IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE ELIZABETH A OJI PhD.
DATE: THURSDAY 12TH MAY 2022 Suit No: NICN/LA/504/2018
EBIRIM CHINYERE JECINTA CLAIMANT
1. KEYSTONE BANK LTD
2. OBEAHON OHIWEREI (Group Managing Director/CEO) DEFENDANTS
3. PREMIER OIWOH (Executive Director Operations and Technology)
P.O. Ochuba for the Claimant
A.O. Kolawole for the Defendant
Introduction and Claim:
1. On the 5th of October, 2018, the Claimant filed this suit via the General Form of Complaint, together with the Statement of Facts, List of Claimant’s witnesses, the Claimant’s witness on oath, verifying affidavit, list of documents; all dated the same 5th day of October, 2018, and copies of the documents to be relied on by the Claimant at the trial of this suit. The Claimant claims against the Defendant as follows:
A) A declaration that the alleged letter of cessation of employment dated 28th December, 2017 issued on the Claimant by the Defendant for termination of employment of the Claimant is wrongful, illegal, null and void and of no effect in law.
B) A declaration that failure of the 1st Defendant to issue one month notice of intention to terminate the employment of the Claimant and/or payment of one month salary to the Claimant in lieu of such notice ultra-vires the terms of employment of the Claimant and also against Nigeria Labour Law.
C) A declaration that the employment of the Claimant with the 1st Defendant, having not been properly terminated, is thereby still subsisting.
D) An Order of the Honourable Court compelling the Defendant to re-instate the Claimant to her duty post and employment, pay her salary up to date of re-instatement without loss of seniority, promotion and/or emoluments.
E) An order of the Honourable Court compelling the defendants to jointly and severally to pay the Claimant the unpaid full salaries and allowance of the Claimant from the date of the wrongful termination to the date of re-instatement and thereafter.
F) An order of the Court that the money credited into the Claimant account by the 1st Defendant on 29th of December 2017 is her salary for the month of January to August 2018.
G) An order of injunction restraining the Defendants either by themselves, their agents, privies, servants or any persons however described from unlawfully tempering with the employment of the Claimant.
H) As an alternatives to the reliefs 1-7 above, an order of the Honourable Court for the Claimant’s full entitlement or compensation to be paid to her based on the redundancy clause of the terms and condition of service in the employment of the 1st Defendant which would total to the sum of (#9,739,209.06k) Nine Million Seven Hundred and Thirty Nine Thousand Two Hundred and Nine Naira, Six kobo only for the Nine Years of Labour (i.e) payment of fourteen weeks total emolument for each completed year of service.
I) An order for general damages of (5,000,000.00) Five Million Naira only for pain and suffering experience by the Claimant in the period of wrongful termination.
2. In response to the Claims, the Defendants filed their defence dated 16th of January 2019 together with a list of Defendant’s witness and Defendant’s witness statement on oath, list of documents and copies of documents to be relied on at the trial. The 1st Defendant counter claims against the Claimant as follows:
a) A DECLARATION that the 1st Defendant is entitled to a refund of the sum of #2,164,268.69, being the sum overpaid the Claimant, in error and to which the Claimant was not entitled under her Terms of Employment.
b) AN ORDER directing the Claimant to immediately refund and credit the 1st Defendant with the said #2,164,268.69.
c) AN ORDER for 21% post judgment interest per annum until final liquidation of the judgment sum.
3. Trial commenced in the suit on 4th of February 2020 and concluded on 8th August 2021. The Claimant gave evidence for herself by adopting her witness statement on oath deposed to on the 5th day of October, 2018. The Claimant was thereafter cross-examined on 18th of February, 2020. During the examination in chief, the Claimant tendered in evidence exhibits C1 to C6 and during cross-examination, the Defendants’ Counsel tendered through the Claimant exhibits C7A to C7G:
i. Employment letter dated 26/8/2008 – Exhibit C1
ii. Appointment letter/Code of Conduct and Confidentiality dated 5/8/2011 – Exhibit C2
iii. Re: Employment letter dated 5/8/2011 – Exhibit C3
iv. Notice of Cessation of Employment dated 28/12/2017 – Exhibit C4
v. Solicitor’s letter dated 6/2/2018 – Exhibit C5
vi. Collective Agreement between National Employers’ Association of Banks, Insurance and Allied Institutions (NEABIAI) and Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) dated 2005 - Exhibit C6
vii. Trail of emails between the Claimant and the Defendant – Exhibits C7A – C7G.
4. The Defendants opened their case on the 18th of February, 2021. Julius Oyedeji gave evidence as DW by adopting his witness statement on oath dated 5th of March 2020, and was cross-examined on 8th July 2021. The Defendant tendered a lone document in evidence marked as Exhibit D1. At the end of trial, the Court ordered parties to file their respective final addresses. The Defendants failed to file their Final Written Address within the time allowed by the Rules; whereupon the Court ordered the Claimant to file her final written address; stating that if the Defendants were later to file in response, the Claimant shall be entitled to file a Reply. The final addresses as filed were adopted on 15th day of March 2022 and the Court adjourned for judgment.
