IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE (PROF) ELIZABETH A OJI

 

DATE: THURSDAY 3RD OCTOBER 2024   SUIT NO: NICN/LA/110/2020

 

BETWEEN

OBEMBE KIKELOMO                                                      CLAIMANT

AND

FIRST ROYAL OIL NIG. LIMITED                              DEFENDANT

 

Representation:

AA Odejini for the Claimant

Bolu Agbaje Akadir with Adedoyin A. Enisan for the Defendant

 

JUDGMENT

Introduction and Claims:

1.   The Claimant, through a General Form of Complaints dated 12th day of March, 2020 claims against the Defendant as follows:

 

a.                  A Declaration that the purported termination of the Claimant's employment by the Defendant is wrongful, illegal and same should at best be a termination of employment with a one (1) month notice before the effective date of termination or the payment of a one (1) month salary in lieu of the said notice.

b.                 An Order that the Defendant pays forthwith the one (1) month salary in lieu of notice to terminate the claimant's employment in the sum of N70,000.00 (Seventy Thousand Naira Only) which same is from the 1st day of November, 2019 to the 31st day of November, 2019.

c.                  An Order that the Defendant to remit to the Claimant's pension for the period of July, 2009 to the 31st day of November, 2019, which same is in the sum of 15% of the monthly salary of N70,000.00 (Seventy Thousand Naira Only) and a default penalty of 5% on every month of default from July, 2009 to the 31st day of November, 2019.

d.                 An Order that the Defendant should pay the agreed commission on scarcity sale for the year 2016 and 2017 in the sum of N2, 442,000.00(Two Million, Four Hundred and Forty-Two Thousand Naira only) to the claimant's account forthwith.

e.                  An Order that the Defendant pays to the Claimant, the sum of N312,000.00 (Three Hundred and Twelve Thousand Naira Only), being unlawful deductions made from the salary of the Claimant forthwith.

f.                   An Order that the Defendant pays to the Claimant a general damages in the sum of Nl,000,000.00 (One Million Naira Only).

 

2.  In response to the Claimant's claim, the Defendant filed a Statement of Defence on the 17th day of August, 2020. The Claimant thereafter filed a Reply to the Defendant's Statement of Defence on the 10th day of March, 2021. Trial commenced on the 18th day of November, 2021. The Claimant as CW was led in evidence in chief by her counsel and was cross examined. Two documents were tendered by the Claimant viz:

·        Claimant's Solicitors' letters dated 6th November, 2019 – exhibit C1

·        Claimant’s Solicitor’s letter dated 26th November,2019 - C2.

 

3.  The Defendant commenced its defence on the 15th day of June, 2022. The Defendant called one Mr. Oluwole Ayodele (General Manager, Operations). He was led in evidence and cross examined same day. Three documents were tendered during examination-in-chief to wit:

·        Whatsapp chats Printout – exhibit D1

·        Petition dated 31st October, 2019  - exhibit C2

·        Letter of Invitation dated 5th November, 2019 - D3.

 

At the end of trial, the Court ordered the parties to file their final written addresses.  The Claimant opted not to file any address but to rely on her evidence before the Court.  The Defendant’s final written address was deemed adopted on 23rd  July, 2024, and the matter adjourned for judgment

 

THE CASE OF THE CLAIMANT

4.  The Claimant was an employee of the defendant which started sometimes in July, 2009.  The Defendant employed the Claimant in her capacity as a graduate and she remained in the employment until the event that led to this cause of action.  She was orally terminated of her 10 years 4 months engagement with the defendant, without any severance allowance/package amidst other failures and omission of obligations by the defendant till date.  Upon her employment, the Claimant was never issued an employment contract thus her engagement was merely an oral contract of employment.  For her termination, the defendant just informed her not to come to work anymore and after several weeks of pleading, the defendant refused to change its mind.  The form of termination of the employment contract by the defendant is unlawful, oppressive and an unfair labour practice.  The claimant experienced several unexplained salary deductions, she was paid half salary for the period of two (2) years and the sum of N10,000.00k (Ten Thousand Naira) was deducted from her salary for a constant period of two (2) years.  The defendant never paid leave allowance in the sum of N70,000.00k for over 10years and 4 months.  There was no time payment was made under the contributory pension scheme to claimant’s pension account since 2009 till the point when the employment was terminated.  The Claimant was entitled to commission via the 2016 scarcity sales in the sum of N2, 178,000.00k and N264, 000.00k in 2017 and all of these facts are within the knowledge of the defendant. 

