IN THE NATIONAL INDUSTRIAL COURT OF NIGERIAHOLDEN AT LAGOSBEFORE HIS LORDSHIP: HON. JUSTICE K. I. AMADI

BETWEEN COMRADE ADEWALE ADELANA CLAIMANT AND EL-ALAN CONSTRUCTION COMPANY NIGERIA LIMITED

………..DEFENDANT

REPRESENTATION: Tope Temokun for the claimant

V. I. Mgboji with Ogochukwu Obinna for the defendant.

JUDGEMENT

The claimant commenced this suit on June 5, 2012, by a General Form of complaint. Filed with the complaint are the statement of facts and list of witness, later the claimant filed his witness statement on oath and other front loaded documents. The reliefs sought by the claimant are as follows:

⦁ A DECLARATION that the termination of the Claimant’s appointment by the Defendant communicated to the Claimant vide a letter, dated 25th of January 2012, is invalid, ineffectual, null and void, as same violates the Claimant’s terms of appointment with the Defendant.

⦁ AN ORDER setting aside, nullifying or voiding the said termination of the Claimant’s appointment by the Defendant, AND re-instating the Claimant to his position in the Defendant with all the rights and privileges attached to the said position, including the payment of backlog of his salaries, accumulated leave entitlements and promotion therein, since January 2012, till date.

IN THE ALTERNATIVE

⦁ A DECLARATION that the termination of the Claimant’s appointment by the Defendant, communicated to the Claimant vide a letter, dated 25th of January, 2012, is wrongful, as same violates the Claimant’s terms of appointment with the Defendant.

⦁ AN ORDER directing the Defendant to pay the sum of one Million Naira as special and exemplary damages for the wrongful termination of the Claimant’s appointment.

The Defendant responded by filing its Statement of Defence which was later amended by the order of this Honourable court made on the 3rd of June, 2013.

The Claimant opened his case on November 21, 2013 by testifying for himself in line with his pleading by adopting his written statement on oath. He tendered 10(ten) documents which were admitted in evidence, as exhibits A – K.

The brief facts of this case according to the claimant are that he joined the employment of the Defendant as a mobile mixer operator on May 5, 2009. He worked for about 2(two) and half years before his disengagement.

That on December 9, 2011 the claimant while carrying some mixed concrete from Ikoyi Batching plant to the Lekki Construction site of the defendant had an accident .That in course of the accident he lost control of the steering of the truck which tumbled and somersaulted as a result of which he sustained deep lacerations on his right side of his forehead and right ankle and was in fact stuck inside the vehicle till the policemen who were present at the scene when the accident occurred, with the help of sympathetic passers-by, came to his rescue and extricated him from the vehicle. That he and his motor boy were taken to First City Hospital at Lekki where they were given first aid treatment. Discharged that same day owing to the Defendant’s Health Care policy and were advised to go for future treatment at any of the Defendant’s Total Health Trust (THT) branch where they were registered, for further treatment consequent upon which he was given a four (4) days’ sick leave after which he reported back to duty on December 15, 2012 and the Defendant company closed down for the year on December22, 2011.

That the oil subsidy removal national strike started on January 9, 2012 and was called off on January 16, 2012 and he reported for work after the strike until the 25th day of January when the Defendant’s Human Resources Manager informed him that he had a letter that would be given to him the next day. That on the next day July 26, 2012, he received a letter of disengagement from the defendant. That the termination of his employment was as a result of his union activities being the vice president of their branch union

The defendant on the other hand, admitted that the Claimant was its former employee. That his appointment was terminated in accordance with his contract of employment. That Claimant’s final entitlement was duly prepared by the Defendant and he was invited to collect same but declined the invitation. That the reason for the Claimant’s termination of employment was not as a result of his union activities as alleged by the Claimant in his Statement of Claim.The defendant called 3(three) witnesses as follows: Yinka Adekunle who testified as DW1,Innocent Azuike DW2 and Dennis Olatunje Johnson DW3 in all the defendant tendered 10(ten) exhibits. At the close of the defendant’s the parties were ordered to file and exchange their final written addresses. The learned counsel for the claimant filed the written address for the defendant on March 12, 2015 in it, counsel raised one issue for determination thus:

Whether the Claimant is entitled to the Claims as contained in the Statement of Claim having recourse to the pleadings, facts and circumstances of this case

The learned counsel for the claimant on the other hand filed the final written address for the claimant on October 6, 2015 in it, counsel also raised one issue for determination thus:

Whether the mode of terminating the claimant’s employment by the defendant was not wrongful and whether the claimant is not entitled to the reliefs sought?

I have read all the processes filed by the parties in this suit. I have equally reviewed the evidence led by them. The final written addresses of the parties including the reply on points of law of the learned counsel for the defendant are hereby incorporated into this judgment and specific reference shall be made to them where necessary. In my view, the sole issue raised by the learned counsel for the claimant captured more appropriately the issue in controversy in this suit and I hereby adopt it as mine I shall therefore treat claims seriatim.

