IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

DATE: TUESDAY OCTOBER 15, 2024                  SUIT NO: NICN/EN/39/2019

BETWEEN:

ANN CHIAMAKA NWANGUMA …………………………………CLAIMANT

AND

1. ARTEE INDUSTRIES LIMITED

2. SPAR ENUGU MALL

3. MR. FRANCIS NAIDO                                                                  DEFENDANTS

4. MR. JULIUS ODOMERHO

APPEARANCES:

1.                 LEARNED O. O. UDU ESQ – FOR THE CLAIMANT.

2.                 LEARNED E. O. DANIA ESQ – FOR THE DEFENDANTS.

JUDGMENT

INTRODUCTION

COMPLAINT commenced this suit July 12, 2019. The Statement of Facts [SF] filed alongside the Complaint sets out the following reliefs at para 32:

a.     A DECLARATION that the claimant’s employment was wrongly and unlawfully terminated.

b.     A DECLARATION that the defendant owed the claimant a duty of care with regard to injuries suffered by the plaintiff [sic] in the course of her employment with the defendants.

c.      A DECLARATION that the defendants have breached this duty of care owed the claimant.

d.     AN ORDER awarding the sum of Five Million Naira (N5, 000, 000. 00) against the defendants jointly and severally for the injuries suffered by the plaintiff [sic] on the footing of the accident and denial of adequate medical attention.

e.     An ORDER of this Honourable Court awarding the sum of Ten Million Naira Only (N10, 000, 000. 00) against the defendants as general damages for the breach of the duty of care owed the claimant and wrongful termination of the claimant’s employment.

The defendants reacted via a Statement of Defence [SD] filed February 4, 2020. The claimant in response filed a Reply to the Statement of Defence [RSD] March 19, 2020. Therefore, issues were joined on the RSD. I shall now proceed to summary of the pleadings.

SUMMARY OF PLEADINGS

A. STATEMENT OF FACTS

The claimant pleaded that the 1^st defendant employed her as a research and development personnel of the 2^nd defendant August 16, 2017. She pleaded the status and roles of the 1^st-4^th defendants. The claimant pleaded that, as a result of the level of excellence exhibited in handling her duties, she was made a supervisor in less than 6 months after she was employed. The claimant pleaded too that, sometime in February of 2018 while in the cause of her duties, she was hit and pushed down by a heavily loaded pallet jack in the office which led to her being unconscious and sustaining serious injuries which continues to cause excruciating pain as a result.

The claimant pleaded that it was the 4^th defendant who took the claimant, while being unconscious, for medical attention at ESUT Teaching Hospital, Park Lane Enugu. She pleaded too that, the doctor (Dr. Chime) instructed the 4^th defendant to take the Claimant for X-ray and bring the results back to the hospital but instead, the 4^th defendant informed the claimant that the management of the 1^st and 2^nd defendants had no funds to do so, thus, abandoning her.

The claimant pleaded that she was unable to carry out the X-ray till date but was able to conduct more affordable tests with the help of her family and friends. However, the doctor still insisted that she did the X-ray to decipher what is wrong with her internally, as she still suffers from immense and sharp pain in her chest especially during cold weather. She stated that, she could no longer do heavy work or physical exercise and was compelled to resume work with injuries and without any form of health care.

The claimant mentioned that she complained to her departmental manager and the 3^rd defendant but they both responded that the company couldn’t treat any staff. Also, the claimant pleaded that Mr. Robert who carried out illegal deals tried to involve her in it and upon her refusal he began victimizing, framing and even discriminating against her. She added that Mr. Robert sent a report that falsely accused her of eating fruits meant for sale, absence from work and refusal to do her job, to which she responded to the said query and reported Mr. Robert’s activities, but no action was taken.

The claimant pleaded that the 3^rd defendant became vindictive by keeping the claimant at work till 8pm daily despite the fact that her contract of service stipulated 4pm daily. Furthermore, the claimant stated that she reported this to the 3^rd and 4^th defendants, but the 3^rd defendant told her that he hated her and she had zero percent chance of remaining in the company by not confirming her employment after the probationary period. She added that, he kept to his word by ensuring that she was kept on probation for 18 months despite the maximum period in the company manual stipulated as 9 months. Subsequently, the claimant mentioned that the 3^rd defendant issued her several queries and finally terminated her employment illegally on the 12^th of February 2019. That ends the summary of the SF. I shall now proceed to summarize the SD.

B.  STATEMENT OF DEFENCE

            The defendants admitted para 1 of the SF to the extent that the effective date of the claimant’s employment was August 16, 2017 and counterpleaded that the claimant was posted to the retail outlet of the 1^st defendant, which operates under the brand ‘Spar’. The defendants further counterpleaded that ‘Spar’, which is the 2^nd defendant in this suit, is not a legal entity. The defendants admitted paras 2 and 3 of the SF. The defendants, in response to para 4 of the SF counterpleaded that the 3^rd defendant who was the branch manager at the material time has left the 2^nd defendant and that the 4^th defendant is the human resource manager of the 1^st defendant. The defendants admit para 5 of the SF only to the extent that the condition of employment stipulated a probationary period of 6 months but is extendable at the option of the 1^st defendant. The defendants counterpleaded that the confirmation of the claimant’s employment was subject to the satisfactory completion of the probation period that must be in writing. Furthermore, the defendants, in response to para 6 of the SF counterpleaded that the performance of the claimant was far from satisfactory, which led to the termination of her employment.