 

5.  The Claimant states that her leave allowances, specific performance of the employer’s obligation i.e. the defendant under the contributory pension scheme or the payment of her terminal benefit amount to the sum of N25million.  The payment of her commission based on the N2 per liter oral agreement on 33 trucks of 33,000 liters each, sold in 2016 and the 4 trucks of 33,000 liters each, also during the 2017 scarcity sales, both in the sum of N2, 442,000.00k.  The payment of all the deductions made from the claimant’s salary in the sum of N312,000.00k, and also the sum of N5million for the overtime hours she worked for the defendant which risked her life on several occasions.  The claimant has worked with the defendant for a period of over ten (10) years and is entitled to a month’s notice or a month salary in lieu of notice.  The claimant communicated two letters of demand to the defendant through her solicitor on the 4th day of November, 2019 and the 26th day of November, 2019.  The claimant discovered that the sum of N350,000.00k was paid as against the amount claimed from the defendant into her salary account, and same was immediately returned, because there was no platform for the calculation of the said entitlement.  This said gratuity has already been paid to some of the staffs that had their employment terminated by the defendant without explaining any reason why her gratuity had not been paid.  While nothing was done by the defendant, the claimant had her yearly plans shattered in trauma.  The Claimant served the defendant with her early youthful years and she has been severed from the business environment for over ten years because of her employment with the defendant, hence this event has occasioned general damages as a result of the sudden loss of a source of income.  The defendant does not have a resumption time or closing time, and the Claimant worked hard and hardly got home before mid-night daily.  The claimant states that she is entitled to general damages, more purposefully, when she has suffered damages to her emotions, physical injury and more particularly she would have looked for a better job assuming she was given time to search for one, without laying her off with stipends.  She also had to engage a solicitor to pursue her legal right to a remedy.  The claimant avers that the defendant has an employment strength of over 50 employees in the private organization, which she was part of at some point in time.  The Claimant believes that the essence of the mandatory retirement savings account is for the purpose of retirement benefits, and the defendant has the capacity to agree to bear the full contributory pension of 15% on the monthly salary of the claimant since July 2009 till the time same was unlawfully terminated. The claimant further avers that the defendant is under a compulsory duty to remit the monthly contributory pension of the claimant, not later than 7 working days after the payment of the claimant’s salary, into the claimant’s pension account with the pension fund administration, but the defendant has never done so in favour of the claimant at any point in time and till date.  The Claimant avers that the defendant defaulted in respect of this contributory pensions scheme payment since July 2009, till when the employment was terminated, hence as a net result, the defendant is under an obligation to pay not less than 2 per cent as default penalty for each month of default to the claimant, but the claimant demands the payment of 5% of the monthly salary from July 2009 till the 31st day of November, 2019. 

 

THE CASE OF THE DEFENDANT

6.  The defendant denied the allegation of "several unexplained salary deductions", "unpaid leave allowances "and "promise to pay commission on 33 trucks of 33000 liters in 2016 and 2017" or any other year at all.  The Defendant’s case is that at all material time when the Claimant was in her employment, the Defendant tolerated the incompetence and excesses of the Claimant even when she was performing below expectation and the Claimant was paid all her entitlement without any unlawful or illegal deductions from her salary. The Claimant was initially engaged as a depot representative of the Defendant and when she became too negligent in the discharge of her duties, her role was changed to a coordinator. The event that led to the cessation of the Claimant's employment was as a result of negligent breach of safety measure put in place at the Defendant's filling station. The Claimant, before commencing this suit, had sent series of whatsapp messages to the Defendant's Managing Director appealing for reinstatement wherein she was very apologetic for her offences and pledged not to repeat them again if reinstated. After the Defendant refused to reinstate the Claimant, the Claimant wrote a petition dated 21st October, 2019 to the office of Directorate of Citizens Rights under the Ministry of Justice, Lagos State claiming virtually all the reliefs contained in the Claimant's Statement of Facts in this instant suit. The Directorate for Citizens Rights forwarded the petition to the Defendant and scheduled a meeting for 15th November, 2019 for discussion towards amicable resolution of the allegations in the petition. The Defendant briefed one Mr. Stephen Azubuike of Splendour Consultants to attend the meeting and take decision towards amicable resolution of the matter. The Defendant did not only attend the meeting but was prepared as a responsible organization to make concession as the Directorate may advise. At the said meeting, the officers of the Directorate listened to the complaint of the respective parties and came to the conclusion that the Claimant was just embittered that she was relieved of her work and therefore appealed to the Defendant on compassionate ground to pay the Claimant some money so that she can forge ahead with her life. The Defendant, on that ground, assured the Directorate that the Claimant’s case will be considered and some payment will be made to the Claimant on the basis of the intervention of the Directorate. The Defendant on the 25th of November, 2019 paid a sum of N350,000.00 (Three Hundred and Fifty Thousand Naira Only) into the account of the Claimant and the Defendant was shocked when the Claimant rejected the said sum on ground that same did not meet the demand of the Claimant and therefore transferred the said sum back to the account of the Defendant on the 26th of November, 2019. In specific response to the Claimant's allegation of non-payment of pension to the pension fund administrators on behalf of the Claimant, the Defendant states unequivocally that no deduction was ever made on the Claimant's salary for that purpose.

