775) 268 SC and Adoba v. State (2018) 12 NWLR (Pt. 1633) 236 SC.

 

  1. The defendant went on that CW2 under cross-examination gave evidence that he was not a signatory to Exhibit DW1, that he also admitted that at the time Exhibit CW11 was made, he had left the employment of the defendant. The defendant urged the Court to hold that these admission weigh against the case of the claimant; that evidence of CW2 cannot be relied on to prove the truth of the content of the said documents. The claimant relied heavily on the provisions of Exhibit CW1- the Employee Handbook 2019. Article 3.5.16 of the Handbook is clear. It refers to “Service Gratuity Scheme.” That the evidence of the claimant with respect to his entitlement under this Article is flawed. The defendant submitted that this section refers to entitlement of an employee who is disengaged by termination or any other manner than by redundancy. As submitted ealier, a redundancy is different from termination, dismissal, retirement or conventional way of relieving an employee of his employment; that it has its guiding conditions. The defendant submitted that it complied with the collective agreement under Exhibit DW1 paragraph 3 stipulates thus:

          Under 5 years: 5 weeks basic pay for each completed year of service

5 years but less than 10 years: 51/2 weeks basic pay for each completed years of service

10 years and above: 6 weeks basic pay for each completed year of service

Redundancy benefit or gratuity whichever is higher will be paid to all affected employees.

Redundancy benefits and gratuity benefits are mutually exclusive.

          Service of 6 months shall be rounded up to a full year.

 

  1. That the defendant admitted that a collective agreement is generally not enforceable against the parties to it, but where the terms are in line with the terms or contract of employment and the employer, as in the instant case, act on it, the Court will give force to the agreement and it will bind the parties; that the defendant, however, honoured its part and paid the due entitlements to the claimant. The defendant referred to Article 7.1.4 of the Employment Handbook of the defendant (Exhibit CW11); that the provisions of this Article referred to by the claimant does not relate to him so as to grant him the claim sought in this suit. Article 7.1.4 provides for redundancy thus:

“Where the company finds it necessary to reduce the number of employees based on business exigencies, this shall be deemed as a redundancy. Management will take into account all or any of the following factors in deciding who should be declared redundant first…

Redundancy benefits and period shall be in accordance with applicable company policy and the collective agreement from time to time. (Underlining is mine)

In case of redundancy, the company will pay gratuity at the rate in force in addition to normal entitlements such as salary, applicable leave pays and other benefits.

Redundancy notice period and redundancy pay shall be in accordance with applicable company policy and the existing collective agreement. Redundancy benefits and gratuity benefits are mutually exclusive.” (Underlining is mine).

 

  1. The defendant submitted that a clear interpretation of the Article in the Employment Handbook above vis-a-viz the collective agreement supposes that: 
    1. The Collective Agreement (Exhibit DW1) is deemed incorporated into and forms part of the terms and contract of employment between the claimant and defendant. The reference to collective agreement in the handbook supposes that the claimant and defendant are bound by any collective agreement in force at any time of redundancy and he cannot resile from the term. See Osagie v. NNB Plc (2005) 3 NWLR (Pt. 913) CA where the Court emphasized that “collective agreements are not enforceable except where they have been adopted as forming part of the terms of employment”. See also Afribank (Nig) Plc v. Osisanya (2000) 1 NWLR (Pt. 642) 598 CA: “For a collective agreement to be enforceable, the employer must have adopted same either expressly or by implication.”
    2. The Handbook, Employee Letter and Collective Agreement form contractual documents. Parties are bound by them and the Court will be bound to enforce the express terms therein. Felak Concepts Ltd v. AG Akwa Ibom State (2019) 8 NWLR (Pt. 1675) 433.
    3. Redundancy benefits are as provided in the collective agreement (Exhibit DW1). The claimant did not challenge the terms of the benefits provided thereunder. A party cannot be allowed to resile from a transaction or document which he has benefited from. See Fasel Services Ltd v. NPA (2003) 8 NWLR (Pt. 821) 73. 

“No person shall be, after reaping the benefit from a transaction of which he is a party, be heard say such transaction is illegal or void or voidable when it comes to him to fulfilling his obligation under the transaction so far as the other party has done all he pledged to do under it.” 

  1. Redundancy notice period and redundancy pay shall be in accordance with applicable company policy and existing collective agreement. The defendant refers the Court to paragraph 3 of the Exhibit DW1 which stipulates the payments to be made to employees of claimant’s level, that is 5 years but less than 10 years in employment. There is no such agreement to pay gratuity to the claimant as claimed. Payment of gratuity is only considered for employees who have been in service for 10 years and above. The common law recognizes the sanctity of contract. It is sacred, especially where the terms are not illegal. Chukwumah v. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512 SC.
  2. Redundancy benefits and gratuity benefits are mutually exclusive. In clear term, “mutually exclusive” means that two or more events, options, or conditions cannot happen, exit, or be true at the same time. If one option occurs, the other is automatically impossible to occur. The import of this provision in the Article is that, the option to choose which to apply between payment of gratuity or redundancy benefits lies with the defendant. An option, once chosen, dispels the need to apply the other option. The claimant cannot claim benefit under the two heads of benefits. See Heritage Banking Co. Ltd v. NUC (2017) 5 NWLR (Pt. 1557) 104 where the Court gave insight into the term “mutually exclusive” to mean “alternative”, so that if one is chosen, the other must be rejected. See Ani v. Nna (1996) 4 NWLR (Pt. 440) 101, the term “mutually exclusive” is explained thus: “it is something used in the sense of election as where a person decides between two mutually exclusive rights.”

