WD
IN THE NATIONAL INDUSTRIAL COURT OF
NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP: HON JUSTICE M. N.
ESOWE
DATE: JULY 16, 2024 SUIT NO.:
NICN/LA/182/2019
BETWEEN
MR OLAWALE NATHANIEL ADEWUNMI CLAIMANT
AND
ATLAS COPCO NIGERIA LIMITED DEFENDANT
REPRESENTATION
C. I. Nwaigwe, Esq for the Claimant
Patrick Etim, Esq for the Defendant
JUDGMENT
1.
INTRODUCTION
2. The Defendant engaged the services of the
Claimant as an Order processor sometimes on 12.01.2017. While in the employment
of the Defendant, the Claimant temporarily served as acting Logistics Manager,
when the substantive Logistics Manager was deployed temporarily to EPIROC
Sweden. The Claimant alleges that sometimes on 06.02.2019 following his
resumption to duty from a 17days leave, the Defendant’s Country Manager in the
presence of some other officials of the Defendant coerced him to resign his
appointment with the Defendant, or risk outright termination of his employment.
The Defendant vehemently denies this allegation insisting rather that its
officials invited the Claimant and notified him of the intention to terminate
his appointment but the Defendant opted for resignation instead urging the
Court to dismiss the Claimant’s claims.
3. The Claimant seeks against the Defendant
the following as per his General Form of Complaint and Statement of Facts:
a)
AN ORDER
to the Defendant to pay compensation to the Claimant in the sum of One Hundred
and Two Million, Four Hundred and Thirty-seven Thousand, Two Hundred and Eighty
Naira (N102,437,280.00) being the sum
of the Claimant’s annual gross salary as at 1st January, 2018 and
the Claimant’s annual variable compensation for 2018 (which is 16% of the
Claimant’s annual gross salary as at 1st January 2018) multiplied
over a period of 22years, pursuant to the Defendant’s letter to the Claimant
dated 06.06.2018 and the Defendant’s standard operating procedure for resources
management
PARTICULARS
a. Claimant annual gross salary as at
01.01.2018:
N334,500 × 12 = N4,014,000.00
b. Claimant’s annual variable compensation
for 2018:
0.16 × N4,014,000.00 = N642,240.00
c. The sum of the Claimant’s annual gross
salary and the Claimant’s annual variable compensation multiplied over a period
of 22years:
N4,014,000.00 + N642,240 × 22 = N102,437,280.00
b)
The sum of
N100,000,000.00 (One Hundred Million
Naira) being exemplary damages for unlawful termination of Claimant’s
employment by the Defendant.
c)
Cost of
this action in the sum of N1,000,000.00
(One Million Naira).
4. TRIAL
5. At trial, the Claimant testified as CW1,
he adopted his written deposition as his evidence in chief, through him
thirteen (13) documents were tendered in evidence, admitted and marked as
exhibits C1 to C13 respectively. CW1 was then cross-examined after which the
Claimant closed his case. On behalf of the Defendant, one Mr Emmanuel Elehinle,
a supply chain manager at the Defendant, testified as DW1, he adopted his
written deposition as his evidence before the Court, through him three (3)
documents were tendered in evidence admitted and marked as exhibits D1 to D3
respectively. DW1 was cross-examined, the Defendant closed its defence
thereafter. The matter was then adjourned to enable parties file and exchange
their respective final written addresses to be adopted at the adjourned date.
6. CLAIMANT’S FINAL WRITTEN ADDRESS
7. The Claimant in his final written address
formulated these issues for determination, to wit:
a)
Whether the Claimant’s contract of
employment incorporated the Defendant’s standard operating procedure for
resources management.
b)
Whether the Claimant’s employment was
wrong fully terminated by the Defendant when the Defendant coerced the Claimant
to write a letter of resignation from the employment of the Defendant dated
06.02.2019.
c)
Whether the Claimant is entitled to
compensation for wrongful termination of his employment by the Defendant in
terms of the heads of claims in the General Form of Complaint.
8. Arguing issue one, Learned Claimant’s
Counsel stated that CW1’s contract of employment fully incorporated the
Defendant’s Standard Operating Procedure for Resources Management (exhibit
C12), which is a form of collective agreement that regulates the relationship
between the Defendant and its employees. That a number of the provisions of the
Claimant’s offer of employment letter and exhibit C12 are in tandem meaning the
latter is incorporated into the contract of service. That a collective
agreement standing alone is not binding on an individual employee and employer
unless such a collective agreement is incorporated into the contract of service
– UBN Plc v Soares (2012) 11 NWLR (Pt.