However it is important to state that the learned counsel for the claimant in his final written address informed court that; “As a preliminary point, we want to urge this Honourable Court to note that the Defendant does not wish to maintain reliefs 1 and 2 endorsed on his complaint which relate to reinstatement of the claimant, as follows:

⦁ A DECLARATION that the termination of the Claimant’s appointment by the Defendant communicated to the Claimant vide a letter, dated 25th of January 2012, is invalid, ineffectual, null and void, as same violates the Claimant’s terms of appointment with the Defendant.

⦁ AN ORDER setting aside, nullifying or voiding the said termination of the Claimant’s appointment by the Defendant, AND re-instating the Claimant to his position in the Defendant with all the rights and privileges attached to the said position, including the payment of backlog of his salaries, accumulated leave entitlements and promotion therein, since January 2012, till date.

In this sub-heading of the claimant’s address, the claimant will maintain and argue his alternative reliefs and seek as follows:

⦁ A DECLARATION that the termination of the Claimant’s appointment by the Defendant, communicated to the Claimant vide a letter, dated 25th of January, 2012, is wrongful, as same violates the Claimant’s terms of appointment with the Defendant.

⦁ AN ORDER directing the Defendant to pay the sum of one Million Naira as special and exemplary damages for the wrongful termination of the Claimant’s appointment”

In view of the foregoing reliefs one and two as claimed by the claimant in his statement of facts, reproduced above are hereby struck out. I shall proceed to deal with the two claims in the alternative claim together as above which deal with whether the termination of the appointment of the claimant by the defendant is lawful and damages payable in the circumstances?

The learned counsel argued that wrongful termination in this context means termination that is not in conformity with the Claimant’s terms and conditions of employment. Counsel referred to the Claimants terms and conditions of employment, particularly Article 18 (B) captioned “NOTICE ON RESIGNATION OR TERMINSTION; MONTHLY RATED EMPLOYEES” which provides as follows:

“Employment may be terminated upon giving one month’s notice by either side or payment in lieu of notice”

Continuing counsel submitted that the effect of the above provision of the Claimant’s terms and conditions of employment is that the prerequisite for a valid termination is one (1) months’ notice or one month’s salary in lieu of notice. And that the effect of failing to adhere to this condition is well settled. Counsel referred to the case of Osisanya v Afribank Nigeria PLC (2007) LPELR-2809, where the Supreme Court held as follows;

‘It need be stressed and this has long been settled, that in a master and servant relationship, a dismissal of an employee by an employer cannot be declared null and void and of no effect whatsoever as claimed by the appellant in this case leading to the instant appeal…”

In respect of the claim for “special damages” and “exemplary damages” to the tune of N1, 000,000.00 (One Million Naira) against the Defendant, counsel argued that this claim is utterly inapplicable with respect to termination of contract of employment. That if indeed the Claimant is entitled to damages for the alleged wrongful termination, the best the he can get is general damages and not special or exemplary damages as claimed by the Claimant. Counsel referred to the case of Texaco Nig PLC v Kehinde (2000) LPELR-10000 wherein the Court of Appeal held as follows thus;

“It is trite law that you cannot talk of special damages in a case of wrongful dismissal which is founded on the law of contract. Special damages relates to action on torts (emphasis ours). It follows therefore that the measure of damages in action for wrongful dismissal is founded on the law of contract. It is aimed at putting the injured party at the position he would have been but for the breach. The termination of a contract of service, whether lawful or unlawful, brings to an end the relationship of master and servant”.

Counsel argued further that it is also trite law that special damages must not only be specifically pleaded with relevant particulars but must also be strictly proved, referring to the locus classicus case of Agunwa v Onukwe (1962) 1 ALL NLR, 537 and SHELL B.P v Cole (1978) 3 SC, 183.

That in the case of Allied Bank of Nigeria Limited v Akubueze (1997) LPELR, 429 (SC) where the Supreme court per Iguh JSC (as he then was) at pages 45-49, paragraphs E-B held thus;

“Perhaps it ought to be stressed that exemplary damages, properly so called, may only be awarded in actions in tort but only in 3 categories of cases, namely;

⦁ Oppressive, arbitrary or unconstitutional action by the servants of the Government;

⦁ Where the Defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the Plaintiff;

⦁ Where exemplary damages are expressly authorized by statute”

Counsel submitted that the Claimant’s claim as shown in his Statement of Claim cannot succeed for the following reasons:

⦁ The Claimant’s appointment with the Defendant can be deemed as lawfully terminated as the Defendant prepared the Claimant’s final entitlements and invited him to collect same but he declined the invitation.

⦁ The Claimant cannot be awarded special or exemplary damages as such does not apply with respect to a contract of this nature, and furthermore the Claimant failed to plead and strictly prove his entitlement to special and exemplary damages.