 

CLAIMANT’S REPLY TO THE STATEMENT OF DEFENCE

7.  The Claimant replied that she worked with the defendant for over ten (10) years and no form of incompetence was brought against her and has not been found wanting or guilty of any improprieties by the defendant during the period of employment.  The Claimant replied that all through her 10 years with the defendant company, she acted in good faith and conscience.  Since her employment and termination was done orally, at that point she had no other choice than to plead with the defendant as a result of damages to her emotions and sudden loss of income.    The Claimant avers that the petition sponsored by her to the Directorate of Citizens Rights was an attempt to resolve the issue without litigation and was dissatisfied with the N350,000.00k (Three hundred and Fifty thousand Naira) compensation paid to her account out of the defendant’s discretion. She found the compensation incommensurate and therefore immediately returned it.

 

ARGUMENTS IN FAVOUR OF THE DEFENDANT

8.  The Defendant raised a sole issue for determination:

 

·        Whether, considering the claims of the Claimant and the lack of evidence to support same, it will be appropriate for this Honourable Court to strikeout and/or dismiss the Claimant's claims"

 

The Defendant argued that it is trite law, that when an employee complains of unlawful termination of employment by his employer, he or she has the onus to prove the unlawful termination of the said employment by: (a) Placing before the Court the terms and conditions of the contract of employment, and (b) Proving in what manner the said terms were breached by the employer. See - Angel Spinning & Dyeing Ltd vs. Ajah (2000) 13 NWLR Part 685 Page 532. The Defendant submits that the Claimant in this instant case failed woefully to place any document before this Honourable Court, the basis upon which her entitlement to the reliefs claimed before this Honourable Court can be granted. The Defendant further argued that it is the claim of the Claimant that the Defendant should remit to her pension account, the pension for the period of July, 2009 to 31st November, 2019. The Defendant submits that the claimant has no evidence before this Honourable to support that claim; which claim the Defendant denies.  On Claimant’s claim for 'the agreed' commission on scarcity sale for the year 2016 and 2017, the Defendant argues that the Claimant also did not provide any evidence to support this claim.  The Defendant argued that the Claimant’s evidence is inconsistent and unreliable. 

 

DECISION

9.  I have considered the processes filed in this matter, the evidence led, the exhibits admitted and the argument of Counsel.  I set a lone issue down for determination:

 

·        Whether the Claimant has proved her case to be entitled to the reliefs sought in this suit.

10.   The Defendant in its submission that the Claimant is unable to prove her case referred to the fact that the Claimant has no letter of employment with which to prove the terms of her contract of employment, and how it has been breached.  I dare to ask the question; whose responsibility was it to issue the letter of employment to the Claimant?   After recognising that a contract of employment can be entered into orally or by implication, the Labour Act, placed the responsibility on the shoulders of employers to provide a Claimant with a written letter of employment.  Section 7 of Labour Act provides as follows:

 

Not later than three months after the beginning of a worker’s period of employment with an employer, the employer shall give to the worker a written statement specifying:

a.      the name of the employer or group of employers, and where appropriate, of the undertaking by which the worker is employed;

b.     the name and address of the worker and the place and date of his engagement;

c.      the nature of the employment

d.     If the contract is for a fixed term, the date when the contract expires;

e.      The appropriate period of notice to be given by the party wishing to terminate the contract, due regard being had to section 11 of this Act;

f.       The rates of the wages and method of calculation thereof and the manner and  periodicity of payment of wages;

g.      Any terms and conditions relating to-

i)                  Hours of work;

ii)                Holidays and holiday pay, or

iii)             incapacity for work due to sickness or injury, including any provisions for sick pay; and

iv)             any special conditions of the ….