 

  1. The defendant went on that it has been held that redundancy is a form unique only to its procedure whereby an employee is quickly and lawfully relieved of his post; that such type of removal from office does not carry along with it any other benefit except those benefits enumerated by the terms of contract to be payable to an employee declared redundant; that the defendant had an option to either retire the claimant or declare him redundant and it chose later option. The defendant did not therefore, breach the contract of employment. See Isheno v. Julius Berger (Nig) Plc (2003) 14 NWLR (Pt. 840) 289 CA. 

 

  1. The defendant submitted in respect of relief (a) that the claimant’s employment was not wrongfully terminated as alleged; that there is undisputed evidence that the defendant reserved the right to terminate the employment of the defendant at any time for any reason; that the defendant is only under legal obligation to ensure that adequate notice is given to the claimant and that the contractual agreement is met; that the defendant has led copious evidence in this suit, particularly in Exhibit DW1 and DW2 to prove the performance of these obligations. There is no evidence from the claimant to support the allegation that the defendant employed new staff to replace his position upon being relieved from employment, neither did the claimant prove that his “juniors were promoted” as alleged. The burden rests on the claimant to prove convincingly that those facts existed, so as to be entitled to a judgment in that regard. See Mobil Prod (Nig) Unltd v. Monokpo (2003) 18 NWLR (Pt. 852) 346 SC

“The Supreme Court held that a plaintiff must rely on the evidence he pleaded to discharge the burden that lies on him. This is more so where the reliefs which cannot be normally granted even on admission without evidence in declaratory reliefs.”

 

  1. The defendant submitted in respect of relief (b) that the Court is urged to discountenance the relief as being untenable in law; that the claimant employment with the defendant was a simple contractual relationship of master and servant under common law such that, if an employer dismisses the employee either summarily or by giving insufficient notice, the employment is all the same effectively terminated. An action may only lie in damages for wrongful termination (but not in the circumstances of this case) and not for reinstatement as sought by the claimant. See Regt Trustesss PPFN v. Shogbola (2004) 11 NWLR (Pt. 883) 1 CA.

 

  1. The defendant went on relief (c) that the damages would only be awarded in a case for wrongful termination of employment if the termination of the employment is found to be wrongful; that the claimant’s employment was not wrongfully terminated and he is not entitled to damages as claimed. See Osho v. Unity Bank Plc (2013) 9 NWLR (Pt. 1358) 1 SC.

 

  1. The defendant submitted in respect of relief (d) that the claimant’s entitlement has been paid in full as founded in Exhibit DW1 and DW2; that the claimant also admitted in his statement of claim and reply. That the claim for the sum ?5,000,000.00 as gratuity is in the nature of a special damages which must be specifically pleaded with relevant particulars strictly proved with credible evidence; that without such proof, no special damages can be awarded. The defendant find that the claimant fell short of this legal requirement in his pleadings and evidence, and that being the case, the Court is bound to discountenance the relief as being abandoned. See Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623 SC.

 

  1. In conclusion, for the defendant to be found liable in this suit, the claimant must prove that the conduct of the defendant has done some wrong to him which justifies a relief in law; that there must be a legal nexus between the claim and the legal nexus between the claim and the legal conduct of the defendant in such a way that the Court will find the defendant liable; that where there is no such nexus (as in the instant case), a trial judge cannot find the defendant liable and the claim must fail. See Rinco Construction Co. Ltd v. Veepee Industries Ltd (205) All FWLR (Pt. 264) Pg 825 paras. B-C. the defendant urged the Court to award ?1,000,000.00 (One Million Naira) as compensation to the defendant. The defendant relied on Akindele v. Abiodun (2009) 11 NWLR (Pt. 1152) 356 CA thus:

“Where a plaintiff institutes as action against a wrong party, then such party not being liable is entitled to compensation by way of cost. In the instant case, the defendant sued by the plaintiff not being liable was rightly awarded cost by way of compensation.”

 

THE SUBMISSIONS OF THE CLAIMANT

  1. The claimant submitted three (3) issues for determination i.e.
    1. Whether the defendant’s termination of the claimant’s employment on the ground of redundancy was supported by a genuine redundancy situation, and carried out in accordance with contractual and statutory requirements, including fair and objective selection criteria, and particularly by international best practice, such that the termination cannot be classified as wrongful?
    2. Whether having regard to the express provisions of the defendant’s Employee Handbook which entitle employees with up to five (5) years of service to gratuity, the claimant though declared redundant and paid redundancy benefits is still legally entitled to gratuity notwithstanding the Handbook’s provision that redundancy benefits and gratuity are manually exclusive.
    3. Whether the defendant’s failure to file a rejoinder amount to an admission of the new material facts pleaded in the claimant’s reply and defence to set-off, and therefore affected the defendant’s case which is bound to fail on that ground as the defendant is estopped from leading evidence contrary to those facts?

