IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP: HON. JUSTICE S. A. YELWA

 THIS TUESDAY,14TH DAY OF OCTOBER, 2024  

SUIT NO: NICN/LA/242/2023

 

BETWEEN

BITMARTE C-BIT INDUSTRIES LIMITED –---------------- CLAIMANT

AND

OLARINDE OLAMIDE VICTORIA–--------------------------- DEFENDANT

 

LEGAL REPRESENTATION

Mmemsoma Emmanuel Esq. for the Claimant

Temitope Elusogbin Esq. with Tolulope

Elusogbin Esq. for the Defendant

JUDGMENT

1.0  This action was commenced by a General Form of Complaint dated and filed 18th August, 2023, wherein the Claimant sought from this court against the Defendant the following reliefs;

i. A DECLARATION by this Honourable Court that the Spring Rock Group Personnel Handbook duly read, understood and acknowledged by the Defendant is binding on the Defendant as part of her terms of employment with the Claimant.

ii. An Order of this Honourable Court directing the Defendant to pay the sum of N478, 500.00 (Four Hundred and Seventy-Eight Thousand, Five Hundred Naira) which is the payment of two-months gross salary in lieu of notice of resignation to the Claimant.

 

 

 

 

iii. An Order of this Honourable C ourt awarding damages in the sum of N1, 000,000.00k (One Million Naira) to the Claimant for failure of the Defendant to issue the appropriate resignation notice.

iv. Cost of this suit in the sum of N300, 000.00 (Three Hundred Thousand Naira) only.

  The Defendant filed her memorandum of appearance and statement of defence dated 23rd but filed 24th January, 2024.

CASE OF THE CLAIMANT

1.1  The Claimant averred that by a letter dated 8th December, 2022, the claimant entered into a contract for service with the Defendant as an Associate Accountant with annual salary of N3,300,00.00 (Three Million, Three Hundred Thousand Naira) with other benefits and allowances. At the inception of the Defendant’s Contract, she was availed the Employee Handbook for more information about the conditions of her employment, the rules and regulations of the Claimant the content of which was duly confirmed and acknowledged by the Defendant having read and accepted the terms contained therein by signing the acknowledgement form on the 22nd of Decenmber,2023.

1.2   However, on the 14th of April, 2023, the Defendant sent a mail to the Claimant to terminate her employment with the Claimant in breach of the Claimant’s Handbook by failing to give the Claimant requite length of notice or making payment in lieu of notice. The Defendant by her letter of resignation proposed to the company to keep her two weeks salary for the month of April, 2023 and upon receipt of same, the Claimant sent an email to the Defendant pointing the Defendant to due process, that is rather than resigning with immediate effect in lieu of two weeks, what is required from her is 2 month notice or 2 month salary in lieu of notice which in case of the Defendant is the sum of 478, 500.00 (Four Hundred and Seventy-Eight Thousand, Five Hundred Naira) for termination of the employment, which are clearly spelt out in the SpringRock Group Handbook which content the Defendant confirmed and acknowledged. The Defendant has however failed and refused to comply with the aforesaid conditions. The action of Defendant resigning without the requisite notice as prescribed in the terms of her contract with the Claimant occasioned damages to the Claimant, thus, being displeased with this act of the Defendant, initiated this suit.

CASE OF THE DEFENDANT

1.3 The Defendant averred that she was not emp                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    loyed by any of the companies referred to in the Employee Handbook as contended by the Claimant, and that she is not contractually bound by the terms and policies contained in the said Handbook as the handbook was specifically stated to apply to Spring Rock Group and its subsidiaries and the Claimant was not stated to be one of the subsidiaries of Spring Rock Group. The Defendant stated that the terms of her employment is as stated in the Claimant’s Offer of Employment letter dated 8th December, 2022 which sets out terms to which the Defendant accepted by signing her acceptance on a copy of the letter.

1.4 The letter of employment specifically referred to the applicability of the Employee Handbook of BITMARTE C-BIT INDUSTRIES LIMITED which the Claimant never made available to her, and that she was made to acknowledge receipt of a copy of a completely different Employee Handbook after resuming work with the claimant. The acknowledgment of the Employee Handbook after resuming work with the Claimant does not constitute a novation of contract between the parties, and that there is no privity of contract between her and the Spring Rock Group. The Defendant stated that in March 2022, she was paid half salary due to the transition to remote work contrary to the terms of her employment with the Claimant. The Defendant contends that Claimant owes her the sum of N95,567.63 being withheld 50% of her due and payable salary for the month of March 2023. The Defendant’s terms of employment were not subsequently amended by the Claimant whilst 50% salary was paid to her.

