IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. HAMZA - - - - - JUDGE

 

DATE: THURSDAY 11TH JULY, 2024            

SUIT NO: NICN/PHC/100/2023

 

BETWEEN:

 

1. MR. MATTHEW NDUBUISI

    CHUKWUENWENIWE

2. EDWARD DAVID INYAMPE

3. AHMAD HADI IMAM

4. VICTOR JONATHAN MANI

5. OLAITAN ADESANWO

6. ANTHONYT BALA UMARU

7. BUKAR SIMEON HARUNA

8. AJISEBUTU HOSEA

9. ALIYU AHMADU AHMED

10. ENISUOH HARRISSON

11. ROTIMI OLUWADAISI JAIYEOLA

12. SUNDAY GODWIN E.

13. ABBA IBRAHIM AMINU

14. BARNABAS DUBA SAMSON

15. OFISHE JETHRO

16. AKINYANDENU TOYIN

17. FAWIBE QUEEN GLORIA

18. MANGAI SAGAI BITRUS

19. UWAEME IKECHUKWU SAMUEL

20. BILYAMINU USMAN

21. AHMED ABDUL

                                                                                   

            AND

 

WEBBFONTAINE NIGERIA LIMITED

 

REPRESENTATION:

 

No representation for the Claimants.

Sir Charles Egwabor appearing with A.O Mako for the Defendant.

JUDGMENT

 

Introduction and Reliefs

 

1.      The Claimants commenced this action by Originating Summons on the 1st day of November, 2023 praying for the determination of a sole question to wit:-

 

i.                    Whether upon the interpretation and construction of the employment contract stated in the different Claimants contracts with the Defendant as in Exhibit A, B, C and D, the Defendant have breached the contract termination with respect to length of Notice of ONE MONTH.

2.      Upon the determination of the question in their favour, the Claimants are seeking the following reliefs against the Defendant:

(a)    A Declaration that the Defendant is in breach of the contract of agreement with respect to length of notice of one month.

(b)   An order of this Court for the Defendant to pay the sum of N200,000.00 as damages for wrongful termination without mandatory one month notice as required by law.

(c)    And for such further order(s) as this Honourable Court may deem fit and expedient to make in the circumstances of this case.

3.      The Originating Summons is supported by an Affidavit of 18 paragraphs as well as an affidavit of non-multiplicity of suit. The affidavit in support was sworn to by one Mr. Matthew Ndubuisi Chukwuenweniwe, one of the Claimants on the 1st day of November, 2023 to which annexed Exhibits A1, A2, A3, A4, B1, B2, B3, B4, C1, and C2 and a Written Address dated the same date. The Defendant filed a 29 paragraphs Counter Affidavit attached to which are Exhibits W1 - W29.

 

CASE OF THE CLAIMANT

4.      The facts upon which the Claimants have premised the question for determination and the reliefs are as contained in the supporting Affidavit. To state the Claimants’ case concisely; the Claimants being dissatisfied with the manner and length of notice of termination of their contract with the Defendant have filed this suit against the Defendant for this Court to interpret their contract with the Defendant to justify whether the length of notice from Friday to Sunday a weekend was valid in line with terms of engagement with the Defendant.

 

SUBMISSIONS OF THE CLAIMANTS

5.      The issues submitted for determination by the Claimants are as follows:

i.    Whether the termination of the Claimants’ contract with the Defendant is in line with the terms of the contract with the Defendant as for the length of notice (Friday to Sunday).

ii.   If the answer to the above is in affirmative, does it gives the Claimants a right to sue for wrongful termination?

iii  Whether the Claimants are entitled to damages from the Defendant as a result of the termination of their contracts.

6.      Counsel submitted that termination of the contract of the Claimants was inadequate and not done in line with the terms of the contract. In SPDC VS IFETA (2001) 11 NWLR (pt. 724) 473, the Court held that where the contract of service was terminated wrongfully it gives right to a cause of action. It is correct to deduce that where there is wrongful termination of contract by an employee the only remedy is an action for wrongful termination. See UKPILLAA CEMENT COMPANY LTD VS IGIEHUMUE (1976) IFCA 64 P490 i.e. Once the term of the contract are pleaded the Court is bound to look at it as done in Exhibits A1, A2, A3 and A4. The documents show that the contract of service can only be terminated with one (1) month notice. The termination of the contract of the Claimants were done on a weekend i.e. Friday to Sunday which is against the contract of employment pleaded.