CASE OF THE CLAIMANT
5. The Claimant was employed by the 1st Defendant since 26th August, 2008 when the Bank was known and called Bank PHB. The 1st Defendant absolved the Claimant by issuing the Claimant employment letter dated 5th August, 2011. The Claimant’s employment was protected and regulated by Collective Agreement between NEABIAI and ASSBIFI. In August 2017 new investors bought over the 1st Defendant and many staffs including the Claimant were advised to resign. When the Claimant inquired when she will be paid her entitlements, the management replied that she has no entitlement. After sometime, the Defendant changed the passwords to the Claimant’s system and she was humiliated out of the office. With the intervention of the ASSBIFI, the Claimant was called back to the office and was transferred to Kebbi State against the bank’s policy on transfer; just to victimize the Claimant while she was nursing a baby. The Claimant was thereafter assigned a different task in November 2017 and drafted into Special Task Force of the Bank in December 2017 to victimize the Claimant further. The Claimant’s employment was terminated on 28th December, 2017, and the sum of N2,473,449.93 was paid to the Claimant for the disengagement from the Defendant’s employment. The sum paid to her was below what the Claimant was entitled to under the Work Rule and/or Collective Agreement between Nigerian Employers’ Association of Bank and Insurance and Allied Institution (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) which provides for 14 weeks total emolument for each completed year of service amounting to the sum of N9,739,209.06k for 9 years, inclusive of her employment period with Bank PHB. The Claimant claims one month salary in lieu of notice pursuant to the terms and condition in her contract of employment. The Claimant stated that the sum of N2,473,44993 paid by the 1st Defendant upon her termination is for her salary from January to August 2018. The Claimant alleged hardship due to a robbery attack on her way to the airport, and loss of dignity in her neighbourhood for withdrawing her children from school and difficulty in feeding. The Claimant further alleged inability to find an alternative employment in the banking industry due to having been sacked by the 1st Defendant.
THE CASE OF THE DEFNDANT
6. It is the case of the Defendants that the 1st Defendant was incorporated in year 2011 and licensed to carry on banking services. The Claimant was engaged by the 1st Defendant on 5th August 2011 because the Claimant had previous banking experience with Bank PHB. The 1st Defendant did not change her name from Bank PHB to Keystone Bank as claimed by the Claimant. The Claimant’s employment was governed by Terms of Employment annexed to the Offer Letter of 5th August 2011, and not by any Collective Agreement. The 1st Defendant was divested of AMCON Investment in March 2017, when the 1st Defendant was on the verge of collapsing, running on loss and thus taken over by CBN. The CBN facilitated removal of 1st Defendant’s Management Board and recommended downsizing of the staff of the 1st Defendant for survival of the Bank. In October, 2017, the 1st Defendant took steps to terminate the Claimant’s employment for non-performance but reversed same. The Claimant still continued to under-perform, hence the termination of the Claimant’s employment on 29th December, 2017. The Claimant was not victimised or maliciously transferred. The transfer did not contravene any bank’s policy and was not discriminatory based on gender as the Claimant was persistently non-performing. The Claimant was entitled to only one month’s salary in lieu of notice of termination and only the staff in the cadre of Managers (MGRS) and above were paid compensations for redundancy pursuant to HCPP Manual 2017- Exhibit D1. The sum of N309,181.24 was due to the Claimant in lieu of notice, and the sum of N2,473,449.93 paid to the Claimant was paid in error. The Defendant claims (by counterclaim) that it is entitled to a refund of the sum of
N2,164,268.69 by the Claimant.
SUBMISSONS ON BEHALF OF CLAIMANT
7. The Claimant in her Final Written Address raised the following four issues for determination:
1. Whether the manner of termination of the claimant’s employment with the 1st defendant by the 1st defendant is wrongful, illegal and null and void.
2. Where the answer to issue No.1 is Yes, whether the wrongful termination of the employment ought to attract payment of one month salary in lieu of notice as special damages and consequential general damages for breach of contract.
3. Whether the claimant ought to be re-instated with due payment of all salaries, allowances and entitlements.
OR IN THE ALTERNATIVE
4. Whether the claimant ought to be compensated on redundancy ground on the basis of exhibit C4 and C6, i.e the collective agreement.
8. The Claimant argued issues one and two together and argues that on the face of Exhibit C2, the 1st Defendant absolved “the deposits and/or liabilities of Bank P.H.B” and that Exhibit C2 adopts the same terms and conditions of employment as granted by exhibit C1. The Claimant argues that she has also established that she suffered several pains after the 1st Defendant wrongfully terminated her employment. The Claimant admitted and waived issue three and the associated relief; based on the principle that a Court of law cannot foist a willing worker on an unwilling employer. On issue four “whether the Claimant ought to be compensated on redundancy ground on the basis of exhibit “C4” and “C6”; the Claimant argues that during cross-examination of the 1st Defendant’s witness, the witness clearly admitted that it was as a result of the 1st Defendant’s downsizing policy that the Claimant and other staffs under the employment of the 1st Defendant were sacked. The Claimant argues that this type of loss of job attracts compensation. The Claimant argues that exhibit C6 is clearly adopted in exhibit C4 by the 1st Defendant and that the admissibility of exhibit C6 was not challenged. The Claimant referred to Article 5d(i) of page 16 of exhibit C6 which deals with redundancy and 5d(i) para.2 dealing with the banking group of those staff that have worked for 5years but less than 15 years, stipulating the payment of 14 weeks total emolument for each completed year of service. She argues that the Defendant has so far paid her N2, 473,449.93 and if the said N2, 473,449.93 is subtracted from N9, 939,209.06k, it will remain a balance of N7, 465,759.13k to be paid to her by the 1st Defendant.