Counsel prayed this Honourable Court to dismiss the Claimant’s claim in its entirety as it is frivolous and vexatious.

On the other hand, learned counsel for the claimant argued that by Article 18(B), of exhibit J-J20, (the defendant’s Conditions of Service), the claimant is entitled to one month’s notice or payment of one month’s salary in lieu of notice for his appointment to be validly terminated by the defendant. That since there was no prior notice of termination to the claimant and no salary in lieu of notice was paid to him before the termination, the claimant’s employment was invalidly or wrongfully determined, and so entitling him to the reliefs sought. Counsel referred to the cases of Julius Berger (Nig.) Plc.[2008] 6 NWLR (Pt. 1084) 582 at 609 and Agbareh v. Mimra[2008] 2 NWLR (Pt.1071) 378 at 412.

In justification for his claim for special and exemplary damages counsel argued that the claimant sustained injury in the accident that led to his termination and this suit. That the inference from the testimony of the defendant’s witness, DW1, Yinka Adekunle, is to the effect that, The defendant has 2 insurance policies: 1. Is Workmen compensation Policy and 2. Group Life Insurance Policy.is that the defendant had claimed compensation for the damage to the vehicle and for the injury sustained by the claimant, under the various insurance policies maintained by the defendant, particularly Workmen compensation Policy and no compensation was paid whatsoever to the claimant and the only thing with which the claimant was paid was termination of his appointment without notice, without payment in lieu of notice, without any severance benefit and without payment of his last-earned wage for which he worked for the month of January 2012.Counsel submitted that this is oppressive, and exploitation of the disadvantaged position of the claimant as an unprotected employee and this amounts to unfair labour practice which will justify the award of exemplary damages against the defendant for its oppressive conduct in this regard, particularly in a case of this nature where there is a clear evidence of economic gains to the defendant who claimed compensation for injury sustained by an employee and abruptly terminated the employee’s appointment without any benefit, not even his last earned salary.

Counsel relied on the case of Mrs Folarin Oreka Maiya v The Incorporated Trustees of Cliton Health Acess Initiative and ors, Suit No: NIC/ABJ/13/2011, delivered on the 21st of December 2011 and the provisions of sections 14 and 19(d) of the NIC Act 2006 to urge the court to grant the reliefs sought in this suit.

In resolving the issues in this matter it imperative to restate that both parties agreed that by the terms of employment of the claimant, he is entitled to one month notice or payment for that period in lieu of notice. Therefore exhibit D the letter of disengagement is very crucial and it is hereunder reproduced:

January 25, 2012

Mr. Adewale Adelana

39, Bamgbose Street Lagos Island

Lagos.

DISENGAGEMENT

Please be informed that your services are no longer required with effect from Thursday, January 26, 2012

By a copy of this letter, Account Department is advised to pay your final entitlement as follows:

⦁ Salary up to and including January 26, 2012

⦁ Less any indebtedness to the company

You are advised to submit all company’s properties in your possession to the Human Resource Manager who will issue you a clearance letter to enable you collect your final entitlement from the accounts department.

Andrea Geday.

That letter was written on January 25, 2012 to take effect the following day January 26, 2012. The entitlements of the claimant as presumed by the defendant were clearly stated in it. One month notice from that 25th February 2012, will certainly terminate on or about the March 24, 2012 and payment for that period will not be the earned salary for the month of January 2012 which salary the claimant is naturally entitled to, haven worked for that month. It is settled that, where an employee is entitled to a length of notice or payment in lieu of notice and the employer determines that contract without the requisite notice, that termination is complete but wrongful, see Isievwore v. NEPA [2002] 13 NWLR (Pt. 784) 417 SC.

The employee under that circumstance is entitled to damages, the measure of which is the amount representing the length of notice prescribed, see the case of Afribank (Nig) PLC v Osisanya (2000)1 NWLR(Pt.642)592. I therefore find and hold that the termination of the employment of the claimant here was wrongful, in which case, the claimant is entitled to payment of damages, see SPDC (Nig) Ltd v Ifeta (2001)11 NWLR(724)473. In view of the provision of section 19(d) of the National Industrial Court Act 2006, I hold that the grant of one month salary in lieu of Notice will be very inappropriate in the circumstances of this case, considering the fact that the claimant was just recovering from an accident which happened in the cause of his employment with the defendant.

I hereby grant to the claimant, the sum of N396.000 (One year gross salary) as compensation for wrongful termination.

The defendant shall also pay the claimant N33, 000 being his salary for the month of January 2006.

The defendant shall pay the sum of N50, 000 to the claimant being the cost of this suit.

The defendant shall comply with the awards in this judgment within 30 days hence, failing which the monetary awards shall attract an interest at the rate of 20% per annum until fully liquidated.

Judgment is entered accordingly

Hon Justice K. I. Amadi
(Presiding Judge)
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Credit: JUDGEMENT PORTAL

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