IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HER LORDSHIP HON. JUSTICE E.N. AGBAKOBA

 

DATED: 14TH MARCH, 2023                               SUIT NO. NICN/ABJ/308/2021

 

BETWEEN:

MRS. KATE JACOB      ……………………………………….                      CLAIMANT

 

AND

HOTEL DE BENTLY LTD                   …………………………….                      DEFENDANT

 

REPRESENTATION:

BOMO PRETEOWEI ESQ with JOY OKONKWO ESQ FOR THE Claimant

C. I. NNAEMEKA ESQ for the Defendant

 

JUDGEMENT

 

1.     The Claimant via a General Form of Complaint, Statement of Facts and other frontloaded process dated 20th October 2021 and filed 1st November 2021 commenced this suit against the Defendant seeking the Honorable Court for the following reliefs:

 

a.      A DECLARATION that the purported termination of the Claimant’s employment from the services of the Defendant vide a letter dated 28th June, 2021, titled “DOWNSIZING” did not follow due process and is consequentially illegal, invalid, wrongful, unlawful, unconstitutional, null and void and of no effect whatsoever.

 

b.      A DECLARATION that the Claimant is still a staff of the Defendant holding the position of Head Chef In Charge of Kitchen on a salary grade of N80,000.00 (Eighty Thousand Naira) with all the benefits allowed by the terms and conditions of her employment.

 

c.       AN ORDER mandating the Defendant to pay the Claimant the sum of N80, 000 (Eighty Thousand Naira) monthly from June, 2021 till the judgment sum is liquidated.

 

IF RELIEFS 1 AND 2 FAIL,

 

d.      AN ORDER mandating the Defendant to pay the Claimant the sum of N80, 000 (Eighty thousand naira) being the one-month salary in lieu of notice accrued to her.

 

e.      AN ORDER mandating the Defendant to pay the Claimant her gratuity in line with Section 1, Paragraph K of the Rules, Terms and Conditions of Service contained in the Staff Hand-Book which sum total is N1,200,000.00 (One Million, Two Hundred Thousand Naira).

 

f.        AN ORDER mandating the Defendant to issue a certificate of satisfactory service after 10 (ten) years of meritorious labour and service to the Defendant.

 

THE FOLLOWING APPLY UNDER RELIEFS 1-2 AND 4-6:

 

g.      A DECLARATION for the immediate computation and payment of all the Claimant’s entitlements in respect of the end of the year bonus for 10 years, service charge for 10 years, and any other compensation that the Claimant is entitled to by virtue of her employment with the Defendant.

 

h.      AN ORDER of immediate registration of the Claimant by the Defendant with any pension administrator of her choice and payment of all arrears of contributory pension from 2011 till the judgment sum is liquidated.

 

i.        AN ORDER of immediate registration of the Claimant with the NIGERIAN SOCIAL INSURANCE TRUST FUND (NSITF) and payment of all arrears due to her credit in accordance with the provisions of the Establishment Act

 

j.        AN ORDER OF THER HONOURABLE COURT directing the Defendant to write a letter of apology to the Claimant and publish same in any of the national daily for the damage done to her person, her position, economic consequences of sudden loss of job, the psychological torture and mental agony caused her and her family consequent upon wrongful termination of her employment.

 

k.      AN ORDER OF THER HONOURABLE COURT directing the Defendant to pay the Claimant the sum of N2,000,000 (Two Million Naira) as general damages for the damage done to her person, her position, economic consequences of sudden loss of job, the psychological torture and mental agony caused her and her family consequent upon wrongful termination of her employment.

 

l.        THE SUM of  N400, 000.00 (Four Hundred Thousand Naira) being the cost of instituting the suit.

 

m.   AN ORDER mandating the Defendant to pay the Claimant 25% interest on the total judgment sum till liquidation.

 

n.      AND for such further orders as the Honourable Court may deem fit to make in the circumstances of the case.

 

2.      In response to the suit commenced, the Defendant filed her Statement of Defence and accompanying processes frontloaded dated 29th November 2021 and filed 6th December 2021 he however did not filed her Memorandum of Appearance. Claimant filed a Reply to the Defendant’s Statement of defence dated and filed 1st of March 2022. With these pleadings filed, parties joined issues.

 

3.      Before proceeding, I will give a brief summary of the complaints of the Claimant and the defenses of the Defendant to the complaints.

 

CLAIMANT’S CASE

 

4.      The Claimant is a professional Chef. She was by virtue of the Defendant’s letter dated 24th August, 2011 employed as a Senior Cook of the Defendant. The Defendant confirmed this appointment through a letter of Confirmation of Appointment” dated 20th September, 2012 upon the completion of the Claimant’s probation and competence in the discharge of her duties. The Claimant averred that other terms and conditions of service as contained in the staff hand book also apply. Due to her dedication to duty, commitment and satisfactory performance, the Defendant promoted her on the 14th  of February, 2014 to the position of a Chef and her salary was accordingly increased to the sum of 50,000.00 (Fifty Thousand Naira) with other benefits stated in the staff hand book. Again by an evaluation of her performance which had added value to the operation of the Defendant in the preceding months captured in a letter dated 19th August, 2016, her salary was reviewed upwards to N72,400 (Seventy-Two Thousand Four Hundred Naira). Subsequently, the management of the Defendant via a letter dated 21st of June, 2017, approved a change of the Claimant’s position from “A CHEF” to the position of “HEAD CHEF IN CHARGE OF KITCHEN” which took effect on the 1st of July, 2017 and this was accompanied by a salary raise to N80,000 (Eighty Thousand Naira).

