Color

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP: HON. JUSTICE R. H. GWANDU

DATE: 17th June, 2025              SUIT NO.: NICN/LA/295/2017

BETWEEN

CHIDERA NWABASILI …………………………………. CLAIMANT

AND

GE INTERNATIONAL OPERATIONS NIG LTD…. DEFENDANT

Representation.

Stanley Ezenibe with Oluwaseun Ilori for the Claimant

Nduka Ikeyi with Ebube Nwobodo and Praise Ntem for the Defendant

JUDGMENT

The Claimant commenced this action vide a general form of Compliant dated 19th June 2017 and sought the following reliefs against the Defendant-

  1. A declaration that the termination of the Claimants employment on the 13th April 2017 is wrongful, illegal, null and void and of no effect having violated the non-retaliation policy of the Defendant as stipulated in the Defendants guidelines regulating the relationship between the Claimant and the Defendant.
  2. A Declaration that the termination of the Claimants employment on the 13th April 2017 is wrongful, illegal, null and void and of no effect having failed to issue appropriate notice to the Claimant as required by the Law.
  3. Damages in the sum of N50,000,000 (Fifty Million Naira) for wrongful termination of the Claimants employment by the Defendant on the 13th April 2017.
  4. Cost of this action including the Claimants Solicitor’s fees in the sum of N5,000,000 (Five Million Naira).

The Defendant filed a Memorandum of Appearance on the 23rd August 2017 and also filed its statement of Defence same day.

BRIEF FACTS OF THE CASE.

The Claimants case is that she was an employee of the Defendant and that since she started working for the Defendant, her supervisor has been intimidating and bullying her in the course of her duties thereby making it difficult for her to perform  her duty, that she lodged a formal complaint to the defendant on the 4th October 2016 and that a meeting was arranged between the Claimant, her manager and the Defendants Human Resource Manager and that in retaliation, her manager informed her verbally that her appointment was over with the Defendant without giving adequate notices, that her work tools were collected thereafter and she was escorted from the premises.

The Defendants case is that the Claimant made a complaint to the Defendant via mail on October 4, 2016 alleging that her manager used inappropriate language and consistently yelled at her which left her feeling bullied and hurt, that the HR manager resolved the issue and the Claimant conformed her satisfaction with the resolution via mail of 25th November 2016.

That from March 2017 the Defendant begun the process of evaluating the Claimants performance and found out that there was no available position on the Defendant that best matched the Claimants experience and capabilities and she was informed she would not be offered a new employment in the Defendant. Dissatisfied the Claimant commenced this suit.

Hearing commenced on the on the 15th December 2021, the Claimant testified for herself and closed her case on the 2nd march 2022, the Defendant also opened its case on the 11th March 2024 and called one witness.

At the close of trial, the Court adjourned for filing and adoption of final addresses, the Defendants final address was filed on the 19th April 2024 and Counsel raised the following issues for determination-

  1. Whether the termination of the Claimants employment with the Defendant in line with the fixed term contract of employment was wrongful for failure to give one week’s notice to the Claimant.
  2. Whether the Claimant established her claim of bullying and intimidation/retaliation by the Claimants manager in breach of the Defendant’s policy.
  3. Whether the Claimant was properly assessed/evaluated by the Defendant on the basis of which the Defendant decided not to renew or extend the Claimant’s contract of employment.
  4. Whether the Claimant is entitled to the reliefs sought in this case.

The Claimants final address was filed on the 7th June 2024 and Claimants Counsel raised one issue for determination- Whether or not the Claimant is entitled to the reliefs claimed having regards to the totality of evidence adduced before this Honourable Court.

The Defendant filed a reply on points of Law on the 5th July, 2024.

COUNSEL’S ARGUMENT

Arguing on a preliminary point, Counsel to the Defendant submitted that the allegation in paragraph 9a and 10c of the reply are new facts/issues that cannot be raised by way of a reply, 

Arguing on the preliminary point, Counsel submitted that the allegation in paragraph 9(a) and 10(c) of Reply that (a) that the Claimant was kicked out in a negative and disgraceful manner and (b)the Claimant has been frustrated and has not been able access her pension because the Defendant failed to issue her a formal disengagement letter are new fact/issue which cannot be raised by way of reply, that by virtue of Order 30, rule 9 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 (“Rules”), no pleading, not being a petition or summons, shall, except by way of amendment raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same, he also relied on EGESIMBA V. ONUZURUIKE (2002) 15 NWLR (PT. 791) 466, ABDULLAHI V GOV. KANO STATE (2014) 16 NWLR (PT 1433) 213, OJE V BABALOLA (1991) 4 NWLR (PT. 185) 267, 276 and UGHUTEVBE V SHONOWO & ANOR (2004) LPELR-3317(SC).

That the allegations raised by the Claimant in (a) paragraph 10(c) of her Reply that Claimant has been frustrated and has not been able access her pension because the Defendant failed to issue her a formal disengagement letter, and (b) paragraph 9(a) that the Claimant was kicked out in a negative and disgraceful manner, both being raised for the first time in the Reply, are new facts/issues, which ought to have been raised in the Claimant’s statement of facts (“Statement of Facts”) or an amendment thereto and not by way of a reply.  To allow this will be to deny the Defendant the right to respond to the new facts/issues contrary to the constitutional guaranteed right of fair hearing under section 36 of the 1999 Constitution of the Federal Republic of Nigeria and against the purpose of a reply as held by the courts, see ISHOLA V. S.G.B.N. LTD. (1997) 2 NWLR (PT. 488) 405; PHILLIPS V. E. O. C. IND. CO. LTD. (2013) 1 NWLR (PT. 1336) 618 (SC).) 