1.5  The Defendant contended that even if the Spring Rock Staff Handbook forms part of her contract with the Claimant (which is strenuously denied), the provision of the said Handbook does not stipulate that the Defendant should pay any money to her employer upon resignation. On the contrary, the said Handbook stipulates a forfeiture. The Defendant further contended that the terms of the said Handbook in relation to resignation of appointments by an employee is onerous, unconscionable, extravagant and exorbitant and out of proportion to the interest of the Claimant in the enforcement of the employment obligations and in violation of international best practices of Labour relations and a violation of domestic and international Labour Laws and Conventions applicable to Nigeria. Also, the Defendant averred that there is no place in the contract of employment for the Defendant to pay the Claimant money in lieu of notice.

TRIAL

1.6  Trial commenced on 29th April, 2024   where CW1 testified and adopted his witness statement on oath sworn to on 18/8/2023, and in that course, tendered the following documents as exhibits without being objected to by the defendant except that counsel raised an observation that the Spring Rock Group Hand book is a photocopy rather than original and that foundation has not been laid. However, counsel reserved his argument against the document until at the final written address stage of the case. The documents tendered were admitted in evidence and marked as follows:

1.      Letter of employment/acceptance letter dated 8/12/2022- Exhibit BM1.

2.      Spring-Rock Group Personnel Handbook- Exhibit BM2.

3.      Spring-Rock Group Personnel Acknowledgment Form- Exhibit BM3.

4.      Resignation letter dated 19th April, 2023- Exhibit BM4.

5.      Demand for payment in lieu of notice dated 20th April, 2023 BM5

6.      Email of Defendant’s counsel dated 29th April, 2023- Exhibit BM6.

7.      Email dated 5th May, 2023- Exhibit BM7.

8.      Certificate of identification- Exhibit BM8.

CW1 was cross examined upon conclusion of the evidence and the case of the claimant was closed.

1.7  On 26/6/2024, the defendant opened her case having testified as DW1, after adopting her written statement on oaths, the witness was shown Exhibit BM1 and BM2 if she can identify both and same identified by the witness. The witness was cross examined and subsequently, closed her case and the case was adjourned to 24/7/2024 for adoption of final written addresses of counsel.

DEFENDANT’S FINAL WRITTEN ADDRESS

1.8  Defendant filed her final written address on 8th July, 2024, wherein counsel submitted the following issues for determination;

1.      Whether the Defendant was in breach of the terms of Exhibit BM1.

2.      Whether the provisions of Exhibit BM2 governs the contract of employment of the Defendant.

3.      Whether the provisions of Exhibit BM2 is enforceable against the Defendant.

Learned counsel submitted that in issue one, that by a Contract of Employment dated 8th December 2022, and accepted by the Defendant on the 18th December, 2022, the Defendant was engaged by the Claimant in its employment. The terms of the Defendant’s contract of employment are stated in EXHIBIT BM 1, which also provides for termination of the employment and states as follows:

“Probation

A probation period will apply for the first 6 months of your employment, during this period, we will access your progress and satisfactory performance in your job function. During this probationary period, the company may terminate employment immediately, with or without cause and with or without notice.”

Exhibit BM 1 further stated under the clause “Legal Observation” as follows:

“Legal Observation

 Benefits and status are as per bitMARTe C-Bit Industries Employee Handbook. The benefits stated herein are in place at the time of presentation of your offer letter. bitMARTe C-Bit, however reserves the right to alter, reduce, remove or otherwise change these benefits should the need arise. Any changes in benefits will be communicated to you.”

1.9  It is the submission of counsel that BM1, was silent about the rights of an employee to terminate his/her employment with the Claimant. In the absence of provisions in BM1 for the Employee to terminate her employment, counsel submitted that so long as the Employee is within the probationary period, she may also terminate the employment immediately, with or without cause and with or without notice.

1.10  Counsel submitted that in the instant case, the Defendant did forfeit 2 weeks’ pay in lieu of notice of termination. The statutory provisions governing employment in Nigeria is the Labour Act LFN 1990. Section 11 of the Labour Act, LFN states inter alia;

 (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 has continued for more than three months but less than 2 years.