1312) 550.
9. On issue two, Counsel submitted that the
Claimant contract of employment was wrongfully terminated as he was coerced to
write his resignation letter. That in an action for wrongful dismissal, the
burden is on the Claimant to prove the terms and conditions of his employment
and in what manner they were breached by the employer – UBA Plc v Oranubi (2014) 2 NWLR (Pt. 1390) 1. The Defendant did not
adduce evidence to support its pleadings on allegation of incompetence of CW1
which gave rise to its intention to terminate CW1’s employment. That the facts
before the Court point to a constructive dismissal of the Claimant. That the
Defendant did not follow its policy for discontinuation of employment set out
at pages 25 and 26 of exhibit C12. Counsel further stated that forceful
resignation amounts to unlawful wrongful dismissal.
10.
The
Claimant’s Counsel arguing issue three contended that the Claimant is entitled
to compensation for wrongful dismissal under the head claimed. That the
Claimant’s claim for the sum of N102,437,280.00
is in the class of special damages which by law is required to be specifically
pleaded and strictly proven – Agbu v CSC
of Nasarawa State (2011) 2 NLLR (Pt. 71) 239. That this Court can enforce
international labour best practices beyond the precincts of common law. That
the management of the Defendant’s conduct relative to the termination of CW1’s
employment smacks discrimination, cruelty, harassment and reckless disregard to
the terms and condition of employment. That this Court by virtue of Section 254C(1)(f) and (h) of the 1999
Nigerian Constitution (as amended) and Section
19 of the National Industrial Court Act can award exemplary damages against
the Defendant. That the Claimant is entitled to award of costs to mitigate the
expenses incurred in the conduct of litigation in this suit – Maya v Oshutokun (2001) 11 NWLR (Pt. 723) 62.
11.
DEFENDANT’S FINAL WRITTEN ADDRESS
12.
The
Defence in its final written address formulated a sole issue for determination,
viz: whether the Claimant is entitled to any
of the reliefs claimed. Arguing the said issue, Learned Defence Counsel
submitted that prove of the Claimant’s claims rests squarely on the Claimant – Section 133(1) and (2) of the Evidence Act.
That the Claimant has not led any evidence on how he arrived at the sum
constituting his relief one, particularly the 22years he used in calculating
the said sum. That CW1 did not lead evidence to show his annual gross salary as
an order processor or provide any evidence of his entitlement to variable
compensation as an order processor. That variable compensation applies only to
management staff of the Defendant, which CW1 was not one, that CW1 was only
paid variable compensation in his capacity as acting logistics manager. The
Claimant has not led evidence with respect to his claims to warrant the
shifting of the burden of proof on the Defendant.
13.
That the
issue of unlawful termination of employment does not arise, as it is in
evidence that the Claimant voluntarily resigned his employment. That
resignation becomes effective when the notice is received – Yusuf v Governor of Edo State (2001) 12 NWLR
(Pt. 731). That the Claimant did not adduce evidence to support his
allegation of resignation under duress, or workplace discrimination and
harassment. Counsel submitted further that a collective agreement is only
binding on parties where it is expressly or by necessary implication
incorporated or embedded in the contract of service – Olusanya v UBA Plc (2017) LPELR-42348(CA), Gbedu v Itie (2020) 3 NWLR
(Pt. 1710) 104 at 129. That the fact that certain provisions of the
standard operating procedure which is a form of collective agreement are
similar to the conditions in the employment contract does not mean the former
was incorporated. That there is no basis for the award of cost. Counsel urged
the Court to resolve the issue formulated in favour of the Defendant and
dismissed the claim of the Claimant.
14.
CLAIMANT’S REPLY ON POINTS OF LAW
15.
Reacting
to the submissions made by the Learned Defence Counsel, the Claimant’s Counsel
contended that the calculation of 22years envisages the years CW1 was willing
to put in, in the Defendant’s service. That a Court has inherent powers to look
at documents in its file whilst writing its judgment or ruling despite the fact
that the document was not tendered and admitted as exhibit at trial – Akintola v The Vice Chancellor of Unilorin
(2004) 11 NWLR (Pt. 885) 616. That contrary to Defence Counsel’ stance, the
Claimant was paid variable compensation when his employment was terminated on
06.02.2019, meaning that its payment is not for members of management only. The
case authorities cited and relied upon by the Defence Counsel are not on all
fours with the facts of the Claimant’s suit. That parties are bound by their
pleadings, Defence Counsel made reference to facts that do not form part of the
records of the Court or pleadings of parties, they should be discountenanced.