The defendants counterpleaded that the claimant had a record of rudeness and insubordination which led to her suspension for 3 days within 2 months of her employment on account of her verbal insult with the category manager. In addition, the defendants counterpleaded that it rotated staff routinely to enrich their knowledge and experience in the various departments and the decision to transfer the claimant to the fruit and vegetable department was deliberate in order to reduce her contact with customers due to her quarrelsome disposition.

The defendants admitted para 7 of the SF only to the extent that while in the course of duty the claimant got involved in an accident in which she was hit and pushed down by a pallet jack but that it was not heavily loaded as alleged and it occurred in April 2018 and not February 2018. Also, the defendants admitted paras 8 and 9 of the SF only to the extent that the claimant was taken to ESUT Teaching Hospital for treatment and counterpleaded that the claimant never became unconscious anytime, as she was the one who informed them that ESUT was the hospital she uses. The defendants in response to paras 10 and 11 of the SF counterpleaded that the defendants took the claimant to the hospital after the accident in line with best industry practice where she was tested and treated for the injuries sustained and it is not true that any test was left undone due to lack of funds neither did anyone in the 1^st or 2^nd defendant tell the claimant that there was no fund to do an x-ray or any other tests. The defendants added that the claimant was given 5 days off work after her treatment at Park lane and upon resumption she never complained of any pain or health issue as a result of the accident.

The defendants, in response to para 13 of the SF counterpleaded that they have no records or documents from the hospital as they were all issued to the claimant being the patient. They also counterpleaded in response to paras 14 and 17 of the SF, that the pain the claimant suffers in her chest is not as a result of the accident. In response to paras 18 and 19 of the SF, the defendants counterpleaded that the claimant’s accusations of illegal activities and victimization by Mr. Robert are untrue and more so, the claimant never made any complaint or report in writing of such as stipulated in the HR Manual. Furthermore, the defendants counterpleaded that the claimant was never denied from attending any meeting she was entitled to or conducted herself properly enough to attend.

In response to paras 20 and 21 of the SF, the defendants counterpleaded that the claimant was never victimized and that, it is not true that the claimant was accused falsely of eating fruits meant for sale by Mr. Lenin as the claimant in fact admitted to testing the palatability of the avocado fruit in the course of the investigation. In addition, the defendants mentioned that the claimant’s employment was terminated as a result of her rudeness and insubordination, which led to her being queried intermittently. The defendants counterpleaded in response to para 22 of the SF that the normal working hours for employees are 9 hours per shift and that the days the claimant worked till 8 pm were because she did not deal with all that is required of her early enough, which was why she never complained to management that her closing by 8pm was as a result of the vindictiveness of the 3^rd defendant or anyone else.

In response to para 23 of the SF, the defendants counterpleaded that neither the 3^rd defendant nor anyone else told the claimant that she had zero percent chance of remaining in the company. In response to paras 24 of the SF, the defendants counterpleaded that the terms of employment allow for extension of the probation period by 3 months at a time where the employee fails to perform satisfactorily, which was the case due to her persistent poor performance which led to her termination. The defendants counterpleaded in response to para 25 of the SF that the employment of the claimant was properly terminated in accordance with the terms of her employment which permits termination without notice or payment in lieu of notice if found guilty of misconduct. The defendants explained that the misconduct, which led to her termination was an incident between the claimant and a new vendor who she insulted and when she was queried over it, she failed to answer the query despite collecting same from HR.

In response to paras 25 and 26 of the SF, the defendants counterpleaded that it is not true that it is only the General Head of HR that can sign a letter of termination and that, there is no rule that requires such. The defendants admitted para 30 of the SF and counterplead that they are under no obligation to compensate the claimant as all the bases of her demand are unfounded and neither are they responsible for any ill-health which prevents the claimant from pursuing a job. The defendants state that the termination was in line with the letter of appointment and that, the claimant is not entitled to any reliefs, instead, this suit should be dismissed in its entirety with an award of N2, 000, 000. 00 as cost of defending suit. Thus ends the SD. I shall now proceed to the summary of the RSD.

C. REPLY TO THE STATEMENT OF DEFENCE

The claimant admits para 1 of the SD to the extent that, the 1st defendant employed her August 16, 2017. The claimant denied para 2 of the SD and replied that she was employed as a research and market development personnel. The claimant denied para 6 of the SD and pleaded that her transfer to the fruits and vegetable section by the former branch manager Mr. Mehul Mistry was as a result of the level of excellence exhibited in carrying out her duties and that, it was meant to be a temporal transfer until the return of the branch manager. The claimant also replied that she was not rude to Mr. Vijay or any of her superiors during the cause of her employment and that, she only corrected Mr. Vijay who verbally abused a staff and that, it is not true that she was suspended for 3 days.

The claimant denied para 7(c) of the SD and stated that her performance at work was satisfactory. The claimant admits para 8 of the SD to the extent that she was hit by a pallet jack but denied that the pallet jack was not heavily loaded. The claimant pleaded that the accident occurred in February 2018 and not 28^th April 2018 as stated in the SD. She further pleaded that it was not true that being unconscious after the incident was an afterthought. The claimant admits para 10 of the SD to the extent that she was taken to the hospital after the accident and the 4^th defendant only paid for pain relief prescribed by the hospital and informed her that he would send a mail to management on her behalf in respect of further treatment but this was not done.