 

5.      The Claimant averred she was served a letter dated the 28th of June, 2021 of “DOWNSIZING” laying her off and thus, ending and terminating the contract of employment under the guise of “downsizing”. There was no notice given to her prior to the dismissal from employment neither was the sum of N80, 000 (Eighty Thousand Naira) being one month salary in lieu of notice paid to her by the Defendant. She is also entitled to gratuity of 6 (Six) weeks gross salary pay for every completed year for 10(Ten) years which had never been paid to her. The Claimant averred that she was denied her entitlement to pension benefits, her right to Social Insurance benefits contrary to the Pension Reform Act and the Nigeria Social Insurance Trust Fund Act. And by a letter dated 24th August, 2021 which was sent to the Defendant through her legal practitioner she demanded the immediate computation and payment of all her entitlements in respect of the end of the year bonus for 10 years, service charge for 10 years, gratuity, salary in lieu of notice and any other compensation she is entitled to by virtue of her employment with the Defendant. The reckless action of the Defendant has made her incur an avoidable legal fee in the sum of N400, 000.00 (Four Hundred Thousand Naira) as cost of this action.

 

DEFENDANT’S DEFENCE

 

6.      The Defendant on the other hand stated that the Claimant was an employee by virtue of a letter of appointment. They averred that on completion of the Claimant’s six months’ probation the claimant’s appointment was confirmed. The claimant was promoted on 14/02/14 to the position of a chef, had salary increase on 19/8/2016 and was made a HEAD CHEF with effects from 01/07/2017. They averred that all due to and in accordance with the rules, terms and condition of service stated in the Handbook and not due to any evaluation or good performance or any other standard, measurement or yardstick as claimed by the claimant. The Defendant averred that on several occasion the claimant was issued with repeated queries by various departments of the defendant’s hotel due to the claimant’s wrongdoings including theft of the defendant’s materials under her custody. The report of the panel set up to investigate the various allegations leveled against the claimant actually indicted her in its report and recommended her for dismissal. Claimant was however served a downsizing letter which was not a termination of her employment or dismissal as claimed but a temporary measure by the defendant thus no notice is required or payment in lieu. The Defendant averred that no rightful entitlement or benefits was denied the claimant. The issue of gratuity claimed is not contained in the current service handbook of the hotel. The issue of pension and social insurance benefits are contributory between the staff and the hotel and that it was the staff that resolved not to contribute and therefore the claimant is not entitled to any of those. The letter referred to in paragraph 18 of the claim was not responded to because it was considered worthless as the claimant is not entitled to anything from the defendant.

 

 

CLAIMANT’S REPLY TO DEFENDANTS STATEMENT OF DEFENCE

 

7.      In a reply to the Defendant’s Defence, the Claimant averred that the queries mere questions where clarity was needed about the actions or inactions of the Defendants’ staff in the department she was heading, and that all her answers to the questions and subsequent actions on the issues raised therein were satisfactory to the Defendant. The reason why none of the queries elicited warning or led to a dismissal neither were they the reasons for the termination of her contract of employment. The Claimant averred that the purported report of the Investigation Panel is an afterthought of the Defendant. Her former position in the Defendant was filled immediately she was terminated with a new Chef on lower remuneration. Claimant was unjustly laid off without due course and due process as it is expressly stated in the “RULES, TERMS AND CONDITIONS OF SERVICE” that the company may at its discretion terminate the appointment of any confirmed employee by giving one month’s notice or pay month salary in lieu of notice.

 

8.      The Claimant was neither paid any of her entitlements in respect of end of year bonus, service charge (which is supposed to be paid on the 15th day of every month), salary in lieu of notice, gratuity for 10 (ten) years as provided by the “RULES, TERMS AND CONDITIONS OF SERVICE” of the Defendant nor any of her entitlements according the law including pension benefits and Social Insurance Benefits contrary to the Pension Reform Act and the Nigerian Social Insurance Trust Fund Act. She is not aware of any new contract as she was never re-employed at any point in time by the Defendant. The Claimant further avers that gratuity is her entitlement by law whether or not it is contained in the “RULES, TERMS AND CONDITIONS OF SERVICE”.

 

9.      The Claimant finally averred that it is the duty of the Defendant by virtue of the Pension Reform Act to register all its employees with a Pension manager and subtract certain percent of their monthly wages to be contributed by each member of staff as pension. The Claimant cannot contribute to herself where the Defendant has not done its homework of putting in the proper pension structure by engaging and registering a pension manager as required by law since the onus is on it.

 

10. At the trial which commenced on 8th March 2022 the Claimant testified as CW 1, adopted her written statements on oath of 1st November 2021 which was marked C1. The witness proceeded to tender the following documents;

a.      Hotel De Beauty Rules, Terms and Conditions of Service Handbook.           C2

b.     Letter of Offer of Provisional Employment dated 24th August, 2011.           C3

c.      Letter of Confirmation of Appointment dated 20th September, 2012.         C4

d.     Letter of Promotion and Salary Increase dated 14th February, 2014.          C5

e.      Letter of Increase in Salary dated 19th August, 2016.                            C6

f.       Letter of Change of Status dated 21St June, 2O17.                                    C7

g.      Letter of Downsizing dated 28th June, 2021.                                             C8

h.     Letter dated August 2021 titled, “MRS. KATE JACOB:

WRONGFUL TERMINATION OF EMPLOYMENT”.                            C9

i.        Receipt of professional fee issued by the firm of M.D.