That the Defendant’s standard operating procedure (exhibit C12) was
incorporated into the Claimant’s employment contract as evinced by exhibit D3
that shows CW1 was paid transport allowance in line with the provision of
exhibit C12.
16.
RESOLUTION
17.
Having
regards to the facts and circumstances of this suit as reflected in the
processes filed by the parties herein, the evidence adduced and the submissions
of the Learned Counsel on either sides, the Court distils the issue below for
determination, namely:
18.
Has the Claimant discharged the burden of
proof as required by law to entitle him to the reliefs sought.
19.
As rightly
noted by Learned Counsel, the burden of proof lies on the parties seeking
judgment to prove the existence of the facts which he alleges to give rise to
such judgment – Sections 131, 134 of the
Evidence Act (as amended). In civil cases, this burden is discharged on the
balance of probabilities. See Nyanganjii
v Asha (2016) LPELR-43011(CA), Obanla v A. A. Group (Nig.) Ltd (2022)
LPELR-57899(CA). Learned Claimant’s Counsel has argued copiously that
exhibit C12 – the Defendant’s human resource management document, titled
“standard operating procedure for resource management Atlas Copco Nigeria Ltd”
is binding on the Defendant and essentially forms part of the documents the
Court is to construe in determining the rights and obligations of parties in
relation to the Claimant’s contract of employment with the Defendant. Learned
Defence Counsel on his part contends that exhibit C12 is a draft policy, it is
not binding on the parties and was not expressly or indirectly incorporated
into the contract of employment being in the form of a collective agreement.
20.
In Toyinbo v UBN Plc (2022) LPELR-58596(SC),
it was held inter alia “Instructively,
the term ‘Collective Agreement’ denotes a contract between multiple parties,
most especially where one side consists of many people or entities with a
common interest, e.g. where an association or organization acts on behalf of
the members thereof. See Black’s Law Dictionary, 11th edition 2019
at 330. In my considered view, a ‘Collective Agreement’ is an anti-climax of a
‘collective bargaining’. Invariably, ‘a collective bargaining’ denotes series
of negotiations between an employer and the representatives of organized employees,
to determine the conditions of employment, e.g. wages, hours, fringe benefits,
discipline et al…” See also Globerstar
Engr. Co. Ltd v Omatseye & Ors (2008) LPELR-4203(CA), Section 47(1) of the
Trade Disputes Act, Section 54(1) of the National Industrial Court Act 2006.
The introductory page of exhibit C12 clearly states that the document is a
resources management document; impliedly setting out procedure for resources
management. The last outlined purpose of the document is stated as “have one
document compiling all related human resource topics.”
21.
Exhibit C12
when read in totality and interpreted along that line gives the impression that
it is an employees’ handbook or a policy document setting out certain
conditions of service for employees of the Defendant. Though there is no
specific reference to exhibit C12 in the Claimant’s letter of appointment
(contract of service), one can gather from the contents of exhibit C12 that the
policies and procedures contained therein were meant to guide the Claimant’s
conduct at work like the work hours, fringe benefits and disciplinary or
grievance procedures. As rightly pointed out by the Learned Claimant’s Counsel
the fact that the disclaimer clause unequivocally stated that the procedure has
been approved by the General Manager (earlier noted within the same document as
the “Approver”) to me clearly overrides the portion stating the status of the
documents as a draft. As an employees’ handbook, it cannot be a substitute for
the letter of appointment – Luck Guard
Ltd v Adariku & Ors (2022) LPELR-59331(CA).
22.
In the
instant case, there is no evidence that exhibit C12 was birthed from
negotiations between the employer and employee’s union, a cardinal
characteristic of collective agreement. An employees’ handbook usually take the
form of a “quasi-contract” that goes into specific details as to workplace
policies and expectations, employees’ rights and benefits, company values,
guidelines for use of company properties, discipline and or grievance
management procedures, and is deemed binding on the parties. An employees’
handbook sets forth the terms and conditions of employment between one employer
and many employees, employees use it to understand their rights and
responsibilities, as well as learn of the resources available to them;
employers on the other hand use the handbook to enforce policies and company
values, expectations. The employee’s handbook bears similarities with a
collective agreement but in its truest sense is not a collective bargaining
agreement, where not a product of collective bargaining. Where the contents of
an employee’s handbook serves as an informational guide, it is generally not
legally binding. But where there is no disclaimer to that effect, certain
policies in the handbook could be considered binding if they are implied as
contractual promises.