The claimant pleaded that she returned back to work with a swollen and fractured feet after the accident and the 4^th defendant informed her that management had no funds to pay for her x-ray. The claimant denied para 11 of the SD and replied that the defendants have the hospital emergency card in their possession. The claimant replied that before the accident she never complained or experienced such pain. The claimant denied para 14 of the SD and replied that she made a written complaint to the CSO and HR about the victimization she faced from Mr. Robert. Again, the claimant replied that an oral complaint was made to the internal auditors about the illegal deals done by Mr. Robert.

In response to para 15 of the SD, the claimant replied that she was victimized during the course of her employment and didn’t eat the fruits meant for sale and that she never admitted to eating the avocados which were for sale. The claimant denied para 16 of the SD and stated that she was never rude during the course of her employment but rather she exhibited due diligence in carrying out her duties. The claimant admitted para 17 of the SD to the extent that the store runs from 9am to 9pm with normal shifts of 9 hours and pleaded that she resumes work by 7am and closes by 8 or 9pm most time rather than 4pm as per her contract. In response to para 20 of the SD, the claimant replied that she did not insult the vendor of the 1^st defendant and that the said vendor mistook her response on the phone to be rude. The claimant added that she was not given any query.

Finally, the claimant pleaded that she was not given any medical attention and her health deteriorated and that she is entitled to compensation by the defendants for the accident which occurred in the cause of carrying out her duty and for wrongful termination. I now move to summarize the proceedings.

SUMMARY OF PROCEEDINGS

The matter came up before me for the first time October 30, 2019. The matter was adjourned to 11^th of February 2020 for hearing. The case came up next on the 8^th of March 2021 and the matter was adjourned on the agreement of counsel to 23/3/2021 for report of settlement/hearing. It came up as adjourned and the claimant’s counsel informed the court that the matter is for hearing but he has a motion for leave to call additional witnesses which had not been moved while the defendants’ counsel have application for regularization. The defendants’ counsel moved his motion dated 3/02/2020 and filed 4/02/2020 for extension of time to file defence processes and it was granted unopposed. The claimant’s counsel then moved his motion dated and filed on 19/03/2020 for leave to call additional witnesses which was equally granted unopposed. Consequently, the case was adjourned to May 31, 2021, June 15 and 16, 2021 for definite hearing.

It however came up on June 15, 2021 for hearing. The case was then opened with the claimant who testified as CW1. CW1 adopted her Written Statement on Oath [WSO] filed 12/07/2019. The matter was adjourned to allow the new wig to put his house in order. The court awarded a cost of N50,000 against the learned Oji personally for failing to prepare the case for trial. Thereafter, the case was adjourned to the 16^th, 28^th and 29^th of June 2021 for continuation. The matter came up as adjourned, CW1 was reminded of her oath and tendered the following Exhibits CA, CB, CC, CD, CE, CF, CG, CH, CJ, CK, CL, CM, CN, CO, CP respectively.

Under XX, CW1 stated that she did not remember the costs of the ECG and the other tests she did. CW1 also stated that the dates she did each of the tests are on the documents. Furthermore, CW1 mentioned that she did not remember the cost of an x-ray as at the time she did those tests but that she did an x-ray. CW1 clarified that, although she was going to work during the period of April 2018 and December 2018, that the earlier date was not when the accident occurred. CW1 stated that she had once written to the management and the 2^nd defendant and also complained orally about her health challenges but that this letter is not before the court. She also stated that she has been an outpatient of ESUT Hospital for years before the accident occurred. Furthermore, she stated that it was during the time she was the supervisor of the fruit and vegetables (F & V) department that Mr. Lenin, who was the then concept manager tried to do illegal deals with her.

CW1 went ahead to explain the process of buying and paying for items in the F & V department. She confirmed that the price determining system of goods bought at their department is automated. She also confirmed that Mr. Lenin was not involved in the automated process of payment collection. She stated that she never admitted to eating avocados meant for sale and that, the 1^st defendant, up till termination, never confirmed her employment. CW1 explained that she was initially not aware that the HR Manual provided for 9 months probation period nor that her employment was not confirmed at 9 months and she could not exit as she needed the money whilst still expecting her confirmation letter to come.

CW1 mentioned that the query issued to her on 01/02/2019 was later withdrawn orally and not in writing, which was the practice at the time she worked there. She further mentioned that she gave her response to the HR who notified her that the query had been withdrawn. CW1 insisted that the defendants’ complaints about her were not about her attitude or character as it was not specific. She added that it was after her accident that they began complaining and that when she wrote to the National Human Rights Commission she did not remember to state that she was unconscious after the accident.

CW1 clarified that it is not true that she requested to be taken to Parklane Hospital as she merely found herself at the emergency ward. CW1 admitted that she worked from February 2018 when the accident occurred till February 2019 with constant treatment, which she complained about. She denied the fact that she was earlier diagnosed of chest pain by Parklane hospital in 2015. She stated that she has spent so much on treatment and medications, although no particular hospital charged her N5m. The claimant’s counsel re-examined CW1 on the subject of the reply to the said query, which was objected to. The court gave its ruling overruling the claimants counsel’s attempt to re-examine and the case was adjourned to the earlier dates ordered by court for continuation.