SUBMISSIONS ON BEHALF OF THE DEFENDANT
9. The Defendant in its Final Written Address raised four issues for determination:
a. Whether the Letter of Cessation of Employment dated 28th December 2017 was wrongful, illegal, null, void and of no effect in law; and whether the Claimant’s employment with the 1st Defendant was not properly terminated and thereby still subsisting?
b. Whether the Claimant is entitled to an Order for reinstatement and payment of salaries and allowances; and whether the sum of N2,473,449.93 paid to the Claimant on 29th December 2017 upon termination of employment was for salary from January to August 2018?
c. Whether the Claimant is entitled to N9,739,209.064 as Redundancy compensation based on her Terms and Conditions of service?
d. Whether the Defendants are entitled to the Counter-Claim?
10. On issue one, the Defendants argued that from the exhibits before the Court, it is clear that 1st Defendant commenced operation on 5th August, 2011 and it was thereafter that the 1st Defendant offered letter of employment dated 5/8/2011 to the Claimant which was accepted by the Claimant. The Defendants argue that the termination of the Claimant is lawful because the Defendant can elect to terminate the employment of the Claimant in line with the terms and condition of the 1st Defendant and that the 1st Defendant had paid the Claimant the sum of N2,473,449.93, which sum was paid in excess of the Claimant’s one month’s salary in lieu of notice which is N309,181.24. The 1st Defendant argues that it complied with Exhibit C3 in determining the Claimant’s employment.
11. On issue two; whether the Claimant is entitled to an Order for reinstatement and payment of salaries and allowances from 29/12/2017, and whether the sum of N2,473,449.93 paid to the Claimant on 29/12/2017 upon termination of employment was for salary from January to August 2018; the Defendants argue that it is in evidence that Exhibit C4 terminated the Claimant’s employment by cessation and salary in lieu of notice was paid (though overpaid) to the Claimant on 29/12/2017. That there is no basis upon which a declaration for subsistence of Claimant’s employment can be made; relying on the case of Akintola v. Oyo State Sports Council (2006) LPELR-11601(CA) that the law cannot force an employee on an employer who had complied with its terms and conditions of service.
12. On whether the Claimant is entitled to N9,739,209.064 as redundancy compensation based on her Terms and Conditions of service; the Defendants argued that it is clear on exhibit C4 that the Claimant was not dismissed nor was she terminated based on redundancy. Thus, she was not paid under Exhibit D1. The Defendants argue that since the 1st Defendant commenced its operation in 2011, the 1St Defendant cannot be a party nor a signatory to the Collective Agreement made in year 2005 and could not have participated in the series of negotiations that produced Exhibit C6 which expired on 31st may 2007. The 1st Defendant further submits that no probative value can be placed on Exhibit C6, same having expired since year 2007 relying on Nyesom v. Peterside (2016) LPELR-40036(SC). The Defendants argue that Exhibit C6 was a Collective Agreement between NEABIAI and ASSBIFI; whereas Exhibit C4 referred to the Collective Agreement between Keystone Bank and ASSBIFI. The Defendants argue that Exhibit C6 was not incorporated into the terms of contract between the Claimant and the 1st Defendant, and submits that a Collective Agreement that is not incorporated in the terms of employment is not enforceable for lack of privity of contract; relying on Osho v. Unity Bank Plc (2013) LPELR-19968(SC). The Defendant noted that the Claimant tendered Exhibit C6 but withheld the collective agreement referred to in Exhibit C4, thereby, withholding valuable evidence contrary to section 167(d) of the Evidence Act 2011 and relied on the case of Nejo v. Access Bank & Ors (2019) LPELR-47960(CA).
13. On issue four; whether the Defendants are entitled to the counter-claim; the Defendants argue that the Claimant has only led credible evidence as to her entitlement to one month’s salary in lieu of notice as contained in Exhibit C3 and failed to tender any document that entitled her to N2,473,449.93 or any greater sum or established how she became entitled to N2,473,449.93 paid to her instead of the N309,181.24 due to her. The Defendants argue that, on the other hand, they proved their counter-claim through Exhibit D1 which showed that the said amount is only payable to Managers and above only; in lieu of notice. They submit that the Claimant, not being a Manager, was not entitled to payment under Exhibit D1.
CLAIMANT’S REPLY TO THE DEFENDANTS FINAL ADDRESS
14. On the 1st Defendant’s argument that it did not sign exhibit C6, the Claimant states that the 1st Defendant can either sign it or adopt it; same being a collective agreement of interest groups that included the 1st Defendant represented by their respective agents. On the argument that the collective agreement (exhibit C6) has expired, the Claimant responds that the said paragraphs must be read in conjunction with Rule 9 and 9(b) at page 8 and 9 respectively and page 7 as well as Article 1(a) and (b) under part III – General at page 40 of exhibit C6.