 

  1. On issue (1), the claimant submitted that in a genuine redundancy situation it is settled law that redundancy is a termination of employment due to operation al requirements and not for misconduct. See Peugeot Automobile Nigeria Ltd v. Oje & ors (1997) 11 NWLR (Pt. 530) 625. Where the supreme Court recognized redundancy as a legitimate ground of termination where the employer no longer requires the services of the employee in the (CATEGORY) of work performed. The Supreme Court in Samuel Isheno v. Julius Berger Nig Plc (2003) 14 NWLR (Pt. 840) 289 held “that for a redundancy to be genuine, the employer must show that there was an excess of manpower or a diminished need for the particular role, and that the decision was made in good faith. That in the instant case, the evidence of the defendant before this Court did not show that the claimant’s role was no longer required due to specific operation or business reasons satisfying the criterion of a genuine redundancy situation; that it is well settled under Nigeria Law that redundancy relates to the role or position, and not the individual occupying it; that during the cross-examination of the claimant on the 17th day of October, 2023 before this Honourable Court, the claimant stated thus:

“My Juniors were promoted to my position, and new employees (artisans) were employed.”

In Samuel Isheno v. Julius Berger Nig. Plc (2003) 14 NWLR (Pt. 840) 289. The Supreme Court of Nigeria held “that a for redundancy to be genuine, the employer must demonstrate that the need for the particular kind of work performed by the employee has ceased or diminished.” It therefore clearly shows that the claimant’s employment was terminated under the guise of redundancy because of an ulterior motive of some members of the defendants (sic) management who saw the claimant as a threat and a spoiler of the avenue through his motive ideas, saved costs for the defendant deprived them of their illegal source of livelihood suffered by the defendant. See paragraphs 6 - 8 of the claimant’s statement of claim, and also Exhibits CW7 & CW9.

 

  1. The claimant continued that during the cross-examination of the claimant on the 16th day of May, 2023 before this Honourable Court, the claimant stated:

I wrote a letter to the defendant and served on HODs. They didn’t respond. After some months, I wrote to Blowing Whistle Organization on my plight. They asked me about my name. I told them. They gave me 2 weeks to get back at me. Within a month, my direct boss resigned after blowing whistle people intervened. The people who sacked me were told to resign.

Section 5 & 6 1, 2(a-b) of the Evidence Act 2011, to support the evidence of the claimant as a relevant evidence, in respect of the facts that culminated in his dismissal and the motive by which his employment was unduly terminated in the guise of redundancy. See Peugeot Automobile Nigeria Ltd v. Oje & ors (1997) 11 NWLR (Pt. 530) 625 the Court emphasized that a redundancy is lawful where the employer’s operational or business requirements necessitate the elimination of a post. That in the instant case before this Honourable Court, the defendant must therefore show that the claimant’s role itself no longer exists or is significantly diminished, as opposed to merely wanting to remove the employee, and to discharge this burden, the defendant should have relied on the following categories of evidence which she failed to do.

  1. Operational and Business Evidence
  2. Organizational charts showing the post has been removed
  3. Reports of departmental restructuring or downsizing.
  4. Financial and operational documents evidencing excess manpower or reduced business requirements.
  5. Job description and work allocation.
  6. Evidence that the specific duties of the claimant are no longer required.
  7. Notice of redundancy served on the claimant.
  8. Records of attempts at redeployment or retraining.

That by showing the above-mentioned procedure, the defendant thereby demonstrates that the redundancy is a business necessity, and not personal as it happened in this instant. See Ovivie v. Delta Steel Co. Ltd (Supreme Court, 2023) where the Court held that a procedural compliance strengthens the claim of genuine redundancy.

 

  1. It is the argument of the claimant that if multiple employees are affected, evidence of objective and fair criteria applied to select positions for redundancy and criteria could include skills, experience, last-in-first-out principle, or operational necessity; that the burden rests on the defendant to prove that the role actually held by the claimant is genuinely redundant. See section 140 of the Evidence Act 2011 thus:

“When a fact is especially within the knowledge of a person, the burden of proving that fact is upon him.”

That it is highly appalling that the defendant after mischievously sacking the claimant under the guise of redundancy, went ahead and promoted his juniors to his position and even went ahead to employ new employees. (artisans). Under the cross-examination of the claimant on the 17th October 2023, the claimant stated that “my juniors were promoted to my position, and new employees (artisans) were employed.” That the evidence not challenged nor controverted by the defendant, and the law is trite that an unchallenged evidence is deemed admitted by failure of the party whom was supposed to challenge same. See c) (sic) Okoro v. Okoro (2001) 15 NW:LR (Pt. 727) 156. Where the Supreme Court reiterated that unchallenged evidence of a party must be given due weight, cross-examination is a tool to test credibility; if not exercised, the party effectively accepts the truth of the testimony.