7.      He further submitted that in the case of MOBILE PRODUCTION NIG LTD VS ASWIH (2001) 16 NWLR (pt. 740) 724 the Court opined that once the terms of the contract is pleaded, judgment should be resolved in favour of the Claimants employees. See also SHELL BP VS ONASANYA (1976) 6 SC89, where it was held that the only remedy is in damages only. See also SPPDC VS LAWSON (1998) 4 NWLR (Pt. 542) 249. The Learned Counsel argued that Section 11 of the Labour Act LFN 2004 on termination of contract by notice provides: (1) either party to a contract on employment may terminate the contract by him to the other party of his intention to do so (d) one month where the contract has continued for five (5) years or more than 5 years. Hence, Federal Laws are considered universal then the Defendant company policy. He urged the Court to grant this application in the interest of justice.

 

SUBMISSIONS OF THE DEFENDANT

8.      In opposing the Claimants' application, the Defendant submitted one single issue for determination flowing from the face of the Originating Summons as follows:

“Whether the Defendant in terminating the employment contracts of the 1st, 6th, 9th and 14th Claimants has done so in compliance with the contract employment of each Claimant mentioned above and others statutory provisions.”

9.      The Learned Counsel submitted that the Defendant has fulfilled all obligations arising from the contract of employment pleaded by the Claimants in this suit as well as other statutory provisions with regards to employer and employee matters. The employment contract which is the substantive agreement signed by the Claimants and the Defendant binds both parties to the extent of the obligations and terms stated therein. Hence, parties are bound by the terms of a contract of employment, particularly where the terms are clear and unambiguous. See U.B.N. PLC VS SOARES (2012) 11 NWLR P550.

10.    He submitted that in the case of KAYODE VENTURES LTD VS HON. MINISTER OF FEDERAL CAPITAL TERRITORY & ORS SC. 264 (2002) P 254, where the Court held as follows:

“Where a legally permitted contract has been conducted by parties to it, the parties become bound by the terms and conditions as provided therein. None of the parties will be permitted by law to resile from such terms and conditions except for good and genuine reasons. Contracts voluntarily entered into by the parties are binding on them and a Court will not sanction an unwarranted departure from them unless they have been lawfully abrogated or discharged.”

11.    See also FGN VS ZEBRA ENERGY LTD (2002) 3 NWLR (Pt. 754) 471 per MUSDAPHER JCA as then was where it was held that a breach of contract connotes that the party in breach acted contrary to the terms of the contract either by non-performance or by performing the contract not in accordance with the terms or by wrongful repudiation of the contract. A party who had performed the contract in consonance with its terms cannot be said to have been in breach thereof. See DAAR COMMUNICATIONS PLC VS MCKEE (2022) LPELR - 57848 (CA); ECOSOLAR INTL LTD & ORS VS RIVERBANK CAPITAL LTD (2020).

12.    He argued that it is clear from the facts of the case that the Defendant has performed all obligations according to the contract, specifically the averments in paragraph 13 of the Counter Affidavit and Exhibits attached therein in opposition to the Claimants application where the Defendant evidenced that all statutory  payments with regards the terminal benefit of the 1st, 6th, 9th and 14th Claimants have been paid and the provisions of Section 21.7.3.2 under the heading (termination of employment of the Employee Handbook). Thus, Exhibits W1, W2, W3 and W4 are the confirmation of remittance of accrued Pension Contribution Letters from the Defendant to Stanbic IBTC Pension Manager on behalf of the 1st, 6th, 9th and 14th Claimants. Moreso, Exhibits W5, W6, W7 and W8 are bank statements for the months of January, February, March and April evidencing payments of Pension Contribution by the Defendant for all their employees including Claimants. While Exhibits W9, W10, W11 and W12 are Excel Sheet breakdown for January, February, March and April of the actual remittance to Pension Funds Administration for all the employees of the Defendant including the Claimants. Exhibits W13, W14, W15 and W16 are the breakdown of the total contribution by the Defendant to the National Housing Fund on behalf of the 1st, 6th, 9th and 14th of the Claimants.

13.    Section 21. 7.3.2 provides “when an employee’s service is terminated all benefits accruable to such employee up to the date of termination shall be paid out to the employee.” It was contended that the parties in this suit voluntarily entered into a contract of employment which was executed by all parties; accordingly the only thing remaining herein is for this Court to interpret the terms of these documents which are very clear and unambiguous. - See UBA VS PENNYMART LTD (1999)5 NWLR (Pt.  240) 228 at 234. Parties are bound by the terms of their contract and the Court has the duty to enforce them and not to write or rewrite agreements for parties. See MARYAM ISHAKU VS DR. J. S. ZWINGINA (2001) FWLR (Pt. 72) 2096.

