IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HER LADYSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE
DATE: MAY 31, 2023 SUIT NO: NICN/ABJ/313/2021
BETWEEN
AMIRA IBRAHIM NABABA CLAIMANT
AND
 |
1. M & M MIRONFINANCE BANK LTD
2. NAFISA AHMED MUKHTAR (MRS.) DEFENDANTS
3. AG. MANAGING DIRECTOR M & M MIRONFINANCE BANK LTD
4. GENERAL MANAGER ADMIN M & M MIRONFINANCE BANK LTD
REPRESENTATION
M.B. Usman for the Claimant, with C.A. Eigbedion.
G.M. Audu for the Defendants
JUDGMENT
Introduction and claims
[1] The Claimant filed this complaint against the Defendants on 3rd November 2021 together with the accompanying processes seeking the following reliefs:
a. A Declaration of this Honourable Court that the action of M & M Microfinance Bank, Nafisa Ahmed Mukhtar, Ag. Managing Director M & M Microfinance Bank Ltd and General Manager Admin M & M Microfinance Bank Ltd on directing the Claimant stay at home through a verbal instruction by the General Manager Admin due to the COVID 19 restrictions but that her salary would be paid but failed or refused to pay her salary in unlawful and illegal.
b. A Declaration that failure to recall the Claimant back even after the relaxation of the COVID 19 restriction is an infringement of her right to work and thereby denying her performing her legitimate duty in the M & M Microfinance Bank Ltd according to her contract of employment.
c. A Declaration that she is entitleD to her salary of all the months that has elapsed without her being paid.
d. An Order of this Honourable Court compelling the Defendants to pay the Claimant all the salaries due to her during the stay at home directive from August, 2020 to date.
e. A Declaration that she should be reinstated with immediate effect.
The Defendants entered appearance and filed a statement of defence together with the accompanying processes on 30th November 2021.
Case of the Claimant
[2] The case of the Claimant on the pleadings is that she is an employee of the M & M Microfinance Bank Ltd the 1st Defendant. The Claimant stated that the 4th Defendant asked her to stay at home in view of the restriction of movement resulting from covid 19 pandemic and assured her that her salary was going to be paid to her because she has done any wrong. The Claimant averred that her salary was not paid from August 2020 and there was no communication between the Bank and herself; and that even after the restrictions caused by Covid 19 was relaxed she was not recalled. The Claimant stated that she decided to go to the bank, and was informed by the General Manager Admin that she should stay at home until 2nd Defendant asks her to come back because the 2nd Defendant informed him that it is a family affair.
[3] The Claimant stated that after a long period of 13 months and she was still at home she instructed her counsel to write a letter dated August 25, 2021 to the 1st Defendant Bank demanding the 13 months arrears of her salary and to recall her back to her work. When there was no response from the Bank, a letter as a reminder was written. The Claimant stated that that after the receipt of the 2nd letter the solicitors of the Bank on September 16, 2021 wrote a letter informing her counsel them that her employment was terminated on August 3, 2020 by a letter of ‘disengagement from the Bank service”. The Claimant stated that the Bank’s solicitors in their letter stated that she was served with a letter but refused to sign and collect it; and advised that she should go and collect her disengagement letter from the Bank.
[4] The Claimant stated that this was the first time she heard about her disengagement and nonetheless she went and collected the purported disengagement letter and took it to her counsel. The Claimant stated that it was observed that the letter could not have emanated from the Bank because her previous letters from the Bank, offer of employment, confirmation of appointment, letter of commendation, and salary review are quite different from this letter. The Claimant further stated that that the letter is an afterthought drafted in a hurry; and that there is no formal letter from the Bank terminating her employment. The Claimant stated that she is still an employee of the bank and is entitled to her salary and other emoluments.
[5] The claimant testified in support of her case. She adopted her statement on oath which was in terms of the pleadings, and she relied on his admitted documents. She informed the court that in August 2020 the person occupying the position of 3rd Defendant is Hajiya Binta Musa, and in August 2020 Hamid Musa occupied the position of General Manager Admin. The Claimant told the Court that Hajiya Binta Musa owns the Bank and that there are other Directors and shareholders. The Claimant told the court that the 4th Defendant called her on the phone in August 2020 and asked her to stay at home due to the Covid 19 pandemic but she did not have a record of the conversation with the 4th Defendant. She stated that her salary for the month of April, May, June, July and August 2020 was paid.
Case of the Defendants
[6] The case of the Defendants on the pleadings is that the Claimant stopped being an employee of the 1st Defendant since August 31, 2020. The Defendants stated that the 2nd Defendant is one of the owners of the 1st Defendant and has been the Chairman of the 1st Defendant for over 5 years. They further stated that at no particular time that the occupant of the 4th Defendant office ask or direct the Claimant to stay at home because of restriction of movement as a result of COVID 19 pandemic and that as a matter of policy, any communication relating to the operation of the activities of the 1st Defendant is done in writing. The Defendants averred that all staff of the 1st Defendant including the Claimant resumed work after relaxation of the lock down in August, and that the General Manager Admin never told the Claimant to stay at home until the 2nd Defendant asks her to resume. The Defendant stated that the 1st Defendant is a going concern and it can not allow its staff to stay off work for 13 months and continue to pay the staff salary.