 

  1. The claimant went on that the defendant must show that the termination was carried out for operational/business reasons, not as a pretext and that all statutory, contractual, and procedural requirements were observed because he who comes to equity must come with a clean hands; that the Court will assess both substantive and procedural aspects- the need for the role and whether fair, transparent measures were taken in carrying out the purported redundancy exercise. That compliance with International Labour Organization principles (transparency, consultation, alternatives to redundancy) is (sic) persuasive, reinforcing that the process targeted the role and not the person. This strengthens the argument that the purported redundancy was not genuine and was conducted in bad faith; that the defendant has failed woefully to discharge the burden of proof by showing:
    1. The claimant’s role was no longer required due to business/operational reasons.
    2. Consultation and procedural steps were followed.
    3. Objective selection criteria were applied where necessary.
    4. Alternatives such as redeployment were considered in line with international best practice.

That in view of the foregoing, the termination of the claimant’s employment was not genuinely necessitated by redundancy, and therefore can be classified as wrongful or unlawful. The Supreme Court in Ovivie v Delta Steel Co. Ltd (Supreme Court, 31 March 2023) emphasized that employment rights and obligations are primarily contractual, and statutory provisions on redundancy apply only where incorporated into the contract.

 

  1. The claimant submitted that if the defendant had followed all the procedures outlined in the claimant’s employee Handbook of ABInBev Version 1.0- most especially, by following the stipulation in page 64 in 7.1.4 that specifically talked about redundancy, the termination would have not affected the claimant and thereby would have been lawful.

7.1.4 Redundancy

Where the company find it necessary to reduce the number of employees based on business exigencies, this shall be deemed as a redundancy. Management will take into account all or any of the following factors in deciding who should be declared redundant first.

  1. Experience. 
  2. Qualification.
  3. Health (fitness for work)
  4. Skill.
  5. Performance
  6. Disciplinary record
  7. Competence
  8. Length of Service.

That from the above quoted stipulation of the conditions to be considered before a redundancy exercise can be carried out in the defendant’s parastatal. It is obvious that the claimant was mischievously relived of his duties while his juniors were promoted, new employees (artisan) were employed and the evidence of the principle of the last in first out was not followed in the firm during the period of purported redundancy exercise. See Exhibits CW3 & CW4 of the claimants (sic) and also paragraph 9 of the claimant’s reply and defence to set-off served on the defendant which the defendant’s didn’t answer in reply.

Paragraph 9 states thus:

It is also the position of the claimant that he cannot be relieved of his job role under the pretense of redundancy and still recruit another person into the same position (job role), which was considered by the management of the defendant to be placed or redundancy.

 

  1. The claimant submitted that he bears the burden of proof to show any breach of contractual or statutory duties and this was evidentially show by the claimant in this instant case. See WAEC v. Oshionebo (2007) All FWLR (Pt. 370) 1501, Petroleum Training Institute v. Matthew (2012) All FWLR (Pt. 623) 1949. That it is trite principle of law that the evidence of only one witness, in this case the claimant, is enough to prove a case; that there is no rule of law requiring two or more witnesses in civil cases. The Court may accept the testimony of a single credible witness as sufficient to prove a fact. The critical factor is credibility and reliability; that the Court must satisfied that the witness is credible, the evidence is consistent and coherent, and there is no strong reason to doubt the testimony. See Oyenuga v. Akinrinade (1973) 6 SC 1. The Supreme Court of Nigeria held that even one credible witness is enough to prove a fact in a civil case. Also, in Onasanya v. Onasanya (1967) 1 All NLR 151- “reiterated that the quality, not the quantity, of evidence is what matters. In short one witness can be enough if the testimony is credible and convincing.” That in a fair and objective selection criteria, redundancy selection must be objective, fair and non-discriminatory; that Court in Nigeria especially National Industrial Courts follow international principles to ensure fairness, even where statutory redundancy provisions are absent. Section 7(6) of the National Industrial Court Act (Act No.6 of 2006), and section 254C (1)(f) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), this Honourable Court is empowered to apply International best practice in labour relations. See Bello Ibrahim v. Ecobank Plc unreported Suit No. NICN/ABJ/144/2018 the Court relied on international best practice and held that redundancy must be transparent, consultative, and objective. Also, in Mr. Eniwomake Richard Ovivie & ors v. Delta Stell Company Limited (2023) 14 NWLR (Pt. 1904) 203; SC. 403/2010 (Supreme Court of Nigeria, delivered 31 March 2023). The Supreme Court emphasized that redundancy rights flow from:

The Labour Act

The contract of employment

Principle of fairness 

Not merely from payment of money.

The International Labour Organization (ILO) recommends transparency, consultation and exploration of alternatives to redundancy (e.g., redeployment). That compliance with such principles aligns the redundancy process with best practices recognized globally, further demonstrating the lawfulness and fairness of the termination.

