IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
                  IN THE PORT HARCOURT JUDICIAL DIVISION
                             HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP:

HONOURABLE JUSTICE BUHARI SANI……...JUDGE

ON WEDNESDAY THE 14^TH DAY OF OCTOBER, 2026

                                                              SUIT NO: NICN/PHC/21/2021

BETWEEN:

RITA EBUGOSI…………………………………………………. CLAIMANT

AND

NECTAR HEALTHCARE LIMITED…………………………..DEFENDANT

                                     JUDGMENT

This action emanate from employer-employee relationship. It was commenced by the Claimant (Rita Ebugosi), vide an Amended General Form of Complaint dated 1st December 2021 and filed on 13th January 2022. The Claimant seeks declaratory and monetary reliefs against the Defendant (Nectar Healthcare Limited), arising from the alleged wrongful termination of her employment, non-payment of terminal benefits, and failure to remit pension contributions.

The Claimant's reliefs, as contained in the Amended Complaint, are as follows:

1. A DECLARATION that the letter of termination dated 29th January 2021 constitutes a summary dismissal and not a termination simpliciter.

2. A DECLARATION that the reasons stated in the termination letter are unjustified, baseless, and amount to infamy, rendering the dismissal null and void.

3. A DECLARATION that the failure to give the Claimant notice of alleged misconduct and an opportunity to be heard negates fair hearing and amounts to unfair labour practice.

4. A DECLARATION that the non-payment of the Claimant's January 2021 salary/earnings totaling N82,508.00 amounts to unlawful withholding.

5. A DECLARATION that the non-issuance of one month's notice or payment of salary in lieu thereof amounts to a breach of the contract of service.

6. A DECLARATION that the non-remittance of N116,835.70 pension contributions is unlawful and a breach of contract.

7. AN ORDER setting aside the summary dismissal and rendering it a termination simpliciter.

8. AN ORDER compelling the Defendant to pay N82,508.00 as January 2021 salary.

9. AN ORDER compelling the Defendant to pay N62,508.00 as one month's salary in lieu of notice.

10. AN ORDER compelling the Defendant to pay N116,835.70 as unremitted pension contributions.

11. AN ORDER for N3,000,000.00 as damages for unlawfully withholding January 2021 salary.

12. AN ORDER for N3,000,000.00 as damages for failure to remit pension contributions.

13. AN ORDER for N3,000,000.00 as damages for failure to give notice.

14. AN ORDER for N20,000,000.00 as damages for infamy and unlawful summary dismissal.

15. AN ORDER compelling the Defendant to reconcile accounts with the Claimant.

16. AN ORDER for the cost of this suit.

17. AN ORDER for 10% interest per annum on the judgment sum until liquidation.

The Defendant, in response, filed a Consequential Amended Statement of Defence and Counter-Claim dated 4th February 2022 and filed on 7th February 2022. In its defence, the Defendant averred that the Claimant's employment was lawfully terminated in accordance with the terms of her contract, and denied all allegations of wrongful termination, non-payment of salaries, and non-remittance of pension contributions.

The Defendant also filed a Counter-Claim and prayed for the following reliefs:
a. The sum of N1,046,000.00 being the total sales proceeds belonging to the Counter-Claimant which the Claimant withheld, together with 21% interest per annum until final liquidation.

b. An Order directing the Claimant to pay N5,000,000.00 representing loss of revenue for two months attributed to the seizure of the Counter-Claimant's car.

c. An Order directing the Claimant to release the Counter-Claimant's car and other assets in her custody.

d. Cost of the action.

 PARTIES' RESPECTIVE CASE FROM PLEADINGS AND EVIDENCE

The Claimant's Case:
The Claimant's case, from her Amended Statement of Facts, Witness Statement on Oath, and oral testimony, is that she was employed by the Defendant on 8th August 2016 as a Medical Sales Representative for Rivers and Bayelsa States. Her employment was governed by a letter of offer of appointment dated 8th August 2016 (Exhibit C1). The contract provided for termination by either party upon one month's notice or payment of one month's salary in lieu of notice.

In 2019, a new management headed by Mr. Emeka Nwuba took over the Defendant company and introduced policies that were unfavourable to workers, including salary cuts and indiscriminate termination of staff. The Claimant continued to perform her duties diligently.

On 29th January 2021, the Claimant received an email containing a letter of termination dated the same day (Exhibit C2). The letter stated that the management had reviewed several cases of her "unprofessional behavior," including "sustained open opposition to the performance management policies of the company" and "overt display of disrespect to the management." The Claimant was directed to return all company assets, including the marketing car, identity card, and sales invoices.