23.
Furthermore,
the contents of an employee’s handbook are subject to update, change or
modification, usually unilaterally effected by the employer when the need
arises due to shift in company policies or corporate culture or in compliance
with new laws and regulations. A comprehensive review of exhibit C12 shows that
as an employee handbook, it merely provided information intended to be a
resource for all employees to understand the general working environment and
expectation within the Defendant, stating broadly certain of the employees’
rights and obligations. References by the Learned Claimant’s Counsel to its
applicability in relation to the Claimant by the management of the Defendant,
to my mind, was simply as a guide or yardstick to assess how fairly and
consistent the management of the Defendant enforced its provisions. For
instance, exhibit C12 under its provisions on discontinuance of employment
empowers the General Manager to waive-off the length of notice period for an
employee who resigns without giving adequate notice. CW1’s resignation was with
immediate effect, so it is presumed that the General Manager of the Defendant
enforced this provision thus guarantying CW1 was paid.
24.
It is for
these reasons, this Court is inclined to hold the Defendant’s standard
operating procedure document as an employee handbook containing certain
contractual promises that may be binding on either parties. I so hold. Having
resolved this issue, the next issue to my mind that calls for resolution is,
was the Claimant’s appointment terminated unduly or by duress or did the
Claimant resigned voluntarily from his appointment? The Claimant alleges that
on 06.02.2019 upon his resumption from a 17days’ leave, he was called to the
office of the Defendant’s country manager, in the presence of his line manager
(DW1) and some other persons, and was given two options to resign his
employment or face termination of his employment for incompetence. That given
the pressure exacted on him, he had to resign his appointment with the
Defendant. The Defendant on its part maintains that CW1 was invited to the
meeting and informed of the options of facing termination of his appointment or
voluntarily resigning his appointment, and the Claimant chose the latter.
Suggesting that CW1 was not compelled against his will or judgment to put in
his resignation letter (exhibit D1). According to Black’s Law Dictionary,
Deluxe 9th edition at p. 579, duress is “broadly, a threat of harm
made to compel a person to do something against his or her will or judgment;
especially, a wrongful threat made by one person to compel a manifestation of
seeming assent by another person to a transaction without real volition…”
25.
The onus
of proof lies on the Claimant who alleges forceful resignation, resignation
instigated by duress, threats of termination of his employment on grounds of
incompetence to adduce credible and cogent evidence in prove of his assertion.
As the law remains he who asserts must prove. Both parties appear not to be in
dispute that the Claimant was employed by the Defendant that the Claimant worked
for the Defendant as an order processor, then later served as an acting
logistic manager for the Defendant, when his line manager was seconded to
Sweden for a year. Both parties, also appear not to disagree that on
06.02.2019, there was a meeting that had in attendance, CW1, DW1, the
Defendant’s human resource manager and country manager, and it was following
the interactions or discussions in that meeting that CW1 proceeded to write
exhibit D1 (his letter of resignation). It is settled law that facts admitted
need no further proof – Section 123 of
the Evidence Act (as amended).
26.
The Defendant’s
stance however is that at the said meeting of 06.02.2019, it presented CW1 with
its intention of terminating his employment but the Claimant elected to
voluntarily resign, fearing that termination is given a stigmatized interpretation
by members of the society. This in itself is an outlandish statement subtly
admitting that the Defendant exacted its power through its officials present at
the meeting of 06.02.2019 to influence the Claimant’s free will or objective
judgment. Having that large number of management staff in the meeting of
06.02.2019 hints a show of dominance or power capable of depriving any
reasonable person of free will, since CW1 was under the domination of these
people by virtue of the various management positions they occupy in the
Defendant’s company. While one may argue that the presentation of the options
to resign or face termination gave the Claimant a choice and decision of what
option to take ultimately lied with the Claimant, it is important to note that
presentation of options is not necessarily proof of the absence of coercion to
exercise one’s free will to produce a particular result.
27.
In other
words, the facts of the instant case, shows that the goal or objective of the
Defendant was to discontinue the Claimant’s employment. It presented this
decision or intention to the Claimant availing him the option of electing to
exercise his right to bring the employment to an end by resigning or allowing
the Defendant, as employer, to exercise its right to terminate his employment.