15. I read carefully and considered the processes filed in this suit, the evidence led, the written submissions and authorities cited in the final address. I also heard the evidence of the three witnesses called at the trial as well as watched their demeanour. In addition, I evaluated all the exhibits tendered and admitted. Having done all these, I set the following five issues down for determination:
1. What was the Duration of the Employment of the Claimant with the Defendant?
2. Whether the collective agreement (exhibit C6) is applicable as between the parties.
3. Whether the Claimant’s termination was as a result of redundancy.
4. Whether the Claimant is entitled to her reliefs; and
5. Whether the Defendant is entitled to its counterclaim.
Issue One - The Duration of the Employment of the Claimant with the Defendant.
16. The case of the Claimant in this suit is that she was first employed by Bank PHB on 26/8/2008 as shown in exhibit C1. Following the take-over of Bank PHB by the Nigeria Deposit Insurance Corporation (N.D.I.C), the business of Bank PHB was revived under a new organization known as Keystone Bank Ltd - the 1st Defendant. Her case is that the 1st Defendant assumed the deposits and/or liabilities of Bank PHB by exhibit C2 and that following the handover of the 1st Defendant to a new management, the staff under Bank PHB now Keystone Bank Ltd were retained on the understanding of the staff, N.D.I.C., C.B.N. and the new management of the 1st defendant. Her case is that by this, her employment continued from 2008 to 2011 when Bank PHB became Keystone Bank to December 2017 when her employment was determined by the 1st Defendant. On the other hand, the case of the Defendants is that the 1st Defendant is different from the Claimant’s original employer; Bank PHB. The 1st Defendant thus argues that the Claimant worked with it from 5th August 2011 till 29th December 2017 by virtue of exhibit C3.
17. I have considered exhibits C1 – C3 which are the documents relied on by the parties in this case, to assert the duration of the Claimant’s employment. Exhibit C1 is the offer of employment by Bank PHB to the Claimant dated 26th August 2008. Exhibit C3 is letter dated 5th August 2011 titled RE: EMPLOYMENT. It offers the Claimant employment in the 1st Defendant. However, there is also exhibit C2 which is titled APPOINTMENT AS EMPLOYEE OF KEYSTONE BANK LIMITED dated the same 5th August 2011. The Defendants acknowledge exhibit C2 as emanating from it and also as part of the documents regulating the Claimant’s employment. After the employment of the Claimant in 2008 by Bank PHB, there is no document terminating the said employment until exhibits C2 and C3; both made the same day, appointed the Claimant into the 1st Defendant. If exhibit C3 was the document appointing the Claimant to the 1st Defendant for the first time, then the heading RE: EMPLOYMENT would not be an appropriate heading. But then, exhibit C2 had offered the Claimant employment in Keystone. It specifically provides as follows:
Whereas in the exercise of the powers vested in the Nigeria Deposit Insurance Corporation (NDIC) by section 39(1) of the Nigeria Deposit Insurance Corporation Act No. 16 of 2006 (NDIC Act), NDIC in consultation with the Central Bank of Nigeria (CBN) on the 5th Day of August 2011, organised and incorporated Keystone Bank Limited (Plc)(the Bank), and the bank issued a banking license by the CBN.
The Bank having assumed the deposits and/or liabilities of Bank PHB in which you were employed and having regard to the need to appropriately staff the Bank, the Bank in accordance with the approval of its Board of Directors, HEREBY appoints you as staff/officer of the Bank effective immediately from the date hereof; subject to the following terms and conditions:
1. That your position in the Bank shall be the same as the position which you previously held in Bank PHB as of the date immediately preceding this letter; and
2. That the terms and conditions of your appointment (including remuneration by the Bank in Bank PHB shall be the same or substantially the same as the terms and conditions upon which you were previously engaged by Bank PHB as of the day immediately preceding this letter.
18. From the above, it is clear that the Promoters and Incorporators of the 1st Defendant intended to set up a body to assume the role of the defunct Bank PHB. This is clear from the above stated paragraphs of exhibit C2. What is more, exhibit C2 and C3 were issued to the Claimant on the 5th of August 2011; exactly the day that the 1st Defendant was birthed. This was also during the pendency of the Claimant’s employment. The letter head of Bank PHB, and the 1st Defendant’s letter head, show that the 1st Defendant took off in the same premises (off Adeyemo Alakija Street, Victoria Island Lagos.); with the headed papers also showing the same Private Mail Bag (80054) and even the same telephone numbers. This is obvious from exhibits C1 and C2. I am convinced that as at 5th August 2011, the employment offered to the Claimant was intended to continue from the one offered by Bank PHB which was still subsisting. That intention is expressed in exhibit C2 as shown above. Otherwise also, the Claimant would have been terminated by Bank PHB before the 1st Defendant “assumed the deposits and/or liabilities of Bank PHB “. I find and hold that the Claimant’s employment continued from 2008 when she was first employed in Bank PHB and continued in the 1st Defendant when the 1st Defendant “assumed the deposits and/or liabilities of Bank PHB “.
Issue Two - Whether the collective agreement is applicable as between the parties.