1.11  Counsel submitted that it is not in dispute that the Defendant has worked for the Claimant for less than 6 months. It has also been clearly admitted by the Claimant’s witness under cross-examination that the Defendant was under probation and has not been confirmed. In the instant case, the Defendant resigned with immediate effect by her resignation letter dated 19th April, 2023. Counsel further submitted that by forfeiting 2 weeks salary to the Claimant in lieu of notice is sufficient and in accordance with extant law, and urged the Honourable Court should resolve Issue No.1 in favour of the Defendant.

1.12  Counsel contended that it is settled law that “employee has an immutable right to end a contract of employment by resignation”. Counsel referred to the case of W.A.E.C. v. Oshionebo (2006) 12 NWLR (Pt. 994) 258 CA, where the court dwelt extensively on the legal implications of both employee’s resignation with immediate effect and employee’s notice of retirement. Counsel also referred to Yesufu v. Gov. Edo State (2001) 13 NWLR (Pt. 731) 517 SC. The right of an employee to resign at will is founded on the principle of law that the law cannot foist an unwilling servant over a master and vice versa, and in effect, a resignation automatically takes effect upon the delivery or receipt of the letter of resignation to the employer.

1.13   The Supreme Court in Yesufu v. Gov. Edo State [2001] 13 NWLR (Pt. 731) 517 SC held that a notice of resignation of an employment becomes effective and valid the moment it is received by the employer or authority to whom it is addressed. This is because there is absolute power to resign and no discretion to refuse to accept and it is not necessary for the person to whom the notice of resignation is addressed to reply that the resignation is accepted. And, for completeness, an employer cannot reject or refuse to accept a resignation letter because it falls short of the required notice stipulated in the employment contract or for any other reason at all.

1.14  Learned counsel submitted that issues 2 and 3 will be argued together and stated that by virtue of the provisions of BM1, the relevant employee handbook was bitMARTe C-Bit Industries Employee Handbook. This document was never tendered in evidence. There was also no mention that Exhibit BM 2 is BM1. It is the submission of counsel that BM 2 is extraneous to the Contract of Employment and is therefore inapplicable to govern the Contract of Employment between the parties. Furthermore, counsel submitted that the Claimant has failed to prove that the Claimant is;

(a) A Subsidiary of the Spring-Rock Group.

(b) Spring-Rock Group is a holding company under the Companies and Allied Matters Act 2000.

(c) Spring-Rock Group is incorporated as a Holding Company in Nigeria or anywhere else.

(d) Is wholly owned by Spring-Rock Group.

1.15  Counsel submitted that a subsidiary company is a corporate structure with separate legal personality status. It is statutorily regulated and incorporated for profit maximization under the Companies and Allied Matters Act (CAMA), which is the law that regulates the incorporation of companies in Nigeria. A subsidiary company cannot be registered where no holding company is in existence.

1.16   Counsel submitted that in the circumstance, Claimant has failed to link BM 2 with the Contract of Employment, which counsel argued that the document does not govern the Contract of Employment between the parties. Furthermore, under Cross-Examination, the Claimant’s witness has failed to show that bitMARTe C-Bit Industries Limited was mentioned anywhere in BM 2. It is the submission of counsel therefore that the exclusion of bitMARTe C-Bit Industries Limited in the long list of companies said to be subsidiaries of Spring Rock Group in Exhibit BM 2 is irrefutable prove that BM 2 is not applicable to employees of bitMARTe C-Bit Industries Limited. Therefore, it is the submission of counsel on issues 2 and 3 that Exhibit BM 2 is extraneous to BM 1 and its provisions does not apply to the Contract of Employment whatsoever.

1.17  Counsel submitted further that assuming without conceding that the Defendant signed an Acknowledgement Form (BM 3,) 2 weeks after resuming her employment with the Claimant, BM 1 does not govern the Contract of Employment on the grounds of Privity of Contract. No evidence was proffered by the Claimant that the Defendant and Spring Rock Group entered into any contract of employment. The courts have maintained that generally, a contract cannot be enforced by a person who is not a party to same even if made for his benefit.