The Claimant averred that she was never queried or given any opportunity to defend herself against these allegations before the termination. She had given her best to the company and had never been disciplined for any wrongdoing. The sudden termination caused her to slip into depression and nearly have a car accident on the same day, resulting in damage to the official car (Exhibit C3).

The Claimant instructed her counsel to write a letter dated 1st February 2021 (Exhibit C4) challenging the termination as unlawful and in breach of the terms of the contract and Section 11 of the Labour Act. The Defendant failed to respond.

Regarding her entitlements, the Claimant averred that the Defendant failed to pay her January 2021 salary of N62,508.00 and the balance of her field operational float of N20,000.00, totaling N82,508.00. The Defendant also failed to remit N116,835.70 in pension contributions to her Stanbic IBTC Pension account (PEN200874336514) for various periods between 2016 and 2021.

The Claimant further stated that after her termination, she exchanged emails with the Defendant regarding the return of the official car, but the Defendant failed to make arrangements to pick it up. She also had email correspondence with the Defendant regarding her account and allegations of diversion of stock, which she denied, and she called for a reconciliation of accounts (Exhibits C5, C6, C8).

The Claimant denied converting the Defendant's products or funds to her personal use. She explained that it was normal practice for sales representatives to use customers' accounts to purchase products, sell, and remit monies to the Defendant. She requested that orders for Novelty Pharmacy and Capino Pharmacy be diverted to her account to preserve records pending reconciliation (Exhibit C6). She also stated that she had expired products worth N110,300.00 in her custody, which the Defendant was supposed to credit her account for (Exhibit C7, C11).

The Defendant's Case:
The Defendant's case, as contained in its Consequential Amended Statement of Defence, Counter-Claim, and the Witness Statement on Oath of its sole witness, Ruth Ada Obi, is as follows:

The Defendant admits that the Claimant was employed on 8th August 2016 and that her employment was terminated on 29th January 2021. However, it contends that the termination was lawful and in accordance with the terms of the contract.

The Defendant avers that the Claimant was employed after the death of one Miss Chigozie Ezeokafor and was posted to the territory where the deceased worked, with part of her duties being to recover debts left behind by the late Chigozie.

The Defendant states that prior to 1st June 2019, Mr. Kingsley Okeke was the Managing Director/CEO. After his removal, a new management headed by Mr. Emeka Nwuba (as head of the Executive Committee) and Mr. Augustine Obi (as General Manager) took over. The new management conducted a review of the company's debtors, which revealed that several marketing and sales representatives had diverted sales proceeds to personal use. The Defendant terminated the employment of those found culpable, in accordance with their contracts.

The Defendant avers that the Claimant became vociferous against the new performance management policies, was confrontational, and poisoned the minds of other sales representatives. A phone conversation between the Claimant and Mr. Emeka Nwuba was held, during which the Claimant was allegedly hysterical and disrespectful, and later begged for forgiveness (a voice note was referenced but not tendered). The Defendant states that the Claimant was not amenable to change despite warnings, leading to the termination of her employment because her services were no longer required.

The Defendant denies that the Claimant was dismissed for professional misconduct, stating that the termination was in line with the contract. It further states that the Claimant failed to return company assets, including the official car and unused invoice booklets, prompting the Defendant to exercise a lien over her one month's salary in lieu of notice. The Defendant avers that it has consistently demanded the return of these assets and the payment of N1,046,000.00, which it claims the Claimant owes.

In its Counter-Claim, the Defendant alleges that the Claimant diverted stocks and payments from two customers, Novelty Pharmacy and Capino Pharmacy, totaling N1,016,000.00, in addition to an outstanding debt of N30,000.00 in her sales account, making a total of N1,046,000.00. The Defendant further claims N5,000,000.00 as loss of revenue for two months and N30,000,000.00 as potential future revenue loss due to the Claimant's refusal to release the official car.

The Defendant called one witness, Ruth Ada Obi (DW1), a Medical Sales Representative, who adopted her written statement on oath. During cross-examination, DW1 admitted that she never worked directly with the Claimant and had no personal knowledge of the events in Port Harcourt prior to her transfer. She stated that her knowledge was based on information from the company management. She also admitted that she was not aware of any reconciliation of accounts between the Claimant and the Defendant.

