Babatunde Olusegun Fehintola v International Medical Corps

• Judge: Honourable Justice Sanusi Kado
• Judgment Date: 06 May 2020
• Respondent: International Medical Corps
• Appellant: Babatunde Olusegun Fehintola
• Docket Number: NICN/ABJ/221/2017
• Counsel: C. N. Agomuo, Esq; for the Claimant. No Legal representation.
• Court: National Industrial Court (Nigeria)

1. The Claimant commenced this action vide general form of complaint dated 15th July 2017 and filed before this Honourable Court on 19th July 2017, wherein he sought for the reliefs stated below:-
1. An Order of this Honourable Court directing the Defendant to Withdraw the issued letter of dismissal
2. An Order of this Honourable Court directing the Defendant to pay the Claimant three months Salaries from February 2017 to April 2017 to the tune of N3, 728, 156.25 as due and as regards the expiration of the contract employment letter dated 7th April 2016.
3. An Order of this Honourable Court directing the Defendant to pay the Claimant the sum of N800,000.00 for cost of Action.
2. The complaint was accompanied by statement of facts, witness statement on oath, list of witnesses, list of documents to be relied on and photo copies of document to be relied on at the trial. The defendant’s statement of defence was filed on 14/11/2017, and it was deemed properly filed and served vide order of this court made on 22/5/2018. The Claimant’s reply to the statement of defence dated 27/11/17 and filed on same day was also deemed properly filed and served.
3. The hearing of this case commenced on 22/5/2018 when the claimant testified in proof of his claim. He adopted his witness statements on oath dated 19th July 2017 and 27th November 2017, respectively, as his evidence in this suit. He also tendered 10 documents in evidence. The documents were admitted in evidence and accordingly marked as exhibit CW1A – exhibit CW1J.
4. The case of the claimant as can be gathered from the witness statements on oath and his oral testimony is to the effect that he was employed as Director Finance and Administration by the Defendant for a period of one year from 9/4/2015 to 8/4/2016. The Claimant’s employment was extended for another period of one year. The Claimant averred that the contract is for a fixed term of one year renewable for another one year upon satisfactory of performance of job functions or duties. The Claimant’s employment with the Defendant was terminated on 23/1/2017, vide the letter dated 7/4/2016, tendered in evidence as exhibit CW1C. The Defendant despite being given opportunity failed to cross-examine, CW1 on the evidence before the Court.
5. At the end of the claimant’s evidence in chief on 22/5/2018, the case was adjourned to 17/7/2018 for cross-examination at the instance of Oluwarotimi Ibitoye, Esq; counsel for the Defendant. On 18/11/2018, when this matter came up for cross-examination the defendant and his counsel were absent despite been served with hearing notice for the sitting of the court. Consequently, the defendant was foreclosed from cross-examining the claimant. The case was then adjourned to 3/2/2019 for defence. On 3/2/2019 when the case came up before the court Oluwarotimi Ibitoye, Esq; counsel for the defendant moved motion on notice to substitute new witnesses statement on oath with the one filed along with the statement of defence the application was granted and the case adjourned to 19/2/2019 for defence. On 8/4/2019 counsel for the defendant moved motion on notice dated 9/1/2019 filed on 11/1/2019, for setting aside order of foreclosure to allow the defendant cross-examined the claimant who testified as CW1. The application was granted and the case was adjourned to 22/5/2019.
6. On 24/10/2019 when this suit came up for cross-examination after the lifting of foreclosure the defendant and the counsel appearing for the defendant were absent and there was no communication to the court as to why they were not in court. The court after listening to the submission of counsel for the claimant foreclosed the defendant for the second time from cross-examining the claimant. The claimant was also ordered to file his final written address within 21 days in line with rules of this court. The adoption of final written address was fixed to come up on 15/1/2020. On 15/1/2020 counsel for the claimant moved motion on notice dated 18/2/2019 and filed on 20/12/2019, for extension of time to file final written address out of time. The application was granted. It is to be noted that both the motion on notice for extension of time to file written address out of time by the claimant as well as the hearing notice for sitting of the court on 15/1/2020 were all served on the counsel for the defendant. However, there was no response from the defendant. The Claimant and the counsel for the defendant, were absent in court. On 18/2/2020 the counsel for the claimant adopted his final written address dated 18/12/2019 and filed on 20/12/2019. Thereafter the case was adjourned to 6/5/2020 for judgment.