19. The Claimant tendered exhibit C6, the collective agreement between the Claimant’s Union and the 1st Defendant’s Union. The Defendants argue that having come into existence in 2011, it cannot be bound by the agreement dated year 2005. I have already found that by exhibit C2, the 1st Defendant assumed the deposits and/or liabilities of Bank PHB; including the terms and conditions of the Claimant’s original contract. The 1st Defendant’s only argument against the application of exhibit C6 is that it did not enter into the said agreement. This means from my finding that exhibit C6 is applicable to the parties in this suit. The argument of the 1st Defendant that it did not sign exhibit C6 is of no moment; as the 1st Defendant has not alleged that Bank PHB (nor the 1st Defendant for that matter) was not a member of NEABIA and the Claimant; not a member of ASSBIFI. This Court now recognises that collective agreements executed between unions representing parties in a suit, are enforceable once it was properly executed. In the case of Chima Ezechukwu v. Tecon Oil Services Nigeria Ltd Suit No: NICN/LA/27/2017 judgment delivered on 25/3/2021, this Court considered the issue of applicability of collective agreements in the absence of an incorporating clause. This Court held as follows:
23. The status of collective agreements as being contracts binding in honour and applicable only upon incorporation into the individual employee’s contract of employment, has constituted a major apprehension in the necessity for employers and workers union to dissipate energy in collective bargaining. The Defendant in this case, has again raised this vexed issue in arguing that exhibits C4 and C12 cannot apply to the Claimant without express incorporation. The Defendant cited a long list of decisions of our appellate Courts that took this position. The Defendant in making that submission conceded to the existence of the Third Alteration Act to the Constitution of the Federal Republic of Nigeria. Counsel however argued that nothing is changed by the Third Alteration Act, and that collective agreements must need still be incorporated into an individual contract before becoming enforceable.
24. Two issues stand out for deliberation in this case; first is whether by virtue of section 254 (C) (J) (i) of the Constitution of Nigeria 1999 (as amended by the 3rd Alteration) collective agreements continue to be binding in honour only and only enforceable upon incorporation; and second, whether in the present case, the collective bargain agreement had become enforceable in favour of the Claimant.
25. The creation of this Court, and the powers donated to it by the National Industrial Court Act 2006, and the Constitution of the Federal Republic of Nigeria(as amended by the 3rd Alteration Act) 1999 intentionally created a new legal regime in industrial relations; including the enforceability of collective agreements. Section 7 subsection (1) of the National Industrial Court Act 2006 provides that:
7. Jurisdiction, etc.
(1) The Court shall have and exercise exclusive jurisdiction in civil causes and matters-
(a) relating to-
(i) labour, including trade unions and industrial relations; and
(ii) environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto; and
(b) relating to the grant of any order to restrain any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action;
(c) relating to the determination of any question as to the interpretation of-
(i) any collective agreement;
26. The section reproduced above gave this Court the jurisdiction to interpret any collective agreement. Section 254C(1) of the Third Alteration Act, furthered this Court’s jurisdiction, beyond mere interpretation, to include enforcement. It provided as follows:
The National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters
(j) relating to the determination of any question as to the interpretation and application of any- (i) collective agreement.
This provision of the Constitution further gave the National Industrial Court the jurisdiction to apply collective agreements.
27. Suffice it to say that this power is only exercisable over collective agreements, which exist between recognized bodies with powers to enter into such agreements under the law. The Law, in this case would include the Labour Act, the Trade Disputes Act, the Trade Unions Act, and even the Constitution. This is again in line with the jurisdiction donated in section 254C(1)(b) overs matters; relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees' Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws.
28. Once a valid collective agreement is shown to have been entered into between legal parties; that agreement becomes applicable, in favour of those expressed to be covered by the said instrument. In the interpretation and application of collective agreements, this Court is enjoined to go beyond itself, and apply international law and practices. The power having been granted prior to section 254C(1)(j) by section 254(1)(f & h). The two sub-paragraphs provide as follows:
(f) relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters;
(h) relating to, connected with or pertaining to the application or interpretation of international labour standards.
29. Without finding the need to consider the implications on ‘unfair labour practice’, as this was not addressed by parties; what then is the international best practices and the international labour standards, in the application of collective agreements? Nigeria has entered into several international commitments which pre-determine for her, the way collective agreements are to be regarded. For instance, the Convention on the Freedom of Association and Protection of the Right to Organise Convention No 87 of 1948, ratified by Nigeria in October 17, 1960, Collective Agreements Recommendation No. 91 of 1951, Collective Bargaining Convention No. 154 of 1981, Right to Organise and Collective Bargaining Convention No. 98 of 1949 ratified by Nigeria on 17th October 1960. The Collective Agreements Recommendation provides that collective agreements should bind the signatories thereto, and those on whose behalf the agreement is concluded. This Recommendation, though not a Convention is evidence of international best practice. This Court is able to apply international conventions and treaties, even where not nationalized by virtue of section 254C(2) which provides that:
Notwithstanding anything to the contrary in this Constitution, the
National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith.