 

  1. The claimant continued that the defendant’s termination of the claimant employment under the guise of redundancy was unlawful and based on a non-genuine redundancy situation. See Ovivie v. Delta Steel Co. Ltd (2023) 14 NWLR (Pt. 190). That there is no evidence of the defendant to convince this Honourable Court that it actually followed the requirements of International Best Practices in declaring the position of the claimant redundant. The claimant therefore, urged the Court to so hold and resolve this issue in favour of the claimant.

 

  1. On issue (2), Whether having regard to the express provisions of the defendant’s Employee Handbook which entitle employees with up to five (5) years of service to gratuity, the claimant though declared redundant and paid redundancy benefits is still legally entitled to gratuity notwithstanding the Handbook’s provision that redundancy benefits and gratuity are manually exclusive. The claimant submitted that the resolution of this issue turns fundamentally on the interpretation of the contractual documents governing the employment relationship between the claimant and the defendant, particularly the defendant’s Employee Handbook titled ABInBev Employee Handbook Version 1.0. Exhibit (CW11). The contract of employment is the foundation of rights and obligations, and it is settled law that the rights and obligations of parties in a master-servant relationship are strictly governed by the terms of their contract of employment. That the Supreme in Organ & ors v. Nigeria Liquefied Natural Gas Ltd & anor (2019) 5 NWLR (Pt. 1666) 518 (SC) held thus:

“That where parties have reduced the terms of their employment into writing, the Court must confine itself to the terms of that contract in determining their rights and liabilities”

Similarly, in Ibama v. Shell Petroleum Development Company of Nigeria Ltd (1998) 3 NWLR (Pt. 542) 493 (SC). “The Supreme Court reiterated that the conditions of service form the bedrock upon which claims for terminal benefits must be founded.” That in the instant case before this Honourable Court, the Employee Handbook forms part of the contract of employment and expressly provides that employees who have served up to five (5) years are entitled to gratuity; that the claimant has satisfied this condition. See page 31 of the ABInBev Employee Handbook Version 1.0. Column 3.5.16. Titled Service Gratuity Scheme (CW11), the evidence of the claimant on the 17th October, 2023 & paragraphs 1, 3 & 5 of the claimant’s statement of claim.

          

  1. The claimant continued that the National Industrial Court has been more direct on corporate restructuring and continuity of employment. See Union Bank of Nigeria Plc v. Soares (2012) 29 NLLR (Pt. 84) (NIC). That the Court recognized the binding effect of employment continuity and upheld employees’ entitlement to benefits based on total years served where there was no break in service. In Mr. Ebere Onyekachi Aloysius v. Diamond Bank Plc (2015) 58 NLLR (Pt. 199) 92 (NIC). “The Court emphasized international best practices in labour relations and protected employees’ accrued rights during restructuring.” See Afribank (Nig) Plc v. Osisanya (2000) 1 NWLR (Pt. 642) 592 (SC) the Supreme Court emphasized that where employment is not expressly terminated, accrued rights and length of service remain enforceable. The Court reiterated that employment rights already earned cannot be divested without clear contractual or statutory authority. That the law is trite than (sic) an employer cannot resile from or selectively apply the provisions of its own handbook. An employer is bound by its own conditions of service. See Shena Security Co. Ltd v. Afropak (Nig) Ltd & ors (2008) SC 368/2002 reported as 18 NWLR (Pt. 1118) 77 (SC), the Supreme Court emphasized that parties are bound by the terms of their agreement and the Court must give effect to same.

 

  1. The claimant submitted that once the defendant clearly stipulated that employees with five years of service are entitled to gratuity that entitlement crystallizes upon satisfaction of the condition which is applicable to the claimant in this case. On the alleged mutual exclusivity of redundancy benefits and gratuity, the defendant relies on another provision of the Handbook which states that redundancy benefits and gratuity are mutually exclusive. See page 64 of the ABInBev Employee Handbook Version 1.0. Column 7.1.4

          7.1.4 Redundancy

Where the company finds it necessary to reduce the number of employees based on business exigencies, this shall be deemed as a redundancy. Management will take into account all or any of the following factors in deciding who should be declared redundant first:

  1. Experience 
  2. Qualification
  3. Health (fitness for work)
  4. Skill
  5. Performance 
  6. Disciplinary record
  7. Competence 
  8. Length of service

Redundancy benefits and periods of notice shall be in accordance with applicable company policy and the collective agreement from time to time. In case of redundancy, the company will pay gratuity at the rates in force in addition to normal entitlements such as salary, applicable leave pays and other benefits. Redundancy notice period and redundancy pay shall be in accordance with applicable company policy and the existing collective agreement. Redundancy benefits and gratuity benefits are mutually exclusive.

That on the 17th of October 2023, during the cross-examination of the claimant by the defendant’s counsel C.C. Udeaja, Esq., the claimant answered clearly that despite that the employee’s handbook stated that redundancy benefits and gratuity are mutually exclusive, however redundancy packages does not include gratuity.