 

11.   From evidence before this Court, the Defendant has not denied that there existed a contract of employment between it and the Claimant.  In view of the provision of section 91 of Labour Act as it relates to contract of employment, notwithstanding the failure of the Defendant to issue the Claimant with a letter of employment, the contract of employment between the Claimant and the Defendant was validly entered.  The Defendant cannot be allowed to benefit from its failure to comply with the Labour Act.  Section 21 of the Labour Act makes it an offence for any employer to contravene section 7 of the Labour Act, requiring an employer to issue an employee with a written contract of employment, not later than 3 months after engagement.  I find that failure of the Defendant to issue letter of employment to the Claimant, three months after her their employment is in breach of section 21 of the Labour Act.  The Defendant cannot benefit from its breach of the law.  In the absence of an express letter of employment, the Labour Act has provisions that are resorted to, when there is a question on the length of notice to be given to a party to a contract of employment.  Both parties in this case agree that the contract was entered into orally and terminated orally too.  The Claimant gave evidence that she was in the employment of the Defendant for over ten (10) years.  This fact was not disputed.  Section 11 of the Labour Act provides for length of notice to be given for purposes of termination of employment; as follows:

   11.   Termination of contracts by notice

(1)  Either party to a contract of employment may terminate the contract on the expiration of notice given by him to the other party of his intention to do so.

(2)  The notice to be given for the purposes of subsection (1) of this section shall be—

(a) one day, where the contract has continued for a period of three months or less;

(b) one week, where the contract had continued for more than three months but less than two years;

(c) two weeks, where the contract has continued for a period of two years but less than five years; and

       (d) one month, where the contract had continued for five years or more.

Being that the Claimant was in the employment of the Defendant for up to ten years, she was entitled to one month notice of termination, or one month salary in lieu.  I so hold.

I shall now take the reliefs sought in this case seriatim.

Relief ‘A’ for “A Declaration that the purported termination of the Claimant's employment by the Defendant is wrongful, illegal and same should at best be a termination of employment with a one (1) month notice before the effective date of termination or the payment of a one (1) month salary in lieu of the said notice”.  In the absence of evidence of notice of termination or procedure for misconduct, the Claimant is entitled, in the least, to a month’s notice before her termination, or salary in lieu.  This relief succeeds.  I declare that the termination of the Claimant’s employment by the Defendant is wrongful.  The Claimant was entitled to one (1) months’ notice or salary in lieu of notice.

Relief ‘B’ for “An Order that the Defendant pays forthwith the one (1) month salary in lieu of notice to terminate the claimant's employment in the sum of N70,000.00 (Seventy Thousand Naira Only) which same is from the 1st day of November, 2019 to the 31st day of November, 2019”. The Claimant gave undisputed evidence (see paragraphs 8 of Claimant’s evidence) that her salary was N70, 000 (Seventy Thousand Naira) only.  Having found that the Claimant was entitled to one month’s notice, the Defendant is ordered to pay to the Claimant, the sum of N70,000 (Seventy Thousand Naira) only, as salary in lieu of one month’s notice.

Relief ‘C’ is for “An Order that the Defendant to remit to the Claimant's pension for the period of July, 2009 to the 31st day of November, 2019, which same is in the sum of 15% of the monthly salary of N70,000.00 (Seventy Thousand Naira Only) and a default penalty of 5% on every month of default from July, 2009 to the 31st day of November, 2019”.  The Claimant admitted that no deductions were made from her salary and that the Defendant does not operate a contributory pension scheme.  This relief cannot succeed.

Relief ‘D’ is for “An Order that the Defendant should pay the agreed commission on scarcity sale for the year 2016 and 2017 in the sum of N 2, 442,000.00(Two Million, Four Hundred and Forty-Two Thousand Naira only) to the claimant's account forthwith”.  There is no proof of this agreement which the Defendant denied.  This relief cannot be granted as it is.