30. Espousing on the above provision of the Constitution, the Court of Appeal Lagos Division in Sahara Energy Resources Limited v. Mrs Olawunmi Oyebola (2020) LPELR-51806(CA) leading judgment delivered by UA Ogakwu, JCA on 3rd December, 2020 recognised and reiterated the potentials of the above provision to change the application of legal principles, from what it used to be. The Court held that:
The above provisions enjoin the National Industrial Court in the exercise of its jurisdiction, to “have due regard to good or international best practices in labour or industrial relations”. The importance of this novel provision, in my deferential view, is that the National Industrial Court in considering the measure or quantum of damages is to do so in accordance with “good or international best practices in labour or industrial relations”, which shall be a question of fact. It will be stating the obvious to say that prior to the Third Alteration, when employment and labour matters were handled by the High Courts, there was no obligation to apply and follow good or international best practices. It is an innovative provision which seems to be directed at enthroning an entirely new employment and labour jurisdiction. It will be disregarding this innovation if we continue to deal with the measure of damages in total disregard of the changes wrought to the law by legislation. The proper attitude of the court when confronted with an innovation introduced by way of an amendment to an existing law or a new statute simpliciter (in this case, the Third Alteration to the 1999 Constitution and the National Industrial Court Act (2006) was enunciated in the case of BANK OF ENGLAND V. VAGLIANO BROTHER (1891)A.C 107 @ 144 -145 (per Lord Herschell) as follows:
“I think the proper course in the first instance is to determine the language of the statute and to ask what is the natural meaning, uninfluenced by any considerations derived from previous state of the law, and not to start inquiring how the law previously stood, and then, assuming that it was probably to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.”
….. Let me iterate that by the doctrine of stare decisis, this court is bound by the decision of the apex court as well as the decisions of this court. However, as I have demonstrated and stated above, the principle laid down in the said cases did not reckon with and take into consideration the obligation on the lower court to now apply good or international best practices in adjudication. The hitherto existing principle, which merely form a starting point, entrenched the common law orthodoxy on the quatum or measure of damages in labour matters….
It should be noted that the primary duty of a Court of law is to do justice, at least substantial, in all matters and causes that come before them, for adjudication by dispassionate appraisal of peculiar facts, evaluation of the material evidence and application of the relevant laws and rules of equity. In the determination of the justice of a case and the entitlement of the parties in equity, the facts and material evidence placed before a Court, are sine qua non. The decision to make any order in a case, whether sought for or not by any of the parties, must be predicated on such facts and evidence, taking the rights, obligations and interests of both parties into account or consideration.”
31. The above case, though founded on quantum of damages, is as applicable to enforcement of collective agreements, as it is to any other emerging principles of law. This Court, post the Third Alteration Act to the Constitution of the Federal Republic of Nigeria, has held that Collective Agreements are applicable into employees’ contract without incorporation. In Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc Suit No. NICN/LA/122/2014 judgment delivered on July 12, 2016, the Claimant relied on the collective agreements between the Nigerian Employers Association of Banks, Insurance and Allied Institutions (NEABIAI) and the Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) and alleged that the Defendant failed to observe its provisions before dismissing him. The Defendant countered that the Claimant cannot rely on the collective agreements as they do not form part of the contract with the Defendant and as such, are not binding on the Defendant since according to the Defendant, collective agreements are generally not enforceable. He further contended that for a party to rely on a collect.ve agreement, the party must establish that the collective agreement was expressly incorporated into the contract of service of the employee and the party who seeks to rely on it is a member of the union which signed the collective agreement on behalf of its members. The Court rejected this contention and held that the collective agreement was applicable to the Claimant, who showed proof of membership of the trade union. See also Aghata N. Onuorah v. Access Bank Plc. (2015) 55 NLLR (Part 186) 17, and Samson Kehinde Akindoyin v. Union Bank of Nigeria Plc Suit No. NICN/LA/308/2013 delivered on 15th April 2015. This Court rejected the notion that a party cannot benefit from a collective agreement because it has not been incorporated into the contract of service. This Court held in the case of Chiazor that:
Today, under section 254C(1)(j)(i), this Court has jurisdiction in terms of the interpretation and application of any collective agreement. It is needless that a Court has jurisdiction to interpret and apply a collective agreement if the intendment of the law maker is not that the collective agreement is to be binding as such. It should be noted that under section 7(1)(c)(i) of the NIC Act 2006, the jurisdiction of this Court was only in terms of interpretation of collective agreements; the issue of application was not included therein. So when the Third Alteration to the 1999 Constitution added application of collective agreement to the fray, this must mean that the law maker deliberately intended collective agreements to be enforceable and binding.
In any event, the rule which held collective agreements not to be binding or to be binding in honour only (the argument of the defendant) is a common law rule. There is no gainsaying that this common law rule is not only rigid but harsh. Legal policy teaches that the rigidity and harshness of the common law is always ameliorated by the rules or principles of equity. In this regard, section 13 of the NIC Act permits this Court to administer law and equity concurrently; but where there is any conflict or variance between the rules of equity and the rules of common law, the rules of equity shall prevail. See section 15 of the NIC Act 2006. Incidentally, in the instant case, this harsh common law rule is not even being ameliorated by the principles of equity but by the Constitution itself. This is the state of the law under which the instant case is to be decided. Accordingly, Soares is distinguishable from the instant case in terms of the state of the law under which the matter at hand calls for determination in this Court.