 

  1. The claimant submitted that where a contractual document contains seemingly conflicting provisions, the law is settled that: the document must be read as a whole; and any ambiguity must be construed against the drafter. See Bernard Ojeifo Longe v. First Bank of Nigeria Plc, Supreme Court Suit No. SC. 116/2007, delivered 5 March 2010. The Supreme Court held that where the terms of employment are clear, they must be given their plain meaning, but where ambiguity exists, interpretation should not defeat accrued rights. Also, in New Nigeria Development Co. Ltd v. Daniel Ugbabe, Suit No. SC. 591/2017, Supreme Court of Nigeria, delivered 20 December 2021. The Supreme Court held that where an employer makes representations as to benefits, such representations are enforceable once the employee has acted upon them. That in the case, the gratuity clause is specific and service-based; that the mutual exclusivity clause is general in nature. It is a settled principle of interpretation that where there is a conflict between a specific provision and a general provision, the specific prevails. Redundancy is merely a mode of termination. It does not extinguish vested contractual rights unless expressly and unequivocally stated. See Union Bank of Nigeria Plc v. Emmanuel Aderawaju Soares (2012) LCN/5285 (CA), Court of Appeal of Nigeria (CA/L/396/2000) Delivered 30 March 2012. The Supreme Court affirmed that once an employee’s entitlement under the contract has accrued, the employer cannot unilaterally withdraw or defeat that entitlement. 

 

  1. The claimant went on that the claimant’s right to gratuity accrued upon completion of the requisite years of service; that redundancy, being employer-initiated termination due to operational reasons, cannot operate to divest the claimant of an already accrued benefit; that the Handbook was drafted solely by the defendant, and any ambiguity must therefore be construed against the defendant. See AG Rivers State v. AG Akwa Ibom (2005) 15 NWLR (Pt. 947) 44 (SC) affirmed that where words are ambiguous, interpretation must be adopted against the party who drafted them. Thus, if the mutual exclusivity clause creates uncertainty when read alongside the gratuity entitlement clause, such uncertainty must operate in favour of claimant. The claimant therefore submitted thus:

    The Employee Handbook forms part of the binding contract.

The Handbook expressly grants gratuity to employees who have completed five years of service.

The claimant satisfied this condition.

Redundancy does not extinguish accrued contractual entitlements

Any ambiguity in the Handbook must be resolved against the defendant.

The claimant urged the Court to resolve this issue in favour of the claimant has the claimant remains entitled to gratuity notwithstanding the payment of redundancy benefits. 

 

  1. On issue (3), Whether the defendant’s failure to file a rejoinder amount to an admission of the new material facts pleaded in the claimant’s reply and defence to set-off, and therefore affected the defendant’s case which is bound to fail on that ground as the defendant is estopped from leading evidence contrary to those facts? The claimant submitted that before delving into the substantive issues, the claimant raises a preliminary point on the state of the pleadings; that the claimant, upon being served with the defendant’s statement of defence and set-off, duly filed a reply to the statement of defence and defence to the set-off, wherein the claimant made fresh and material averment specifically challenging: 
    1. The genuineness of the alleged redundancy. See paragraph 9 of the claimant’s reply and defence to set-off. “It is also the position of the claimant that he cannot be relieved of his job role under the pretense of redundancy and still recruit another person into the same position (job role), which was considered by the management of the defendant to be redundant.”
    2. The absence of consultation and objective selection criteria. See paragraph 5 of the claimants (sic) reply and defence to set-off. “The claimant joins issues with the defendant upon paragraph 5 of his statement of defence and in reply aver that he is not and was never a member of any union/association while in the service of the defendant or indeed privy to the seal of any associations collective agreement thus distance himself from same which did not reflect in his offer of employment dated 27th day of March, 2014 and compensation package attached thereto.”
    3. The propriety and validity of the defendant’s set-off. See paragraph 8 of the claimant’s reply and defence to set-off. “The claimant joins issues with the defendant and in paragraph 8 of his statement of defence, and in reply aver that the Employee Handbook with reference to Article 7.14 is clear and unambiguous as the conditions precedent for redundancy was not considered, which includes but not limited to Article 7.1.4 (i),(ii),(iii),(iv),(v), (vi) and (vii). The claimant further aver that redundancy benefits which was under paid is not the same thing with statutory compensation package which is and forms part of his offer of employment and in further reply states that the Defendants (sic) Employee Handbook version 1.o in Article 3.5.16 and 7.1.4 considered and spelt out the gratuity scheme thus put the defendant to the strictest proof of their averment in paragraph 8 of their statement of defence.

That the defendant filed no rejoinder to controvert these new and material facts; that it is settled law that any material averment in a pleading not specifically denied is deemed admitted. See Egesimba v. Onuzuruike (2002) 15 NWLR (Pt. 791) 446 (SC), the Supreme Court held that “facts not traversed are taken as admitted.” Similarly, in Okoye v. Nigerian Construction & Furniture Co. Ltd (1991) 6 NWLR (Pt. 199) 501 (SC), the Supreme Court held that “where a party fails to deny new facts raised in a reply, such facts are deemed admitted.” Also, in Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298 (SC), the Court held that “unchallenged pleadings require no further proof.”