Arguing issue one of the Defendants final address, Counsel submitted that contrary the Claimant’s allegation in paragraphs 12 and 16(1) and (ii) of the Statement of Facts, the termination of the Claimant’s employment, being for a fixed term of 12 months, did not by law require any notice of termination since the contract of employment automatically comes to an end on the expiration of the term thereof, see R V SECRETARY OF STATE FOR SOCIAL SERVICES EX PARTE KHAN (1973) 2 ALL ER 104 and GARABED GARABEDIAN V ASAD JAMAKINI (1961) ALL NLR 186)  It also for this reason that the courts have held repeatedly that where a fixed term contract of employment is terminated by an employer before the expiration of the fixed term thereof, the employee will be entitled to damages in the amount of the full salary he would have earned for the unexpired period of his fixed contractual term; SHENA SECURITY CO. LTD. V AFROPAK (NIG) LTD. & ORS (2008) 18 NWLR (PT. 1118) 72 (SC)). It has also been held by the English Court of Appeal that a fixed term contract of employment will not be treated otherwise only because it contains a provision for termination by notice, see DIXON V BBC (1979) 2 ALL ER 112.

Also that the next important question to be determined is whether the Claimant’s contract of employment was for a fixed term.  In the unreported decision of this Honourable Court (Abuja Division) delivered on 6 May 2020 by his Lordship Honourable Justice Sanusi Dado in in Suit No.: NICN/ABJ/221/2017 BABATUNDE OLUSEGUN FAHITOLA V INTERNATIONAL MEDICAL CORPS, the court held that a fixed term contract of employment must have a definite beginning and end.  The court also cited approval the definition of “fixed term” in Black’s Law Dictionary, 10th edition at p. 755 as “lasting for a stipulated period of time.”

In the instant case, the Offer Letter provided specifically that the “Position Type” was “Full time, Fixed term: 7 March 2016 to 7 March 2017”.  It also provides the “Commencement Date” as “7 March 2016 subject to confirmation that all conditions have been met to the Company’s satisfaction”.  The parties are also in agreement that the Claimant began working with the Defendant on 11 April 2016, which marked the commencement of the Defendant’s employment with the Defendant following the completion of background checks on the Claimant by the Defendant, which was one of the conditions in the Offer Letter (paragraph 4 of the Defendant’s statement of defence (“Statement of Defence”) and paragraph 2 of the Reply. The contract of employment therefore had a definite beginning and a definite end.  In the result, the Claimant’s contract of employment was for a fixed term which commenced on 11 April 2016 terminated automatically on 10 April 2017 upon the expiration of the period stipulated in Offer Letter.  It is also in evidence that the Claimant was fully aware that the contract of employment was to expire on 10 April 2017 and that she had requested to meet with the Claimant’s manager on 20 January 2017 to “discuss her career next steps given the fact that her assignment ends on April 10th 2017”.   This piece of evidence is in the record of the meeting of 20 January 2017 contained in the Claimant’s manger’s email of 20 January 2017, which the Claimant confirmed as correct in her email of 23 January 2017, see Exhibit Ibiang 6 and Exhibit Ibiang 7 in the Defendant’s bundle of exhibits.

That the Claimant has also admitted that upon the expiration of the term of the employment on 10 April 2017, the Defendant proposed a call with her on 11 April 2017, but the Claimant was unavailable to attend on grounds of ill health, whereupon the said call was rescheduled to, and held on, 13 April 2017 during which the Claimant was duly informed that she would not be offered a new employment in the Defendant for the reason that there was no available position in the Defendant that best matched her experience and capabilities (paragraph 10(a) of the Reply), therefore there is no legal basis for the Claimant’s claim that the termination of her employment was wrongful because the Defendant did not give her at least one week’s notice of termination of employment in writing.  The contract of employment was for a fixed term of 12 months for which notice of termination was not required.  The contract of employment therefore came to an end upon expiration of the fixed term pursuant to the Offer Letter.  The law is settled that the termination of an employment can only be wrongful if it is in breach of the terms of contract of employment, see WAEC V OSHIONEBO (2006) 12 NWLR (PT 994) 258, 271.

On whether the Claimant established her claim of bullying and intimidation/retaliation by the Claimant’s manager in breach of the Defendant’s policy, Counsel submitted that the Claimant has failed to establish her claim of bullying and intimidation/retaliation by the Claimant’s manager in breach of the Defendant’s policy as alleged before this Honourable Court.  The law is trite that he who asserts must prove; SHARING CROSS EDUCATIONAL SERVICES LTD V UMARU ADAMU ENTERPRISES LTD & ORS. (2020) LPELR-49567(SC).   Further having sought declaratory reliefs, the Claimant is bound by law to establish her entitlement to the reliefs sought on the strength of her own case, see NDUUL V. WAYO (2018) 16 NWLR (PT. 1646) 548 (SC).

On the Claim of intimidation and bullying, Counsel submitted that the Claimant alleged at paragraphs 7, 8 and 9 of the Statement of Facts that she had been bullied and intimidated by Mr. Chukwuemeka in the course of her duty since she started working with the Defendant in violation of the Defendant’s policy; and that she had complained verbally to the Defendant for which the Defendant did not take any action.  However, the Claimant (a) did not provide any evidence before this court showing any form of bullying or intimidation by Mr. Chukwuemeka against her at any time in the course of her employment, and (b) failed to substantiate her claim that she had made a previous verbal complaint or report to the Defendant, which is an artificial person, as she failed to mention the specific officer or employee to whom, or the mode by which, such a complaint was made in line with the Defendant’s policy, prior to her formal complaint in her email of 4 October 2016.   It is also noteworthy that the only complaint the Claimant made to the Defendant via the HR manager against Mr. Chukwuemeka (i.e., the complaint in the email of 4 October 2016) was made only 5 days after the Claimant had received feedback from Mr. Chukwuemeka about the Claimant’s work.  In the feedback Mr. Chukwuemeka, after identifying specific incidents in the Claimant’s work, took the view that Claimant was not performing her role satisfactorily while offering support and assistance for better performance, see Exhibit Ibiang 5.