Nozie Lucy testified as CW2 and adopted her Written WSO dated 09/03/2020. Under XX, She stated that Dayshal Recruitment Company employed her and transferred her to Spar to work. She insisted that it is incorrect to suggest that all that is stated in her WSO is what the claimant told her, as she was present when everything happened. She stated that she knew why the claimant was made supervisor in the F&V Dept. although; she was not amongst those who took the claimant to the hospital on the day of the accident. Also, she stated that the 4^th defendant said it openly in her presence that there was no fund to send the claimant for an x-ray but she cannot recall the price of the x-ray.

CW2 mentioned that she did not have any medical qualification and also that; she lives close to the claimant but not in the same house. She also mentioned that she was present when the claimant complained to Mr. Lenin about the need for further treatment. She went ahead to state that she was also present when he tried to carry out illegal dealings with the claimant and described how he tripled loses and made illegal sales. She stated that she couldn’t remember the outcome of the query issued to the claimant. She also stated that the 3^rd defendant said it openly that he hated the claimant and that she had zero percent of remaining in the company. CW2 explained how she was aware of the response made by 3^rd defendant when the claimant made the complaint. She stated that she is not a lawyer or psychologist or physiologist. The XX of CW2 came to an end with no re-examination. Fidelis Okafor testified as CW3 and adopted his WSO dated 19/03/2020.

Under XX, he stated that, although he had resigned his employment when the claimant was terminated, he was aware the Manager said the claimant would be sacked as she was always disturbing her all the time with complaints and assumed that could be the reason for the said termination. He also stated that the claimant was a supervisor before he was employed as a contract staff

CW3 mentioned that he was neither amongst those that took the claimant to Parklane Hospital nor was he present when the 3^rd defendant told the claimant that there were no funds to do her x-ray. In addition, he stated that he has no medical qualification neither was he living with the claimant but he knows that the claimant discharged her duties perfectly. CW3 clarified that he merely worked for 3 months, which is from April to July 2018 and that the question about his knowledge of illegal deals is not contained in his deposition. The XX of CW3 came to an end with no re-examination. Consequently, the matter was adjourned to 28^th September 2021 for defence and XX. The matter came up next on 1^st February 2022 and counsel for the defendants informed the court that the 4^th defendant who is her sole witness has relocated from Enugu, since he left the company and have decided to bring another witness. Therefore, the case was adjourned to 1^st and 2^nd March 2022 for defence and XX.

On the 2^nd of March 2022, the defendants’ counsel moved their motion dated and filed on 01/3/2022 which was granted unopposed. The defence then opened their case with Mr. William Somkenechukwu Okeke who testified as DW1. DW1 adopted his WSO dated 01/03/2022 and tendered Exhibits C1, C1(a), C1(b), C1(c), C2 and C2(a) which were admitted against objection and, C3, C4, C5, C6, C7, C8, C9, C9(a), C10 –C10(a), C11-C11(a), C12 and C13 respectively. Therefore, the matter was adjourned to 17^th May 2022 for XX of DW1.

The case came up next on the 15^th of February 2023, the defendants counsel informed the court that their witness had left the employment and failed to come to court as promised. The court advised parties to consider settlement out of court and the case was adjourned to 26^th April 2023 for report of settlement/continuation. It came up as adjourned and again, the defendants’ counsel informed the court about the issue faced in service of the subpoena and it was adjourned to the 13^th of June 2023. It came up as adjourned but it was adjourned to 5^th of October 2023 for report of settlement/continuation. The matter came up next on the 22^nd of November 2023 and the defendants counsel informed the court that all the witnesses he had called had been incommunicado and urged the court to grant one more adjournment, which was objected to by the claimant’s counsel. The court warned that this would be the last adjournment irrespective of whether the counsel is changed or any other excuse. On agreement of counsel, the matter was adjourned to 25^th January 2024 for definite report of settlement/defence.

The case came up as adjourned and the claimant’s counsel informed the court that parties could not settle. The learned counsel also stated that he is yet to receive any process from the defendants relating to calling a new witness neither is the defendants’ counsel in court. Therefore, the defendants were foreclosed from further defence and the case was adjourned to 24^th April 2024 for adoption of Final Written Addresses [FWAs]. The matter came up as adjourned and the claimant’s counsel moved its motion to regularize their FWA, which was granted unopposed. The defendants’ counsel made an application to the court to grant one more adjournment, which was objected to and the court dismissed the application and the case was adjourned to 21^st May 2024 for adoption of FWA.

Again, the matter came up as adjourned and the defendants counsel requested for an adjournment to enable her file her FWA and the case was adjourned to 6^th June 2024 for adoption of FWAs. The case came up next on the 16^th of July 2024 and the claimant’s counsel adopted its Reply on Points of Law [RPL] filed on 13/06/2024. The defendants’ counsel adopted his FWA dated 27/5/2024 and filed 28/5/2024 and the case was thereafter adjourned for judgment. The next thing is to proceed to the summaries of the FWAs of the learned counsel to the parties. I shall begin with the claimant’s counsel’s FWA, which is first in time. That ends the summary of the proceedings, I now move to the FWAs.

SUMMARY OF FINAL WRITTEN ADDRESSES

A. Claimants Final Written Address

Learned O. O. UDU franked the claimant’s FWA. The learned counsel formulated two issues for determination of the case:

1.        Whether the 1^st and 2^nd Defendants are not liable to the claims of the claimant having regards to the evidence before the Honourable Court and the responsibility placed upon them by the Employees Compensation Act.