 

  1. The claimant submitted that by the defendant’s failure to file a rejoinder, the defendant has admitted the fresh facts contained in the claimant’s reply, lost the right to lead evidence contradicting those facts, and rendered any such contrary evidence liable to be discountenanced; that this is in line with the principle in Lewis & Peat (NRI) Ltd v.  A khimien (1976) 7 SC 157, that evidence at variance with pleadings goes to no issue.

 

  1. The claimant, therefore, urged the Court to hold that the facts pleaded in the claimant’s reply stand admitted in law, and the defendant cannot be heard to contradict them at this stage.

 

 

COURT’S DECISION

  1. I heard learned counsel and considered all the processes filed in this suit, from all of this, I am of the firm view that the following issues are to be resolved within the parties:
    1. Whether or not the claimant’s exit from the defendant’s employment was as a result of redundancy as contemplated in his contract of employment or in any of the lay down ways of determining his employment as stated in the terms and conditions of his contract.
    2. Whether or not the claimant is entitled to be reinstated to his formal position.

 

  1. The letter that puts an end to the claimant’s employment with the defendant is marked as Exhibit CW6 before this Court. It is titled: “Supply Function Restructuring” and dated 15th June, 2020. The claimant’s contention is that the termination of his employment by the management of International Breweries Plc without meeting the conditions precedence as set out in the Employee’s Handbook of AbInBev and before placing the claimant on redundancy is null and void. The defendant on its part contends that the termination was in accordance with the terms of employment as contained in the Employee Handbook (Exhibit CW11). As far as relief (a) is concerned, the claimant submitted that in a genuine redundancy situation, it is settled law that redundancy is a termination of employment due to operational requirements and not for misconduct. Citing Peugeot Automobile Nigeria Ltd v. Oje & ors (1997) 11 NWLR (Pt. 530) 625, Samuel Isheno v. Julis Berger Nig Plc (2003) 14 NWLR (Pt. 840) 289. To the claimant, the evidence of the defendant before this Court, did not show that the claimant’s role was no longer required due to specific operational or business reasons satisfying the criterion of a genuine redundancy situation. It is well settled under Nigerian law that redundancy relates to the role or position, and not the individual occupying it. The claimant went on that during the cross examination of the claimant on the 17th day of October, 2023 before this Court, the claimant stated: 

“Ans- My juniors were promoted to my position, and new employees (artisans) were employed.”

The claimant placed reliance on Samuel Isheno v. Julis Berger Nig Plc (supra)

 

  1. In reaction, the defendant’s explanation is that redundancy in service is a mode of removing an employee from service when his post is declared redundant by his employer; that it is a unique procedure whereby the employee is lawfully relieved of his appointment. Thus, the conditions applicable to redundancy are quite different from those applicable to retirement or other conventional modes of relieving an employee from service such as termination, resignation, or dismissal. Citing Ovivie v. Delta Steel Co. Ltd (supra). The defendant went on that the claimant was relieved of his employment under redundancy agreement; that the defendant merged with Intafact Beverages Ltd; that after the merger, there became need to downsize due to the business challenges faced by the defendant i.e. (Exhibit DW1) Tilted: Conclusion of Redundancy Discussions between the Food Beverages and Tobacco Senior Staff Association (FOTOB) dated 13th November, 2019.

 

  1. In Adibuah v Mobil Oil Nigeria Plc (2015) LPELR -40987(CA) the Court held  

“Redundancy in service is a mode of removing an employee from service when his post is declared redundant by his employer. It is also not a voluntary or forced resignation, nor is it termination. As for redundancy there is a particular procedure to be adopted. See also Isheno v Julius Berger Nig Plc (2003) 14 NWLR (Pt 840) 289. There is indication in the letter of termination of appointment of the claimant that it was done on ground of redundancy. 

See Eniwomake Ovivie & Ors v Delta Steel Company Limited (2023) LPELR-60460 (SC) where the apex court held that in the declaration of redundancy the principle of last in first out shall be adopted in the discharge of the category of workers subject to merit, including skill, ability and reliability. See also Evans Brothers (Nig) Publishers ltd v A.S Falaiye (2002) 47 WRN 74 the Court held on employer’s duty where he terminates an employee’s employment on the ground of redundancy and held that where a reason is given, such will be examined with a view to determine if such reasons came within the terms of contract of employment. In the instant case, the reason proffered by the defendant in Exhibit CW6 is for supply function restructuring. If the reason is considered along with the provisions relating to redundancy in clause 7.1.4 of Exhibit CW11 of the employee handbook which provides thus:

where the company finds it necessary to reduce the number of employees based on business exigencies, this shall be deemed as a redundancy. Management will take into account all or any of the following factors in deciding who should be declared redundant first: (i) Experience (ii) Qualification (iii) Health (fitness for work) (iv) Skill (v) Performance (vi) Disciplinary record (vii) Competence (viii) Length of service. 

The provision is well spelt out and the Court is bound to follow same but the defendant did not justify the reasons given in terminating the employment of the claimant. There is no record of these before the Court.