14.    With regards to the length of notice to be given, where either party intends to terminate the contract of employment, Counsel submitted that the provisions of Section 3.8 of the pleaded employment contracts specifically states the length of notice to be given and the manner of executing/performance of the terms where the length of notice given by either party is varied. Consequently, the options available to the Defendant as the employer in the employment contract with respect to “Termination” are two-fold; either party could either terminate this employment contract by giving one (1) month prior notice in writing or “either party may provide for payment in lieu of notice for the entire period or part thereof.”

15.    Accordingly and in line with the terms and conditions of clause 3.8 of the contract of employment between the Defendant and the Claimants decided to exercise the 2nd opinion and paid the Claimants their salaries in lieu of notice” - paragraph 20(a-d) of the Counter Affidavit of the Defendant wherein the amount paid to the 1st, 6th, 9th and 14th Claimants in lieu of notice is evidenced. Section 11(6) of the Labour Act is relevant which provides:

“Nothing in this section shall prevent either party to a contract from waiving his right to notice on any occasion or from accepting a payment in lieu of notice.”

16.    Learned Counsel further argued that by paragraph 17 of the Counter – Affidavit of the Defendant which is to the effect:

“That the Defendant further denies paragraph 4 to the extent that it can only respond to the set of employees whose contracts of employment were pleaded as Exhibits (i.e. 1st, 6th, 9th and 14th Claimants) as each employment contract is unique to each member of staff.”

17.    Similarly, in the case of BEMIL NIGERIA LTD VS EMERIBE & ORS, CNN203/2015, Abba Aji JCA as he then was, held as follows:

“The Respondents therefore do not have a common interest or a common right against Appellant. The terms of their contracts of service are different from each other and each signed a separate contracts of employment with the Appellant.”

         In another Court of Appeal decision per Tijani JCA as he then was in the case of BOSSA VS JULIUS BERGER PLC (2005) 15 NWLR (Pt. 948) 409 held that the Respondents cannot bring an action jointly and severally against the Appellant in respect of their contracts of employment. Their contract of employment is personal to each of them and where there is breach the Respondents do not have a collective right to sue the Appellant jointly and severally.” See also CCB (NIG) PLC VS ROSE (1998) 4 NWLR (Pt. 544)37.

18.    He submitted finally that the termination of the employment of the Claimants was not wrongful but within the rights of the Defendant as the required payment in lieu of notice was paid and the terminal benefits and other statutory payments within the obligations of the Defendant were fully complied with and urged the Court to so hold.

COURT’S DECISION

19.    The Claimants are seeking an interpretation and construction of the employment contract stated in the different Claimants contracts with the Defendant as in Exhibits A, B, C and D, the Defendant has breached the contract termination with respect to length of Notice of One (1) Month. The contract as contained on Exhibit A1 is herein reproduced:

PRIVATE & CONFIDENTIAL

Reference Number: 1 WFN/ADM/ASY/2017.031

EMPLOYMENT CONTRACT

BETWEEN

WEBB FONTAINE NIGERIA LIMITED

AND

MR. CHUKWUENWENIWE MATTHEW

THIS EMPLOYMENT CONTRACT (the Contract) is entered into by and between Webb Fontaine Nigeria Limited whose registered business is at Plot 9, Block 3, 7th Street Osborne Foreshore Estate, Ikoyi, Lagos, herein after known as the EMPLOYER AND MR. MATTHEW CHUKWUENWENIWE whose residential address is at No. 4 First Avenue Eliminigwe Housing Estates Elelenwo, Obio/Akpor LGA, Port Harcourt, Rivers State, herein after known as the EMPLOYEE.

Each herein after referred to as a ‘party’ and jointly as ‘parties’

NOW THIS CONTRACT WITNESSES AS FOLLOWS:

1.           GENERAL STATEMENT

1.1       This contract details the following terms and conditions of employment by which the parties shall be bound at all times:

A.     Employer’s General Terms and Conditions of Employment

B.     Employer’s specific Term and Conditions of Employment.

C.     Employer’s confidentiality, Exclusivity and non-compete policy.

D.     Miscellaneous provision.

E.     Signatories.

1.2       The Employee acknowledges that Webb Fontaine Nigeria Limited is an equal opportunity employer in full compliance with the employment Laws and Regulations of Nigeria.