Owolabi & Co to the Claimant dated 23rd August, 2021.                       C10.

 

11. Exhibit C2 was however admitted under protest. After cross examination by the Defendant Counsel, the Claimant’s case was closed, and the Defendants called Innocent Onwuaso, their Human Resource Manager who testified as DW1, adopted his witness statements on oath of 29th November 2021 which was marked D1, and he went on to  tender 8 documents which were Exhibit D2-Exhibit D9;

 

a.      The handbook containing rules, terms & conditions of service marked Annexure A             .D2

b.     A query letter dated 13/6/2019 from owner’s representative marked Annexure B with its written reply by the claimant dated 13/6/2019 marked Annexure B.                                                D3

c.      A query letter dated 12/11/19 emanating from Human Resource Manager marked Annexure C and its written reply by the claimant dated same day and marked Annexure D.       D4

d.     A query letter dated 25/09/2020 emanating from the internal auditor marked Annexure D as well as its written reply by the claimant dated 25/9/20 marked Annexure D1.                 D5

e.      Letter of query (internal memo) from the Accountant dated 1/02/2021 marked Annexure E and the written reply to it by the claimant bearing the same date and marked Annexure E1.                       D6

f.       The report of the investigation by the panel set up to look into the claimant’s misconduct and fraud marked Annexure F.                       D7

 

12. DW1 was duly cross examined by claimant Counsel, thereafter the defendants closed their case and the matter was adjourned for the filing of final written addresses in line with Order 38 rule 20 (2).

The Defendant’s Final written Address was dated 18th October 2022 and 24th October 2022. The Claimant’s Final Written Address was dated 24th November 2022 and filed 25th November 2022. While the defendant’s Reply on Points of Law was dated 2nd December 2022 and filed 6th December 2022.

 

DEFENDANT’S FINAL SUBMISSION

 

13.                        The Defendant in addressing the court raised two issues for determination to wit;

 

a.     Is the Letter of DOWNSIZING dated 28th June 2021 issued to the Claimant by the Defendant tantamount to unlawful Dismissal? As to confer on the claimant a reasonable cause of Action?

b.     Is the Claimant entitled to the litany, avalanche or any of the Reliefs sought?

 

14. On the First Issue, Counsel submitted that it does not amount to unlawful dismissal or termination of employment where a company reduce the number of its employees in order to reduce cost as in downsizing. And the claimant has not disclosed, any reasonable cause of action against the Defendant to warrant the exercise of jurisdiction of this Honourable Court. It is Counsel’s contention that the claimant has not established before the court that she is entitled to the reliefs sought even going by the Exhibits which are tendered through her during the examination-in chief. He submitted that section 4 of the Evidence Act, 2011 provides that;

 

“Facts which though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places “

 

15. To further buttress the point that the claimant was not unlawfully terminated of her services the D.W 1 also testified that one of the Downsized staff by name Amaka has been called back and has since resumed duty. Also that the position of a Head chef is still vacant in the Defendant Hotel, adding that the claimant could be called back if the company recovers economically. It is Counsel’s submission that the termination of the claimant’s services by the Defendant is not unlawful.

 

16.                        On the Second Issue, it is learned counsel’s submission that the claimant has no cause of action to be determined before the court. It is trite that a cause of action is a fact or a combination of facts which when proved would entitle a plaintiff to a remedy against a Defendant. OSHOBOJA V. AMUDA (1992) 6 NWLR (PT 250) 690. He submitted that the law is equally settled that a reasonable cause of action is a cause of action which when only the allegation in the statement of claim is considered has some chances of success. SEAGULL OIL LTD V. MONI PULO LTD (2011) 15 NWLR (PT.1271) 525; RINCO CONSTRUCTION CO. LTD V. VEEPEE INDUSTRIES LTD & ANOR (2005) LPELR. 2949 (SC)

Learned Counsel submitted that since there is no unlawful termination of employment as the claimant have failed to establish same, no legal right of the claimant has been injured and therefore no reasonable cause of action has been disclosed. IBRAHIM V. OSUN (1988) LPELR -1403 (SC); OBU & ORS V. S.P.D.C LTD & ANOR (2013) LPELR-21241 CA. Counsel again submitted that if the Defendant’s handbook is in issue and therefore relevant, it cannot be admissible if it is not signed or executed by the parties. Therefore the signature tendered by DW1 is relevant and shall be fully admitted by the court being part of the current handbook of the Defendant. Section 93 (1) of the Evidence Act.

Defence Counsel finally submitted that it is trite that an unexecuted document is not a valid document and cannot confer any legal right on any person placing reliance on same.

 

 

CLAIMANT’S FINAL SUBMISSION

 

17. The Claimant in addressing the court raised two issues for determination to wit;

 

a.     Whether the Claimant is entitled to the reliefs sought before this Honourable Court.

b.     Whether Exhibit D8 admitted in evidence under protest can be relied on by the court.

 

18. On Issue One, Counsel submitted that the Claimant is entitled to all the reliefs sort in her Claims for the following reasons:

a.      Claimant was employed by the Defendant on the 24th of August 2011 vide a letter of OFFER OF PROVISIONAL EMPLOYMENT marked as Exhibit C3 which expressly stated the terms and conditions of employment including a one month written notice of termination or payment of one month salary in lieu of notice.

b.      The offer letter also contained 21 days leave per year and a leave allowance of 10% annual basic Salary.

c.       Other terms and conditions of employment are contained in the Defendant’s Handbook titled: ‘Rules, Terms and Conditions of Service’ which was given to the Claimant upon confirmation of her employment in 2012.