Counsel cited Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847; where the plaintiff sold tyres to a certain dealer on the understanding that he would not resell below a certain price and that in the event of a sale to customers the dealer would extract the same promise from them. The dealers sold tyres to Selfridge who agreed to pay Dunlop 5 pounds for each tyre they sold below the restricted price. Selfridge sold some tyres below the restricted price and Dunlop brought an action to enforce the promise to pay 5 pounds for each tyre sold below the restricted price. The court held that while Selfridge had breached the contract with the dealer, the Dunlop company was not a party to the contract and had furnished no consideration. This doctrine is also applied in Nigeria by the Supreme Court in Chuba lkpeazu v. African Continental Bank (1965) NMLR 374 at 379 The doctrine was also applied in Union Bank of Nigeria (UBN) PLC. V. Sparkling Breweries Ltd. & Ors. (2001) LLJR-SC.

1.18  It is the submission of counsel that it should be noted that just as a person who is not a party to a Contract cannot bring an action under it, a contract cannot be enforced against a person who is not a party to the contract. Only a party to a contract can enforce it or have it enforced against them. He referred the court to  llesa Local Planning Authority (LPA) v. Olayide (1994) 5 NWLR (pt. 342) 91, the respondent tried unsuccessfully to make the appellant liable for a contract between him and the governor of Oyo State. Also, it was held in Mercantile Bank v. Abusonwan (1987) LLJR-S that an action may not be brought against a stranger to a contract. Counsel further submitted that the Contract of Employment is with a recognizable and known corporate entity bitMARTe C-Bit Industries Limited. Spring Rock Group has not been identified and is unknown to the Defendant. Defendant testified under Cross examination as follows:

 “I have no contract with SpringRock Group. I was employed by bitMARTe C-Bit Industries Limited. ... was not aware of it as SpringRock”

1.19   Counsel submitted that there is no privity of contract between the Defendant and SPRINGROCK as the Company that employed the Defendant is BITMARTE C-BIT INDUSTRIES LIMITED. It is therefore clear that there is no privity of contract between the Defendant and Spring-Rock Group. The Defendant contended that she is not contractually bound by the terms and policies stated in the Handbook (BM 2) as it was said to apply to SPRINGROCK GROUP and any of its subsidiaries and the Claimant was not stated to be one of the subsidiaries of SPRINGROCK GROUP. It is in evidence that several weeks after the resumption of work with the Claimant, the Defendant was given an employee handbook titled BM2 to sign. The Claimant has not proved that BITMARTE C-BIT INDUSTRIES LIMITED is a subsidiary of SPRINGROCK and therefore the said SPRINGROCK HANDBOOK (BM 2) does not apply to the Defendant as the Defendant was never an employee of SPRINGROCK.

Counsel therefore urged the Honourable Court to resolve issues 2 and 3 in favour of the Defendant and to dismiss the Claims of the Claimant in its entirety.

1.20  Learned counsel submitted that regarding compensation, the Defendant received salary payments from January 2023- March 2023. However, in March 2023, she was only paid half of the agreed upon salary due to the transition to remote work which was not in accordance with the Contract of Employment. The Defendant contended that the Claimant owes her the sum of N95,567.63 being withheld 50% of her due and payable salary for the month of March 2023. Counsel urged the Honourable court to order the refund of the said N95,567.63 to the Defendant with interest at the prevailing bank rate.

1.21  The Defendant stated that the terms in the said Handbook in relation to resignation of appointments by an employee is onerous, unconscionable, extravagant and out of proportion to the interest of the Claimant in the enforcement of employment obligations and in violation of international best practices of Labour relations and a violation of domestic and international Labour Laws and Conventions applicable to Nigeria. The Defendant shall ask this Honourable Court to declare the said terms null and void and/or unenforceable against the Defendant in the circumstances. Counsel therefore urged the Honourable Court to hold that the Claimant is not entitled to any relief sought by him, owing to the circumstances of the resignation of the Defendant.

CLAIMANT’S FINAL WRITTEN ADDRESS

1.22  Claimant filed its final written address on 23rd July, 2024, wherein counsel submitted the following issues for determination;

1.      Whether Exhibit BM2 having been duly acknowledged by the Defendant is binding on the Defendant as part of her terms of employment.

2.      Whether the Claimant is entitled to the reliefs sought against the Defendant via the general form of complaint and the statement of facts both dated 18th August, 2023.