Further, that after the Claimant made her complaint against Mr. Chukwuemeka on 4 October 2016, the Claimant admits in paragraph 11 of the Statement of Facts that a meeting was held by the HR manager, the Claimant, and Mr. Chukwuemeka to address the Claimant’s complaint.  It is also evidence that the Claimant confirmed her satisfaction with the resolution of her complaint to the Defendant as contained in the HR manager’s email of 25 November 2016 under the subject “Catch up” written by the Defendant’s then HR manager, Belinda Okereke to the Claimant, Clara Bot-mang, and the Claimant’s manager.  See Exhibit Ibiang 7.  In the email the HR manager summarised the feedback from all the relevant parties following one of the meetings held by the HR manager in respect of the Claimant’s complaint where it was reported as follows:

“Feedback from Chidera

  • Since she came back from vacation 3 weeks ago, been feeling like it’s a much better working environment- feeling more included in the team and is getting the direction needed to perform tasks and can understand what is expected of her better.  Also feels much safer and is not spoken to in harsh tones anymore.
  • In turn she works better with her Mgr., Increased turnaround times, reduced distractions and looks and feels much happier.”

Further, that the Claimant never made any further formal complaint of bullying or intimidation against Mr. Chukwuemeka or any other member of the Defendant’s staff till the termination of her employment with the Defendant. This was confirmed by the Claimant under cross-examination, therefore that the Claimant, having confirmed her satisfaction with the resolution of her complaint, cannot claim otherwise and bring an action on the strength of the same complaint.  The Claimant cannot approbate and reprobate at the same time, see THOMAS W.& SONS (N. NIG LTD) V P.I. LTD (2019) 12 NWLR (PT 1687) 540) and FOLKSYNTHESIS LTD V GAPUMA (UK) LTD (2017) 8 NWLR (PT. 1566) 150, 165.

On Claim of retaliation, Counsel submitted that the Claimant has also alleged at paragraphs 12 and 15 of the Statement of Facts that her employment was terminated in retaliation for the complaint she made against the Mr. Chukwuemeka contrary to the Defendant’s policy, which absolutely prohibits taking adverse action against an employee for raising a concern about violation of policy or law but that the Defendant has however shown by credible evidence that (a) even though the Claimant worked under the Claimant’s manager in ECDP, the Claimant’s final assessment or evaluation, upon which the Defendant’s decision that Claimant would not be offered a new employment was based, was carried on independently by the ECDP coordinator (i.e., the HR manager) who reached out to, and obtained feedback from, other persons who had worked, or had work related interactions, with the Claimant, see Exhibit Ibiang 14 to Exhibit Ibiang 18.  The Defendant’s decision was therefore not based on the Claimant’s manager’s evaluation or assessment of the Claimant’s performance or any single individual.  It is also true that the Claimant’s manager’s evaluation or assessment of the Claimant performance was consistent with the independent feedback received by the HR manager from four other persons who had worked, or had work related interaction with, the Claimant – each of whom had negative things to say about the Claimant’s attitude to work and unwillingness to accept feedback, therefore the Claimant has failed to establish by credible evidence her claim that the termination of her employment/unavailability of a new employment with the Defendant was a retaliation by the Claimant’s manager for the complaint she made against him to the Defendant.

On whether the Claimant was properly assessed/evaluated by the Defendant on the basis of which the Defendant decided not to renew or extend the Claimant’s contract, Counsel submitted that the Claimant’s work performance was properly assessed and evaluated by the Defendant in the terms of the contract of employment and upon which the Defendant decided not to offer the Claimant new employment, that it is settled law that parties are bound by their contract and the terms of a contract of employment will govern the employment relationship between an employer and employee, OVIVIE V DELTA STEEL CO LTD (2023) 14 NWLR (PT 1904) 203.

Referring the Court to Exhibit Ibiang 3 and Exhibit Ibiang 4 (i.e., annexures A and B to the Offer Letter) Counsel submitted that the Court would find that (a) the Claimant was employed under the Finance ECDP, and (b) completion of the ECDP did not guarantee that the Claimant would be offered a role in the Defendant – permanent or otherwise.  Such offer was dependent on the overall performance of the Claimant and the availability of a role or position, which suits the experience and capabilities of the Claimant.  Exhibit Ibiang 4 contains the following: “ECDP is a twelve-month program which aims to provide training and development within a specific function.  The details of the program schedule and curriculum are to be established and will be provided in due course.  Your performance will be evaluated from time to time.  Upon completion of the ECDP program, it is not guaranteed that you will be offered a GE role, permanent or otherwise, as it is dependent on a combination of your overall performance and the availability of a role or position, which after a successful review, best matches your experience and capabilities”.

In line with the terms of the Claimant’s contract of employment, the Defendant has provided evidence that the Claimant’s manager, as the Claimant’s supervisor, provided feedback to her on his evaluation of her performance via his email of 29 September 2016 (Exhibit Ibiang 5) about 6 months into the ECDP wherein he clearly set out areas in which the Claimant was falling short in her work and made his recommendations.  While the Claimant has laboriously contended that the Claimant’s manager’s email of 29 September 2016 was not “a formal feed-back or report” but a “witch hunt” (paragraph 9(e) of the Reply), she has not adduced any evidence to show that the facts stated by the Claimant’s manager in the said email were in any way false or untrue.  And the fact that the Claimant’s manager did not copy the Head, ECDP or human resource officers of the Defendant in his email of 29 September 2016 did not make the evaluation therein any less effective since there is nothing in the contract of employment or the Defendant’s policy, which vitiated such feedback if certain officers of the Defendant were not copied in on the feedback, see LADIPO V CHEVRON (NIG) LTD (2005) 1 NWLR (PT 907) 277, the courts are not allowed to rewrite the contracts or to add to the contract a term different from what was agreed to by the parties. 