 

19. Counsel citing the case of IDUFUEKO VS. PFIZER (2014) 58 NSCQR 601 submitted that in determining the rights and obligations of the parties to a contract, the court must respect the sanctity of contract made by them. They are bound by the terms thereof; and the court will not allow a term on which there is no agreement to be read into it. Also it is trite law that parties are bound by the terms of their agreements.

 

20. Claimant Counsel submitted that the position of the law is that where the termination of a contract of service was found to have been wrongful, the measure of damages that the plaintiff could be entitled to would be salaries for the length of time during which notice of the termination would have been given in accordance with the contract of employment. He would in addition be paid other legitimate entitlements due to him at the time her employment was terminated. IDUFUEKO VS. PFIZER (2014) 58 NSCQR 601; SLYVESTER C. NWOYE VS. FEDERAL AIRPORT AUTHORITY OF NIGERIA (2019) 77 NSCQR 217. Counsel citing the case of DUDUSOLA Vs. NIG GAS COMPANY LIMITED (2013) 53.3 NSCQR 785, submitted that the Court held that Where parties to a contract mutually agree that the condition for termination is the giving of notice or payment of equivalent salary in lieu of notice, the only valid way to discharge a party from her obligation under the notice stipulated is the payment of the equivalent salary for the period of the notice.  He submitted that it is trite that the Master has unfettered right and liberty to terminate or dismiss her servant’s employment at any time and for any reason or for no reason at all provided the terms of the contract of service between them are complied with.

 

21. Counsel stated that the salient facts pleaded by the Claimant were not evidentially challenged or rebutted by the Defendant. He submitted that the position of the law is very clear that an unchallenged or rebutted tact is taken as admitted. RADE VS. FRN (2018) 76 NSCQR 580. Counsel quoted the New Webster’s Dictionary of English Language, International Edition at page 282 which defined downsizing as to reduce in number or cut back and the Online Cambridge Dictionary defined downsizing as the act of making a company or an organization smaller by reducing the number of people working for it. Similarly, the work.chron.com defines downsizing as....in the world of business, the term refers to the termination of employees from a company because their positions are no longer needed.  Counsel submitted that it is trite law that an employer can discipline an erring employee in the course of employment. By the condition of service of any organization properly so called an employer ought to be able to discipline erring employees. IMONIKHE VS. UNITY BANK PLC (2011) 46 NSCQR 554.

22. Counsel posited that it is established beyond peradventure that downsizing means termination but not on disciplinary ground — the employer may or may not call back the employee in most cases. As it is also not in dispute that any of the either parties can terminate in line with the terms and conditions of employment.  Counsel contended that all the conditions and terms associated with termination of employment ought to have been observed by the Defendant in their case for the Claimant to part with her rightful entitlements. This because the decision to recall is not sacrosanct, the employer is not duty bound to recall and the employee is also not duty bound to accept. But if the recall is made and it is accepted, such should be based on new terms and conditions of employment. It is Counsel’s submission that downsizing as it is being erroneously interpreted by the Defendant in this matter is alien to labour law and the rules of her contract of employment. Nowhere, was it stated in her letter of employment and the Defendant’s handbook that downsizing can be employed as a tool by the Defendant to deny a diligent staff of her rightful entitlements. IDUFUEKO VS. PFIZER (2014) 58 NSCQR 601.

 

23. Counsel contended that the Defendant’s witness in the matter was sent to the court by the management of the Defendant to perjure in defence of its incurably bad case. He submitted that it is trite law that facts admitted need no further proof. A party cannot approbate and reprobate. R.M.A.F.C VS. ONWUEKWEKPE (2009) 15 NWLR (PT.1165) Pg. 592.

 

24. Counsel further submitted that a cause of Action is determined by reference to the Plaintiff’s Statement of Claim and the Court is to look at the Writ of Summons and the averments in the Statement of Claim. Cause of action as facts which when proved will entitle a Plaintiff to a remedy against a Defendant. NANA OPIA VS. INEC (2014)57.2 NSCQR 1239; UNIJOS VS IKEGWUOHA (2013)53.3 NSCQR 1002. Learned Counsel submitted that the evidence of the Defendant and its witness should not be given any probative value as same is full of obvious lies and contradictions. He further submitted that it is basic that contradictions must amount to substantial disparagement of the witnesses contradictions are fatal only if, not being minor, they go to the substance of the case. And what is material and substantial remains a question of fact. YAKUBU VS. YAUROYEL (2014) 58 NSCQR 192.

 

25. Counsel finally submitted that it is trite that a document speaks for itself and one cannot read into the text what is not contained therein. JENKINS WEDE VS. DELTA STATE ASSEMBLY (2019) 79 NSCQR 805.

 

26. On Issue Two, Counsel stated that the Defendant allegedly signed by the Claimant and the Management of the Defendant) marked as Exhibit D8 to which we objected to its admissibility and same was admitted under protest. He submitted that there are three basic conditions that govern the admissibility of documentary evidence and these conditions have been stated in plethora of cases. Counsel cited the case of OKOYE VS. OBIASO (2010)8 NWLR (PT.1195) @ 145, where the court listed these Conditions as follows:

a.     Is the document pleaded?

b.     Is it relevant to the enquiry being tried by the court?

c.      Is it admissible in law?