To hold, as the Learned Defence Counsel appears to be impliedly arguing that,
the Claimant had a right to wait to see if the Defendant would carry out its
threat of terminating his employment on grounds of incompetence before alleging
forceful resignation seems to me to be downplaying the fact that requiring the
Claimant to reach a decision on the discontinuation of his employment on
06.02.2019, the Defendant invariably compelled or coerced the Claimant into
agreeing to terminate his employment on 06.02.2019.
28.
Ordinarily,
the Claimant might not have resigned his appointment without the communication
he had with members of the management of the Defendant, conversely, the
Defendant could have exercised its right to terminate CW1’s appointment on
06.02.2019 without giving him prior knowledge of such intention. The conduct of
an employer, in this case, the Defendant, insisting of getting a decision to
the options placed before the Claimant on the modality of terminating his
employment, clearly indicates a situation of constructive discharge. The
Claimant’s decision had to be made that day or the Defendant would wield its
powers to carry out its intention of bringing the employment to an end on
06.02.2019.
29.
It follows
that the onus is on the Claimant to prove that the communication of the
intention to terminate his employment, coerced him or compelled him to resign,
having been unfairly persuaded that it was the best option for him at the
moment. As it stands there is no direct evidence before the Court that CW1 was
at the said meeting of 06.02.2019 required to write and type his resignation
letter there and then at the meeting. This means CW1 had some time though
limited to reflect on the interactions or discussions that emanated from the
meeting before putting pen to paper by typing and submitting his letter of
resignation. While the full picture of the interactions that took place on
06.02.2019 has been withheld from the Court, exhibits C8 and C9 (emails from the
Claimant to the Defendant’s Senior Vice President and General Counsel) which
the Court has taken judicial notice of its contents, gives snippets of the
conversation as regards the alleged CW1 incompetence, in that mentioned was
made of an issue with customs that occurred while CW1 was acting logistic
manager which according to CW1 was later resolved. The Claimant’s Counsel has
argued that it was the duty of the Defendant to adduce evidence of this alleged
incompetence, since the Claimant had adduced evidence that he was never issued
a query or warning prior to submission of his letter of resignation.
30.
The law
however, is that the Claimant must succeed on the strength of his case and not
the weakness of the defence. While it is the law that in civil cases the burden
of proof oscillates, for the burden to shift to the Defendant, the Claimant
must first discharge his burden of proof. The Claimant has to the satisfaction
of the Court shown that in the course of his employment he was made acting
logistic manager for a year, a managerial role, his salary was increased and he
was never issued a query or warning, all evidence that lends credence to good
behavior or rewards of a competent employee. This ordinarily shifts the burden
of proof on the Defendant to prove its allegation of incompetence against the
Defendant. The Claimant has alleged that he was constructively dismissed and
his employment wrongfully terminated by the Defendant. That he was forced to
resign and the guidelines or policy for discontinuation of employment set out
in exhibit C12 was not complied with by the Defendant.
31.
Constructive
dismissal refers to a situation
where an employee quits or ceases to work because continued employment is
rendered impossible, unreasonable or unlikely when there is a demotion in rank
or a diminution of pay and other benefits. It exists if an act of clear
discrimination, insensibility, or disdain by an employer becomes so unbearable
on the part of the employee that it could foreclose any choice by him except to
forego his continued employment. That is, constructive dismissal is more of an
involuntary resignation due to harsh, hostile and unfavourable conditions set
by the employer. See Western Excavating v Sharp (1978) 1 All ER 713. Forced resignation, which can be subsumed
as constructive discharge, on its part is when an employee quits his or her
position as a result of pressure from managers, supervisors or members of a
board. Unlike traditional resignation, where an employee volunteers to give up
his or her employment, forced resignation is involuntary. In the instant case,
though the evidence before the Court, particularly, the contents of exhibits C5
and D1 respectively – the letter of resignation written by CW1, do not state
the circumstances giving rise to the resignation, inference from surrounding
circumstances building up to the Claimant’s resignation strongly suggests or
point to the fact that it was involuntary.
32.
Section 167
of the Evidence Act (as amended) permits the Court to presume the existence of any
fact which it deems likely to have happened having regards to the common course
of natural events, human conduct and public and private business. Having a
number of one’s superiors, supervisors, and managers in a private office
informing an employee of the intention to terminate the employee’s appointment
with an option presented to the employee on how he or she wants it carried out,
in the natural course of human conduct leaves such employee with slim
alternatives. In the instant case, the Claimant was clearly left to consider
the consequences of resigning versus termination in relation to the impact on
his career goals and current lifestyle, opting for the former, his decision as
required by his managers had to be made on 06.02.2019 and not subsequently.