Further, the Defendant has also led evidence to show that it had through the ECDP co-ordinator (i.e., the HR manager) carried out an independent review of the Claimant’s performance around the end of the term of the Claimant’s employment, in line with the terms of the contract of employment.  The Defendant for this purpose sent out confidential surveys, which were completed by four staff of the Defendant with whom the Claimant had worked directly or who had work-related interactions with the Claimant (i.e., Olakunbi Ademiluyi, Ifeoma Esimogu, Ogholaja Frank, and Ojo Victory).   In their evaluation of the Claimant, the Defendant’s staff who had worked with the Claimant all identified serious weaknesses or shortcomings with particular emphasis on the Claimant’s poor attitude/lack of commitment to work and unwillingness to accept feedback and make improvement.  It is noteworthy that none of these staff in their feedback recommended the Claimant for a better or higher role in the Defendant based on good performance (Exhibit Ibiang 14 to Exhibit Ibiang 18).

While the Claimant contended that she had no working relationship with the Defendant’s staff who provided their independent feedback on the Claimant’s performance (paragraph 9(g) of the Reply), Exhibit 14 to Exhibit 18 show that all the said staff (except Olakunbi Ademiluyi) specifically confirmed in their feedback to the Defendant that they had either worked with the Claimant or interacted with the Claimant periodically in the course of their work.   It is also curious that that Claimant referred to the said staff as her “teammates” while at the same denying that she worked with these staff in the course of her work all in the same sentence (paragraph 12(g) of the Claimant’s further written statement on oath).  The Claimant’s testimony in this regard should therefore be disbelieved as being improbable and/or false, while the evidence proffered of the Defendant’s staff in Exhibit Ibiang 14 to Exhibit Ibiang 18 should be accepted as true and most probable.  See IROAGBARA V. UFOMADU (2001) 11 NWLR (PT. 724) 465 in which it was held that, in determining the preponderance of evidence in civil matters, the court is entitled to disbelieve evidence which is not probable or not in keeping the surrounding circumstances of the particular case.  See also AJAGBE V IDOWU (2011) 17 NWLR (PT.1276) 422 (SC).

Further, that the Claimant’s manager in his own evaluation of the Claimant’s performance to the HR manager, made in addition to, and independent of, the evaluation provided by the Claimant’s four other colleagues, concluded that the Claimant was not a good fit for the Defendant because of her poor performance, that it is noteworthy that the Claimant had also demonstrated her unwillingness to receive negative feedback and to improve on her work with the Defendant based on such feedback when she had received feedback on her work from her colleague Victoria Ojo on the Defendant’s Insight platform (which is a confidential and informal peer review platform) on 24 October 2016.  In the Insight message, Victoria Ojo suggested to the Claimant to – “Continue to engage and network within the organization. Continue to execute DR4 ownership expectations. Consider being more open to feedback and have the right attitude when receiving feedbacks. Consider developing the critical attitude…”

But that the Claimant in her response via her email of 7 November 2016 informed Victoria Ojo that she “declined” such feedback as the Insight had given her “no positive remark at all”. (see Exhibit Ibiang 10 to Exhibit Ibiang 12.)   The emails tendered and admitted in evidence in this case show unequivocally that the Claimant by this attitude had failed to take advantage of the various opportunities afforded her by the Defendant to improve on her work as she was clearly not ready to entertain any feedback on her work, which was not positive irrespective of her sub-optimal performance.   Thus, the attempts by the Claimant’s manager and team members to help the Claimant improve her performance (as shown in the various recommendations made to Claimant by her manager and teammates) were never fruitful.

That on the basis of the foregoing, (a) the Defendant had properly assessed the Claimant’s performance in line with the terms of the contract of employment and rightly found that the Claimant had performed below expectation, and (b) it was on the basis of this evaluation that the Claimant was informed that there was no available role in the Defendant that best suited the capabilities of the Claimant.

On whether the Claimant is not entitled to the reliefs sought, Counsel submitted that the defendant has already established above that the Claimant’s employment was not wrongfully terminated, which therefore makes barren or futile the Claimant’s claim for reliefs (a), (b) and (c) in the Statement of Facts, which are based on wrongful termination of employment.  This is because there is nothing upon which these reliefs can stand, see OKWUOSA V. GOMWALK 2017) 9 NWLR (PT. 1570) 259.  

That it is also an established principle that cost follows the event and it is a successful party that will be entitled to the award of cost by the court, see YAKUBU V. MIN., HOUSING & ENVIRONMENT, BAUCHI STATE (2021) 12 NWLR (PT. 1791) 465.  Thus, the Claimant’s claim for cost of the action will only be grantable in the unlikely event that Claimant’s claim for wrongful termination of employment is successful.

That it is also well established that a party to a suit cannot be made liable for fees paid by an adverse party to his (adverse party’s) lawyer; such a claim being unrecognized by our laws, see SUFFOLK PET SERVICES LTD V. ADNAM MANSOOR (NIG.) LTD (2019) 2 NWLR (PT 1655) 1 and NWANJI V COASTAL SERVICES (NIG.) LTD (2004) 11 NWLR (PT. 858) 552 (SC).

Arguing the lone issue raised by the Claimant, Counsel submitted that it is not disputed that the Claimant's contract of employment was for a fixed term set to expire on March 7, 2017. However, it was not terminated until April 13, 2017, when she was verbally informed that her services were no longer needed and was unceremoniously dismissed from the company premises by the same manager she had previously complained about, that the fact that the Claimant's contract was for a fixed term does not diminish her entitlement to reasonable and sufficient notice, akin to other employees at the Defendant's company. Despite the written nature of her employment contract, she is also entitled to a formal written notice or letter of termination in accordance with her fixed-term contract.

The core of the Claimant's case rests on her offer letter dated February 3, 2016, and the Defendant's company policy, admitted as Exhibits CN2, pages 1-24. According to the offer letter, the Claimant's employment was fixed from March 7, 2016, to March 7, 2017, which she accepted and executed. The offer of employment was not verbal but in writing

In the case of GOVERNMENT OF KOGI STATE & ORS V. JOHN (2022) LPELR-58912(CA), the Court of Appeal held that “A contract of employment entered into in writing can only be terminated in writing.”