ISSUES FOR DETERMINATION

The Claimant, in her Final Written Address, formulated three issues for determination:

1. Whether the entirety of the evidence of DW1 is hearsay and ought to be discountenanced by this Court.
2. Whether from the state of the Claimant's pleadings and evidence led, the Claimant is entitled to the award or grant of her reliefs.
3. Whether the Defendant/Counter-Claimant has proved its Counter-Claim as a distinct and separate action as required by law to merit the judgment of this Honourable Court.

The Defendant, in its Final Written Address, formulated three issues for determination:

1. Whether the employment of the Claimant is an employment of statutory flavour or a master and servant contractual relationship.
2. Whether or not the termination was wrongful even in the face of fraudulent practices and policy insubordination.
3. Whether the Defendant's Counter-Claim survives in view of the uncontroverted evidence before the court.

Having considered the pleadings and the submissions of counsel, this Court adopts the following issues for the determination of this suit:

1. Whether the termination of the Claimant's employment by the Defendant was wrongful, and if so, whether it amounted to a summary dismissal or a termination simpliciter.

2. Whether the Claimant is entitled to the reliefs sought, including salary arrears, salary in lieu of notice, and damages.

3. Whether the Claimant is entitled to the pension contributions not remitted by the Defendant.

4. Whether the Defendant has proved its Counter-Claim to be entitled to the reliefs sought.

 PARTIES' SUBMISSIONS

Claimant's Submissions:
Learned counsel for the Claimant, submitted that the entirety of the evidence of DW1 is hearsay and inadmissible. He argued that DW1 admitted during cross-examination that she never worked with the Claimant and that her knowledge was based on what she heard from the management. Counsel relied on Section 37 of the Evidence Act 2011 and the cases of Clinton v. State (2021) 9 NWLR (Pt. 1782) 505 and Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 to submit that DW1's evidence should be discountenanced.

On the termination, counsel submitted that the letter of termination (Exhibit C2) stated reasons of "unprofessional behavior" and "overt display of disrespect," which are allegations of misconduct. He argued that having made these allegations, the Defendant was obliged to give the Claimant an opportunity to be heard before termination, relying on Igwilo v. Central Bank of Nigeria (2000) 9 NWLR (Pt. 672) 302 and Jirgbah v. U.B.N. Plc (2001) 2 NWLR (Pt. 696) 11. Counsel further submitted that the failure to produce the alleged voice note and WhatsApp messages, which would substantiate the allegations, should lead to the presumption under Section 167(d) of the Evidence Act that the evidence would have been unfavorable to the Defendant.

Counsel also submitted that the Defendant failed to prove that it gave the Claimant one month's notice or paid salary in lieu thereof, as required by Exhibit C1. He relied on the unchallenged evidence of the Claimant and the case of CBN & Ors v. Okojie (2015) 6 M.J.S.C (Pt.1) 1 to argue that facts not challenged are deemed admitted.

On the pension contributions, counsel submitted that the Claimant had proved through Exhibits C9 and C10 that the Defendant failed to remit N116,835.70, and that this evidence was not controverted. He relied on Pali v. Abdu (2019) 5 NWLR (Pt. 1665) 320.

Regarding the Counter-Claim, counsel submitted that the Defendant failed to prove its claim for N1,046,000.00 as there was no reconciliation of accounts. He argued that the alleged debt could only be ascertained after reconciliation, which the Defendant failed to do. He also submitted that the Claimant's failure to return the car was due to the Defendant's refusal to pick it up, as evidenced by Exhibit C8. Counsel urged the Court to dismiss the Counter-Claim.

Defendant's Submissions:
Learned counsel for the Defendant, submitted that the employment of the Claimant was a master-servant relationship and not one with statutory flavour. He relied on D.S.A.D.P.L v. Ofonye (2008) All FWLR (Pt. 402) 1068 and Adams v. L.S.D.P.C (2000) 5 NWLR (Pt. 656) 291.

Counsel submitted that the termination was lawful because the Claimant's conduct, including fraudulent practices and policy insubordination, justified the termination under the contract. He relied on Exhibit C1 (the offer letter) and Kaydee Venture Ltd v. Minister of FCT (2010) 7 NWLR (Pt. 1192) 171. He argued that the Claimant failed to prove that the termination was wrongful, as required by Oluwatosin v. Pheranzy Gas Ltd & OR (2013) 34 NLLR (Pt. 99) 336.