2.        Whether the failure of the Defendants to call witness in their defence does amount to an admission of the claimant’s claims.

On issue 1, the learned counsel stated that the common law duty of care and the Employees Compensation Act [ECA] 2010 imposed a statutory duty and responsibility on the 1^st and 2^nd defendant as the claimants’ employers. The learned counsel argued that none of the testimonies of the witnesses reproduced in the FWA were controverted by the defendants and cited the case of UBA Plc v Patkan Ventures Ltd (2017) LPELR-42392 (CA) which states that facts which are uncontroverted are deemed established and the court must act on same.

The learned counsel also cited the case of Registered Trustees of Living Faith Church v Ikenna (2018) LPELR-45767 (CA) and submitted that the defendants are liable to the claims of the claimant as she suffered injury that arose from her workplace. The learned counsel argued that the 1^st and 2^nd defendants breached S. 4(4), 5(1), 5(5) of the ECA as the 1^st defendant did not provide the statutory form to the claimant nor make a report to the Board. The learned counsel further argued that the ECA places a statutory duty of care on all employers to provide the statutory form and make a report to enable the claimant seek compensation from the board. The learned counsel argued that the real reason for the dismissal of the claimant was due to her demand for adequate treatments from the 1^st and 2^nd defendants. The learned counsel submitted that the defendants deprived her of compensation and must be held liable for their failure to comply with the ECA.

On issue 2, the learned counsel stated that after the examination of the defendants’ witness by the claimant, they failed to produce their witness for cross-examination and were foreclosed from further calling the said witness.|||| The learned counsel cited the case of Al-Mustapha v State (2013) 17 NWLR (pt. 1383) 350 C.A to buttress the fact that the testimony in chief of DW1 is a complete nullity and he urged the court to discountenance it. In addition, the learned counsel argued that the implication is that the defendants did not have a defence to the case of the claimant and that, for a SD to have life; there must be a living person to testify to the facts contained in the SD. The learned counsel went ahead to cite the case of Ojoh v Kamalu (2005) 18 NWLR (Pt. 958) at 565, para G-H. The learned counsel argued that the legal effect of Aregbeshola v Oyinlola (2011) 9 NWLR (Pt. 1253) at 597 para C-D is that the defendants have no defence and the court has to grant the claimant’s claims. The learned counsel submitted that the claimant has discharged the burden placed on her by law and is therefore entitled to her judgment.

B. Defendants’ Final Written Address

Learned E. DANIA franked the defendants’ FWA and formulated four issues:

1.        Whether the Defendants’ failure to call a witness amounts to admission of the claimant’s claims?

2.        Whether the employment of the Claimant was lawfully terminated by the 1^st Defendant?

3.        Whether the Claimant proved that she was neglected by the 1^st Defendant after the accident?

4.        Whether the Claimant is entitled to any of the reliefs sought in this case?

On issue 1, the defendants’ counsel submitted that the defendants failure to call a witness does not amount to admission of the claimant’s claims and he cited the case of Akinbisehin v Olajide (2018) LPELR-51172 (CA) 17 to buttress the point. Also, the learned counsel submitted that failure of a defendant to adduce evidence does not automatically mean that judgment must be given in favour of the claimant as the claimant is still required to prove his case. The learned cited Ogunyade v Oshunkeye & anor (2007) LPELR-2355 (SC). The learned counsel argued that where the claimant on his own evidence failed to prove his claim for a declaratory relief, his claim must be dismissed and he cited the case of Ayanru v Mandilas Ltd (2007) 10 NWLR (Pt. 1043) 462. The learned counsel submitted that they have elicited evidence from the witnesses who testified from the claimant, which substantiated the facts pleaded in the statement of defence. Furthermore, the learned counsel submitted that the claimant must succeed on the strength of her case and not merely on the absence of a defence.

The learned counsel submitted that the claimant’s failure to file a further WSO to prove the facts pleaded in the RSD amounts to an admission to facts pleaded in the SD. The learned counsel cited the case of The Admin & Exec of the Estate of Abacha v Eke-Spiff & Ors (2009) LPELR-3152 (SC) to buttress the point that pleadings do not constitute evidence and are deemed abandoned when not supported by evidence. In conclusion, the learned counsel urged the court to hold that the defendants have provided evidence in defence despite the failure to call a witness.

On issue 2, the learned counsel submitted that the claimant’s employment was terminated in accordance with the Claimant’s contract of employment and cited the case of Amou v Amodu (1990) 5 NWLR (Pt. 150) 356 in support. The learned counsel submitted that, exhibit CM provides clearly that the claimant’s employment was terminated because the 1^st defendant had lost confidence in her.  The learned counsel also submitted that, there is no provision in the HR Manual requiring the Head of HR to sign the termination letter and that, the claimant has dumped exhibit CN on the court by failing to state the specific provisions. The learned counsel then cited the case of FBN v Kolo (2021) LPELR-56082 (CA). Again, the learned counsel submitted that the claimant failed to establish her claim that the termination of her employment was as a result of victimization and intimidation of Robert Lenin and the 3^rd defendant. In conclusion, the learned counsel urged the court to hold that the employment of the claimant was lawfully terminated.