THE SUBMISSION OF THE CLAIMANT

7. In the final written address adopted by C. N. Agomuo, Esq; counsel for the claimant, a sole issue for determination was formulated, to wit:
‘’Whether having duly established it (sic) case on a wrongful termination of contract of employment, the Claimant is entitled to the Claims before this Honourable Court.’’
8. In arguing the sole issue for determination, counsel for the claimant submitted that it is trite that an action for wrongful termination of appointment as in the instant case, the onus lies on the Claimant to prove among others, the terms of the agreement allegedly breached and wherein the Claimant is required to place before the Court the Terms of the Contract of employment, and to prove in what manner the said terms were breached by the employer, this was laid down, in SHENA SECURITY CO. LTD V. AFROPAK (NIG) LTD AND 2 ORS (2008)18 NWLR (PT. 1118) 77 SC; N.R.W IND. LTD V. AKINGBULUGBE (2011) 11 NWLR (PT. 1257) 131 C.A.
9. According to counsel for the claimant, a Contract of employment means any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that person agrees to serve the employer as a worker. This is as defined by the Labour Act (Cap. 198) LFN, 1990. Section 91 of the said Act defines a Worker as any person who has entered into or work under a contract with an employer whether oral or written and whether it is a contract of service or a contract personally to execute any work or labour.
10. It is argued by counsel that in the instant case, the Claimant was issued a Contract employment letter dated 16th March 2015 by the defendant for a fixed term of one year; and prior to the expiration of the Contract of employment in April 2016, the Contract was further extended by the defendant and the Claimant was again issued with Employment contract extension letter dated 7th April 2016 for another fixed term of one year. These letters were tendered as evidence and marked as exhibits CW1A1-3 and CW1B. From the above letters, it is obvious the Claimant was an employee of the defendant.
11. It was further argued that the Claimant upon employment served as the Finance and Admin Director whose duties and responsibilities were contained in the Job Description under the Duties and Role of Finance and Administration Director for IMC (same tendered in evidence and marked as exhibit CW1F). The nature of the Claimant’s contract employment is for a fixed term of one year and renewable for another one year upon satisfactory performance of job functions or duties. The Claimant’s employment was governed by both his contract employment agreement letters and Policies and Procedure Manual 2015 (both tendered as evidence).
12. It is contended by counsel that in the instant case, it was obvious the Claimant’s job performance was satisfactory to the defendant which earned him a contract extension after expiration of the initial contract employment.
13. According to counsel, the Claimant having been diligent and dedicated to his duties and responsibilities as Finance and Admin Director and never in anyway fell short of his responsibilities to effectively carry out his duty as prescribed in the Job Description Manual, as evidenced in the Report published by Internal Audit of the defendant wherein all financial management system and internal control procedures championed by the Claimant were positively certified and cleared. Counsel refers to the audit report exhibit CW1F to support his contention; also, as stated in paragraph 16 of the Statement of Facts, prior to the wrongful disengagement of the Claimant, he received a pay increase on his monthly salary which corroborates his outstanding work performance. A merit increase in salary is the defendant’s way to compensate for outstanding work performance as provided in Section 12 of the International Field Employee Policy and Procedure Manual, 2015, marked as exhibit CW1G.
14. It is the contention of counsel that on 23rd January 2017, the Claimant was issued with a termination letter exhibit CW1C by the Country Director of the defendant without exercising the proper procedure for issuing such contract employment termination. In support of this submission counsel refers to case of MOMOH V. CBN (2007) 14 NWLR (PT. 1055) 504 C.A. where the Court of Appeal held that,
“In construing the relationship between an employee and an employer under a contract, the court must confine itself to the plain words and meanings to be derived from the written contract. And in interpreting the provisions of such a written contract, no addition thereto or subtraction therefrom is permissible. The words used must be given effect to and no word should be ignored in the interpretation of the intention of the parties. Accordingly, the Court does not have the power to look elsewhere for the terms of contract with regard to the termination of contract other than in written agreement. In the instant case, in construing the terms of the relationship between the appellant and the respondent, the court was right to have confined itself to the plain words and meaning derived from the provisions contained in the respondent’s staff manual.”
Also referred are the cases of CBN V. ARCHIBONG (2001) 10 NWLR (PT.721)492 (Pages 521 522, Par. G-E) and...