Counsel submitted that it is trite law that the onus placed on a party seeking the court to grant judgment for him in respect of any relief is to show the existence of any facts-rights or liability – supporting those reliefs. Counsel referred the court to the cases of Okoye vs. Nwakwo (2005) FWLR 156 pg. 992 Chevron (Nig) Ltd vs. Omoregha (2015) 16 NWLR 1485) 586. Also, Sections 131 & 133 of the Evidence Act, 2011, quoted hereunder verbatim

Section 131– Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those fact exist.

 (2)- When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on him”

Section l33-(1) – In a civil case, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were adduced on either side. Regard being had to presumption that may arise on the pleadings

1.23  Counsel submitted that by virtue of a letter dated 8th December, 2022, the Claimant offered the Defendant employment as an Associate Accountant 1, which offer was accepted by the Defendant on the 17th of December, 2022 and as stated by the Defendant, she resumed on the 19th of December, 2022. In the said offer which was tendered and marked as Exhibit BM1, the terms and conditions for working with the Claimant were stated therein and same was duly accepted by the Defendant .Counsel referred to paragraph 3 of the said Exhibit BM1 thus;

“...in addition to the information below, you can find more detailed information in the Employee Handbook which would be issued and also pasted on the company group Hub, in the Employee Services Section”

The Exhibit BM1 further stated under the clause, Legal Observation as follows: Benefits and status are as per bitMARTe C-Bt Industries Employee Handbook”.

Further to the above, counsel submitted that the heading of the said Exhibit BM3 after the logo of bitMART reads...

SPRINGROCK PERSONNEL HANDBOOK ACKNOWLEDGEMENT

1.24   Learned counsel submitted that the Defendant cannot after having accepted the offer for employment and having enjoyed benefits under the said contract come at this stage to state that she was not aware that the said Handbook was binding on her nor that she was not aware of the SpringRock Group. The Defendant in this suit being literate and after having read and understanding same before appending her signature, and also in fact as at the time of signing the said agreement, admitted during cross-examination that she never raised an issue or observation against the said handbook when same was given to her, should not be allowed at this stage, claim that the said handbook was not binding on her as it does not form part of her contract with the Claimant.

1.25   Counsel submitted that paragraph 1 of the introductory part of Exhibit BM2 reads thus;

 “..As a result, the SPRINGROCK GROUP, same comprising all SpringRock entities registered in Nigeria (including but not limited to ...and C-Bit Industries Limited (altogether called SPRINGROCK), prepared this Handbook to provide you with an overview of its policies, benefits and rules of engagement.”

1.26  Counsel submitted that from the foregoing, it is vividly clear that the Handbook being referred to in the Defendant’s contract of employment is that of the SpringRock group which the Claimant is part of. Counsel urged the Honourable court to hold that the Exhibit BM2 is binding on employees of bitMarte C-Bit Industries Limited and that same forms part of the contract of employment duly accepted by the Defendant in this suit.

1.27  Counsel further submitted that it is settled law that written contract agreement freely entered into by parties is binding on them and a court of law is equally bound by the terms of any written contract entered into by parties. Counsel  referred the Honourable court to the case of Olaniyan & Ors., v. UNILAG & Anor (1985) NWLR (pt.9) 599 where Karibi-Whyte JSC stated thus;

 “contract of employment like all other contracts, their creation and termination are both subject to the general principle governing the law of contract. Hence where the contract of  employment is in writing, the parties are bound by the express terms and conditions so stipulated”

Also, Section 9 (7) of the Labour Act LFN 1990 which is the law regulating employment in Nigeria states as follows “(7) – a contract shall be terminated –

 (a) -by the expiry of the period for which it was made

 (b) - .....

 (c) By notice in accordance with Section 11 of this Act or in any other way in which a contract is legally terminable or held to be terminated.”

1.28   It is the submission of counsel that by the above section of the Labour Act, the provision guiding the termination of employment is not Section 11 of the Act but rather the Termination Clause in the handbook, duly signed and acknowledged by the Defendant. Counsel referred the Honourable court to the case of Minting Plc. V. Olaleye (2020 LPELR 50409(CA), where the court Per Mohammed Lawal Garba, JCA (Pp13-15 Paras B-E) held that;

“There is no doubt that the parties in the appeal agree that the relationship between them was one of the contract of service between an employer and employee based on an offer by the employer and an unqualified acceptance by the employee of all the terms and conditions offered and accepted by the parties therefore formed the foundation which governed and regulated the agreement and relationship between them. Therefore, in the contract of employment, the parties are bound by the terms and conditions freely agreed to by them and each will be liable for the unilateral breach of any of the terms and conditions in the course of relationship..”