33.
The contents of exhibits C5 and D1 reveal that the Claimant’s
resignation was to be effective from 28.02.2019, his evidence in chief points
to the fact that he was asked to handover the company’s properties in his custody
on 06.02.2019, and required to leave the premises of the company on the said
date. This piece of evidence was corroborated at paragraphs 7 and 9(vi) of the
Defendant’s witness statement on oath, where DW1 alluded that the Defendant
accepted CW1’s resignation and asked him to surrender company properties, it
also exercised its right to pay him rather than require him to work till the
effective date of the resignation. On the basis of this, I find and hold that
the resignation of the Claimant was involuntary, as a result of pressure from
managers, supervisors amounting to a case of constructive discharge. See CBN
v Aribo (2018) 4 NWLR (Pt. 1608) 130 at 172, C – E.
34.
Now, the Claimant seeks the sum of One Hundred and Two Million, Four Hundred and Thirty-seven
Thousand, Two Hundred and Eighty Naira (N102,437,280.00)
being the sum of the Claimant’s annual gross salary as at 1st
January, 2018 and the Claimant’s annual variable compensation for 2018 (which
is 16% of the Claimant’s annual gross salary as at 1st January 2018)
multiplied over a period of 22years, pursuant to the Defendant’s letter to the
Claimant dated 06.06.2018 and the Defendant’s standard operating procedure for
resources management as compensation. Learned Claimant’s Counsel contended in
his written address that the Claimant is entitled to compensation for wrongful
termination of his contract of employment by the Defendant in terms of the
heads of claims contained in his Statement of Facts. The Learned Defence
Counsel on his part submits that the Claimant has not placed before the Court
the yardstick or basis for basing his claim of compensation for 22years. The
Claimant argues that 22years as stated in the particulars of claim represents
the numbers of years he would have put into the service of the Defendant but
for the unlawful termination of his employment.
35.
This in
itself is clearly speculative, and Courts do not deal with or dwell on claims
based on speculations. See Ikenta Best
(Nig.) Ltd v A.G., Rivers State (2008) LPELR-1476(SC) where it was held
that “speculation has no place in our Courts…” While one prays for long life
and success of business operations, life happens, in other words, there is no
guarantee that the Claimant might live for 22years post his forced resignation
or that the business of the Defendant would continue successfully in 22years
time. Claimant’s Counsel after having argued that the quantum of damages an
employee is entitled to in cases of wrongful termination of employment is what
the employee would have earned had the employment continued turned around to
argue that applying the principles of international best labour practice
permits the Court to award damages in excess of such sum. No doubt, the law, is
that the assessment and award of damages is at the discretion of the Court – Sahara Energy Resources Ltd v Oyebola (2020)
LCN/15462(CA), but the applicability of international best labour practice
is not such that is undertaken arbitrarily or in such a way to stifle business
operations of employers.
36.
CW1 had
unequivocally stated under cross-examination that the payment of variable
compensation is based on performance both of the company and the employee and
the meeting of soft targets. One then wonders since the Claimant has ceased to
be an employee of the Defendant, thus unable to meet or realize any soft
targets. The evidence before the Court points to the fact that the Claimant’s
appointment with the Defendant came to an end on 06.02.2019, prior to this CW1
went on 17days leave, he did not lay before the Court evidence of realization
of any soft targets set by the Defendant prior to the determination of his
employment, it would therefore be inequitable to seek to employ the machinery
of the Court to reap where he has not sown. The calculation of 22years variable
compensation is clearly speculative, and has not found in law, as noted earlier.
See Addo v State (2020) LPELR-65521(SC) where
it was held inter alia “it is trite
that the Court does not rely on conjecture or speculation to reach its decision.”
See also Awolola v Governor of Ekiti
State & Ors (2018) LPELR-46346(SC).
37.
The
provision on “variable compensation” at page 15 of exhibit C12 lends credence
to the Learned Defence Counsel stands that variable compensation is paid to
only members of the management of the Defendant. The Claimant’s argument that
it was computed in the final emoluments paid him by the Defendant is not
supported by evidence, and goes to no issue. This Court in its considered view
has found from the evidence adduced before it that the determination of the
Claimant’s employment with the Defendant was wrongful given the fact that it
was initiated by forced resignation, the Claimant was indirectly or unfairly
coerced or persuaded to put in his resignation. In Reliance Telecom Ltd v Adegboyega (2017) 8 NWLR (Pt. 1567) 319 at pp.