32. In Lijoka Olaniyi Dennis & 1677 Ors. v. First Franchise Ltd.& Anor Suit No. NICN/LA/526/2013 judgment delivered on 6th February 2019 (2019) 2 NICLR 27, the application of a collective agreement called the ministerial agreement was also challenged by the Counsel for the Defendant relying on the same argument of its non-enforceability because it violates the privity of contract rule. This Court again adopted its reasoning in Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc .
33. Applying all the above authorities of this Court in this case, first, it has been established that the collective agreement was executed between legal persons and second, that the Claimant was a member of the bargaining trade union. I find therefore that exhibit C4/CC1 is applicable to the Claimant.
20. The 1st Defendant in exhibit C4 in notifying the Claimant of the cessation of her employment, referred to the terms of the collective agreement between it and ASSBIFI (the Claimant’s union). The Claimant tendered exhibit C6 as the extant collective agreement between the parties. The Defendants stated that exhibit C6 is not the agreement it referred to in exhibit C4; rather that there exists another agreement. The Defendants failed to tender any other agreement in evidence, and argues that it is the Claimant who should have tendered it. In my view, the Claimant who tendered exhibit C6 as the extant collective agreement; has passed the bulk to the Defendants who assert the existence of another agreement, to tender it. In the absence of any other agreement, I accept exhibit C6 as the extant agreement between the parties, and as the agreement referred to by the 1st Defendant in exhibit C4. Though the 1st Defendant also argued that exhibit C6 was intended to last for only two years, I have seen Article 1 of Part III of exhibit C6 titled DURATION. It provides as follows:
(a) It is agreed that this Agreement shall become into force and operate for two years from 1st April, 2005 to 31st March 2007…….
(b) …….It is also agreed that while negotiations are continuing in respect of any proposal to terminate or amend this Agreement and until a new agreement or an amendment has been signed and the date of its commencement agreed upon, this present Agreement shall remain in force.
21. From the above, and in the absence of evidence of any other agreement subsequent to exhibit C6, I take it that exhibit C6 is the extant collective agreement between the parties. By all the analysis made on issue two above, I find that exhibit C6 is part of the documents regulating the Claimant’s employment in the 1st Defendant.
Issue Three - Whether the Claimant’s termination was as a result of redundancy.
22. Exhibit C4 dated 28th December 2017 notified the Claimant that her employment with the 1st Defendant had ceased. The Claimant raised the issue of redundancy based on the testimony of DW that:
“Due to the fact that the 1st Defendant was being run on loss, the Central Bank of Nigeria cut off the 1st Defendant’s perceived excesses, facilitated the removal of the 1st Defendant’s Management Board and recommended downsizing of the 1st Defendant’s staff for survival of the 1st Defendant”.
The Claimant argues that this admission of downsizing by the 1st Defendant tantamount to redundancy. Assuming it is so, I would resort to the meaning of redundancy as ascribed by exhibit C6 between the parties. Article 5 of exhibit C6 provides as follows:
(a) Redundancy is understood to mean and means in the context of this Agreement, the involuntary loss of employment through no fault of the Employee, caused by an excess of manpower or a contraction of available work though causes beyond the control of the Employer.
(b) In the event of redundancy arising in any member Establishment and before any Employee is declared redundant, there shall be consultation between the National Secretariat of the Union and the Secretariat of the Association.
(c) In all cases, the principle of ‘last in, first out’ shall apply except where the merit and ability of a less senior Employee are, in the management’s opinion, greater than those of an Employee of longer service.
Under paragraph 8.2 of exhibit D1, Redundancy is explained as follows:
“Redundancy occurs when an employee’s Job is restructured or eliminated due to organizational or technological changes or contraction of available work, the causes of which is beyond the control of the bank. If an employee cannot be placed in another position based on training experience or qualifications, he is declared redundant.
Where redundancy is declared, the affected employee shall be entitled to monetary compensation as approved by Management as follows which will not be below the collective agreement in line with the country’s labour laws”. (Underlined for emphasis)
23. Apart from relying on the above provisions to explain the meaning and purport of redundancy and to make claims in redundancy as an alternative relief; I cannot find in Claimant’s evidence, assertion of termination by redundancy. Claimant’s evidence as to the cause of her termination does not assert redundancy. She asserted, among other reasons; victimisation, and breach of her contract in not having been issued one month’s notice or paid one month’s salary in lieu of notice. It is the law that a party must succeed on the strength of his case and not on the weakness of the defence. See Anyafulu & Ors v. Meka & Ors (2014) LPELR-22336(SC). The Claimant has not made out a case of termination on grounds of redundancy. This can be said from Claimant’s Counsel’s very first sentence in his submissions; as follows:
1.1 This is a case in which the claimant claims that the termination of her employment with the 1st defendant is null and void for failing to follow due process i.e for failure to give one month notice or salary in lieu of notice.
1.2 Even though the1st Defendant claims that the termination of the claimant’s employment was on redundancy ground, her due entitlement or compensation thereof as ought to have been paid is not fully paid. This is because the right scale of payment was not followed or applied by the 1st defendant.
This clearly shows that the Claimant did not present a case of redundancy before this Court.
Issue Four - Whether the Claimant is entitled to her reliefs.