1.29   Counsel submitted that the termination clause as it relates to the Defendant states thus:

“Where an exempt Employee (whether a probationary or regular Employee) intends to resign his/her employment with SPRINGROCK, the exempt employee shall give SPRINGROCK at least 2 months written notice in advance of such resignation. In lieu of the aforesaid notice, the exempt Employee shall be liable to forfeit an amount equal to 2-months gross salary to SPRINGROCK”

1.30  Counsel submitted that the Defendant was appointed as an Associate Accountant 1, which falls under the category of an exempt employee according to the Company’s handbook. It is also in evidence that the Defendant was still on probation when she resigned from the company with ‘immediate effect’, which is in contravention of the Defendant’s contract with the Claimant. And as such the Claimant is entitled to 2 months gross salary from the Defendant due to wrongful termination of Contract. It is without doubt that an employee can terminate his/her employment with the employer and the employer cannot force an unwilling employee to stay, however, such termination ought to be done according to the law or the terms in the Employment contract, and in the present case, the SpringRock Group Handbook is the terms regulating the employment between the Claimant and the Defendant.

1.31  Learned counsel submitted that it is general knowledge that a company’s requirement for an employee to give appropriate notice is to give the Company enough time to find a replacement for the role that is being vacated. And in the event that such employee intends to leave with immediate notice, the payment in lieu of the notice is used to engage a freelance professional on a short-term arrangement to fill the position until another permanent staff is employed to fill the vacancy. In this case, the decision of the Defendant who occupied a position of an Assistant Accountant 1, (a functioning position) in the company to terminate her employment with immediate effect in a functioning company created a vacancy in the company which needed to be filled with urgency and with attendant huge cost pending the employment of a permanent staff. And as such the company is entitled to the payment in lieu of the notice.

1.32  Counsel contended that it is trite that where there exists a contract between parties and the said contract has been breached by one party, the wronged party is entitled to breach of the said contract. The act of the Defendant in this suit failing to give the requisite notice as contained in her contract of employment and the Handbook is in clear breach of her contract with the Claimant and as such the Claimant is entitled to damages for the breach of the said contract. Counsel referred the Honourable Court to the case of Iwununne vs. Egbuchulem & Ors. (2016) LPELR-40515(CA), where the Court of Appeal held that:

“On the allegation that the damages was not proved by Credible evidence, Appellants Counsel appeared to have forgotten that general damages need not be specifically pleaded or proved. As the same tends to flow from the act/conduct of the defendant complained against...”

1.33   It is the submission of counsel that on the claims of the defendant for a refund, Order 32 Rule 4 and 5 of the NICN Rules states thus;

“4. Where any Defendant seeks to rely upon a ground as supporting a right of set- off or counterclaim, the Defendant shall in defence state specifically that the Defendant does so by supporting a right of set- off or counterclaim.”

DECISION OF THE COURT

1.34  Upon careful perusal of the pleadings filed by the parties, the evidence adduced, the exhibits tendered and the submissions of respective counsel, I note that the Claimant formulated two issues for determination which state thus;

1.      Whether Exhibit BM2 having been duly acknowledged by the Defendant is binding on the Defendant as part of her terms of employment.

2.      Whether the Claimant is entitled to the reliefs sought against the Defendant via the general form of complaint and the statement of facts both dated 18th August, 2023. And I will prefer to take them as they are, in determining the case at hand.

1.35   It is pertinent to observe that by determining the reliefs raised by the Claimant, recourse shall be made in particular, to Exhibit BM2. Now, let me quickly refer to the first paragraph of page 1, of the introduction of Exhibit BM2 which states thus;

“Providing up to date and consistent information is an important part of fostering a strong and healthy work environment. As a result, the SPRINGROCK GROUP, same comprising all SpringRock entities registered in Nigeria (including but not limited to SpringRock Energy Limited, Spring Rock M Consults Ltd., SpringRock Crystal industries Ltd., SpringRock Gemini Resources Limited, Spring Rock E&P Investments Ltd. and SpringRock Alliance World Limited), all Pentium entities registered in Nigeria (including but not limited to Pentium Energy Resources Ltd., Pentium Beta Industries Ltd., Pentium Exploration & Production Ltd., and Pentium Theta Resources Limited), Alliance SpringRock Energy LLC (USA), SpringRock Energy Limited (Mauritius), SpringRock Energy Limited (Seychelles), SpringRock Energy Kenya Limited, Spring Rock Energy Ghana Limited, SpringRock Cybele Limited (Ghana), 5C Ltd. and C-Bit Industries Limited (altogether called “SPRINGROCK’), prepared this Handbook to provide you with an overview of its policies, benefits and rules of engagement”.