332-333, F-A, it was held “In an action for termination of appointment,
where the Court finds that the termination is wrongful, the proper measure of
damages is what the employee would have earned within the period of notice
required to properly bring the employment to an end and together with other
benefits by way of overtime, rent, subsidy, etc, in accordance with the terms
of the contract of employment…” See also Dangote
Cement Plc v Ager (2024) 10 NWLR (Pt. 1945) 1, UTC (Nig.) Plc v Peters (2022)
18 NWLR (Pt. 1862) 297 at 319, E-F, Umera v NRC (2022) 10 NWLR (Pt. 1838) 349.
38.
A claim
for compensation by the Claimant is an acknowledgement of the determination of
his employment with the Defendant – Ezekwere
v Golden Guinea Brew. Ltd (2000) 8 NWLR (Pt. 670) 648 at pp. 656-657, G-A.
The Claimant who claims compensation, in his final written address contends
that the compensation is somewhat in the class of special damages. This Court
has earlier shown that some of the rationale, yardstick that forms the basis of
the calculation for this leg of the Claimant’s claim is speculative, arising
from conjectures and thus have no foundation in law. In a case for wrongful
termination of employment without statutory flavour, the remedy open to the
Claimant is a claim for damages not reinstatement nor compensation to cover
remuneration for years had the Claimant remained in the employment of the
Defendant. For its wrongful act, an employer who terminates the contract with
its employee in a manner not envisaged by the contract will be liable to
damages for the breach of contract – Obanye
v UBN Plc (2018) 17 NWLR (Pt. 1648) 375.
39.
It has
been stated above that the Claimant has adduced satisfactory evidence of good
behavior and competence in relation to the discharge of his duties while in the
Defendant’s employment, having produced evidence to show that he was made
acting logistic manager, given a pay raise, paid variable compensation for
realization of soft target, all these would normally not be possible without
certain degree of competence demonstrated by CW1. It therefore behooved on the
Defendant to have produced evidence to the contrary, which its Counsel
attempted to do during cross-examination on issues not pleaded. With the
evidence before me, this Court is inclined to find and hold that the Claimant
should be compensated for the wrongful termination of his employment by forced
resignation. Exhibit C1, the letter of appointment states that the length of
notice for termination of appointment is one month.
40.
Exhibit C4
– letter of Notice of 2018 salary increase dated 06.06.2018 indicates that as at
the time the Claimant’s employment was determined on 06.02.2019, he was paid
the sum of N334,500.00 (Three Hundred
and Thirty-four Thousand, Five Hundred Naira) as monthly salary. It is the law
that the Court like parties before it is bound by the claims of the parties
before it. It is the considered view of this Court that while the Claimant’s
claim simply for compensation by the Claimant might have a basis in law, the
claim for compensation in the manner couched or sought by the Claimant is
hinged on conjectures, a supposition or assumption that the Claimant would have
spent 22years in the Defendant’s employment had his employment not been
determined. Making the foundation of the claim faulty, shaky such that it
cannot be built upon. In the light of this, the said claim is refused and
hereby dismissed. I so hold.
41.
The
Claimant’s relief two is for the sum of N100million
as exemplary damages for unlawful termination of employment. In Nursing & Midwifery Council of Nigeria v
Ogu & Anor (2019) LPELR-53899(SC), the Apex Court stated thus “This
Court has laid down the guiding principles guiding the award of exemplary
damages in the case of Central Bank of
Nigeria v Okojie (2015) 14 NWLR (Pt. 1479) 231, (2015) LPELR-24730(SC) thus:
‘Exemplary damages are awarded with the object of punishing the Defendant for
his conduct in inflicting injury on the Plaintiff. They can be made in addition
to normal compensatory damages and should be made only: (a) in a case of
oppressive, arbitrary or unconstitutional acts by government servants; (b)
where the Defendant’s conduct had been calculated by him to make a profit for
himself, which might well exceed the compensation payable to the Plaintiff; and
(c) where expressly authorized by statute’… For exemplary damages to be
awarded, it need not be specifically claimed, but facts to justify it must be
pleaded and proved. Thus once facts in the pleadings support the award of
exemplary damages the Court should award it since the adverse party is in no
way taken by surprise. Furthermore, since the Rules of Court nowhere say that
exemplary damages must be specifically claimed, it can be granted if facts are
pleaded and evidence led to justify it.”
42.