[7] The Defendants averred that on the 31st of August 2020, the 1st Defendant terminated the employment of the Claimant by a letter written on its letter headed paper but she refused to sign and collect it. The Defendants stated that it is the policy of the 1st Defendant that they print the original copy of their correspondence on the letter headed paper and print the acknowledgment copy on plain sheet of paper; that the letter of the disengagement was on the letter headed paper and the acknowledgment was on a plain sheet of paper. The Defendants stated that the letter of disengagement was collected by Haruna Iliya who signed the acknowledgment on behalf of the Claimant. The 1st Defendants stated that it has the right to high and fire a staff for dereliction of duty; and it cannot hurriedly draft a termination letter of a staff that has not come to work for 13 months. The Defendants stated that the Claimant’s employment was validly terminated.
[8] The Defendants witness is Mr. Hassan Azeez (DW) Internal Auditor. He adopted his statement on oath which was in terms of the pleadings, and he relied on his admitted documents. DW told the Court that the signatures on exhibit D2 and C7 belongs to Hamidu Musa the acting Managing Director. DW informed the court that when a letter is typed in the Defendant bank, the original copy is on the letterhead and the copies are on plain sheet. DW stated that the deposition in his witness statement on oath is what he witnessed in the Bank; and what the General Manager and Acting Manager told him.
Final Address
[9] The Defendants’ final address is dated 7th December 2022 and filed on the 15th December 2022. The Claimant’s final address is dated and filed 23rd January, 2023. Parties adopted their respective addresses and made oral submissions.
[10] Learned counsel to the Defendants submitted one issue for determination:
Whether the Claimant has adduced enough evidence to be entitled to the reliefs sought?
[11] Learned Counsel submitted that it is trite that the Court cannot impose an unwanted employee to an employer, relying on Angel Spinning & Dyeing Ltd V. Ajah (2000) LPELR-10724(CA) (PP. 30-31 PARAS. E). He submitted that a private company is not under any obligation to state the reason for termination of its employee contract, and as such the Defendants are not under any obligation to justify the reason for termination of her employment. He argued that it is the law that an employee is only entitled to damages in a wrongful termination of employment to the salaries for the length of time during which the notice of termination would have been given in accordance with the contract of employment citing Reliance Telecommunications Ltd V. Mr Olaore Olufemi Adegboyega (2017) LPELR-48360(CA).
[12] It was the submission of learned counsel that the Claimant was unable to establish that the termination of her employment is wrongful as such she is not entitled to any reliefs sought for payment of salary from August 2020 to the date the Claimant instituted this action. He therefore urged the court to hold that termination of the Claimant employment is not wrongful and she is not entitled to any salary.
[13] Learned counsel to the Claimant submitted two issues for determination:
a) Whether by the totality of evidence before the Honourable Court, it can be said there is proper and valid termination of the employment of the Claimant.
b) Whether the Claimant has produced enough evidence to entitle her the reliefs she sought before this Honourable Court.
[14] Learned counsel submitted that the Claimant did not breach or violate any conditions stipulated in her letter of employment. He submitted that the assertions made in paragraphs 12 to 13 of the Defendants’ witness statement on oath is hearsay which the court cannot use as evidence to base a finding. He submitted that an employment remains valid and binding between the employer and the employee until it is properly terminated, either by the way prescribed in the contract of employment. He argued that there is nothing in the offer of employment that gives the Defendants power to terminate the Claimant employment without giving her notice of such termination as the offer of employment says that one month in lieu of notice should be given before resignation, which by necessary implication also means, one month in lieu of notice should be given before termination.
[15] Learned Counsel in arguing issue 2 submitted that the Claimant’s employment was not properly terminated and therefore is still valid and subsisting. He argued that there is no evidence that controverted her testimony. He then urged the Court to grant the Claimant’s reliefs.
Decision
[16] I have carefully considered the processes filed, the evidence adduced, written submissions and authorities cited by the parties. I will begin with the preliminary issue of the evidence of DW, specifically whether the facts deposed to in the witness statement of oath are hearsay evidence or not. DW is the 1st Defendant’s Internal Auditor and he stated that he is conversant with the facts he deposed to. Furthermore, under cross-examination he stated: “the deposition in my statement on oath is what I witnessed in the Bank; and what the General Manager and Acting Managing Director told me.” There is no evidence that he did not witness any of the depositions or occurrences. DW having stated that his deposition is what he witnessed, his evidence contained therein is not hearsay and is therefore admissible.