36  Flowing from the above, it is pertinent to note that BITMARTE C-BIT INDUSTRIES LIMITED is the Claimant in this suit while C-BIT INDUSTRIES LIMITED is what is referred to in Exhibit BM2.

In law, once parties on their own free will and volition enter into a written agreement, they are in law, bound to honour and be bound by the terms of their agreement and therefore their relationship and subsequent disagreements must be resolved in accordance with their agreement and the court cannot go outside the terms as agreed upon by the parties. It was held in Ahmed V. CBN (2012) LPELR- 9341(SC), that parties are bound by the terms of their contract and the court cannot read into such contract what was not within the contemplation of the parties except where fraud, duress or misrepresentation can be established.

1.38   It is instructive to add that the terms of contract between the parties are clothed with some degree of sanctity and if any question should arise with regard to the contract, the terms in any document which constitute the contract are arguably the guide to its interpretation. It is not within the purview of the court to rewrite a contract for the parties. See Minaj Holdings Ltd V Amcon(2015) LPELR – 24650 (CA).

 The courts therefore, in determining whether there has been a breach of that contract are enjoined to confine themselves to the plain words and meaning derived from the document. See Oyamenda V Abdulrahman (2013) LPELR – 22744 (CA).

By Exhibit BM1, (which is the Employment offer and acceptance letter dated 8/12/2022) there was no provision for an employee to terminate his/her employment. Exhibit BM1 on probation states thus:

“A probation will apply for the first 6 months of your employment.  During this period, we will access your progress and satisfactory performance in your job function.

During this probationary period, the company may terminate employment immediately, with or without cause and with or without notice.”

1.39   Where no provision is made, recourse shall be had to the Labour Act, since it is simply the issue of notice that is now in contention in this case between the parties as to where does the obligation tilts.

Section 11 of the Labour Act provides for notice or payment in lieu of notice by either party before the contract of employment is terminated. An employer does not need to provide a reason for termination but would need to substantiate same if a reason is given. The position of the law is that either party can terminate the contract as a willing employer cannot be forced on an unwilling employee and vice versa.

The aforementioned Section 11 CLEARLY SPECIFIES HOW AN EMPLOYER CAN TERMINATE THE EMPLOYMENT OF HIS/HER EMPLOYEE.

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.

(3)  Any notice for a period of one week or more shall be in writing.

(4)  The periods of notice specified in subsection (2) of this section exclude the day on which notice is given.

(5)  Nothing in this section affects any right of either party to a contract to treat the contract as terminable without notice by reason of such conduct by the other party as would have enabled him so to treat it before the making of this Act.

(6)  Nothing in this section shall prevent either party to a contract from waiving his right to notice on any occasion, or from accepting a payment in lieu of notice.

(7) All wages payable in money shall be paid on or before the expiry of any period of notice.

(8) If an employer gives notice to terminate the contract of employment of a worker who has been continuously employed for three months or more, the employer shall not be liable under this section to make any payment in respect of a period during which the worker is absent from work with the leave of the employer granted at the request of the worker

(9) In the calculation of a payment in lieu of notice, only that part of the wages which a worker receives in money, exclusive of overtime and other allowances, shall be taken into account.

1.40   In the instant case, the Defendant was employed by the claimant on 8th December, 2022 vide Exhibit BM1 and subsequently resigned from the position on 19th April, 2023 ie Exhibit BM4, during which she was still on probation.  Therefore, the Defendant had been in the employment of the Claimant for four (4) months to which Section 11 (2)(b) of the Labour Act provides thus:

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

By Exhibit BM4, the Defendant forfeited two (2) weeks salary in lieu of notice to the Claimant, which by Section 11 (2) (b) of the Labour Act is valid and within the purview of the extant law.

By Exhibit BM1 on legal observation which states thus:

“Benefits and status are as per bitMARTe C-Bit Industries Employee Handbook. The benefits stated herein are in place at the time of presentation of your offer letter. bitMARTe C-Bit, however, reserves the right to alter, reduce, remove or otherwise change these benefits should the need arise. Any changes in benefits will be communicated to you.”