The Claimant's evidence that her employment was terminated orally was uncontroverted by the Defendant, this amounts to an admission.

Further, the offer letter did not contain any clause that allowed the contract to be terminated orally upon expiration. Regardless of the fixed term, the Claimant was entitled to notice as her contract neared its end, that said, the verbal termination of the Claimant's employment was in bad faith, especially since it occurred only after she complained about the manager's attitude. This termination was communicated by the same manager against whom she had complained.

The issue of the Claimant's employment being terminated orally without written notice was not denied by the Defendant in their statement of defense, amounting to an admission. Since the Claimant continued working for the Defendant beyond March 7, 2017, she is entitled to notice of termination. The Defendant admitted during the proceedings on March 11, 2024, that the Claimant was not given a termination letter because her fixed-term contract expired naturally.

Counsel submitted that the Defendant acknowledged that the Claimant's employment was supposed to end on March 7, 2017, but she was not verbally dismissed until April 13, 2017, after her complaint. The Claimant's evidence that she was verbally dismissed after her complaint was not challenged during cross-examination, and urged the Honourable Court to accept this uncontroverted fact. It is established law that admitted facts require no further proof and should be acted upon by the Court, as seen in the case of INCORPORATED TRUSTEES N.B.A V. BRUNO (2024) 3 NWLR (PT 1926).

The legal position regarding the required notice for terminating a contract of service, where there is no agreed notice period, is that the contract must be terminated by reasonable notice, as established in IMOLOAME V. WAEC (1992) LPELR-1500 (SC). In Re AFRICAN ASSOCIATION LTD AND ALLEN (1910) 1 KB 396, it was held that an employer could not terminate a contract without reasonable notice in the absence of an agreement.

“It is well settled that where there is a contract of service, there is an implied term that the contract can only be terminated by reasonable notice. In Re African Association Ltd. and Allen (1910) 1 KB. 396, there was a clause providing "that the employers may at any time thereafter at their absolute discretion, terminate this engagement at any earlier date than specified if they may desire to do so." It was held on the reading of the contract as a whole that the employers could not, in the absence of an agreement, terminate the contract without reasonable notice. What is reasonable is usually dependent on the nature of the contract and the status of the employee in the establishment. Hence, the higher the position held by the servant and the larger his salary, the longer will be the notice required to end his contract.”

That in the present case, although the contract was for a fixed period, it exceeded the stipulated time with the knowledge and approval of the Defendant, thus, the employee is entitled to reasonable notice of termination, confirming that the Defendant does not wish to further extend her contract. The Defendant never denied verbally and unceremoniously dismissing the Claimant. The Claimant testified that she was dismissed on April 13, 2017, days after her contract expired, this averment was not controverted by the Defendant. In MORAH V. OKWUAYANGA (1990) 1 NWLR (PT. 125) 25, it was stated that uncontroverted evidence ought to be accepted by the trial Court.

Counsel reiterated that the principle that a servant cannot be imposed on an unwilling master, regardless of the master's motives, is well-established in our jurisprudence. The appropriate remedy for such a scenario is damages, not specific performance. If the contract stipulates a notice period, that period must be adhered to. In the absence of a stipulated notice period, the notice given must be reasonable, see FRANCIS ADESEGUN KATTO V. CENTRAL BANK OF NIGERIA (1999) 6 NWLR (PT. 607) 390, where the Supreme Court held that the relationship between an employer and an employee is one of master and servant and that a servant cannot be imposed on an unwilling master. The Court further held that in the event of wrongful termination, the appropriate remedy is damages and not reinstatement or specific performance. The Court thus:"...the law is trite that the relationship of master and servant or employer and employee is a private one, which can be terminated by either party. A master cannot be compelled to retain the services of a servant he no longer desires, nor can a servant be forced to remain in the employ of an unwilling master."

Counsel submitted that the above authority reinforces the principle that in employment matters, the courts favor awarding damages as a remedy for wrongful termination rather than compelling a master to retain an unwilling servant. This underscores the necessity for either adherence to the stipulated notice period in the contract or, in its absence, the provision of reasonable notice.

Further that it has been established that the termination of the Claimant’s contract was without proper notice, thus constituting wrongful termination. While the initial contract was for a fixed term, it extended beyond this period with the explicit approval and knowledge of the Defendant. This case hinges on the principle of fairness and the requirement of reasonable notice in employment relationships.

The Claimant entered into the employment contract with the Defendant on February 3, 2016. The offer letter did not specify a notice period upon the expiration of the fixed term. Despite the absence of this clause, the Claimant continued working beyond the initial term with the Defendant's knowledge and consent.

It is an established principle that certain terms can be implied in employment contracts to ensure fairness. One such term is the requirement of reasonable notice before termination, even in the absence of an explicit clause. This is to ensure that employees are not unfairly dismissed without sufficient time to seek alternative employment, when a fixed-term contract is extended, either expressly or impliedly, it converts into a contract of indefinite duration. In such cases, the requirement for reasonable notice before termination becomes necessary.

In the British case of SUFFIELD V. BRITISH RAILWAYS BOARD [1966] 1 ALL ER 45, it was held that where an employee continues to work beyond the term of a fixed-term contract with the employer's consent, the contract is impliedly extended, and the employee is entitled to reasonable notice of termination.

Given that the Claimant continued to work beyond the fixed term with the Defendant's explicit consent, it is reasonable to imply a term requiring notice before termination. This is consistent with the principles of fairness and justice in employment relationships.

The Defendant failed to provide any form of notice to the Claimant before terminating her employment. The termination was done verbally and abruptly, leaving the Claimant in a precarious position without any opportunity to prepare or seek alternative employment.

The Defendant's knowledge and approval of the Claimant's continued employment beyond the fixed term further solidify the requirement for reasonable notice. The Defendant cannot now claim that the termination was justified without notice when they had implicitly acknowledged the extended employment relationship.