24. To determine this issue, I shall take the reliefs sought by the Claimant seriatim. It is the claim of the Claimant and the reliefs sought that a Court must be concerned with. This is the decision in Society Bic S.A &Ors v Charzin Industries Ltd (2014) 4 NWLR [Pt. 1398] 497 at 551-552 where the Supreme Court held that:
To expatiate, it can safely be said that jurisdiction is determined by what the Plaintiff is demanding and cannot be determined by a situation where the response that is anticipated, if I may say so would be decider. Going contrary to using the Claim as a determinant is like begging the question, allowing the cart before the horse or a possible journey into speculation in getting into materials outside what the initiator of the Court process has put forward.
25. Relief ‘A’ seeks a declaration that the alleged letter of cessation of employment dated 28th December, 2017 issued on the Claimant by the Defendant for termination of employment of the Claimant is wrongful, illegal, null and void and of no effect in law. What I can find from the evidence before me is that the said letter of cessation dated 28th December, 2017 failed to comply with exhibits C1 and C3 which both require that parties give one months’ notice or salary in lieu of notice, before terminating the contractual relationship. This is wrongful, as being contrary to the contract between the parties. Not being a contract founded on statute, this cannot be declared illegal, null and void. Its legal effect is that the termination is wrongful. I so hold.
26. Relief ‘B’ is for a declaration that failure of the 1st Defendant to issue one month’s notice of intention to terminate the employment of the Claimant and/or payment of one month’s salary to the Claimant in lieu of such notice is ultra-vires the terms of employment of the Claimant and also against Nigeria Labour Law. My finding on the first relief takes care of this relief.
27. Reliefs ‘C’ for a declaration that the employment of the Claimant with the 1st Defendant, having not been properly terminated, is thereby still subsisting is abandoned, as the Claimant conceded that the Court cannot foist an employee on an unwilling employer. Relief ‘D’ for an order of the Honourable Court compelling the Defendant to re-instate the Claimant to her duty post and employment, pay her salary up to date of re-instatement without loss of seniority, promotion and/or emoluments; suffer the same fate as relief ‘C’. Relief ‘E’ for an order of the Honourable Court compelling the Defendants to jointly and severally pay the Claimant the unpaid full salaries and allowance of the Claimant from the date of the wrongful termination to the date of re-instatement and thereafter cannot be granted in view of the reliefs ‘C’ and ‘D’.
28. Relief ‘F’ for an order of the Court that the money credited into the Claimant’s account by the 1st Defendant on 29th of December 2017 is her salary for the month of January to August 2018 cannot be granted as the entitlement to this relief was not established by evidence. Relief ‘G’ for an order of injunction restraining the Defendants either by themselves, their agents, privies, servants or any persons however described from unlawfully tempering with the employment of the Claimant cannot be granted as to do so will mean imposing the Claimant on the Defendants.
29. Relief ‘H’ is sought as an alternatives to reliefs 1-7 (A-H) above. It seeks an order of the Honourable Court for the Claimant’s full entitlement or compensation to be paid to her based on the redundancy clause of the terms and condition of service in the employment of the 1st Defendant which would total to the sum of (#9,739,209.06k) Nine Million Seven Hundred and Thirty Nine Thousand Two Hundred and Nine Naira, Six kobo only for the Nine Years of Labour (i.e) payment of fourteen weeks total emolument for each completed year of service. I have already held that the Claimant did not establish a case of termination on grounds of redundancy. Though the Claimant sought to rely on 1st Defendant’s admission, evidence does not establish that redundancy was declared by the 1st Defendant; nor that the Claimant was listed as amongst those terminated on that ground. I therefore hold that the Claimant has not established her entitlement to this relief. By this, this relief fails. Relief ‘I’ also fails as a consequence. As a result, the Claimant’s case fails, essentially.
Issue Five - Whether the 1st Defendant is entitled to its counterclaim.
30. The case of the 1st Defendant in counterclaim is that the sum of
N2,164,268.69 overpaid to the Claimant as Terminal Benefits be refunded to the 1st Defendant since the Claimant claims for one month salary in lieu of notice. The Defendants argue as follows:
The Claimant has only led credible evidence as to her entitlement to one month’s salary in lieu of notice as contained in Exhibit C3. cShe has, however, failed to tender any document that entitled her to N2,473,449.93 or any greater sum or establish how she became entitled to N2,473,449.93 paid to her instead of N309,181.24 due to her. The Defendants, on the other hand, in proof of the counter-claim tendered Exhibit D1 which showed that Guaranteed Pay made in lieu of Notice was for MANAGERS AND ABOVE ONLY. The Claimant, not being a Manager, was not entitled to payment under Exhibit D1. We humbly urge your lordship to so hold.
31. I have considered the above argument vis-à-vis exhibit C4 – the letter of cessation of employment. It states that the Claimant’s terminal benefits are as stated in the exhibit C4; that is,
N2473449.93. It did not refer to exhibit D1 as the basis of the terminal benefits. It also did not refer to it as redundancy benefit. The Claimant’s case as presented before this Court, does not preclude terminal benefits. The 1st Defendant itself referred to the payment as “guaranteed pay” to the Claimant. I therefore find that the 1st Defendant has not established that it is entitled to any form of refund for the payment of the “guaranteed pay, in line with exhibit C4. I so hold. The counterclaim fails and is dismissed.
Judgment is entered accordingly. I make no order as to cost.
Hon. Justice (Prof) Elizabeth A. Oji