Mr. Peter Enemona Adejo v Arksego Nigeria Limited

• Judge: Honourable Justice Sanusi Kado
• Judgment Date: 27 May 2020
• Respondent: Arksego Nigeria Limited
• Appellant: Mr. Peter Enemona Adejo
• Docket Number: NICN/ABJ/354/2017
• Counsel: Amos Enemali Igomu, Esq; counsel for the Claimant
• Court: National Industrial Court (Nigeria)

1. The Claimant commenced this action against the Defendant vide a general form of Complaint dated and filed on 4/12/2017. The complaint was accompanied with statement of facts, witness statement on oath, list of witnesses, list of documents and photocopies of documents to be relied on at the trial. The Claimant’s claims against the Defendant as endorsed on the Complaint and in the Statement of Facts are as follows:

A. AN ORDER directing the Defendant to immediately pay to the Claimant the sum of N128,160 (One Hundred and Twenty-Eight Thousand, One Hundred and Sixty Naira) only being payment in lieu of notice of termination of the Claimant’s employment.

B. AN ORDER directing the Defendant to immediately calculate the Claimant’s severance benefits and pay to the Claimant.

C. AN ORDER directing the Defendant to immediately pay to the Claimant the sum of N500,000 (Five Hundred Thousand Naira) only being general damages for breach of contract of employment, psychological trauma and/or emotional distress.
2. The claimant testified on 17/7/2018, in proof of his case as CW1. CW1 after identifying his witness statement on oaths sworn on 4th December, 2017, he adopted it as his testimony before the Court. CW1 also tendered three documents in evidence which were admitted in evidence and marked as exhibits 1-2, CW1B and CW1C1-2.
3. The case of the claimant as can be gathered from the pleading, witness statement on oath and the oral testimony of CW1, that the claimant was employed by the defendant as security operative on 15th January, 2013, as per exhibit CW1A1-2, dated 15/1/2017. The claimant’s take home salary after deductions is the sum of N42,720 (Forty-Two Thousand, Seven Hundred and Twenty Naira) only. It was averred that the claimant was a graduate and bread winner. Under exhibit CW1A1-2, either party may terminate the employment by giving Two (2) weeks’ notice of termination. It was averred that the Claimant, since his employment with the Defendant, carried out his duties over the years with integrity, diligence and competence; and there was never any course for him to be queried by the Defendant or anybody else.
4. However, on 15th August, 2017 the Defendant terminated the Claimant’s employment vide the Defendant’s letter of Termination of Contract of Employment dated 9th August, 2017, citing alleged “Below Average Intelligence Rating & Test Score” as reasons for termination. According to claimant the reasons for the termination is not only ridiculous but false and unjustifiable as the Claimant always exhibited very high competence and intelligence in the discharge of his duties over the years and the reason why he was never queried for any reason at all by the Defendant. The reasons are completely invalid. Moreover, the Defendant did not prove any of them. The claimant alleged that motive for termination is clearly victimization because the Claimant was inherited from another company.
5. Furthermore, the Defendant, is in breach of the Contract of Employment, for terminating the employment of the Claimant with less than a week’s notice.
6. The Claimant averred that he suffered untold hardship, psychological trauma and emotional distress as result of the action of the Defendant in terminating his employment without justifiable reason and without adequate notice.
7. The claimant also averred that it is conventional and reasonable that salaries payment in lieu of notice of termination be given to an employee whose employment is terminated without service of adequate/reasonable notice and severance benefit paid to cushion the effect.
8. On 5th September, 2017, the Claimant instructed his lawyers of Messrs. A. E. Igomu & Co. to issue and serve on the Defendant Letter of Demand. Till date the Defendant has not replied the said letter nor paid a kobo to the Claimant.
9. The claimant was cross-examined on 3/12/2018, wherein he stated that his salary in lieu of notice is not N25,000.00. That he was employed by another company before joining the defendant. That he wrote exam with other staff on intelligence and he did not fail the exam.
10. On 3/7/2019, the court granted the request of the defendant for further cross-examination of CW1. CW1, when further cross-examined testified that he worked with HNB Nigeria Ltd before joining the defendant. He stated that there was screening before he was engaged by the defendant. He stated that his Pension Fund Administrator is IBTC Pension. He stated that after disengagement he was paid N100,000.00 as his pension contribution. That he has one signature; he signed his letter of acceptance of appointment. The witness statement on oath was signed by him at the registry of the court.
11. At the close of the Claimant’s case, counsel for the defendant informed the court that the defendant is not calling any witness; and that the defendant will rest its case on the claimant’s case. Counsel were then ordered to file written addresses beginning with the Claimant, since the defendant did not call any witness. On 4/3/2020, when this matter came up for adoption of final written addresses, the defendant and her counsel were not in court. Consequently, the final written address of the defendant was deemed argued in line with Order 45 rule 7 of the rules of this court.