 

27. He then submitted that the said document Exhibit D8 failed to meet all the above stated requirements as it was not pleaded anywhere in the Defendant’s processes hence it is not admissible in Law. JACKIE PHILLIPS VS EBA ODAN (2012) 50.2 NSCQR 1. Counsel submitted that the said document, Exhibit D8 is not relevant to the enquiry tried by this Honourable Court.  As Exh. D8 contains only signatures which has nothing to do with the issue of wrongful termination before the court. Document can be admitted whether or not it was specifically pleaded provided the content of such document are material and the facts related to such document have been stated before the court. AMINU V. HASSAN (2014)57 NSCQR 44; NWAOGU V. ATUMA (2013) 54.3 NSCQR 1782.

 

28. The +Counsel finally submitted that the said document is not relevant, it was not pleaded and therefore not admissible in law. Section 4 of the Evidence Act referred to by the Defendant in its Final Address is not relevant to the admissibility or otherwise of the document in issue as the said section does not relate in any way to the admissibility of documentary evidence.

 

DEFENDANT’S REPLY ON POINT OF LAW

 

29. In furtherance of Counsel’s argument the admissibility of the signature page of the Defendant’s Handbook, Exhibit D10 was tendered in the Court by the DW1 who is the Human Resources Manager of the Defendant and therefore In custody of the personal files of all the staff including the Claimant. Exhibit D10 therefore emanates from the proper custody. He cited Section 156 of the Evidence Act, 2011 which provides thus;

 

“Documents are said to be in proper custody within the meaning of Sections 148 to 155 of the Act if they are in the place in which and under the care of the person with whom, they would naturally be but no custody is improper if it is proved to have a legitimate origin, or if the circumstances of the particular case are such as to tender such an origin probable”

 

30. Counsel also submit that admission is based on relevancy. Section 7 of the Evidence Act 2011. Exhibit D10 is necessary being the original copy of the Claimant’s signature on the Handbook of the Defendant regulating the terms and condition of work of the employees.

Counsel argued that the Handbook tendered by the Defendant was duly executed by the parties. He stated that the essence of Exhibit D10 is to prove or establish due execution of the Defendants Handbook of 2017.

 

31. Counsel cited SECTION 101(1) OF THE EVIDENCE ACT, 2011 which provides that —

“In order to ascertain whether a signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has been produced or proved for any other purpose”

 

32. Counsel cited the case of OKOYE V OBIASO (2010) 8 NWLR (PT. 1195)@145 where the conditions for admissibility of documentary evidence were stated as follows:

 

                                i.            Whether the document is pleaded?

                              ii.            Is it relevant to the enquiry being tried by the Court?

                           iii.            Is it admissible in Law?

Counsel submitted that the exhibit in question, the signature page of the Handbook of the Defendant forms part of the handbook itself already pleaded and admitted by the Court in evidence.

 

COURT’S DECISION

 

33. I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issues for determination in this suit to my mind are the issues formulated by the parties to wit

 

a.     Is the Letter of DOWNSIZING dated 28th June 2021 issued to the Claimant by the Defendant tantamount to unlawful Dismissal? As to confer on the claimant a reasonable cause of Action?

b.     Whether the Claimant is entitled to the reliefs sought before this Honourable Court.

34. Before delving into the merit it is necessary to resolve the objections to the documents raised during trial

The Defendant contend that the handbook tendered by the Claimant Exhibit C2 is in issue and therefore relevant, it cannot be admissible if it is not signed or executed by the parties. Therefore the signature tendered by DW1 is relevant and shall be fully admitted by the court being part of the current handbook of the Defendant. Section 93 (1) of the Evidence Act.

The Claimant contends that Exhibit D8 is not relevant to the enquiry tried by the Honourable Court.  As Exhibit D8, contains only signatures which has nothing to do with the issue of wrongful termination before the court. Document can be admitted whether or not it was specifically pleaded provided the content of such document are material and the facts related to such document have been stated before the court. To the Claimant Section 4 of the Evidence Act referred to by the Defendant in its Final Address is not relevant to the admissibility or otherwise of the document in issue as the said section does not relate in any way to the admissibility of documentary evidence.

The Defendants maintained that Exhibit D10 was tendered in the Court by the DW1 who is the Human Resources Manager of the Defendant and therefore in custody of the personal files of all the staff including the Claimant. Exhibit D10 therefore emanates from the proper custody. He cited Section 156 of the Evidence Act, 2011 that admission is based on relevancy. Section 7 of the Evidence Act 2011. Exhibit D10 is necessary being the original copy of the Claimant’s signature on the Handbook of the Defendant regulating the terms and condition of work of the employees. To the Defendant the signature page of the Handbook of the Defendant forms part of the handbook itself already pleaded and admitted by the Court in evidence.

 

35. The Claimant raised the issue of hearsay in respect to the evidence of DW.

I shall start with the last point The NICN has had cause to caution employers on this point in a number of cases. In ADESANYA ADEYEMI JOACHIM V. UNION REGISTRARS LIMITED Unreported Suit No. NICN/LA/139/2014, the judgment of which was delivered on 17th December 2019, for instance, the President of this Court His Lordship Hon, Justice B. B. Kanyip PhD, noted that while an artificial entity acts through its human agents and so reserves the right to choose wherever it wants to testify on its behalf, the truth is that it takes a huge risk if it calls someone as a witness who was not privy to the facts upon which evidence is given. And at paragraph 56 of MR. CHARLES UGHELE V. ACCESS BANK PLC. unreported Suit No. NICN/LA/287/2014 the judgment of which was delivered on 10th February 2017, His Lordship intoned thus:

 

“I have often lamented and cautioned employers for refusing to call as witnesses those who were actually involved in the facts leading to the dispute in issue. No doubt, an employer reserves the right to call whoever it wants as a witness. However, an employer who simply calls anyone to testify stands the risk that if the claimant’s testimony is more believable, that defence witness who was not involved in the facts leading to the case but is called as a witness, would end up an unbelievable witness. This is exactly the scenario playing out in the instant case.”