On the Counter-Claim, counsel submitted that the Defendant's evidence, particularly Exhibits D1, D2, and D3A-C, was uncontroverted. He relied on Obinche v. Akusobi (2010) All FWLR (Pt. 533) 1865 and Guinness (Nig) Plc v. S.K.A (Nig) Ltd (2012) 18 NWLR (Pt. 1331) 179 to urge the Court to enter judgment for the Defendant on the Counter-Claim.

In its Reply on Points of Law, the Defendant's counsel further argued that DW1's evidence was direct and based on her knowledge as an employee transferred to Port Harcourt. He relied on Christian v. Innocent (2023) 13 NWLP (Pt. 1900) 183 to submit that facts admitted need no further proof.

COURT'S DECISION

The facts of this case are largely undisputed. The Claimant was employed by the Defendant on 8th August 2016 as a Medical Sales Representative. Her employment was terminated on 29th January 2021 vide a letter (Exhibit C2) which cited "unprofessional behavior" and "overt display of disrespect" as reasons. The Claimant was not given a prior hearing on these allegations. The Claimant subsequently filed this suit challenging the termination and seeking various reliefs. The Defendant filed a Counter-Claim alleging diversion of funds and loss of revenue.

The Claimant called one witness (herself, CW1) and tendered 11 exhibits (C1-C11). The Defendant called one witness (Ruth Ada Obi, DW1) and tendered 6 exhibits (D1-D3C).

I now proceed to resolve the Issues for Determination

On Issue 1: Whether the termination of the Claimant's employment was wrongful, and if so, whether it amounted to a summary dismissal or a termination simpliciter.

The crux of this issue is the legal characterisation of the termination letter dated 29th January 2021 (Exhibit C2). The letter states:
"Management has reviewed the several cases of your unprofessional behavior which amongst others include sustained open opposition to the performance management policies of the company as well as overt display of disrespect to the management of the company. Kindly be informed therefore that your services to the company is no longer required."

The letter thus alleges misconduct against the Claimant. Where an employer alleges misconduct as the basis for terminating an employee's appointment, the termination is in the nature of a summary dismissal, and the employer must comply with the rules of natural justice by giving the employee an opportunity to be heard before the termination is effected.

In Igwilo v. Central Bank of Nigeria (2000) 9 NWLR (Pt. 672) 302 at 332, the Supreme Court held that:
"Where the officer is guilty of misconduct or a breach of regulation, then a lis inter partes arises and there arises also a need for a hearing before deciding his guilt in that respect."

Similarly, in Jirgbah v. U.B.N. Plc (2001) 2 NWLR (Pt. 696) 11 at 28-29, the Court held that before an employer can dispense with the services of an employee on grounds of misconduct, the employee must be afforded an opportunity of being heard.

In the instant case, the Claimant was never queried or given any opportunity to respond to the allegations of "unprofessional behavior" and "disrespect" before her termination. The Defendant failed to produce any evidence, such as the alleged voice note or WhatsApp messages, to substantiate these allegations. The failure to produce this evidence attracts the presumption under Section 167(d) of the Evidence Act, 2011, that if produced, it would have been unfavourable to the Defendant.

Furthermore, the evidence of DW1 is largely hearsay. DW1 admitted during cross-examination that she never worked with the Claimant and had no personal knowledge of the events in Port Harcourt prior to her transfer. She stated: "I had the full knowledge of what happened because I was transferred to Port Harcourt... I had the knowledge of what happened through the company management." This is the classic definition of hearsay evidence, which is inadmissible under Section 37 of the Evidence Act, 2011.

Accordingly, I find that the Claimant's termination was procedurally defective and thus wrongful. The termination, being based on unsubstantiated allegations of misconduct without a hearing, amounts to a summary dismissal. The Claimant is therefore entitled to a declaration that the termination was wrongful.

On Issue 2: Whether the Claimant is entitled to the reliefs sought, including salary arrears, salary in lieu of notice, and damages.

Having found that the termination was wrongful, the Claimant is entitled to damages. The contract of employment (Exhibit C1) provides for termination by one month's notice or payment of one month's salary in lieu of notice.

The Claimant's evidence that she was not paid her January 2021 salary (N62,508.00) and the balance of her field operational float (N20,000.00), totaling N82,508.00, was not controverted by the Defendant. The Defendant's DW1 admitted that she did not know whether the Claimant was paid. Facts not challenged are deemed admitted: CBN & Ors v. Okojie (2015) 6 M.J.S.C (Pt.1) 1.