THE SUBMISSION OF THE CLAIMANT.

12. The claimant formulated twin issues for resolution. They are:-
I. Whether or not the termination of the Claimant’s employment is not wrongful in law; and

II. Whether or not the Claimant has proved his case on the balance of probability and should succeed in all his claims against the Defendant in this suit

13. ISSUE ONE; Whether or not the termination of the Claimant’s employment by the Defendant is not wrongful in law. In arguing this issue counsel submitted that the termination of the Claimant’s employment by the Defendant is wrongful in law the Defendant having failed to comply with the terms of employment and having not given good, truthful or valid reasons for the termination.
14. It is the contention of counsel that the position of the law before now and the 1999 Constitution of the Federal Republic of Nigeria (as amended by the Third Alteration Act, 2010) as well as the National Industrial Court Act, 2006, is regulated by the common law principle of master/servant relationship which is that an employer has the prerogative to hire and fire for good, bad or no reason at all. The courts in Nigeria before now have applied the common law principle to the disadvantage of the Nigerian workers or employees. The courts had relied on the harsh and rigid common law procedure of “at will” employment relation, allowing employers to terminate employments for bad or no reason at all. Thus, in Olaniyan V. University of Lagos (1985) 2 NWLR (Pt. 9) 299 @ 685 the Supreme Court held as follows:
“A master is at common law entitled to dismiss his servant from his employment for good or bad reasons or for no reason at all.”
15. According to counsel that seemingly settled position above, and as rehashed in a number of court decisions in Nigeria in relation to employment relationships, no longer applies as the National Industrial Court of Nigeria, distinguishing the earlier cases which were decided before or without considering the National Industrial Court Act and the Constitution, has held in recent decisions that an employer can no longer dismiss or terminate an employee’s employment for bad or no reason at all. That is, employees can no longer be lightly discarded (for good, bad or no reason at all) as employers are now required to give valid reasons for determination of the employments of their employees.
16. Thus, where unfair dismissal or termination is proved, an employer can now be held liable and substantial damages awarded. Unfair dismissal or termination is an employment situation wherein an employee is dismissed or terminated from his or her role; and the dismissal or termination is unfair when the reason supplied not being a sufficient one, or if the employer did not follow the correct process for dismissing the employee or terminating the employment. It also applies to cases where the dismissal or termination is due to discrimination or victimization as in this case. On this contention counsel relied on an article published on line at https://lawpadi.com/unfair-dismissal-by-an-employer-your-legal-rights/.
17. It is the contention of counsel that the concept of unfair labour practice is not expressly provided for in the Nigerian Labour Laws. However, the concept has gained recognition through the Nigerian Labour Courts (this Honourable Court) pursuant to Section 254C of the 1999 Constitution of the Federal Republic of Nigeria (as amended by the Third Alteration Act, 2010), Section 7 (6) of the National Industrial Court Act, 2006 as well as the Rules of this Honourable Court which enjoined this Honourable Court to adopt and enforce international best practices and labour conventions in determining labour disputes. One of such international convention which has been enforced by this Court in a number of recent decisions is Article 4 of the International Labour Organisation Convention on Termination of Employment – Convention, 1982 (No. 158) (ILO Convention) which stipulates as follows:
“The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertakings, establishment or service.”
18. Articles 5 and 6 of the ILO Convention listed, inter alia, what shall not constitute a valid reason for termination of employment. The provisions of Articles 4, 5 and 6 of the ILO Convention is a clear departure from the general common law position that an employer has the right to terminate an employee with or without reason even though the termination constitutes a breach of contract.
19. In Mix & Blake V. NUFBTE (2004) 1 NLLR (Pt. 2) 247, the National Industrial Court of Nigeria, in its...