3.8        TERMINATION

3.8.1 Either party may terminate this employment contract by giving one (1) month prior notice in writing. The EMPLOYER may provide for payment in lieu of notice for the entire period or part thereof.

3.8.2 PROVIDED THAT the EMPLOYER may terminate this contract with immediate effect of which no prior notice is required, if the EMPLOYEE:

·        Commits any act of insubordination, misconducts himself/herself or repeats or continue (after prior written warning) any other breach of his/her obligations under this employment contract;

·        Is guilty of any conduct which in the opinion of the EMPLOYEE brings the EMPLOYER into disrepute;

·        Is convicted of any criminal offence (excluding an offence under road traffic legislation);

·        Commits an act of dishonesty, fraud or corruption whether relating to the EMPLOYER or otherwise, and

·        Breaches any of the EMPLOYER’S obligations under Law and under this Contract.

3.8.3   Upon termination, the EMPLOYEE shall be required to surrender all the EMPLOYER’S property in his/her possession to someone duly authorized to act on behalf of the    EMPLOYER and all rights and obligation under this contract shall immediately cease.

20.    The question for determination has already been reproduced above and so I will proceed to giving answer to the question. Section 9(7) of the Labour Act states that a contract of employment shall be terminated by (a) the expiry of the period for which it was made or (b) the death of the worker before the expiry of the period or (c) notice in accordance with Section 11 or in any other way in which a contract is legally terminable or hold to be terminated.

21.    It is imperative to state that one of the terms which Section 7 of the Labour Act requires the employer to include in the written notice to the worker is the period of notice required to terminate the contract. This is also made subject to Section 11, which stipulates the following periods of notice: One day’s notice for a contract of employment which has lasted between three months and two years; 2 weeks in respect of 2-5 years employment; and one month for five years’ service or more.

22.    Meanwhile, from the above forgoing, the provisions of the Labour Act have not added to nor taken anything away from the common law position. Rather, it simply restates the common law position. This therefore means that the termination of contract of employment of both worker and employer is governed primarily by the terms of the contract between the parties. This is commonly done by notice or by payment of the appropriate wage or salary in lieu of notice.

24.    Thus, a contract of employment may be terminated by notice, by either party in accordance with the terms of the contract. The notice provision most strictly be adhered to or the termination will be wrongful. Instead of giving notice, the employer may pay salary in lieu of notice, but only where this is expressly stipulated in the contract. See DR. BEN O. CHUKWUMAH VS SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED (1993)4 NWLR (Pt. 288)512; OBO VS COMMISSIONER OF EDUCATION (2001) FWLR (Pt. 38) 1226; NIGERIA PRODUCE MARKETING BOARD VS ADEWUMNI (1972)11 SC II; GATEWAY BANK OF NIGERIA PLC VS ABOSEDE (2001) FWLR (Pt. 79) 1316.

25.    It is within the contemplation of the Claimant that the Defendant wrongfully terminated their employment as in exhibit B1 B2 B3 and B4 respectively. Exhibit B1 is to the effect that:-

Dated the 4th day of May, 2023

Address to the Claimant

Tilted:

 

DISENGAGEMENT FROM SERVICE

In line with the ongoing reorganization exercise in the company we regret to inform you that your services will no longer be required with effect from 8th day of May, 2023. In accordance with our condition of employment you are entitled to one month salary in lieu of notice, however sequel to management discretion and in recognition of your past service to the organization you would be paid 3 months gross salary as severance pay, prorated leave allowance, 13th month and number of days worked in May. The total amount is N3, 471,795.23 (Three Million, Six Hundred and Seventy One Thousand, Seven Hundred and Ninety Five Naira, Twenty Three Kobo) and would be credited to your account subject to your signing of a Discharge and Released Form.

Please return immediately to the human resources administration department all companies property in your possession, custody or control including without limitation your staff identity card and a complete hand over notes to your superior.

Finally, on behalf of management and staff we wish to seize this opportunity to thank you for your services to the company and wish you the very best in your future endeavors.

Signed

         Ope Babalola

         Managing Director

Original collected by the 1st Claimant dated the 11th day of May, 2023.

26.  It is apparent  based on Exhibit B1 that it was dated the 4th day of May, 2023 and it was required to like effect on the 8th day of May, 2023 which is a period of 4 days as deposed to by the Claimant. Whereas, the Claimants spent over the period of 5 years each in the service of the Defendant.  The question worthy of being asked at this junction is "does that invalidate the termination? The answer is No as per the Exhibit A1. For A1 provides for one month salary in lieu of notice. Unless the said salary has not been paid. The reason being that when an employee's contract of service is terminated, the employer must conform to stipulated procedure.