 

36. And in support of the opinion of hid Lordship in the following cases, PASTOR (MRS) ABIMBOLA PATRICIA YAKUBU V. FINANCIAL REPORTING COUNCIL OF NIGERIA & ANOR unreported Suit No. NICN/LA/673/2013, the judgment of which was delivered on 24th November 2016, MR. CHARLES UGHELE V. ACCESS BANK PLC (Supra), DOROTHY ADAEZE AWOGU V. TFG REAL ESTATE unreported Suit No. NICN/LA/262/2013, the judgment of which was delivered on 4th June 2018 and ADESANYA ADEYEMI JOACHIM V. UNION REGISTRARS LIMITED (Supra). The evidence of the witnesses of the respective employers did not stand against the evidence of the respective employee given that the evidence of the respective employees was preferable. It is not debatable that as the Human Resource Manager DW is in-charge of the Personnel of the defendant but there is no gainsaying the need for witnesses to be privy to the facts in issue in each case and not have to rely on institutional knowledge.

The Defendant contends that the handbook in use was Exhibit D2 and went on to attempt to prove it by signature and to argue that the one tendered by the Claimant Exhibit C2 was not executed. Not signed. The Claimant countered maintained relevancy was the determining factor and pleaded. Admissibility; if it is relevant it is admissible.

Claimant tendered Exhibit C2 Handbook to present source of her entitlement- relevance to her case.  This exhibit, I find contains Section 1 Clause K which is not contained in the Defendants Handbook Exhibit D2.

 

SECTION 1

 

a.     (K) GRATUITY provides thus; -

b.     All staff that have been in service of the company and have put in at least 5 years shall be entitled to the following gratuity pay upon their termination or resignation. Dismissed staff is not entitled to gratuity benefits:

 

o   5 Years to 7 Year —4 weeks gross salary

for every completed year of service

o   8 Years to 10 Years — 6 weeks gross 

salary pay for every completed year of service.

o   Years and above — 8 weeks gross

salary pay for every completed year of service

 

37. The Defendant rejects the Claimant’s Handbook as not being executed and being unsigned, Defendant tendered Exhibit D2 their handbook which the Claimant had signed and they authenticated by Exhibit D8 signature page showing Claimant’s signature.

 

38.                        It is pertinent to point out at this time that Letters of appointment generally in this nation are very short, often one or two-page documents which by their nature do not and cannot contain all the conditions of service. The terms and conditions of employment set out in a company’s handbook; form the basis of the contract of employment between the company and its employees. SPECOMILLS TEXTILES, IKEJA v. NATIONAL UNION OF TEXTILES, GARMENT & TAILORING WORKERS OF NIGERIA (DIGEST OF THE NATONAL INDUSTRIAL COURT (1978 – 2006 – DJNIC) 334 @ 335, RATIO 1.

 

39.                        Now the position of the law is that there is no gainsaying that an unsigned document is worthless and has no evidential value. This rule, however, applies only where the document in issue ought to be signed. In NWANCHO V. ELEM [2004] ALL FWLR (PT. 225) 107, AIKI V. IDOWU [2006] ALL FWLR (PT. 293) 361; [2006] 9 NWLR (PT. 984) 47 and SARAI V. HARUNA [2008] 23 WRN130, where it was held that any document which ought to be signed and is not signed renders its authorship and authenticity doubtful. And by MADAM JARATU ABEJE & ANOR V. MADAM SARATU APEKE [2013] LPELR-20675(CA), though unsigned documents should attract little or no evidential weight or value, it is not everything in writing that goes under the rubric of “document” that will lose its evidential worth simply because it is not signed. It must be noted that conditions of service are most often not signed, or even dated. Employees are also not required to sign conditions of service. In other words, the applicability of conditions of service or staff handbooks is not dependent on their being dated, or signed by either the employer and/or employee. See MRS ROSELINE EKENG V. INTERNATIONAL ENERGY INSURANCE PLC unreported Suit No. NICN/LA/122/2016, the judgment of which was delivered on 18th June 2019 at paragraph 38.

 

40.                        Is Exhibit C2 a document that ought to be signed? The position of labour law is in the negative. Exhibit C2 does not require to be signed to be applicable. The Defendants submission as to the non-signing of Exhibit D2 holds no water and therefore fails. The Defendants had argued that Exhibit C2 was longer in use but looking at their Exhibit D2 thee was no indication that it was intended to repeal exhibit C2.

 

41.                        The position of the law is that the parties are bound by those terms. The court has no duty to look outside the terms stipulated and agreed therein by the parties to the contract in determining the respective rights and obligations of the parties arising from the contract. See WESTERN DEV.CORP.VS. ABIMBOLA [1966]4 NNSCC 172. NWAUBANI VS. GOLDERN GUINEA BREWRIES PLC. [1995] 6 NWLR PT.400 PG. 184 COLLEGE OF MEDICINE OF UNILAG VS. ADEGBITE [1973]5 SC 149. INTERNATIONAL DRILING CO. VS. AJILILA [1976]2 SC 115 and in the interpretation of a contract (including a contract of employment) involving several documents, the documents must be read together. CBN V. IGWILLO [2007].   NWLR (PT. 1054) AT 393. In that wise I shall read Exhibits C2and Exhibit D2 as well as the Claimant Exhibit C3- Exhibit C6 as documents governing her employment i.e. contract of employment.