In MOBIL PRODUCING (NIG.) UNLTD. V. ASUAH (Supra), the Appeal Court affirmed that the requirement of reasonable notice is a fundamental principle in employment law, ensuring that employees are not abruptly dismissed without an opportunity to seek alternative employment or make necessary preparations.      

Given the above authorities, it is clear that the Claimant in the present case is entitled to reasonable notice before the termination of her employment. No notice whatsoever was given to her by the Defendant. Therefore, we submit that the termination was wrongful, consequently, the Claimant is entitled to damages and we urge my noble lord to so hold in resolving the issue in favour of the Claimant.

In response to issue (a) raised in paragraph 6.1 of the Defendant Final Address on whether the termination of the Claimant’s employment was wrongful for failure to give one week’s notice to the Claimant, Counsel submitted that the termination of a contract of service must be in compliance with the Labour Act, Laws of the Federation of Nigeria (2004), see Section 11(1) (2)( b) of the Labour Act , Laws of the Federation of Nigeria (2004), and though the contract of employment between the Claimant and the Defendant was for a fixed term of one year, but it continued after the expiration of the fixed term. The law is trite that where a contract continues for more than three months but less than two years. The contract must specify the parties' intentions regarding termination upon expiration. Therefore, a notice of termination must be given by the party intending to do so. 

In the case before the Court, the Claimant, having worked for more than three months but less than two years, is entitled to at least, a week's notice of the termination of her fixed-term employment.

In response to issue (b) of the Defendant's final written address on whether the Claimant established her claim of bullying, intimidation, and retaliation by the Claimant's Manager in breach of the Defendant’s policy raised at paragraph 6.7 of the Defendant's Final Written Address Counsel submitted that it is in evidence that the Claimant complained about being bullied by the Defendant's manager, and the Defendant did not take any steps whatsoever to resolve or address the complaints. 

The Claimant, in paragraphs 10 and 11 of her written oath, stated that she reported several times to Mrs. Belinda Okereke, the Human Resources Manager, and nothing was done to stop the incessant bullying. She wrote a formal complaint on October 4, 2016 which is admitted in evidence as CN2 Pages 1-24. The Defendant's sole witness admitted in evidence that the Defendant has a policy against bullying. He stated under cross-examination on March 11, 2024, by the Claimant's counsel, "Yes, I am aware that the Defendant has a policy against bullying."

The Defendant's company policy, admitted as Exhibits CN2 Page 1-24, on page 13, clearly states: "create a work environment free from harassment on the basis of any protected characteristics and free from bullying’’.

The Defendant absolutely prohibits taking adverse action against an employee because she raises a concern about a violation of company policy. It is also the Defendant’s policy that every employee shall help create a work environment free from harassment and bullying. The policy also prohibits retaliation against employees for reporting integrity concerns. From the evidence led by the Claimant during her examination in chief, it is clear that her report of harassment against her manager, Innocent Chukwuemeka, led to the termination of her employment on April 13, 2017, without notice or a plausible explanation, this makes the termination wrongful, illegal, null and void, as it violates the Defendant's non-retaliation policy stipulated in the company guidelines. It is in evidence that the Claimant's performance was not assessed by the management of the Defendant but was personally assessed by the Claimant’s manager, who she had complained about and who consequently failed to recommend her due to her complaints against him. 

Further, that the Feedback of September 29, 2016, is not a formal evaluation but a witch hunt, as the mail was tagged "private and confidential." The Claimant was copied along with Victoria Ojo, her teammate, but not with relevant stakeholders such as the Head ECDP, Africa, Belinda Okereke, Head Human Resources for all Nigeria Oil and Gas staff, and Clara Bot-Mang, Head Human Resources, Nigeria. The manager's choice to copy the Claimant’s teammate, instead of the relevant stakeholders, makes the report informal and unofficial.

Also that it is evident the Claimant remained under the same manager she complained about until her disengagement by the Defendant, this, is contrary to the Defendant’s policy as she ought to have been transferred to another office. It is in evidence, and not controverted, that in instances of threat or bullying, the complainant would in accordance with the Defendant’s policy be moved to another office. This evidence was never challenged. 

The law is trite that where relevant admission and credible evidence stand unchallenged, un-contradicted, or uncontroverted, the Court must accept and act on it to establish or controvert a fact or matter in issue. see ODIWE VS NWAJEI (2000) 4 NWLR (PT 651) 86 C.A PER BA’ABA J.C.A.

Further in response to issue (c) raised in the Defendant’s Final Written Address viz: whether the Claimant was properly assessed/evaluated by the Defendant on the basis of which the Defendant decided not to renew or extend the Claimant’s contract, argued at paragraphs 6.17 - 6.26of the Defendant's Final Written Address, Counsel submitted that the Defendant failed, refused, and neglected to tender an official evaluation report, which forms the basis for why the Claimant's contract was not renewed. 

The refusal to evaluate her performance and not tender evidence amounts to withholding evidence in violation of Section 167(d) of the Evidence Act 2011, which states: "evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."

A mere assertion or statement should not be accepted without proof, see AJERO VS UGORJI (1999) 10 NWLR (621) 1 SC. The Claimant stated in her evidence, uncontroverted, that she had no working relationship with Ogholaja Frank, Olakunbi Ademiluyi, Ifeoma Esimogu, and Victoria Ojo. They were also under the supervision of the Claimant's manager, Innocent Chukwuemeka. Ademiluyi Olakunbi stated in his mail of March 7, 2017, admitted as part of Exhibits CN2 Page 1-24, that he did not work directly with the Claimant, making it impossible for him to properly evaluate her.

It is trite that pleading does not form part of evidence and will never take its place. The fact that a document has been pleaded, but not tendered in evidence, renders it irrelevant. The refusal of the Defendant to tender a formal evaluation report amounted to withholding evidence, see In NGILARI VS MOTHERCAT LTD (1999) 13 NWLR (PT. 636) 626 SC.