Relief ‘D’ is for “An Order that the Defendant pays to the Claimant, the sum of N312,000.00 (Three Hundred and Twelve Thousand Naira Only), being unlawful deductions made from the salary of the Claimant forthwith”.  The Claimant has not proved that any deductions were made from her salary.  The Claimant’s statement of account would have been able to show if any deductions were made from the Claimant’s salary.  This relief fails.

 

 

Relief ‘E’ is for “An Order that the Defendant pays to the Claimant a general damages in the sum of Nl,000,000.00 (One Million Naira Only)”.  Since I have found that the Claimant’s termination was wrongful, the Claimant is entitled to damages for the wrongfulness of her termination.  Further, the Claimant alleged unfair labour practice in the course of her over ten (10) years employment with the Defendant.  While there is no statutory definition of the concept of unfair labour practice in Nigeria; the term "unfair labour practice" however, has been generally defined to mean practices that do not conform to best practice in labour circles as may be enjoined by local and international experiences.  See Mix & Bake v NUFBTE (2004) 1 N.L.L.R (PT. 49) 69, Aluminium Manufacturing Co. Nig. Ltd v Volkswagen Nig. Ltd (2010) 21 N.L.L.R (PT. 60) 428, F.B.N Plc v Associated Motors (1998) 10 NWLR (PT. 570) 441, MPWUN v Alzico Ltd (2010) 18 NLLR (PT. 49) 69.  Unfair labour practice consists of acts or omission in employment relationships that are considered unjust, inequitable, oppressive and highly unconscionable, including grave breaches of employees' rights.  See Odah Ezekiel & 3 Others v. Total E & P Nigeria Ltd & 5 Others Unreported Judgment in Suit No. NICN/LA/663/2016 delivered by this Court on 30th January 2024.  In that case, I held that not issuing an employee with a letter of employment is unfair labour practice in the following words:

 

35.  I have considered the acts of the 1st Defendant in its relationship with the Claimants.  I am of the conviction that the act of not issuing the Claimants with letters of employment after several years of employment, is unfair, in addition to being unlawful.  The Claimants were put in a position where for several years, they could not say what the terms of their employments were.  The Claimants gave evidence that their salaries were all the same for the years they each worked with the 1st Defendant, irrespective of how long each Claimant had stayed in the 1st Defendant’s employment (See evidence of the CW1 in cross examination by the 3rd Defendant on 16/3/2021).  This also I find to be unfair labour practice on the Claimants as it goes contrary to the natural expectation of growth when a person is employed in an establishment.  I also find the manner in which the Claimants were handed over from one supervisor to another, without information or notice as shown by the evidence of the Claimants, to be an unfair labour practice.  It is callous on the part of the 1st Defendant violates the Claimants’ right to human dignity.  On the whole, I find that the 1st Defendant’s treatment of the Claimants amounted to unfair labour practice.

 

 By virtue of the powers granted this Court by section 254C(1) (f), of the Constitution of the Federal Republic of Nigeria (3rd Alteration Act), this Court has and exercises jurisdiction to the exclusion of any other Court in civil causes and matters; (f)   relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters.  It is on this basis that this Court can make determinations and compensate for unfair labour practice.  I have considered the acts of the Defendant in its relationship with the Claimant.  I am of the conviction that the act of the Defendant, in not issuing the Claimant with a letter of employment for over ten (10) years she was in the employment, is unfair.  The Claimant is thus unable to say for certainty, what the terms and conditions of her employment were, to her chagrin and to the benefit of the Defendant.   The Claimant is entitled to be compensated for the wrongful termination of her contract; and the unfair labour practice.   The Defendant is ordered to pay to the Claimant, the sum of N1,000,000.00 (One Million Naira) general damages for wrongful termination of her contract and for unfair labour practice.

 

This suit succeeds in part.  Having succeeded, cost of this suit is set at N500,000.00 to be paid to the Claimant, by the Defendant.  This judgment is to be complied with, not later than 30days from this date of judgment; failure, interest will accrue at 10% per annum. 

 

Judgment is entered accordingly.

 

 

 

…………………………………….

Hon. Justice (Prof) Elizabeth A. Oji