 

42.                        In doing so I am also aware that labour laws, when ambiguous, are designed to benefit the employee (See http://cnn.it/2msSgpo as accessed on 16th March 2017, where it was reported that the absence of an Oxford comma in a clause meant a favourable interpretation for drivers in a claim for overtime pay). This means that in interpreting contracts of employment, any ambiguity would be resolved against the employee, and as such in favor of that which gives the employee an advantage. See JAMES ADEKUNLE OWULADE V. NIGERIAN AGIP OIL CO. LTD unreported Suit No. NICN/LA/41/2012 the judgment of which was delivered on 12th July 2016 and MR. M. A. CHIROMA V. FORTE OIL PLC UNREPORTED Suit No. NICN/ABJ/165/2018, the judgment of which was delivered on 2nd May 2019.

 

43.                        I find that the Claimant has established a claim for and is entitled to the gratuity provided in Exhibit C2. I so hold.

 

 

Exhibit C5

 

Hotel De Bently Ltd.

Plot 892, Ngozi Okonjo Iweala Street, Utako District, Abuja.

Tel: 0803 770 9249, 0806 759 5321, 0708 136 1391, 0805 213 1203, 0705 292 6033, 09290785

E-mail: hoteldebently@yahoo.com; reservation©hotèldebently.com; www.hoteldebently.com

 

28th June, 2021

MRS. JACOB KATE

Kitchen Department,

 

Dear Kate,

 

DOWNSIZING

Following the ongoing reorganization in the hotel, you are hereby notified of management’s resolve to downsize you amongst other staff to suite the current economic realities of the country with effect from Monday 28th June, 2021.

Please note that you are not terminated from service, but it is only a temporal austerity measure which may require your recall as soon as economic activities reverse to its favorable status quo. Please take my assurances of the highest regard.

 

For Hotel De Bently

 

Innocent Onwasor

Human Resources Manager.

 

 

44. Like I had indicated earlier, Exhibit C5 dated February 13, 2021, reproduced above terminated the Claimant’s employment with effect from same date (i.e. February 13, 2021) and gave the reason as downsizing.

45. The Bing Online Dictionary accessed on 28th February 2023 defined ”downsizing” as make (a company or organization) smaller by eliminating staff positions: or  (of a company) eliminate staff positions. While Wikipedia accessed by 12:04 pm the same day suggested synonyms such as  layoff[1] or downsizing is the temporary suspension or permanent termination of employment of an employee or, more commonly, a group of employees (collective layoff) for business reasons, such as personnel management or downsizing (reducing the size of) an organization. Originally, layoff referred exclusively to a temporary interruption in work, or employment but this has evolved to a permanent elimination of a position in both British and US English, requiring the addition of "temporary" to specify the original meaning of the word. A layoff is not to be confused with wrongful terminationLaid off workers or displaced workers are workers who have lost or left their jobs because their employer has closed or moved, there was insufficient work for them to do, or their position or shift was abolished (Borbely, 2011). Downsizing in a company is defined to involve the reduction of employees in a workforce. Downsizing in companies became a popular practice in the 1980s and early 1990s as it was seen as a way to deliver better shareholder value as it helps to reduce the costs of employers (downsizing, 2015).

 

46. The law was once that an employer can terminate the employment of an employee with or without a reason. See ANGEL SHIPPING & DYEING LTD V. AJAH [2000] 13 NWLR (PT. 685) 532 (CA). Although modern systems prefer that a reason be given by such an employer. See PENGASSAN V. SCHLUMBERGER ANADRILL NIGERIA LIMITED [2008] 11 NLLR (PT. 29) 164. Where the employer, however, gives a reason for the termination, it behooves on him to justify the reason. See ANGEL SHIPPING & DYEING LTD V. AJAH (SUPRA).

An employer cannot just blindly use the words such as downsizing, reorganizing, redundancy etc. as justification without stating what it entails and its component parts. To be such, the defendants must prove the need for the downsizing, its component part and how they succeeded in doing that in regards to the case at hand. See EME EKANEM UKPONG V. AKWA IBOM STATE GOVERNMENT & 2 ORS unreported Suit No. NICN/CA/87/2013 the judgment of which was delivered on September 30, 2014. See also SUIT NO: NICN/LA/271/2014 MRS. AMAECHI LAURETTA ONYEKACHI VS. STANQUEEN INVESTMENT LIMITED delivered in the 4th December 2015;

 

The defendant in that case said the reorganisation was as a result of the loss of its loss of “MTN Dealership rights”. Has this reason been sufficiently justified and proved by the defendant? This remains the question. In paragraph 8 of the statement of defence, the defendant stated that the termination of the claimant’s employment was “due to the reorganization it embarked upon by the company”; and in paragraph 10, the letter of termination was then pleaded by the defendant, the supporting paragraph in the defendant’s witness statement on oath being 12. In stating that the reorganization was necessitated by the loss of MTN Dealership rights, the defendant did not show to this Court any instrument or document that indicated the defendant actually lost the MTN Dealership rights. For instance, the defendant would need to show to this Court a letter communicating the loss of the MTN Dealership rights. This the defendant did not do. This means that the defendant did not justify before this Court the reason for terminating the claimant’s employment.