1.41   The question that begs for answer is; could it be right to say that Exhibit BM2 entitled “SpringRock Group Personnel Hand book” forms part of the contractual agreements between the parties which content stands to out-weight Exhibit BM1 looking closely at the “Introduction” provision on page 1 of the said BM 2? This particular aspect contains the comprehensive list of companies that are under spring group that prepared BM 2. This exhibit was stated to have been brought to the attention of the defendant much later after all have been done between the claimant and the defendant regarding the formalization of their contract of employment.

1.42   On a critical assessment of the list, I am unable to see the full name of the claimant as presented in this case. In this regard therefore, I agree with the latin expression that “..expressor premis  exclusion” in relation to the meaning to be given to Exhibit BM 1 as it never refer to  Exhibit BM 2. Certainly, I am not persuaded by the arguments of the counsel for the claimant with regards to the applicability of BM 2. There has not been any evidence led by the claimant showing that the claimant is a subsidiary company to Spring Rock Group.

1.43   From the circumstances of this case the most only and weightier document worthy of note for the regulation of the contract between the parties is Exhibit BM 1 which content is so plain and without any liability while considering the resignation of the defendant from the claimant’s employment. On this premise, I find the defendant not in breach of the terms thereof.

The cases cited by the claimant’s counsel among others including MOBIL PRODUCTION (NIG) unLTD Vs AYENI (2010) 4 NWLR PT 1185 P586 @606, PETERSIDE Vs IMB (NIG) LTD (1993) 2 NWLR PT278 P712 @712 PARAG-H and ABIOYE Vs YAKUBU (1991) 5 NWLR PT 190 P 130 reiterating the principles of rules of interpretation are not in full fours with the instant case on simple ground that in the instant case, there is no relationship between Exhibit BM1 and BM 2  in terms of their sources about the parties and so there is nothing to show that the defendant is in breach of Exhibit BM I, after all the decision of the apex court in the case of; ADEGOKE MOTORS LTD Vs ADESANYA (1989) 3 NWLR PT 109 P.250 is to the effect that a case is only an authority for what it decides and nothing more. Where the facts of the earlier case differ from the facts of the later case, the decision in the former cannot serve as precedent in the later case.

1.44   It is my view that Exhibit BM2 does not govern the Contract of Employment of the Defendant simply because the said exhibit was brought to the attention of the defendant at a much later time and the defendant was asked to sign as was done in Exhibit BM 3 on 22/12/2022 under the caption; “springrock personnel handbook acknowledgement” Doing this by the claimant against the defendant to my mind qualifies to be an unfair labour practice to which this court being a labour court have not been allowing over the years particularly in the cases of: INEH MONDAY MGBETI Vs UNITY BANK PLC unreported NICN/LA/98/2014 judgment delivered on 21/2/2017, where it was held to be an unfair labour practice where Employer reserved the right to reject resignation by the Employee on the ground of the fact that the employee was a subject of an investigation exercise in respect of some breaches.

1.45   In the same vein, the case of EKEOMA AJAH Vs FIDELITY BANK unreported, NICN/LA/588/2017 judgment delivered on 14/5/2019 wherein instance of unfair labour practice by which an employee was subjected to a retroactive policy so as to deny the employee his benefit was considered an unfair labour practice.

In the instant case, it is in evidence that the defendant is being owed half a month salary which not captured to be in contract agreement. In the whole, it is crystal clear that Exhibit BM1 governs the contract of employment between the Claimant and the Defendant. Therefore, the provisions of Exhibit BM2 is not enforceable against the Defendant and I so hold. All issues I set out above are hereby resoled in favour of the defendant.

1.46    Upon resolving the issues against the Claimant I find that all the reliefs sought by the Claimant are not grantable and as such they fail. This case is hereby dismissed. It is trite that a successful party in a case is entitled to cost which should not be denied except for good reasons. See MAYA Vs OSHONTOKUN (2001) 11 NWLR PT 723 P.62 @85 PARA F, (CA) and also ORDER 55, RULES 1-5 of the Rules of this court, 2017. To that extent, I award cost of N100,000 (One Hundred Thousand Naira) only against the claimant and in favour of the defendant.

 

Judgment is entered accordingly.

 

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HON. JUSTICE S. A. YELWA

(JUDGE)