On issue 3, the learned counsel submitted that the defendants did not breach any duty of care to the claimant as the claimant failed to prove that the 1st defendant neglected her after the accident. The learned counsel cited the case of Igheriniovo v S.C.C. (Nig) Ltd (2013) 10 NWLR (Pt. 1361) 138 SC. The learned counsel submitted that, the claimant’s testimony about the accident and treatment is not credible, as exhibits CF, CH and CO have provided contradictory dates. In addition, the learned counsel submitted that the claimant did not plead that the defendants failed to comply with the provisions of the ECA and it should be disregarded. The learned counsel cited the case of UBN Plc v Ajabule & Anor (2011) LPELR-8239 (SC) and urged the court to hold that the claimant has failed to prove that the defendants breached the duty of care owed to the claimant.

On issue 4, the learned counsel submitted that the claimant did not plead that she is entitled to any special damages attributed to the accident and cited the case of Ahmed & Ors v CBN (2012) LPELR-9341 (SC). The learned counsel argued that none of the documents tendered by the claimant substantiate the claim for N5 Million and urged the court to hold that the claimant is not entitled to special damages. In addition, the learned counsel submitted that the claimant is not entitled to general damages as well for failing to prove the breach of the duty of care by the 1^st defendant and urged the court to hold that the claimant failed to prove her claim of negligence to entitle her to claim damages. The learned counsel argued that the claimant failed to specifically plead the expenses that constitute the amount and did not also prove the amount. In conclusion, the learned counsel urged the court to dismiss the suit and award cost against the claimant. That ends the summary of the FWAs, I shall proceed to the RPL.

C. REPLY ON POINTS OF LAW

Learned O. O. UDU franked the Claimant’s RPL. The learned counsel submitted that with respect to the defendants’ argument that there is no evidence of receiving subsequent treatment after the accident, that exhibits CA-CC, CE-CH, CJ-CL speak for themselves and cited the case of Rauf Aregbeshola & 2 Ors v Olagunsoye Oyinlola & 2 Ors (2011) 9 NWLR (Pt. 1253) p. 582. In response to the argument that the claimant did not plead the duties imposed on the defendants by the ECA, the learned counsel argued that pleadings state only facts and it is not expected to plead conclusions of law which can be drawn from the material facts pleaded. The learned counsel cited the case of A. T. S. & Sons v Ben Electronics Co. Nig LTD (2018) 17 NWLR (Pt. 1647) 1 S.C. The learned counsel urged the court to draw inferences from the facts pleaded as regards the accident and what followed after the accident.

In reply to the argument of the defendants regarding the merit for general damages, the learned counsel argued that general damages are loses that flow naturally from the defendants’ act of which the quantum need not be proved. The learned counsel cited the case of Abuja Capital Motors Ltd v Alhaji Abdulhazeez Bello Aliyu (2017) – 42865 (CA). Thereafter, the learned counsel argued that the claimant further evidenced various medical reports of treatments undergone and submitted that the claimant has discharged the burden of proof placed on her by law to gain an award of general damages in her favour. In conclusion, the learned counsel urged the court to discountenance the arguments of the defendants and grant the claimant’s reliefs, having proved her case. This ends the RPL. I shall therefore proceed to give my decision.

COURT’S DECISION AND THE RATIONALE

            Having carefully perused all the processes connected with this case, I find that the issue arising for determination is: Whether the claimant has proven his case to be entitled to the reliefs sought? The claimant’s case has two segments: the tort and the wrongful termination. I shall deal with the tort first and the tort involved is tort of negligence. I cite the plenitude ensconced in WAEC v. Mekwunye (2016) LPELR-40350 (CA) 26, B-E:

            “For the plaintiff to succeed in an action for negligence, he must plead sufficient particulars of the negligence alleged. The plaintiff must also adduce credible evidence to show the duty of care owed by the Defendant, the breach of that duty by the Defendant, and the damage suffered by the plaintiff as a result of the Defendant’s failure to take care, except the Defendant admits negligence…”

            Evident above is that the defence may admit negligence but the claimant must prove the injury suffered by giving enough particulars to substantiate it. I will not waste my time on negligence and duty of care since the defendant abandoned their evidence by not making their witness available for XX. But did the claimant prove the injury suffered in the instant case? There are contradictory pieces of evidence about the exact injury suffered. The claimant at one point asserted injury to her chest and at another point injury to her legs. And there is absolutely no iota of evidence to show that the claimant sustained any injury to her chest as a result of the accident. Exhibit CC, dated 10/4/18, which indicated a chest pain diagnoses, did not indicate the cause, though, it recommended ECG examination and no further medical certificate certified that any injury resulted from an accident or impact of a heavy object or a fall from being hit by a heavy object, was tendered. There is the admission by the claimant that the defendants footed the bill of the treatment at the ESUT Hospital after the accident.

But there is no iota of evidence on the nature of the machine that allegedly caused the accident [fall] to determine if it could cause any serious injury and there is evidence that the claimant had been a patient in the ESUT Hospital before the accident in issue. There was no iota of evidence too to ascertain exactly the point of impact of the machine to infer the cause of the chest or leg pains. All that there was in the pleading and evidence was that the claimant fell down as a result of the accident. And that a person fell is not conclusive evidence that he sustained any particular injury not to talk of chest or leg injury. With doubt as to how the chest or leg injuries/pains occurred, an essential element of torts of negligence was not proved. The chest or leg injury must have a direct nexus to the accident. But in the instant case, no nexus was established. Also, the fact that the claimant stated under xx that in her petition to the NHRC that she did not remember to state that she was unconscious when the accident happened put a big question mark on her case.