[17] The law is settled that in the determination of the employment rights, it is the employee who complains that his/her employment contract has been breached that has the burden to place before the court the terms and conditions of his/her employment that provides for his rights and obligations; and the manner the said terms and conditions were breached. See Buka Modu Aji v Chad Basin Development Authority & Anor (2015) 3-4 SC (Pt III) 1 at 15, Nigeria Security Printing & Minting Plc v. Charles Umoh (2022) LPELR-56924 (CA) 18-19, Okoebor v Police Council [2003] 12 NWLR (Pt 834) 444, Okomu Oil Palm Co v Iserhienrhien [2001] 6 NWLR (Pt. 710) 660 at 673. The Claimant has placed before the Court her offer of employment (exhibit C1), confirmation of appointment (exhibit C2), salary review (exhibit C4), letter of disengagement (exhibit C7), and demand letter (exhibit C5).
[18] The issue for determination is whether on the pleadings and evidence the Claimant ought to be entitled to the reliefs she is seeking. It is the law that whoever desires the court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist, section 131 (1) & (2) of the Evidence Act 2011, see Calabar Co-operative Ltd v Ekpo [2008] 1-2 SC 229 at 255. It is also the law that civil suits are decided on the balance of probabilities, on the preponderance of evidence. The burden of proof is not static but shifts from side to side. The onus of adducing further evidence is on the person who will fail if such evidence is not adduced, Danjuma v S.C.C. Nig Ltd [2017] 6 NWLR (Pt 1561) 175 at 206 para C, Osuji v Ekeocha [2009] 16 NWLR (Pt 1166) 81 at 116, Fadlallah v Arewa Textile Ltd [1997] 8 NWLR (Pt 518) 546 at 556.
[19] There is no evidence before the court that the General Manager of the 1st Defendant directed the Claimant to remain at home after the lifting of the Covid-19 lockdown restrictions. The evidence of DW is that all the staff of the 1st Defendant resumed work after the relaxation of the lockdown restrictions on August 2020 and the Claimant was not directed to stay away from work. The evidential burden shifted to the Claimant, but she failed to discharge the shifted burden.
[20] The Defendants admit that the 1st Defendant terminated the employment of the Claimant by its letter of disengagement. The evidence is that the letter of disengagement was collected on behalf of the Claimant by Haruna Iliya and was also acknowledged by him as seen in exhibit D1. The letter of termination is reproduced thus:
31st August, 2020
Amirah Nababa
DISENGAGEMENT FROM BANK SERVICE
We write to inform you that you have been disengaged from the services of the Bank with immediate effect.
You are hereby advised to hand over your I.D Card and any other Bank’s property if any in your possession
We wish you all the best.
Yours faithfully,
Ag. Managing Director
[21] The 1st Defendant did not given a reason for the termination of the Claimant’s employment in the letter. This is not in accordance with international best practices in labour, employment and industrial relations matters which this court has a duty to apply as empowered in Section 254C (1) (f) & (h) of the 1999 Constitution as amended; and unequivocally stated by the Court of Appeal in Sahara Energy Resources Ltd v Oyebola (unreported) CA/L/1091/2016 judgement delivered 3 December 2020. This Court in Petroleum and Natural Gas Senior Staff Association of Nigeria v Schlumberger Anadrill Nig Ltd [2008] 11 NLLR (Pt 29) 164 recognized that it is not globally acceptable in industrial relations and practice to terminate the employee’s employment without adducing any reason for doing so. In Aloysius v Diamond Bank Plc [2015] 58 NLLR 52, the Court relying on Article 4, ILO Termination of Employment Convention 1982 (No 158) and Recommendation No 166 held that it is contrary to international labour standards and international best practices for an employer to terminate the employment of its employee without any reason or justifiable reason that is connected with the performance of the employee’s work.
[22] From the pleadings, the Defendants give the reason that the Claimant deliberately stayed away from her duties after the Covid 19 lockdown restrictions was lifted; and that her absenteeism led to her disengagement. In other words, the Claimant did no work for the 1st Defendant while she remained at home. Now, having not rendered any services for 13 months to the 1st Defendant her employer, she cannot expect the 1st Defendant to pay her a salary for work not done. I so rule.
[23] I have noted that in the Claimant’s letter of employment, there is no provision for notice period, or payment in lieu of notice in the event of termination by the 1st Defendant. The only notice to be given is by the Claimant in the event of resignation. The Bank’s policy and other conditions of service referred to in the employment letter are not before the Court to ascertain if there is a notice provision to be given by the 1st Defendant in the event of termination of the employment contract. It is therefore impossible to determine if there was any breach in the process of disengagement of the Claimant. It is not the duty of the Court to re-write the employment contract for the parties. See Idufueko v Pfizer Products Limited (2014) 12 NWLR (Pt 1420) 96, Taraba State Government v Mu’Azu [2020] 10 NWLR (Pt 1733) 450. It is the law that parties are bound by the terms of the employment agreement, and the Courts must respect the sanctity of the contract.
[24] For all the reasons given above, the Claimant is not entitled to any of the declarations she is seeking. The declarations having failed, the ancillary orders must fail. The Claimant has failed to prove her case. It is hereby dismissed. Each party is to bear its own costs
Judgment is entered accordingly.
____________________________
Hon Justice O.A.Obaseki-Osaghae