The Claimant is also entitled to one month's salary in lieu of notice, which is N62,508.00. The Defendant's argument that it exercised a lien over this salary is untenable. A lien is a right to retain possession of property until a debt is paid. However, the Defendant's alleged debt (N1,046,000.00) is unascertained and disputed, pending reconciliation. More importantly, the salary in lieu of notice was due at the point of termination, and the Defendant's failure to pay it precedes any obligation of the Claimant to return assets. The Defendant cannot rely on its own wrong (failure to pay salary) to justify its exercise of a lien.

Regarding the claim for N20,000,000.00 as damages for infamy and unlawful summary dismissal, I note the recent decision of the Supreme Court in Skye Bank Plc v. Adegun (2024) LPELR-62219(SC), which held that where a wrongful dismissal stigmatises an employee's character, substantial damages beyond the notice period may be awarded. In the instant case, the Claimant was dismissed for alleged "unprofessional behavior" and "disrespect," allegations that carry a stigma. The Claimant gave evidence that she slipped into depression and nearly had an accident. The Defendant failed to justify these allegations.

However, the Claimant did not provide sufficient evidence to justify the full N20,000,000.00 claimed. In the exercise of my discretion, I award the sum of N2,000,000.00 as general damages for the wrongful and stigmatising dismissal.

On Issue 3: Whether the Claimant is entitled to the pension contributions not remitted by the Defendant.

The Claimant gave detailed evidence, supported by Exhibits C9 (Zenith Bank Statement) and C10 (Stanbic IBTC Pension Statement), showing that the Defendant deducted pension contributions from her salary but failed to remit them for certain periods, totaling N116,835.70. This evidence was not rebutted by the Defendant. DW1 admitted that she did not know about the Claimant's pension contributions.

The statutory obligation of an employer to remit pension contributions is mandatory under the Pension Reform Act, 2014. In Payportal Ltd v. Igah (2019), the National Industrial Court held that non-remittance of contributory pension funds is unlawful. I therefore find that the Defendant is liable to remit the sum of N116,835.70 to the Claimant's pension account.

On Issue 4: Whether the Defendant has proved its Counter-Claim to be entitled to the reliefs sought.

The Defendant's Counter-Claim is for N1,046,000.00 (alleged diversion of funds), N5,000,000.00 (loss of revenue), and the release of the official car.

A Counter-Claim is a separate action, and the Counter-Claimant bears the burden of proof: See Order 15 Rule 2 of the NICN Rules 2017.

The Defendant's claim for N1,046,000.00 is based on the allegation that the Claimant diverted stocks and payments from Novelty Pharmacy and Capino Pharmacy. However, the Claimant's evidence, which is supported by Exhibit C6 (email correspondence), shows that the Claimant requested that the orders be diverted to her account to preserve records pending reconciliation. The Claimant has consistently maintained that she does not owe the Defendant any money until a proper reconciliation of accounts is done. The Defendant failed to provide any evidence of a reconciliation exercise. DW1 admitted during cross-examination: "To your knowledge, was there any reconciliation of all the account between the defendant and the Claimant? Answer: Not to my knowledge."

Furthermore, the Defendant's claim for N5,000,000.00 as loss of revenue is speculative and unsupported by any credible evidence. The Defendant alleged that the Claimant's failure to release the car resulted in loss of revenue, but the evidence (Exhibit C8) shows that the Claimant requested the Defendant to pick up the car, and the Defendant acknowledged the email but failed to make arrangements. The Claimant cannot be held liable for the Defendant's own inaction.

The Counter-Claim is therefore unproved and is hereby dismissed.

In conclusion therefore, I hold as follows:

1. The termination of the Claimant's employment by the Defendant was wrongful, as it amounted to a summary dismissal without compliance with the principles of fair hearing.
2. The Claimant is entitled to the following sums:
   a) N82,508.00 being unpaid salary and field operational float for January 2021.
   b) N62,508.00 being one month's salary in lieu of notice.
   c) N116,835.70 being unremitted pension contributions.
   d) N2,000,000.00 as general damages for the wrongful and stigmatising dismissal.
3. The Defendant's Counter-Claim is dismissed for lack of proof.
4. The Claimant is entitled to the cost of this suit, which I assess at N200,000.00.
5. The judgment sum shall attract interest at the rate of 10% per annum from the date of this judgment until final liquidation.

Judgment is entered accordingly.



                                   

 

 

 

    HONOURABLE JUSTICE BUHARI SANI
                                                                      JUDGE

 

APPEARANCES:

R. B. Mbaba, Esq, for the Claimant.

J. C. Nwosu, Esq, for the Defendant.