This becomes more so since the claimant admitted she had been an outpatient at the same ESUT Hospital before the alleged accident and injuries without pleading and giving evidence as to the ailments for which she was a patient at the ESUT Hospital. This cast a serious doubt as to whether her previous conditions are not conflated into the alleged accident and injuries as a trump up. And I must state in the final analysis that the references to the ECA is totally misconceived, as the claimant had elected to bring her suit under common law – S. 12 of the ECA and this is not an appeal as envisaged by S. 55(4) of the ECA. In that wise, the claimant failed in the case of tort. The claim on tort is accordingly dismissed. I move to the second head of complaint: wrongful termination.

The claimant herself admitted in her RSD that she actually verbally corrected her boss for abusing another employee, whom she did not show to have complained of any abuse and, this other employee was not called as a witness to buttress the allegation that the said boss truly abused her. The claimant also admitted in her RSD that, a customer mistook her reply to be rude. Hence, it is established that the claimant had attitudinal problem at work and the defendants could have had her appointment terminated for general inefficiency for which she was discharged. A mall depends heavily on extensive good human relations to excel. But the question remains, did the defendants fulfill all righteousness according to law in the termination, as distinct from dismissal? The claimant was not dismissed but the appointment only terminated. The cause of action arose Feb 12, 2019. The claimant was employed Sep 11, 2017, meaning she served the defendants for 1 year, 5 months. It is clear that both the appointment and the termination fell under the auspices of the Third Alteration Act, which came into effect in 2011. Therefore, the Third Alteration Act must have its full effect on this case. His Lordship, Kanyip, HPNICN, quoted the authority of Arturo S. Bronstein[1], a highly qualified publicist, to utilize the ILO C158, a Convention, Nigeria has not ratified:

“Nigeria may not have ratified the International Labour Organisation (ILO) Termination of Employment Convention, 1982 (No. 158), the Convention that promotes security of employment globally. And I must acknowledge that ILO standards, that is, Conventions, Recommendations and Codes of Practice, whether ratified or not, ‘not only reflect a certain universal wisdom, they also enjoy a social legitimacy that would seem hard to challenge”

The ILO reported[2] that the Industrial Court of the Republic of Botswana in Mapho C. Ganelang v. Tyre World Ltd, despite the fact that Botswana had not ratified ILO C158 – Termination of Employment Convention, also applied it thus:

“I am also of the firm view that the Respondent’s actions, in casu, fell foul of international labour standards in labour law. The Termination of Employment Convention No. 158 of 1982 ‘(C158)’ is in point. Under its equitable jurisdiction this Court can bring the principles of Convention C158 to bear in this case. This the Court can do because the Court of Appeal has held that this Court may, under its equitable jurisdiction apply international labour standards to assist it reach a proper determination of issues it is called upon to determine.”

That is the international best practice relating to termination of employment. And the purposes of international best practices are to eliminate unfair labour practices in the world of work and institutionalise international best practices in furtherance of fair labour relations. By virtue of S. 254C-(1)(f) of the Constitution, which practical applications are exampled above, ILO C158 is applicable in Nigeria. The Court of Appeal in Sahara Energy Resources Ltd v. Oyebola (2020) LPELR-51806 (CA) and Adegboyu [Adegboye] v. UBA[3] has approved the ascendancy of the doctrines of unfair labour practices and international best practices as regnant in Nigeria. International best practices could also be applied under the equitable jurisdiction of this Court under S. 13-15 of the NICA, as was the case in the Botswana Industrial Court cited above, and as customary international law or general principle of international law – Engineer Luke MMamel v. IMT Enugu & Ors[4]. What do these portend for this case? I quote again from Mmamel’s case. Speaking about ILO C158:

“Arts 4 & 7 of ILO C158 are impactful here. They jointly insist that an employment can only be terminated for a valid reason and that; this is after the employee must have been heard before the discharge… Art 9 of the ILO C158 says the court shall inquire into the circumstances surrounding the discharge and that; it is the employer’s duty to proof valid reason for the termination. This nullifies the common law in Nigeria that an employer can discharge without giving reason and that it is entirely the employee’s duty to plead the terms of his employment violated in the unlawful termination.”

The Court of Appeal sets down the law on probation and the law is to be found in the interpositional authority of The Council of Federal Polytechnic, Ede & Ors v. Olowookere (2012) LPELR-7935 (CA) 22-33, D-B:

“The period between 10^th April, 2001 and 28^th July, 2004 was more than three years. In the eyes of the law, having kept the respondent as academic staff, using him as lecturer and paying his salaries and other benefits for about 12 (twelve) months after the period of probation had lapsed, the appellants had by their conduct confirmed the respondent’s appointment. See the case of Obafemi Awolowo University v. Onabanjo…where this Court…stated thus: ‘The appellant had delayed unnecessarily in making up their minds whether to terminate or confirm respondent’s Probationary appointment. By keeping him in his employment and continuing to pay him four months after the probationary period of three years had expired, they would be deemed by operation of law to have confirmed his appointment, and the doctrine of ‘estoppels by conduct’ would operate to prevent the appellant from alleging and treating him as if he was still on probation. ‘Delay defeats Equity.”