See also
the decision of the Supreme Court in Aondoakaa
v Obot & Anor (2021) LPELR-56605(SC). The Claimant has led evidence to
show that his resignation was involuntary, forced by the Defendant, after its
officials disclosed an intention to terminate his employment on grounds of
incompetence, the Claimant opted for resignation. At the risk of repetition,
the Defendant does not deny presenting to the Claimant this intention and
reaching a resolution with the Claimant to tender his letter of resignation.
The Defendant equally does not deny insisting that the Claimant hand over the
company’s properties in his possession on 06.02.2019 and vacate the company’s
premises on the said date notwithstanding the fact that the letter of
resignation (exhibits C5 and D1 respectively) signified that the resignation
should be effective on 28.02.2019. While the Defendant was well within its
right to have agreed to pay the Claimant off rather than wait till CW1 expended
the length of the notice of resignation, it is clear from the evidence before
the Court that the said decision was in keeping with the intention of the
Defendant to determine the Claimant’s employment on 06.02.2019.
43.
I have
earlier found that the Claimant’s resignation was involuntary and amounted to
forced resignation, thus wrongful in that it was not in tandem with the contract
of employment. The Counsel for the Claimant has used the words “unlawful
termination” but it is important to highlight that in the instant case, the
mutual agreement, exhibit C1, under consideration is not imposed by statutory
law, so a breach of its terms would not necessarily translate to an unlawful
act. The violation of the terms and conditions set out exhibits C1 and C12
respectively by the Defendant (employer) may result in a wrongful act or unfair
conduct for which the employer will be held liable in damages. But a wrongful
act does not automatically translate to an illegal or unlawful or
unconstitutional act – Ezekwere v Golden
Guinea Brew. Ltd (supra), Aliu Bello & Ors v A. G., Oyo (1986) 5 NWLR (Pt.
45) 828 at 853. Though CW1 alluded that the conduct of DW1 and other
officials of the Defendant were malicious, the said allusion is not supported
by credible evidence.
44.
The
conduct of officials of the Defendant in obtaining a forced resignation from
the Claimant can be interpreted as oppressive, unreasonably severe. The
evidence of CW1 that after he was instructed to handover the company’s
properties and leave the Defendant’s premises, he was detained without
justification on the instruction of DW1, until DW1 instructed the security to
permit CW1 to leave was never controverted by the Defendant. It is therefore
such evidence that the Court can act upon in further finding that actions of
the Defendant as unreasonably severe or oppressive. Though the law is that the
quantum of damages the Claimant as employee is entitled to for the wrongful
determination of his employment is the amount he ought to be paid for the
notice period, which in this case, is a month’s salary, the law permits the
Court to award exemplary damages in addition to normal compensatory damages. It
is in the light of this that the Court assess and awards the sum of One Million
Naira (N1,000,000.00) as exemplary
damages for the wrongful termination of the Claimant’s employment by the
Defendant. I so find and I so hold.
45.
The last
claim is for cost of action put at a Million Naira. It is settled law that
while it is true that a successful party should not be denied costs unless for
good reasons, a defeated party ought not be damnified in costs for no cause or
no flimsy, capricious and unfounded grounds. Costs, are not awarded as punitive
measures – UBN Ltd & Anor v Nwaokolo
(1995) LPELR-3385(SC), Egypt Air Ltd v Ibrahim & Anor (2021)
LPELR-55882(CA). The essence of costs is to compensate the successful party
of the loss incurred in the litigation. Costs cannot cure all the financial
loss sustained in the litigation. The costs awarded are meant to have some
cushioning or palliative effect on the financial burdens of the party in
victory – Egypt Air Ltd v Ibrahim &
Anor (supra). See also Anazodo v
Pazmeck Intertrade (Nig.) Ltd & Anor (2023) LPELR-59879(SC). On these
authorities, I set cost in the sum of Three Hundred Thousand Naira (N300,000.00) to be paid by the Defendant.
I so hold.
46.
In
conclusion, the issue for determination is resolved partly in favour of the
Claimant, such that except the claims under-listed all other claims of the
Claimant fail and are hereby dismissed. The orders of the Court are as follows:
a) The sum of One Million Naira (N1,000,000.00) is awarded as exemplary
damages for the wrongful termination of the Claimant’s employment by the
Defendant.
b) Cost of litigation in the sum of Three
Hundred Thousand Naira (N300,000.00) to
be paid by the Defendant to the Claimant.
47.
Judgment
is accordingly entered.
Hon. Justice M. N. Esowe, FCIArb
Presiding Judge