In response to issue (d) raised in the Defendant’s Final Written Address, whether the Claimant is entitled to the reliefs sought in this case, Counsel submitted that in a contract of employment where there is no written agreement on the notice period for termination, a reasonable notice or payment in lieu of such notice must be given.

In arguing whether or not the Claimant is entitled to the relief sought, it is crucial to point out that the crux of the Claimant’s case is that the Claimant's employment termination by the Defendant was wrongful, illegal, null and void, and of no effect, having violated the non-retaliation policy of the Defendant’s guidelines, premised on Exhibits CN1 pages 1-11 and CN2 pages 1-24. Particularly, on April 13, 2017, the Claimant having been unceremoniously dismissed without the necessary notice required by Section 11 (1) (2) (b) of the Labour Act, Laws of the Federation of Nigeria (2004).

While it is true that there is no endorsement on the Claimant's employment contract, admitted as CN1 page 1-11, specifying the period of notice, the Claimant is entitled to reasonable notice informing her of the Defendant's decision not to renew her contract, rather than a verbal termination.

Though the contract of employment between the Claimant and the Defendant does not state the notice period, the law is clear that, in the absence of a written agreement, reasonable notice must be given, see UBN PLC VS SOARES (2012) NWLR (PT 1312) 550 PAGE 571 PARAS F-G, where the Court held:

"Where there is no written agreement as to the period of notice of termination of a contract of employment, the notice to be given must be reasonable notice. But where the contract of employment stipulates the period of notice, the contract can be terminated based on such period of notice."

See also ILOABACHIE VS PHILIPS (2002) 14 NWLR (787) 264, IDUFUEKO VS PFIZER PRODUCTS LTD (2014) 12 NWLR (PT 1420) 96.

The Honourable Court decides what reasonable notice is, considering factors such as (a) the nature of the employment, (b) the length of service, and (c) other circumstances of the case, see AKUMECHIEL VS B.C.C LTD (1997) 1 NWLR (PT 484) 695.

Counsel argued that the following facts are in evidence and uncontroverted;

  • The Claimant is an employee of the Defendant. 
  • The Claimant contract was a fixed term commencing from the 7th day of March, 2016 to 7th March, 2017 
  • The Claimant in line with the policy of Defendant complained of attitude of the manager and nothing was done by the Defendant to address the issue 
  • The Claimant employment was verbally terminated on the 13th day of April, 2017 after her complaint on the attitude of her manager.
  • The Claimant employment was terminated after the expiration of the fixed term which ended on the 13th day of March, 2017.
  • The Claimant was not given any notice of termination despite the fact that her offer of employment was in writing 

That these pieces of evidence were not controverted or punctured by the Defendant during cross examination and it is trite law that uncontroverted facts/evidence needs no further proof and must be deemed as true and correct by the court. See ODEBUNMI&ANOR V OLADIMEJI&ORS (2012) LPELR- 15419(CA), HENSHAW V EFFANGA&ANOR (2008) LPELR-4075(CA), W.A.E.C V OSHIONEBO (2007) ALL FWLR (PT 370)1501 AT 1516, PARA. C (CA).

On the credibility of the Defendant’ sole witness- Igwe Ibiang, Counsel submitted that the witness admitted in evidence that he does not physically know the Claimant and that as at the time when the Claimant was in the employment of the Defendant’s company, he was not with the Defendant that he only started working with the Defendant in August 2021, the question now whether it is possible for a person who the Defendant sole witness did not know can give credible evidence against her. Counsel argued that it is practically impossible for the witness who does not know the Claimant when she was in employment of the Defendant to give credible and convincing evidence on the relationship of the Claimant and the Defendant by ordinarily relying and drawing conclusion from the records of the Claimant which he had access to. 

The evidence of the Defendant sole witness is an attempt to mislead the Honourable court because all the evidence he gave amounted to hearsay he was not there, he does not even know the Claimant in this case so he only gave evidence based on the information he was given and the records of the claimant he had access to. See OJUKWU VS YARADUA (2009) 12 NWLR (PT 1154) 50 SC where it was held that hearsay evidence is inadmissible, in that case the court held that the witness statement on oath of the witness consisted of mostly hearsay evidence. 

Also, in PUNCH NIG LTD VS JUMSUM NIG LTD (2013) 12 NWLR (PT 1260) 162 CA the Court of Appeal held that hearsay testimony is inadmissible in evidence, much as evidence tends to establish the truth of what the witness was told.

That said, Counsel referred to the entirety of the argument canvassed in the whole of the Defendant’s final written and submitted that all the argument canvassed therein are misconceived, misdirected and is therefore liable to be discountenanced by the Court.

In reply to the Defendant’s preliminary issues contained in its final written address, Counsel submitted that the Defendant argued that the Claimant has raised new issues/ facts in her reply, the Claimant has not raised new facts and issues but has only responded to the case put forward by the Defendant in its Statement of defence. The issue of the Defendant not given a formal letter of disengagement after the expiration of her fixed term contract is not a new fact but a reaction to the case of the Defendant in its statement of defence. Also, the issue of the Claimant being sent off abruptly and unceremoniously and in a disgracefully manner is not new fact.

The reply filed by the Claimant was raised in answer to the Defendant Statement of defence and which makes the Defendant statement of defence not maintainable.

Also, that the reply to the Statement of defence filed by the Claimant was to deny new facts averred in the Defendant statement of defence and not to introduce new facts. 

It is trite law that where new facts not contained in the Statement of Claim/ facts are introduced by the Statement of defence the Claimant were bound by law to directly answer them. Failure to answer them would amount to an admission of same and the facts become established. PLEASE SEE STATOIL (NIG) LTD VS INDUCON (NIG) LTD (2021) 7 NWLR PART 1774 PAGE 1 AR 97 PARA C-D PER AGIM JSC.

COURT’S DECISION.

I have read through the processes filed and heard the argument of Counsel as well as the testimony of witnesses, from the issues raised in the final addresses, the main issue before this Court is whether the Claimant has proved her case and is entitled to the reliefs sought against the Defendant.