The defendants did not confirm the claimant’s appointment, who had served for a total of 17 months, 11 of which months was above the contractual 6-month probation, before the discharge [para 2 of the Letter of Appointment-Exhibit CL], claiming that they extended her probation because her performance was not satisfactory and that, there was a clause in the letter of employment that allowed them to do this. This is an instance of unfair labour practices, which S. 254C-(1)(f) of the Constitution forbids in labour relations in Nigeria. It is an unfair labour practice to retain the right to perpetually extend probation period. Thus, the claimant rightly complained against this in her SF. Apart from infringing S. 254C-(1)(f) of the Constitution, which has become a fundamental implied term in all contracts of employment in Nigeria, the law in Nigeria, as encapsulated in The Council of Federal Polytechnic Ede v. Olowookere [supra], has always deemed extension of probation period as unlawful in Nigeria, even before the Third Alteration Act, which has now made the right to confirmation timeously, a fundamental constitutional labour right and the violation by extension of the period, violation of fundamental constitutional labour right. And when there is egregious violation of constitutional rights; it must be attended with punitive damages to discourage such future violations.

Also, Arts 11 & 12 of the ILO C158 enjoin that, once a worker is to be terminated and not dismissed, such employee is entitled to notice or payment in lieu thereof. The claimant’s appointment herein was terminated without notice and no payment in lieu of notice was made. The Supreme Court has held long before the Third Alteration Act in Chukwumah v. Shell Petroleum [1993] LPELR – 864 (SC) 1, 28-31, D–A that payment in lieu of notice means contemporaneous payment with the discharge. Hence, the non-payment in lieu of notice was another instance of unfair labour practices. Payment in lieu of notice or actual notice before termination is the international best practice around the world as exampled in Arts 11 & 12 of the ILO C158. Hence, the non-payment in lieu of notice was an instance of unfair labour practices forbidden by S. 254C-(1)(f) of the Constitution, which must be remedied by international best practices.

And as exampled too in The Council of Federal Polytechnic, Ede & Ors v. Olowookere, it was patently wrong for the defendants to have in the employment contract with the claimant, a clause that gives them the vires to extend the period of probation as stated in the appointment letter under any guise. The excuse that claimant did not meet the criteria for confirmation is not viable because, if the claimant had been confirmed, it still did not mean that she could not be removed. The clause was therefore inserted into the contract for the purposes of being abused. It is a good example of unfair labour practices forbidden by SS. 254C-(1)(f) of the Constitution & 13&15 of the NICA. The claimant was therefore deemed confirmed from the moment she reached 6 months at the place of work, which was the period stated in the appointment letter for probation. There is no room for extension of probation period in Nigeria. It is either you confirm or terminate at the agreed period. If an employer feels the employee did not quite measure up to the standard but could still not terminate the worker’s employment because the worker’s performance was all the same satisfactory enough to retain him/her, the worker, has by logic, met the requirement for confirmation and the employer’s refusal under such subjective conditions is definitely abusive.  

Let me state for the benefit of those who are ignorant of this that the doctrines of international best practices and unfair labour practices are twin implied fundamental terms of all contracts of employment in Nigeria since the inception of the Third Alteration Act and, any clause in an employment contract that run foul of them are liable to be struck down and the employer is liable to pay punitive damages as deterrence for the unfair labour practices and the gross violation of the constitutional fundamental employment right – Sahara Energy Resources Ltd v. Oyebola and Adegboyu [Adegboye] v. UBA [supra] and SS. 13-15 & 19 of the NICA.  

Relief 1 of the case therefore succeeds in view of the failure to pay in lieu of notice contemporaneously with the peremptory termination and because, the claimant’s confirmation was unnecessarily prolonged as an instrument to enable the defendants to discharge her at will as unconfirmed staff. For these violations, the defendants are liable to pay the claimant the sum of N50,000 [Fifty Thousand Naira] only as salary in lieu of notice in accordance with clause 8 of the contract, having been deemed confirmed  and peremptorily discharged without payment in lieu of notice. The defendants are also liable to pay to the claimant the sum of N500,000 [Five Hundred Naira] only damages for the unfair labour practices of unfairly prolonging the claimant’s probation, which is forbidden by SS. 254C-(1)(f) of the Constitution & 13&15 of the NICA as unfair labour practice.  

I consequently grant 25% simple interest per annum in accordance with O. 47, R. 7 of the NIC Rules on the judgment sums, which are to be paid within 30 days of this judgment. The lone issue is therefore partly determined in the claimant’s favour and partly in favour of the defendants. All the other reliefs are dismissed as lacking merits, having dismissed the allegations of torts, which anchored them. Accordingly, the claimant is not entitled to cost, being that both sides won part of the case. Cost therefore cancels cost. I therefore grant no cost. The case shall come to an end.

CONCLUSION

As was made clear above, with the exception of relief 1, all the other reliefs claimed are dismissed. Accordingly I granted:

1.                           N50,000 (Fifty Thousand Naira) only as one month salary in lieu of notice;

2.                           N500,000 (Five Hundred Thousand Naira] only as damages for unfair labour practices;

3.                           25% simple interest rate per annum on the judgment sums; and

4.                           30 days moratorium from the date of this judgment for compliance, failing which the 25% simple interest rate per annum takes effect.

Curtain is drawn on the decision by entering it this Tuesday the 15^th day of Oct 2024 under my very hand as the presiding judge.

……………………………….

HON. JUSTICE OLUWAKAYODE O. AROWOSEGBE

Presiding JUDGE

ENUGU DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA