IN THE
NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL
DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP HON. JUSTICE F. I KOLA –
OLALERE, FCIArb)(UK)
Date: May 06, 2026 Suit No: NICN/PHC/155/2022
Between:
 |
1.
Mr Gbordei Joseph Paul
2.
Mr Baadom Kpobari Samuel
3.
Okinedo Jacob
4.
Prince Michael Reymond
5.
Segun Tosin Jones
6.
Elijah Moses
7.
Mons Kadubari
8.
Matthew Francis Adigolor
9.
Barinaadaa Godwin Bornu
10.
Kpegara Dewenwin
11.
Moses Owaji-Oniro
12.
Mr Haliday Godspower
13.
Mr Ereba Kpoobari G.
14.
Cletus Nwinka Banuna -------------------------------- Claimants
15.
Zabbey Paul Dinebari
16.
Legbaa Bright Zaazoo
17.
Baboona John Kpoobar
18.
Dumpe Confidence
19.
Mbari Iyefara Joseph
20.
Ojochide Attah
21.
Aleema Tenalo Alex
22.
Biragbara Barinedum
23.
Moses Bor Dornubari
24.
Victor Baatee Bien
25.
Michael Boonna
26.
Tonubari Kobel
27.
Jumbo Finipiri Edward
28.
George Ezema
And
Julius Berger Nigeria Plc. -------------------------------- Defendant
Representations
Sir, Enahoro Samuel Dakare Esq. (KSJI) with C. E.
Ezugwu for the Claimants
Henry C. Chibor Esq. with E.D. Onduku & V. C.
Nnadi for the Defendant
COURT’S
JUDGMENT
1.0.
On
November 18, 2022 the Claimants sued
the Defendant by way of Originating Summons seeking for the determination of
the following reliefs:
i. A Declaration that the termination of the Claimants’
employment by the Defendant was oppressive, wrongful and therefore unlawful.
ii. An Order of this Honourable Court directing the Defendant
to pay to the Claimants, the sum of N63, 291, 891.95 (Sixty-Three Million, Two
Hundred and Ninety-One Thousand, Eight Hundred and Ninety-One Naira,
Ninety-Five Kobo) only as total monies owed to the Claimants made up of:
a. The sum of N2,290,132.05 (Two Million, Two Hundred
and Ninety Thousand, One Hundred and Thirty-Two Naira, Five Kobo) only as
outstanding salaries in lieu of notice.
b. The sum of N60,830,000.00 (Sixty Million, Eight Hundred
and Thirty Thousand Naira) only as accrued Hydrocarbon Swamp Allowance from
February 2019 to September 2021.
c. The sum of N171,309.02 (One Hundred and Seventy-One
Thousand, Three Hundred and Nine Naira, Two Kobo) only which is 7.5% of Claimants’
monthly salaries as terminal benefits.
iii. An Order of this Honourable Court directing the Defendant to pay the sum
of N5, 000, 000.00 (Five Million Naira) only representing the cost of
litigation for the wrongful and oppressive act of the Defendant and 10% of the
judgment sum from the date of judgment till the sum is liquidated.
2.0.
Other
initiating processes were filed along with the Complaint in line with the Rules
of this Court. In response, the Defendant entered appearance through its
Counsel and filed its Statement of Defence together with other Defence
processes in compliance with the Rules of this Court.
3.0.
CLAIMANTS CASE AS PLEADED
It is the Claimants case that they were employed by
the Defendant at various times via Letters of Employment as Iron Fitter at the
Bodo-Bonny Road (BBR) project site, known as Special Project Site of the Defendant;
while other Claimants were engaged at several times by several letters of
employment and ID Cards. The Claimant stated further that the Bodo Road
construction site was polluted with hydro carbon, thus posed serious threat on
the health of the workers in the swamp. Therefore, the Claimants demanded for
allowances for the hydrocarbon swamp hazard and for soap.
3.1.
They
went on that the Defendant insisted that they form a union through which it can
interface with them. As a result, the Claimants formed a union and appointed a
chairman and secretary to negotiate with the management of the Defendant on their
behalf. They continued that the union executive eventually met with the
management of the Defendant and formerly presented their demand for the
allowances to the Defendant. However, the management of the Defendant kept
making promises without fulfilling same and that this led the Union, including the
Claimants to embark on strike to drive home their demands. The Claimants
averred further that the chairman of Bori Local Government intervened and
promised to resolve the issues. They continued that the strike was called off,
but that the Defendant still refused to pay their allowances; instead
terminated their employments without notice and without salary in lieu of
notice.
4.0. CASE
OF THE DEFENDANT AS PLEADED
It is the case of the Defendant that the Claimants’ employments were private ones;
therefore, they were regulated and strictly governed by the Internal Conditions
of Service executed between the Defendant and the Claimants’ Union, the
National Union for Civil Engineering Construction Furniture Wood Workers;
Julius Berger Nigeria Plc. Branch, 2019
(NUCECFWW or the Union). It went on that there was no oral or unwritten terms
and conditions that regulated the Defendant’s employment with the Claimants and
that it did not direct the Claimants to form any union for the purpose of
interfacing with them as the only union of the Claimants recognized by the Defendant
is NUCECFWW. It went further that its Management did not at any time hold any
meeting with the Claimants’ union representatives wherein it promises to pay
allowances to them prior to the commencement of the strike actions by the Claimants.
4.1. The Defendant continued that no written
agreement was made to commence payment of allowances for hydrocarbon swamp and
soap as alleged. The Defendant also averred that it did not call neither did it
authorize heavily armed policemen or any other person to obstruct the Claimants’
protest and that the Claimants and some other staff of the Defendant embarked
on an unlawful strike action and several protests without the consent or
authorization of their Union (NUCECFWW) and that under the internal conditions
of service, such actions were not allowed and that the consequence was
dismissal. It averred therefore that the Claimants are not entitled to terminal
benefits.
5.0. CLAIMANTS’
REPLY TO DEFENDANT’S STATEMENT OF DEFENCE
In the Claimants’ reply to the Defendant’s
Statement of Defence at page 256 of the record, the Claimants stated that the terms and conditions of the their
employment were also regulated by some oral conditions of various sites and other
spelt out in the Defendant’s Amended Internal
Conditions of Service (NUCECFWW). The Claimants stated that they and
other workers were assigned different job descriptions at the construction site
known as Special Project Unit site Bodo-Bonny Project Site (BCI -Area Rivers
Port HarCourt) and Bodo Bonny Project Site (Bodo -Gokana LGA, Rivers State). The
1st Claimant stated that all the Claimants carried out their Jobs
diligently and meticulously and were never found wanting. He insisted that the
Chairman of the Union met with all the Claimant and other workers of the Defendant
and informed them that the union have reached an agreement with the management
of the Defendant to pay them hydrocarbon swamp allowance together with their
August 2021 salaries.
6.0. CLAIMANTS’
WRITTEN ARGUMENTS
In
the Claimants’ Final Written Address at page 520 of the record, their Counsel raised
the following issues for the Court’s determination:
i. Whether the dismissal of the Claimants
by the Defendant was justifiable under Exhibit C3 (Conditions of Service)
ii. Whether
the Claimants are entitled to the reliefs sought
7.0. Counsel
submitted that the dismissal of the Claimants
by the Defendant was in breach of the provisions of Exhibit C3, the condition
of service and thus, oppressive and unlawful. He continued that Article
22 of Exhibit C3 titled “Discipline and Dismissal” provides inter alia that:
“(a)
Where a violation of any of the terms and conditions in these Internal Conditions
of Service is established, after thorough investigation by the Company’s
representatives regarding the workers’ obligation or loyalty or careful
execution of his duties, the company will apply disciplinary action in
proportion to the nature of the offence committed …”
“(d) The
following offenses carry the punishment of immediate dismissal without Notice
and without termination benefits….
(viii) Stoppage(s) or strike(s) without union
support.”
7.1. Counsel
further submitted that a union supported protest/strike is not punishable as a
violation of the terms and condition in the document and so, allowable under
the service agreement, referring to section 22 (d) (viii) of the conditions of
service in Exhibit C3, which states:
(a)
In any established case of violation of any of the
terms, the Defendant is duty bound to send representative who shall investigate
the veracity
of the allegation and extent of the workers’
involvement. Referring to Section 22
(a).
(b)
Punishment to be issued after the investigation
must be proportionate to the offence or wrong committed. Referring to Section
22 (a).
(c)
Punishment to be issued after the investigation
must be proportionate to the offence or wrong committed. Referring to Section
22 (a).
7.2. Counsel submitted that based on the
provisions of section 22 of Exhibit C 3, the Defendant did not follow the laid
down procedure. He continued that the Defendant is under an obligation by
Article 22 (a) of Exhibit C3 to set up an investigative representative to
verify the veracity of the alleged breach of terms and conditions of service but
no investigative representative was set up and no report was tendered but that
the Defendant chose to dismiss the Claimants without due processes stated in
Exhibit C 3. He argued further that the Defendant’s assertion that the strike
was” unauthorized” needs to be proved by the Defendant, citing the case of Ajuwon v Akanni [1993] NWLR (Pt.
316) 182 and Section 132 of the
Evidence Act, 2011.
7.3. Counsel
contended that an employer must justify a dismissal based on alleged
misconduct; withdrawal of allegation and failure to prove justification may
render dismissal wrongful; citing the cases of Osinsanya v. Afribank Nigeria Plc. [2007] 6 NWLR (Pt.1031) 565,
and Keystone Bank Plc. v. Kassim
Yiggon [2013] LPELR 22131 (CA). He went on to submit that the dismissal
of the Claimants by the Defendant is oppressive, victimization and not
discipline. He further argued that evidence shows that over 400 members of
NUCEFWW’s including DW1 participated in the protest, which purportedly resulted
to the dismissal of only 64 of them including Claimants and to counsel, it was
a selective dismissal while others like DW1 were retained.
7.4. Counsel again contended that the International Labour Organisation
Convention 155 on Occupational Safety and Health Convention focuses on
promoting safety and health in work places and makes it obligatory on
governments and employers to ensure safety in workplaces. In simulacrum, the
Nigeria’s Factories Act LFN, 2004 and Labour Act; Sections 66 and 67
respectively, imposes duties on employers on safety, health and welfare of
workers. Counsel urged the Court to hold on issue 1 in favour of the Claimants.
8.0. On his
issue Two, Counsel submitted that the
failure of the Defendant to give the required notice or payoff salary in lieu
as shown by both parties leaves the Defendant in liability. He maintained that
the Claimants are entitled to salary in lieu of notice, amounting to
?2,290,132.05 (Two Million, two Hundred and Ninety thousand, One Hundred and
Thirty-Two Naira, Five Kobo) under Article 9(b) of Exhibit C3. That there was
no attempt at contradicting this during hearing at all. He referred to the case
of Sky Bank Plc v. Adegun [2024]
15 NWLR (Pt. 1960) 1 where the Court held that that Courts are willing to award
substantial general damages (not just payment in lieu of notice) in
non-statutory employment.
8.1. Counsel
urged the Court to hold that the Claimants are entitled to the total sum of
N60,830,000.00 as hydrocarbon hazard allowances they were exposed to while
engaged by the Defendant. He referred to International Labour Organization
Convention 155 on Occupational Safety and Health Convention, which focuses on
promoting safety and health in work places and makes it obligatory on
Governments and Employers to ensure safe workplaces. He also referred to the
Nigeria’s Factories Act, LFN, 2004 and Labour Act respectively, which imposes
duties on employers in respect of safety, health and welfare of workers.
9.0. On issue
of cost of litigation and general damages, Counsel submitted that there is no
requirement for a bill of charge before this Court can consider awarding cost
of litigation. He referred to the Legal Practitioners Act, LFN 2004
particularly Section 16(2), which provides that Bill of charges is a condition
precedent for a lawyer to recover his fees from a client that engaged his legal
services and the case of Thompson v.
Arowolo & Akingbehin [2020] 17 NWLR (Pt. 1753) 245. He continued
that costs are not meant to be full
indemnity and are not based on a detailed bill but on reasonableness, citing
the Supreme Court case of Enekwe v.
IMB [2007] 10 NWLR (Pt. 1041) 565.
He urged the Court to grant all the reliefs of the Claimants as sought.
10.0. DEFENDANT’S
WRITTEN ARGUMENTS
In the Defendant’s
written Arguments at page 493 of the record, counsel raised a sole issue for the
Court’s determination this way:
Whether from the
totality of the pleadings and evidence before this Honourable Court, the Claimants
have proved their claims against the Defendant to be entitled to the reliefs
sought?
10.1. Counsel submitted that it is a settled
principle of law that a Claimant in a civil action bears the burden of proving
his claim by credible evidence on the balance of probabilities. He continued
that this duty, anchored in Sections 131,
132, and 133(1) of the Evidence
Act, 2011 (as amended), requires any party who desires the Court to
grant judgment in respect of a legal right or liability to establish by
evidence the facts upon which such right depends. The burden of proof,
therefore, rests on the party who would fail if no evidence were led on either
side, citing Section 133(1) of
the Evidence Act and the case of Adeniran v. Adio
(2024) 16 NWLR (Pt. 1964) 360. He went on to contend that the Claimants have
failed to discharge the evidential burden imposed upon them by law as they have
not adduced credible evidence that:
(i)
Their
dismissal for participating in an unauthorized strike was wrongful;
(ii)
the
existence of any enforceable agreement entitling them to the alleged
Hydrocarbon Swamp Allowance; or
(iii)
Their
dismissal contravened the applicable provisions of the governing Internal
Conditions of Service (Exhibit C3).
10.1. On the first
issue, Counsel submitted that the terms of a
contract of employment form the foundation upon which any allegation of
wrongful termination must rest. Consequently, where the employer complies with
these terms in effecting termination, the dismissal cannot be faulted. Counsel referred to the cases of Oforishe v. Nigerian Gas Co.
Ltd. [2018] 2 NWLR (Pt.
1602) 35 and Skye Bank Plc v. Adegun [2024] 15 NWLR (Pt. 1960) 1 at 42–43, paras. G–B.
10.2. Counsel went on that exhibit C3, which is the terms and conditions
of employment empowers the Defendant to summarily dismiss any employee who
participates in a strike action without the requisite union authorization. He continued
that the law is settled that parties are bound by the terms of a contract they
freely entered into, and where the terms are in writing, neither of the parties
nor the Court is permitted to read into it, provisions not contained therein; referring to the case of Akinola v. Lafarge Africa
Plc [2022] 12 NWLR (Pt.
1844) 379 at 400, paras.
G–A.
10.3. Counsel argued further that it is not enough for the Claimants to say
that the strike was approved by their Union but that it is their responsibility to establish that their
Union approved the strike action, as a party who avers the truth or existence
of a fact must prove it. He continued that the Claimants never presented any
document showing the approval of the strike action by their Union.
10.4. Counsel
continued that when afforded the opportunity to defend themselves by responding
to the allegations of “strike without union support,” the Claimants
never responded to the said allegation. He maintained that Defendant fully complied with the applicable
Conditions of Service in dismissing the Claimants. Exhibit D3.
10.5. On Claim for Terminal Benefits and Salaries in Lieu of Notice, Counsel contended that the Claimants’ reliance on Articles 9 and 10 of the
Internal Conditions of Service, which provide for notice or payment in lieu of notice
for termination is entirely misplaced, and that these provisions apply exclusively to regular termination of
employment and not to dismissal
for misconduct. He referred to Article
22(d)(viii) of Exhibit C3, which
specifically deals with “Stoppage(s) or strike(s) without Union support,” which to him governs the Claimants’
dismissal in this case. That having been lawfully dismissed for participating
in an unauthorized strike, the Claimants
are not entitled to notice, payment in lieu, or any severance benefits for their dismissal was carried out in
strict compliance with the Defendant’s disciplinary authority under Article 22(d)(viii) of Exhibit C3.
10.6. Counsel opined that the law will not permit a
person to profit from deliberate misconduct or to invoke his own wrongdoing as
a weapon against another, citing the cases of Adedeji
v. N.B.N. Ltd. [1989] 1 NWLR (Pt. 96) 212 at 227 paras. A-B
and MTN (Nig.) Communications Ltd. v. Corporate Communications Investment Ltd. [2019] 9 NWLR (Pt. 1678) 427 at 458, paras. E-F.
10.7. On the Claimants’
Claim for the sum of N60,830,000.00 as Hydrocarbon Swamp Allowance
Counsel submitted that this relief falls within the
category of special damages and for it to succeed, the Claimants must not only
plead but also strictly prove the sums claimed with credible, cogent, and
verifiable evidence. He went on that the Claimants have not established any
binding obligation on the Defendant to pay “Hydrocarbon Swamp Allowance;” citing
the case of Osuji v. Isiocha [1989] 3 NWLR (Pt. 111) 623 at 636, para. C, the Supreme Court, per Uwais, JSC, held that it is settled principle that if the damages
are special in nature, credible evidence will have to be called in order that
the amount pleaded may be proved. Without such proof no special damages can be
awarded.
11.0. Defendant’s Reply on Points of Law to The Claimants’
Final Written Address
In the Defendant’s Reply on Point of Law to the Claimants final written
argument, its Counsel submitted that the Claimants’ contention in paragraphs 4.2 to 4.8 of their Final Written Address to the
effect that the Defendant was obligated under Article 22(a) of Exhibit C3
(Internal Conditions of Service) to appoint an investigative panel and to
investigate the allegations against the Claimants before their dismissal and
that, failure to do so rendered the dismissal unlawful portrays a fundamental
misreading of the structure and operation of Article 22 of Exhibit C3. He went
on that the first part of Article 22, found in Article 22(a)-(c), applies to
general violations that requires investigation by company representatives, followed
by progressive discipline such as verbal warnings, written warnings, or
suspension without pay for up to ten working days.
11.1. Counsel continued that after a twelve-month
rehabilitation period, an employee's record can be cleared. Termination under
this regime only occurs after three offences warranting warning letters while
the second part /regime, contained in Article 22(d)-(e), addresses grave
misconduct including: stealing, corruption, endangering others' safety, gross
insubordination, and unauthorized strikes, and carry immediate dismissal
without notice or termination benefits. To counsel, this regime requires no
progressive discipline, investigation process or warnings. Counsel
continued that these two systems cannot
logically be read together or applied cumulatively. He argued that embarking on
unauthorized strike falls under the second part which requires immediate dismissal.
Counsel
submitted that it is trite principle of law that where parties have voluntarily entered
into an agreement and duly endorsed it, the full intent and purpose
of such agreement must be honored in good faith, citing the case Mobil Producing (Nig.) Unltd. v. Ekpe
[2017] LPELR-45408(CA) Pp 15- 22 Paras A – B. Counsel submitted further that Claimants’
contention in paragraphs 4.31 and 4.38 of their Final
Written Address that they were "coerced" and "deceived"
into signing Exhibit D3 (Staff Exit Notices) without being allowed to read the
contents is unsupported by the evidence before the Court, it also lacks
credibility and ought to be discountenanced by the Court.
11.2. Counsel went on that the Claimants reliance
on the International Labour Organization Convention 155, the Factories Act, and
the Labour Act in arguing that they were entitled to protest hazardous working
conditions and to receive compensation for exposure to hydrocarbon substances
are not relevant to the issues before the Court. He continue that the case of Abbey
Iyobu Robert v. PHED
unreported Suit No. NICN/PHC/43/2024 cited by the Claimants at paragraph
4.50 of their Final written Address is different and cannot be applied to the
present case.
11.3. Counsel
submitted that the Claimants’ claim for solicitor’s fee is not recoverable in
law, urging the Court to dismiss this suit with substantial costs as the Claimants
have failed to prove their entitlement to the reliefs sought.
12.0. COURT’S DECISION
I
have read through the facts of this case as pleaded and testified on by
parties. I have also carefully perused the written arguments of counsel to the
parties including their cited authorities; both statute and case laws and from
all of these, I am of the considered view that the following issues need to be
resolved between the parties on this matter:
i. Was
the determination of the Claimants’ employment by termination or by dismissal?
Was the said determination proper or wrongful?
ii. Are the Claimants entitled to the following
monetary payments as claimed?
a.
The
sum of N2,290,132.05 as outstanding salaries in lieu of notice.
b.
The
sum of N171,309.02; which is 7.5% of Claimants’ monthly salaries as their terminal
benefits.
c.
The
sum of N60,830,000.00 as accrued Hydrocarbon Swamp
Allowance from February 2019 to September 2021.
iii. Are the Claimants entitled to
N5,000,000.00 as cost of this litigation and to 10% interest per annum on the
judgment sum?
13.0. INTRODUCTION.
By way of prologue in this judgment, let me make some points
straight away. Parties in this case agreed that the contract of employment
between them was a private one that was not supported by any statute; neither for
its creation nor its determination. They also agreed that the said contract is
governed by the contents of the Claimants’ Letters of Employment Exhibit C. 1
at page 34 to page 89 of the Court’s record and those in the Internal Terms and
Conditions of Service between the Defendant and the Claimants’ Union (NUCECFWW)
at the Defendant’ branch, 2019; which is Exhibit
C. 3 at page 115 to page 130 of the record. In this circumstance, I find
and hold that the contracts of employment between the parties in the instant
case is a private one that is strictly governed
by the terms and conditions of the employment as contained in Exhibits
C.1 and C.3 in this case. I further hold that the rights and obligations of the
parties will primarily be determined by the contents of Exhibits C.1 and C.3 in
question. Now, to the merit of this case.
14.0. ISSUE ONE: Was
the determination of the Claimants’ employment
by
termination or by dismissal? Was the said
determination
proper or wrongful?
15.0. Was the determination of the Claimants’
employment by termination or by dismissal?
Both parties and their counsel interchangeably
described the determination of Claimants’ employment as ‘termination’ or ‘dismissal’
in their pleadings and written arguments. This is erroneous and misleading in
my firm view. When the employment of an employee is terminated, it is for a
specified reason like, for an or some offence(s) of the employee and in such
situation, the employee is usually entitled to a specified notice or payment in
lieu of the notice. He is also entitled to his terminal benefits as stated in
his terms of employment. However, when the employment of an employee is
dismissed, it is usually for grievous misconduct(s) and such employee is
neither entitled to any notice nor any terminal benefit, no matter how long he
had served his employer. Counsel are therefore,
advised to put this in mind and use the words correctly in their future
arguments before this Court.
15.1. The
Letters of Termination of the Claimants’ employment is Exhibit D.2 in this
case. They are at page 377 to page 408 of the record. On these letters, their
titled and contents are the same, except their names. For clarity, Exhibit D.2,
the Letter of Termination of employment of the 1st Claimant and
C.W.1 in this case, at page 381 of the record is dated 30/09/2021 and it states:
Gbordei J. Paul
1048943
Welder
BBR
MTA
Bodo
Bony Road
---
TERMINATION
OF EMPLOYMENT
We
write to inform you that your employment with Julius Berger Nigeria is hereby
terminated effective 17th of September, 2021.
Details
of your payment shall be reflected in the relevant pay sheet.
----
This document is signed for the Head Wages Dept.
and stamped with the Defendant’s stamp.
15.1.0. Therefore,
it is my finding that the employments of all the Claimants in this case were
determined by “Termination” and not by ‘dismissal’. I also find that no reason
is stated in Exhibit D.2 for the
determination of all the Claimants’ employment by the Defendant. See also the
Letters of Termination of employment of C.W.2, the 11th Claimant at
page 391 and that of C.W.3, the 2nd Claimant at page 382 of the
record. Consequently, I hold that the Claimants’ employment were terminated
with effect from on September 17, 2021; even though, the letters determining
the said employments are dated September 30, 2021. See page 377 to page 408 of
the record.
15.2. Was the Determination of the Claimants’ Employments
Proper or Wrongful?
Having
held in this judgment that the Claimants’ employment were terminated and not
dismissed; I further hold that all the arguments of counsel to the parties on
dismissal of the Claimants’ employment are hereby discountenanced in this judgment
for being irrelevant.
15.2.1. Article
9 of Exhibit C.3 at page 120 of the record is on Resignation or Termination of
Employment. In the Article, the only requirement for termination of employment
is giving of notice prior to the termination. The notice varies according to
the length of service of the employee with the Defendant.
15.2.2.
However, I have found in this judgment that the termination of the Claimants’
employment was back dated. It was with effect from September 17, 2021 while the
letters, which terminated the Claimants’ employment are dated September 30,
2021. This is wrong in Labour Law and it is also offensive to International
Labour Standard and International Best Practices; because no employer is
allowed to back date the effective date of the determination of the employment
of its employee.
15.2.3. Article
11 on ILO Convention 158 of (1982) on Termination of Employment requires a
reasonable period of notice before termination or payment in lieu thereof. This
reinforces the facts that employers cannot abruptly end employment of its
employee without prior notice. Recommendation 166 supplements the ILO
Convention C158 (1982) on Termination of Employment and provides guidance on
the implementation of the Convention. This Recommendation emphasises; adequate
safeguards and procedures before termination, Notice periods that allow workers
to prepare and adapt and the importance of procedural fairness in changes that
affect workers’ status. The Recommendation also underlines that changes to
employment status for instance, so as to ensure that the workers will not be surprised
with their retroactive removal.
15.2.4. Even
though this Convention has not been ratified by Nigeria, it represents
International Best Practice and is often adopted by this Court as persuasive
guidance for fair labour practice in line with the provision of section 254 C
(1) (f) & (h) of the Constitution of the FRN, 1999 (As Amended). In
addition, Nigeria is part of the Global Village, and so, it cannot operate in
isolation. She has to comply with these International Labour Standard and
International Best Practices. See also the provision of section 11 of the Labour Act L1, LFN 2004 on giving of adequate notice to an employee before
terminating his employment.
15.2.5. Furthermore, the letters of termination of
the Claimants’ employment did not state any reason for the termination of the Claimants’
employments as seen in the reproduced copy of one of these letters in this
judgment. This action of the Defendant violates Article 4 of the Termination of
Employment Convention 158 (1982) as the International Best Practice and
International labour Standard now is that valid reason, relating to the
performance of the employee’s work or in violation of the Defendant’s policies
should be stated in the termination letter. Consequently, I hold that by back
dating the effective date of the termination of the Claimants’ employments and by
not stating any reason for the said terminations; the terminations of the Claimants’
employment were wrongful.
16.0. Issue
Three: Are the Claimants entitled to the
following monetary
payments as claimed?
a. The sum of N2,290,132.05 as outstanding
salaries in lieu of notice.
b. The
sum of N171,309.02; which is 7.5% of Claimants’ monthly salaries as their terminal
benefits.
c. The sum of
N60,830,000.00 as accrued Hydrocarbon Swamp Allowance from February 2019 to
September 2021.
16.1. In relief B. (i) of the Claimants
as endorsed on their Complaint, they are claiming the sum of N2,290,132.05
only as outstanding salaries in lieu of notice. I have held in this
judgment that the Claimants’ employments were terminated effective from
September 17, 2021. Article 9 of Exhibit C.3 in this case, which is the
Internal Conditions of Service of the Parties states that; the Claimants are
entitled to be given notice before their employments are terminated. Parties
agreed that no notice was given to any of the Claimants before their
employments were terminated. In the circumstance, I hold that the Claimants are
entitled to payment of one month salary each in lieu of notice for the said
determination of their employments.
16.1.1. Article 9 is on Resignation/Termination of
Employment. Article 9 (b) of Exhibit C.3 at page 120 of the record is on
monthly rated workers and it state that such employment may be terminated by
either party upon giving the other party one month’s notice or payment in lieu
of such notice. Exhibits C.2 at page 90 to page 114 of the record are the
various monthly pay-slip of the Claimants. This means that the Claimants were
monthly employees with the Defendant and I so find. Going through these
pay-slips, I find that the pay-slips for the 7th, 18th
and 21st Claimants are not included in Exhibit C.2. Therefore, this Court
cannot determine the nature of their employments; whether they were daily or
monthly employees of the Defendant. In the circumstance, this Court cannot
determine the sum of money the three Claimants are entitled to as payment in
lieu of notice and I so hold.
16.1.2. The 1st Claimant, Gbordei Joseph Paul’s monthly salary is N75,016.09,
see pg. page 94 of the record for his Pay slip. And so, he is entitled to payment
of the sum of N75,016.09 in lieu of notice. The monthly salaries of the 2nd,
3rd, 4th , 5th , 6th , 8th,
9th, 10th, 11th, 12th, 13th,
14th, 15th , 16th, 17th, 19th,
20th, 22nd, 23rd, 24th, 25th,
26th, 27th and 28th Claimants are: N89,469.99;
N140,918.78; N137,463.23; N72,475.67; N76,055.29; N157,010.11; N70,703.99;
N74,715.94; N67,320.93; N70,529.84; N73,133.80; N68,310.84; N72,163.96;
N72,000.84; N71,311.57; N72,163.96; N94,329.17; N70,532.79; N72,163.96;
N72,163.96; N71,654.28; N77,382.55; N78,550.51 and N83,394.02. All the monthly
salaries of these remaining 25 (Twenty Five) Claimants added together amount to
the sum of N2,080,936.07 (Two
Million, Eighty Thousand, Nine Hundred and Thirty Six Naira, Seven Kobo) only. Consequently, I hold that the
remaining 25 Claimants are entitled to the
total payment of the sum of N2,080,936.07
in Lieu of Notice.
16.2. Furthermore, relief B (iii) of the Claimant is for the
sum of N171,309.02 as 7.5% of the Claimants’ monthly salaries as terminal
benefits. I have held in this judgment that the employments of the Claimants
were terminated as reflected in their various letters of determination; and so,
I find that the Claimants are entitled to claim their terminal benefits under
Article 10 of Exhibit C. 3; the Internal Conditions of Service of the parties
before this Court. This Article is titled: ‘Severance Benefit’; see page 120 of
the record. Article 10 (a) of Exhibit
C.3 provides that: “a severance benefit of monthly wage based on total
emolument comprising of basic salary/wage, rent subsidy, transport and meal
subsidy allowance shall be paid to employees as follows; (i) above 1 year to 10
years of continuous service; 7.5%”.
16.2.1. From the contents of the Claimants’ letters of employment, Exhibit
C.1 at page 34 to page 89 and the letters of termination of those employments,
Exhibit D.2 at page 277 to 408 of the record; the Claimants’ periods of service
with the Defendant, even though for different durations, fall within Article 10
(a) (i) of Exhibit C.3; which is “above 1 year to 10 years of continuous
service; 7.5%” as none of the twenty five Claimants whose monthly pay –slips
are before the Court served less than one year or more than ten years. In the
circumstance, I find and hold that Article 10 (a) (i) of Exhibit C.3 is
relevant and applicable to this case.
16.2.2. The Pay-slips of the 25 Claimants before the Court as Exhibit C.2
are at page 90 to page 114 of the record. The followings are the findings of
the Court in the various pay-slips:
1. MR GBORDEI
JOSEPH PAUL
Pay
slip – page 94
Monthly
Salary – N75,016.09
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N75,016.09
- Basic Salary –
N23,864.34
- Housing
- N12,485.13
- Transport
–
N8,217.30
-
Meal j/s –
N7,121.73
TERMINAL BENEFIT –N51,688.5
2. MR BAADOM KPOBARI SAMUEL
Pay
slip – pg. 102
Monthly Salary – N89,469.99
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N89,469.99
-
Basic Salary –
N23,442.95
-
Housing -
N14,201.20
-
Transport - N7,826.00
-
Meal J/S -
N6,782.60
TERMINAL BENEFIT – N52,252.75
3. OKINEDO JACOB
Pay
slip at page 107 for 2021.09
Monthly
Salary N140,918.78
PAYMENT IN LIEU OF A MONTH’S
NOTICE = N140,918.78
- Basic Salary - N57,675.27
-
housing -
N34,815.90
-
Transport -
N8,217.30
-
Meal J/S -
N7,121.73
TERMINAL BENEFIT = N107,830.20
4. PRINCE
MICHAEL REYMOND
Pay slip at page 91
Monthly Salary – N137,463.23
PAYMENT IN LIEU OF A MONTH’S
NOTICE - N137,463.23
-
Basic Salary - N48,687.24
-
Housing - N25,471.53
-
Transport - N8,217.30
-
Meal J/S - N7,121.73
TERMINAL
BENEFIT – N89,497.8
5.
SEGUN TOSIN JONES
Pay slip at page 99
Monthly Salary – N72,475.67
PAYMENT IN LIEU OF A MONTH’S
NOTICE - N72,475.67
-
Basic Salary - N23,274.12
-
Housing -
N12,176.22
-
Transport - N8,217.30
-
Meal J/S - N7,121.73
TERMINAL
BENEFIT – N50,789.37
6. ELIJAH MOSES
Pay
slip at page 93
Monthly
Salary – N76,055.29
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N76,055.29
-
Basic Salary - N23,988.33
-
Housing -
N12,550.02
-
Transport - N8,217.30
-
Meal J/S - N7,121.73
TERMINAL BENEFIT – N51,877.38
7. MONS KADUBARI
Letter
of employment at page 34 – Welder Grade 2
Letter
of Termination at page 387
XXX
PAY SLIP NOT SEEN
8. MATTHEW FRANCIS ADIGOLOR
Pay
slip at page 97
Monthly
Salary – N157,010.11
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N157,010.11
-
Basic Salary - N66,684.16
-
Housing -
N40,254.27
-
Transport - N8,217.30
-
Meal J/S - N7,121.73
TERMINAL BENEFIT – N122,277.46
9. BARINAADAA GODWIN BORNU
Pay
slip at page 98
Monthly
Salary – N70,703.99
PAYMENT
IN LIEU OF A MONTH’S NOTICE - N70,703.99
-
Basic Salary - N23,442.95
-
Housing -
N14,201.20
-
Transport - N7,826.00
-
Meal J/S - N6,782.60
TERMINAL BENEFIT – N52,252.75
10. KPEGARA DEWENWIN
Pay
slip at page 92
Monthly
salary – N74,715.94
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N74,715.94
-
Basic Salary - N24,701.64
-
Housing -
N12,923.19
-
Transport - N8,217.30
-
Meal J/S - N7,121.73
TERMINAL BENEFIT – N52,963.86
11. MOSES OWAJI-ONIRO
Monthly
Salary - N67,320.93
Pay-slip
at page 103
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N67,320.93
-
Basic Salary - N20,848.33
-
Housing -
N10,907.19
-
Transport - N9,217.30
-
Meal J/S - N7,121.73
TERMINAL
BENEFIT – N48,094.55
12. MR HALIDAY GODSPOWER
Pay
slip at page 101
Monthly
Salary – N70,529.84
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N70,529.84
-
Basic Salary -
N20,909.57
-
Housing -
N13,340.60
-
Transport - N7,434.70
-
Meal J/S - N6,443.47
TERMINAL BENEFIT – N48,128.34
13. MR EREBA KPOOBARI G.
Pay
slip at page - 95
Monthly
Salary – N73,133.80
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N73,133.80
-
Basic Salary -
N23,707.36
-
Housing -
N12,446.60
-
Transport - N7,826.00
-
Meal J/S - N6,782.60
TERMINAL
BENEFIT – N50,762.56
14. CLETUS NWINKA BANUNA
Pay
slip at page - 96
Monthly
Salary – N68,310.84
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N68,310.84
-
Basic Salary -
N23,282.28
-
Housing -
N12,180.63
-
Transport - N8,217.30
-
Meal J/S - N7,121.73
TERMINAL BENEFIT – N50,801.94
15. ZABBEY PAUL DINEBARI
Pay slip at page - 100
Monthly
Salary – N72,163.96
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N72,163.96
-
Basic Salary -
N23,282.28
-
Housing -
N12,180.63
-
Transport - N8,217.30
-
Meal J/S - N7,121.73
TERMINAL BENEFIT – N50,801.94
16. LEGBAA BRIGHT ZAAZOO
Pay
slip at page - 111
Monthly
Salary – N72,000.84
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N72,000.84
-
Basic Salary -
N23,282.28
-
Housing -
N12,180.63
-
Transport - N8,217.30
-
Meal J/S - N7,121.73
TERMINAL BENEFIT – N50,801.94
17. BABOONA JOHN KPOOBAR
Pay
slip at page - 114
Monthly
Salary – N71,311.57
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N71,311.57
-
Basic Salary -
N21,468.16
-
Housing -
N11,231.43
-
Transport - N8,217.30
-
Meal J/S - N7,121.73
TERMINAL
BENEFIT – N48,038.62
18. DUMPE CONFIDENCE
Employed
on May 2, 2018 – 3 yrs + pg 88.
XXX
HIS PAYSLIP NOT SEEN
19. MBARI IYEFARA JOSEPH
Pay
slip at page - 103
Monthly
Salary – N72,163.96
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N72,163.96
-
Basic Salary -
N23,282.28
-
Housing -
N12,180.63
-
Transport - N8,217.30
-
Meal J/S - N7,121.73
TERMINAL BENEFIT – N50,801.94
20. OJOCHIDE ATTAH
Pay
slip at page - 105
Monthly
Salary – N94,329.17
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N94,329.17
-
Basic Salary -
N40,177.00
-
Housing -
N20,892.04
-
Transport - N9,000.00
-
Meal J/S - N7,800.00
TERMINAL BENEFIT – N77,869.04
21. ALEEMA TENALO ALEX
Date
employed – Feb. 20, 2019 – 2 yrs + - pg. 64
XXX No payslip seen
22. BIRAGBARA BARINEDUM
Pay
slip at page - 109
Monthly
Salary – N70,532.79
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N70,532.79
-
Basic Salary -
N23,282.28
-
Housing -
N12,180.63
-
Transport - N8,217.30
-
Meal J/S - N7,121.73
TERMINAL
BENEFIT – N50,801.94
23. MOSES BOR DORNUBARI
Pay
slip at page - 113
Monthly
Salary – N72,163.96
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N72,163.96
-
Basic Salary -
N23,282.28
-
Housing -
N12,180.63
-
Transport - N8,217.30
-
Meal J/S - N7,121.73
TERMINAL
BENEFIT – N50,801.94
24. VICTOR BAATEE BIEN
Pay slip at page - 104
Monthly
Salary – N72,163.96
PAYMENT
IN LIEU OF A MONTH’S NOTICE - N72,163.96
-
Basic Salary -
N23,282.28
-
Housing -
N12,180.63
-
Transport - N8,217.30
-
Meal J/S - N7,121.73
TERMINAL
BENEFIT – N50,801.94
25. MICHAEL BOONNA
Pay
slip at page - 112
Monthly
Salary – N71,654.28
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N71,654.28
-
Basic Salary -
N22,998.23
-
Housing -
N12,031.95
-
Transport - N8,217.30
-
Meal J/S - N7,121.73
TERMINAL
BENEFIT – N50,369.21
26. TONUBARI KOBEL
Pay slip at page - 106
Monthly
Salary – N77,382.55
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N77,382.55
-
Basic Salary -
N23,282.28
-
Housing -
N12,180.63
-
Transport - N8,217.30
-
Meal J/S - N7,121.73
TERMINAL
BENEFIT – N50,801.94
27. JUMBO FINIPIRI EDWARD
Pay
slip at page - 110
Monthly
Salary – N78,550.51
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N78,550.51
-
Basic Salary -
N25,655.00
-
Housing -
N13,340.60
-
Transport - N9,000.00
-
Meal J/S - N7,800.00
TERMINAL
BENEFIT – N55,795.60
28. GEORGE EZEMA
Pay slip at page 90
Monthly Salary – N83,394.02
PAYMENT
IN LIEU OF A MONTH’S NOTICE
- N83,394.02
-
Basic Salary -
N24,701.64
-
Housing -
N14,911.26
-
Transport - N8,217.30
-
Meal J/S - N7,121.73
TERMINAL BENEFITS – N54,951.93
16.2.3. From the findings of the Court as
stated above, the total Terminal Benefits of the 25 Claimants is N1,471,855.44. Therefore, 7.5% of N1,471,855.44 is calculated
this way: N1,471,855.44/100 x 7.5 = N110,389.16.
Consequently, I hold that the 7.5% of severance benefit of monthly wage based on
total emolument comprising of basic salary/wage, rent subsidy, transport and
meal subsidy allowance of all the 25 (twenty
five) Claimants as shown above is N110,389.16. (One Hundred and
Ten Thousand, Three Hundred and Eighty Nine Naira, Sixteen Koko) in this case.
16.3. Relief B. (ii) of the Claimants
is for the sum of N60,830,000.00 as accrued Hydrocarbon Swamp
Allowance from February 2019 to September 2021. The Claimants’ evidence on this is that it was agreed orally between
their Union and the Defendant that the Defendant will pay each of its employees
the sum of N70,000.00 monthly as Hydrocarbon Swamp Allowance once the
construction gets to the first bridge where the swamp started but that the Defendant
did not pay the allowance. On the other
hand, the Defendant denied entering into such agreement with the Claimants’
Union. The Claimants could not substantiate this claim to the satisfaction of
the Court apart from their pleadings and evidence in their written statement on
oath, which the Defendant too countered with its pleadings and written
testimonies. It is trite law that he who asserts must prove, see the case of Alawiye v. Minister of the FCT & Ors
[2025] - LEPLR 82007 (SC). It was held in this case that any person who
desires any Court to give judgment as to any legal right or liability dependent
on the existence of facts which he asserts must prove that those facts exist.
See also section 131 of the Evidence Act, 2011 (As Amended). The Claimants in
this instance, who asserted, are required to give more proof like showing of document
on the said agreement but they failed to show any; and so, this claim cannot
stand. Therefore, I find and hold that Relief B (ii) of the Claimants for the sum of N60,830,000.00 as accrued Hydrocarbon Swamp
Allowance from February 2019 to September 2021 is not satisfactorily proved in line with sections 131 and 132 of the
Evidence Act, 2011 (As Amended). The relief is accordingly declined and
dismissed.
17.0. Are the Claimants entitled to N5,000,000.00 as cost of
this litigation and to 10% interest per annum on the judgment sum?
Relief C of the Claimants in this
case is for an Order of this Court directing the Defendant to pay to them
the sum of N5,000,000.00, representing the cost of litigation for its wrongful
and oppressive act and also for 10% of the judgment sum per annum from the date
of judgment till the sum is liquidated. How the Claimants arrived at the sum of
N5,000,000.00 cost of this litigation is not known to the Court as the evidence
of such payment to the Claimants’ counsel is not in this case in compliance
with the provision of sections 131 and
132 of the Evidence Act, 2011 (As Amended). The law is that he who
asserts must prove; see Kafaru v.
Reliance Telecommunications Ltd [2015] 60 NLLR (Pt 211) 627 at 641paragraphs
E-G. Since the Claimants could not prove their assertion in this instance, I
find and hold that this claim fails and it is accordingly dismissed.
17.1. With respect to the Claimants’ claim for 10%
interest of the judgment sum per annum from the date of judgment until the sum
is liquidated, the provision of Order 47 Rule 7 of the National Industrial Court
of Nigeria (Civil Procedure) Rules, 2017 is relevant. This Rule states:
The
Court may at the time of delivering the judgment or making the order give
direction as to the period within which payment is to be made or other act is
to be performed and may order interest rate not less than 10% per annum to be
paid upon any judgment.
In
essence therefore, the appropriate interest rate and the condition that will be
attached thereto will be decided at the proper point in this judgment.
18.0. On
the whole, I hold and order as follows:
i. I hold
that the determination of the Claimants’ employment by the Defendant is by
termination and not by dismissal.
ii. I hold
that the said determination of the Claimants’ employment was not properly done,
and so it was wrongful.
iii. I hold that the 25 Claimants whose monthly pay-slips are before the Court as
Exhibit C.2 are entitled to payment of the sum of N2,080,936.07 as their total payment in Lieu of Notice as
shown in this judgment.
iv. I hold
that the 25 Claimants whose monthly pay-slips
are before the Court as Exhibit C.2 are entitled to payment of the sum
of N110,389.16. as their severance
benefit; which is 7.5% of their monthly wage based on their total emolument
comprising of basic salary/wage, rent subsidy, transport and meal subsidy
allowance.
v. I hold that the Claimants are
not entitled to the sum of
N60,830,000.00 as their accrued Hydrocarbon Swamp Allowance from February 2019
to September 2021 for lack of proof. This claim is accordingly dismissed.
vi. I hold that the Claimants are not entitled to
the sum of N5,000,000.00 as cost of this litigation for lack of proof.
vii. I hereby direct the Defendant to pay general
cost of N800,000.00 to the Claimants.
viii. I hereby direct
the Defendant to pay to the Claimants, the total judgment sum of N2,991,325.23 within 30 days
from today; thereafter, the judgment sum will begin to attract interest of 10% per
annum until the judgment sum is liquidated.
18.0.
Judgment is entered accordingly.
------------------------------------------
Hon. Justice F. I. Kola-Olalere
Presiding
Judge.