On the preliminary issue raised by the Defendant, while it is trite that the Claimant had no basis 

The Claimants case is two pronged, first that her employment was terminated as a result of her complaint of bullying against her manager and that she was not issued a notice of termination.

It is pertinent to state that burden of proof of wrongful termination rests on the Claimant and she must prove same by cogent and compelling evidence, see UBA V ORANUBA (2014) 2 NWLR (PT. 1390) 1.

On the issue of her employment being terminated as payback/retaliation for the petition against her manager, the Defendant states that the issue was resolved and the Claimant accepted the resolution, I have looked at exhibit Ibiang page 9 which is an email from Okereke Belinda dated 25th November 2016 outlining/catching up with the team after the Claimant resumed from her leave, she outlined the feedback from the parties who participated in the session and asked if anything was amiss to which the Claimant did not reply, she has denied the existence of this mail as not emanating from the Defendant, it is however on record that the Claimant said under cross examination that she made a report to Belinda the HR Manager, in her averments on record, she also mentioned Belinda as HR Manager, it is therefore contradictory to me that she would deny an email from same Belinda as not emanating from the Defendant, if an email sent by the Defendants HR Manager did not emanate from the Defendant, then one would be forced to ask the Claimant where else said email might have come from.

Again, it is trite to note that the Claimant never made any complaints on this issue after the date of resolution, she did not reach out to the Defendant that she was unsatisfied with the resolution and went silent until her employment with the Defendant was terminated, she has also not proved any complaints or threats against her person after said date.

From the evidence before the Court, it is clear that the Claimant has not proved that her employment was terminated as a result of victimization, she has not shown that her employment was terminated as a result of her report against her manager and the Court cannot infer or assume same especially given the time frame between her report and the termination of her appointment.

On the issue of her employment being terminated without being given a weeks’ notice in lieu of termination, it is on record that the Claimants employment was for a fixed period of one year, the letter of employment stated that the duration was from 7th March 2016 and would end on 7th March 2017, the Claimant did not resume until 11th April 2016 and according to the Defendant, this was informally agreed as the resumption date, it is however not in writing that the Claimants start date was 11th April 2016 instead of 7th March 2016.

The Claimant made assertions about the Defendant wrongly kicking her out, that she was not offered an FMP role despite same being available, that her performance was not assessed by the Defendants management and that the feedback of 29th September was not a formal report, she has however not shown the Court where these are stipulated in the contract of employment, where a party seeks a relief for wrongful termination, the onus lies on him/her to prove same, see UNIVERSITY OF CALABAR Vs. ESSIEN(1996) LPELR-3416(SC);(1996) 10NWLR (PT. 477)P.225 per MOHAMMED ,J.S.C at Pp. 56-57, paras. F-C), the Claimant has the burden to plead and prove the following-

  1. That he is the employee of the Defendant.
  2. How he was appointed and the terms and conditions of his appointment.
  3. Who can appoint and remove him,
  4. The circumstances under which his appointment can be terminated,
  5. That his appointment can be terminated by a person or authority other than the Defendant?

See also U.T.C.(NIG.) PLC Vs. PETERS (2022) 18 NWLR (PT. 1862) 297(PP. 319-320, PARAS. E-B;322, PARAS. A-B).

The Defendant has argued that the Claimant’s employment lapsed as a result of effluxion of time, the Claimant has stated she must be given a weeks’ notice, even where the contract of employment is silent on that note, I must say that the Law is the Law, the Labour Act in Section 11 states that-

“(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.”

While the Defendant argues that parties were aware that there was a fixed date for the contract to come to an end, there is also the matter that the contract of employment stated 7th March 2017 and not 11th April 2017, this Court will rely first on documentary evidence before it and the documentary evidence states 7th March 2017.

That being said, I hereby hold that the Defendants failure to issue the Claimant weeks notice and same being in writing is contrary to the provision of the Labour Act.

On the issue of damages however, while the termination was wrongful as a result of failure to issue notice, it was not null or void, see BAKO V. BRITISH COUNCIL (NIG) & ANOR (2022) LPELR-58127(CA) Per BIOBELE ABRAHAM GEORGEWILL, JCA (Pp 31 - 32 Paras B - C). 

Also, the Claimant has not shown the Court how the Defendants failure to issue notice affected her detrimentally, especially that she was aware of the end date of the contract between her and the Defendant, she was not owed any salaries or allowances, it would seem that her ego was mostly bruised in this interaction.

Based on the foregoing, I hereby make the following pronouncements-

  1. On the Claimants relief for a declaration that the termination of the Claimants employment on the 13th April 2017 is wrongful, illegal, null and void and of no effect having violated the non-retaliation policy of the Defendant as stipulated in the Defendants guidelines regulating the relationship between the Claimant and the Defendant, the Defendants failure to issue a  weeks notice to the Claimant in writing was a violation of Section 11 of the Labour Act, this made the termination wrongful but not null and void, also the Claimant did not prove the Defendant violated the Non-Retaliation policy of the Defendant in terminating her employment.
  2. On the Claimants relief for a Declaration that the termination of the Claimants employment on the 13th April 2017 is wrongful, illegal, null and void and of no effect having failed to issue appropriate notice to the Claimant as required by the Law, same has been answered above.
  3. On damages in the sum of N50,000,000 (Fifty Million Naira) for wrongful termination of the Claimants employment by the Defendant on the 13th April 2017, the Claimant has not proved this relief, ordinarily the award for damages where notice is not served would be what the Claimant would have earned in that period, but in this instance, she is not asking for special damages but general damages, I see no mitigating factors that would warrant the grant of same.
  4. On cost of this action including the Claimants Solicitor’s fees in the sum of N5,000,000 (Five Million Naira), this relief is also refused accordingly.

This is the Judgment of this Honourable Court and it is entered accordingly.

 

 

 

 

 

----------------------------------------------

Hon. Justice R.H Gwandu

Judge