 

  1. The defendant in paragraph 5 of the statement of defence stated that the defendant terminated the claimant’s employment effective on the 19th day of June 2020. The claimant exited the employment of the defendant following a redundancy exercise by the defendant, which affected some other employees of the defendant and in the redundancy clause in the Employee Handbook (Exhibit CW11) and the Collective Agreement Food Beverage and Tobacco Senior Staff Association (FOBTOB) effective 13th day of November, 2019, (Exhibit DW11) of which the claimant is a member and had acquiesced to in course of his employment. The Collective Agreement shows details of the redundancy benefits negotiated with the union on behalf of its exited members. In reaction, the claimant in his reply and defence to set-off and affidavit in support, the claimant joined issues with the defendant upon paragraphs 3, 4, 5, 7, 8 and 9 of his statement of defence and in reply the claimant aver that he is not and never a member of any union/association while in the service of the defendant or indeed privy to the seal of any associations collective agreement thus distanced himself from same which did not reflect in his offer of employment dated 27th day of March 2014 and compensation package attached thereto. The defendant did not file any reply to the claimant’s set-off

 

  1. Under cross examination on 3 December 2025, the defendant’s witness (DW) stated that he joined defendant on the 26 July, 2021; that as at the time the claimant worked with the defendant, he was not yet a staff of the defendant. The import of all of this is that the deposition(s) of DW and his entire evidence before the Court in this case is entirely hearsay evidence. Section 37 of the Evidence Act 2011 defines hearsay evidence as follows: 

    Hearsay means a statement:

  1. oral or written made otherwise than by a witness in a proceeding; or
  2. contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.

 

  1. On what constitutes hearsay evidence, the Court of Appeal held in Obiamulu v. Ogwuego (2020) LPELR–51949 (CA) per Umar, JCA thus:

“On what constitutes hearsay evidence, the Supreme Court in the case of Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173 at 198 para H. It held thus: “Hearsay evidence is all evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part on the veracity and competence of some other person”. Per Tobi, JSC.”

See Okonkwo v. Vanguard Media Ltd (supra), Mkpedem & ors v. UBA Plc & anor (2016) LPELR – 42039 (CA). and by Federal Republic of Nigeria v. Mohammed Usman & anor (2012) LPELR – 7818 (SC) “If on the other hand his testimony is to establish the truth of an event in question or as in this case to establish the truth of the contents of the appellants statements, it is hearsay and inadmissible evidence…” per Rhodes-Virour, JSC (pp-19-20, para. F-C). The law is trite that the Court cannot rely on hearsay evidence to grant reliefs of a party. It is not admissible. See GLO v. Fatmax Global Ventures Ltd (2020) LPELR – 50500 (CA). DW’s testimony in the entirety of his deposition in this suit, in my humble view, is second hand evidence and is thus inadmissible to prove the facts of defendant’s case. I so hold.

 

  1. From the forgoing, it is obvious that the defendant did not give a concrete and cogent reason for terminating the claimant’s employment among other staff during the process of redundancy, notwithstanding the contention of merger. The claimant from the number of years spent with the defendant as the Process Artisan had no report on inefficiency. Relief 1 is grantable. I so hold.

 

  1. On issue (2), whether or not the claimant is entitled to be reinstated to his former position.

 

  1. The claimant sought for an order directing the defendant to restore him to his former position at International Breweries Plc. Onitsha Plant. The claimant is obliged in the instant case to disclose special circumstances to warrant his reinstatement. He did not plead and/or led evidence that his employment is governed by any statute. An employment is said to have a statutory flavor when the appointment and termination of same are governed by statute. It is only in this circumstance that a declaration that the contract subsists will be made. See Union Bank of Nigeria Plc v. Soares (2021) LPELR – 8018 (CA). Relief (b) fails and so is dismissed.

 

  1. Relief (c) seek ?30 million for breach of contract of employment. Although cost follows event in litigation, it is at the discretion of the Court. See NNPC v. Clifco Nigeria Ltd (2011) LPELR – 2022 (SC). Having held that the termination of the claimant’s employment by the defendant without meeting the precedence as set out in the Employee’s Handbook of AbInBev is null and void, I hereby award the sum of ?500,000.00 only for breach of contract of employment against the defendant and in favour of the claimant.

 

  1. On the whole, the claimant’s case succeeds in part, and only in terms of the following declarations and orders.
  2. It is hereby declared that the termination of the claimant’s employment by the defendant without meeting the condition precedence as set out in the Employee’s Handbook of AbInBev and before placing the claimant on redundancy is wrongful.  
  3. It is hereby ordered that the defendant shall pay to the claimant the sum of ?500, 000.00 only for breach of contract of employment and wrongful termination of employment.
  4. The said ?500,000.00 shall be paid to the claimant within 30 days of this Judgment, failing which it shall attract simple interest at the rate of 10% per annum until it is fully liquidated.

 

  1.  Judgment is entered accordingly. I make no order as to costs

 

 

Hon. Justice J.I. Targema, PhD