27.    The relationship between the Claimants and the Defendant is that of a pure master/servant and no more. in a contract of employment which is of the ordinary nature or other than the one with statutory flavour when the term provide for length of notice being given before termination or salary in lieu thereof, the only remedy an employee who has his appointment wrongly terminated can get in that period is salary in lieu of notice and any other legitimate entitlements to which he may be entitled at the time the employment was put to an end. This is because in law an employer has the right to terminate the employment of his employee for good reason or bad or for no reason at all. See OSIYEM VS SOCIETE GENERAL BANK LIMITED (2001)11 NWLR (Pt. 725) Per Aderani JCA. See also MOBILE OIL NIG LTD & ANOR VS ASSAN (2002) LPELR - 5861. (CA).

28.    In the instant case, it was clearly shown in paragraph 19 of the Counter Affidavit which is to the effect:

“That in furtherance to the above referred paragraphs, the option available to the employer in the employment contract with respect to 'termination' are two-fold. They could either terminate this employment contract by giving one (1) month prior notice in writing” or “the employer may provide for payment in lieu of the notice for the entire period or part thereof.” The Defendant in line with the terms and conditions of clause 3.8 of the contract of employment between the Defendant and the Claimants decided to exercise the 2nd option and paid the Claimants their salaries in lieu of notice" - See paragraph 20(a-d).

29.    This could further be seen from Exhibit W1 - W29 that the Claimants were paid their salaries of 3 months in lieu of notice as contemplated by Article 3.8 of the contract of employment. It suffice saying that the Claimants have never denied that they are paid as in above. Their only contentions however, was that the notice was inadequate. If that is settled, then the law is that where an employee accepts salary in lieu of notice of termination of his employment, he may not be heard to complain later that his contract of employment was not validly and properly determined, because in such a case his conduct could render the termination mutual. However, whether or not such receipt of salary constitute waiver depends on the facts of each case. See ILOABACHIE VS PHILIPS (2000)14 NWLR (Pt. 787) 264; ODIASE VS AUCHI POLYTECHNIC (1998)4 NWLR (Pt. 546) 477 CA.

30.    Similarly, an employee who has accepted his final entitlement such as gratuity and pension or salary in lieu of notice has no right to protest that he is unlawfully removed from office. The general rule is that the employee is deemed to have waived his right to protest or appeal against the termination of his employment if he has not exercised that right within a reasonable period of time after termination. See Article 8(2) of termination of employment at the initiative of the employer convention No. 158 of 1982 (International Labour Organization): MILITARY ADMINISTRATION OF BENUE STATE VS WEGEDE (2001)7 NWLR (Pt. 741) 194 SC; ANTE VS UNIVERSITY OF CALABAR, (2002)17 WRN 73.

31.  The Claimants have not alleged that the payment was not made timeously, because if an employer elects to terminate an employee with salary in lieu of notice, the law requires that the payment must be made promptly. Such payment cannot be deferred until sometime later. If it is unduly delayed, the Court may hold that the termination is of no effect and therefore, null and void. See OLUYEDE VS CBN (1977) 4 C. HCJ 685; CHUKWUMAH VS SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA (1993) 4 NWLR (Pt. 269)512 SC.

32.    I seems to agree with the position as rightly adopted by the Defendant that employment contracts are personal to each employee that was why each employee signed his individual contract agreement because the nature, level and remuneration of the Claimants varies. Therefore, they don't have a collective right to sue for breach of contract of their employment jointly and severally. That was the reason why I decided to and made reference to the 1st Claimant alone and thereby neglecting the other Claimants. This suit ought to be consolidated in accordance with Order 62 Rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. I respectfully acknowledged the judicial authorities cited by the Defendant to the effect of BEMIL VS EMERIBE (Supra); BOSSA VS JULIUS BERGER PLC (Supra); C.C.B (NIG) PLC VS ROSE (Supra).

33.    Consequently therefore, I answer the lone question for determination placed by the Claimants before this Court in the negative.

34.    The contract of employment of the Claimants were terminated by the Defendant in compliance with the provision of the contract of employment executed by both parties and other statutory provision.

35.    Consequently, the reliefs sought are hereby dismissed.

Judgment is entered accordingly.

 

 

 

------------------------------------

Hon. Justice M. A. Hamza

Judge