 

 

47. With regard to reasons for termination/dis-engagement of an employee such as re-organization, Learned Author Odabi Osaretin Kingsley in his book Case Law Annotation of Public Service Rules in Nigeria© 2013 Evergreen Overseas Publication Benin City, at page 86 opined that when treating the issue of downsizing or re-organization and redundancy emphasized the need for employers to particularize the circumstances resulting in re-organization and that court compel the employer to produce proof of such circumstance warranting the termination of the employee. What all this means that the Defendants must prove downsizing to the court to justify their actions on the basis of letting the Claimant go. Also in STEPHEN IMUZEI AKHIOJEMI & ANOR V. ADMINISTRATIVE STAFF COLLEGE OF NIGERIA & ANOR (unreported) and SUIT NO. NICN/LA/426/2012 the judgment of which was delivered on January 21, 2014, this Court held that in relying on the rule governing disengagement due to re organization the defendants must actually make out a case for the application of this rule in terms of the justification for disengaging the claimant from his employment. See SUIT NO: NICN/CA/162/2013 MR. NDIANABASI ANIETTIE UBOM Vs. S. J. ABED GENERAL ENTERPRISES LTD delivered on 27th June 2016. The proof of the existence of downsizing must be real, not superficial. See SUIT NO. NICN/ABJ/177/2018 SADIQ ISIAKU  VS. ARAB CONTRACTORS (O. A. O.) NIGERIA LTD delivered 20th June 2022. In EME EKANEM UKPONG V. AKWA IBOM STATE GOVERNMENT & 2 ORS (SUPRA), this is what Her Ladyship Hon. Justice Obaseki-Osaghae said;

 

“…You cannot say you are re-organising by retiring lawyers in one breath and then in the second breath say that more lawyers be employed to service the same system within which you are retiring others who have not reached retirement age or committed any wrongdoing.”

 

 

48. In the instant case before this Court the Claimant maintained that the Defendant had engaged another Chef. In consequence of the position of the law and the evidence before the Court, it is my finding and holding that as the Defendant have not put before the court any evidence of downsizing or reduce work the Claimant’s termination on the basis of downsizing has not been proved. The Claimants termination having not been therefore justified is wrongful in the circumstances. I resolve this issue for the claimant. 

 

49. The position of the law is that Pension is a constitutional entitlement and it is an entitlement of every employee in Public Service or Private Service. This is law of Nigeria to which all Nigerian are bound to observe with the resultant penalties for non-compliance.  The law is that the law applicable in deciding a matter is the law as at the time the cause of action arose. See OBIUWEUBI V. CBN [2011] LPELR-2185(SC), which held thus: “The Law in force, or existing at the time the cause of action arose is the law applicable for determining the case”. The Claimant I find comes under the 2014 Pension Reform Act. I hold.

 

50. Now Section 9(1) (c) of the Pension Reform Act No. 2 of 2014 mandates the employee and the employer to each contribute for the employee’s pension. The phrase “monthly emoluments” is defined in section 102 of the Pension Act to mean ‘a total sum of basic salary, housing allowance and transport allowance’. 

Section 11(1) every employee shall maintain an account; (in this Act referred to as a retirement savings account) in his name with any pension fund administrator of his choice.

Furthermore Section 11(4) of the Pension Reform Act provides that an employee can only have access to his retirement savings account through his Pension Fund Administrator.

Section 11 (6) of the Pension Act 2014, states that any employer who fails to remit the contributions within the time prescribed shall, in addition to making the remittance already due, be liable to a penalty to be stipulated by the commission.

 

51. The penalty, according to the pension law will not be less than 2 percent of the total contribution that remains unpaid for each month, or part of each month that the default continues, and the amount of the penalty will be recoverable as a debt owing to the employee’s retirement savings account as the case may be.

 

52. The Claimant has not presented the court with any evidence of deduction but the Defendant are duty bound in law to comply with the Law and in particular the Pension Reform Act in that wise the claimant relief in pension succeeds.

 

53. From the foregoing I find that the claimant case has merit and succeeds but only thus far; -

 

a.      IT IS HEREBY DECLARED that the purported termination of the Claimant’s employment from the services of the Defendant vide a letter dated 28th June, 2021, titled “DOWNSIZING” did not follow due process and is consequentially wrongful.

 

b.      By Order of this court the Defendant are hereby mandated to pay the Claimant the sum of N80, 000 (Eighty thousand naira) being the one-month salary in lieu of notice due to her as of right under contract.

 

c.       By Order of this court the Defendant are hereby mandated to pay the Claimant her gratuity in line with Section 1, Paragraph K of the Rules, Terms and Conditions of Service contained in the Staff Hand-Book which sum total is N1,200,000.00 (One Million, Two Hundred Thousand Naira).

 

d.      By Order of this court the Defendant are mandated to immediately compute and pay to the Claimant all her overdue entitlements in respect of the end of the year bonus for 10 years, service charge for 10 years, and any other compensation that the Claimant is entitled to by virtue of her employment with the Defendant.

 

e.      By Order of this court the Defendants are mandated to pay to NIGERIAN SOCIAL INSURANCE TRUST FUND (NSITF) being the PFA to the Claimant’s choice pension administrator of her choice all of her due arrears of contribution under the Defendant i.e. from 2011 till the 28th June, 2021.

 

f.        Cost of this suit is put at 200, 000.00.

 

g.      All sum payable within 30 days.

 

54. This is the court’s judgement and it is hereby entered.

 

 

 

 

..................................................

Hon. Justice E. N. Agbakoba

Judge, Court 3

Abuja