National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE E.D. SUBILIM

DATE: 17^th, December, 2024

SUIT NO: NICN/ABJ/380/2023

BETWEEN

1. BAMIDELE ADERETI

2. AKALA OLAWALE COLLINS

3. OLANREWAJU SULEIMAN ……………. CLAIMANTS

4. NAOMI ROBERTS

5. FRIDAY JOHN

AND

KIARA RICE MILLS LIMITED ……………DEFENDANT

REPRESENTATION:

Sunday Adaji Esq, E.T Adeyemi Esq, Bamidele Jacobs Esq, Chukwuma Ejerenwa Esq, Grace Ogwe Agu Esq, Patricia Chigbundu Esq, Mary Rose Idris Esq. for the Claimants.

Mohammed Ndayako, (SAN), J.M. Abdallah, Haliru Hussaini, S.M. Bida, Fatima Babadoko for the Defendant

JUDGMENT

1. The Claimant through a General Form of Complaint, Statement of Facts and

other accompanying processes dated 4^th of December 2023 and filed on the 19^th December, 2023 commenced this suit against the Defendant seeking for the following reliefs:

a. A DECLARATION that the defendant’s act of summarily terminating the claimant’s employment without giving the claimants fair hearing and without considering their rights to peaceful assembly and association amount to wrongful dismissal.

b. A DECLARATION that the defendant’s act of summarily terminating the claimant employment because they attended a workers meeting held in the defendant premises without its approval it’s a blatant violation of their rights to peaceful assembly and association as guaranteed by the Constitution of the Federal Republic of Nigeria 1999 (As Amended); the African Charter on Peoples and Human Rights; and the Universal Declaration of Human Rights.

c. A DECLARATION that section 2.4 (j) of the defendant Employees Handbook which the defendant Management relied upon to summarily dismissed the claimant is inconsistent with section 40 of the Constitution of the Federal Republic of Nigeria 1999 as amended and it is thus null and void and of no effect.

d. A DECLARATION that the defendant act of bringing policemen to march the claimant around like criminals and slaves and forcing them to sign termination letters is a blatant violation of their rights to dignity of their persons and rights to personal liberty, as guaranteed by the Constitution of the Federal Republic of Nigeria 1999 as amended; the African Charter on Peoples and Human Rights; and the Universal Declaration of Human Rights.

e. AN ORDER OF THE COURT directing the defendant to pay the claimants the sum of Two Hundred Million naira (?200,000,000.00) each to the claimants being damages for wrongful termination of their employment and for the trauma, psychological emotional and mental pain it caused them by its sudden termination of their employment.

f. AN ORDER OF THE COURT directing the defendant to pay to the claimants the sum of two hundred million naira (?200,000,000.00) each as compensation for violating their rights to peaceful assembly and association, right to dignity of their persons and right to personal liberty as guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended); the African Charter on Peoples and Human Rights; and the Universal Declaration of Human Rights.

g. AN ORDER OF THE COURT directing the defendant to pay the 1^st, 2^nd, 3^rd, 4^th and 5^th claimants the sum two hundred and eighty–four thousand, eight hundred and forty naira, thirty-two kobo(?284,840.32k); two hundred and seven four thousand seven hundred and twenty nine naira eighty-four kobo (?274,729.84); one hundred and eighty three thousand naira only (?183,000.00k); sixty-three thousand naira (?63,000.00k)and one hundred and fourteen thousand, two hundred and ninety naira thirty-two kobo (?114,290.32k) respectively being their salaries every month starting from on 14^th and 18^th of September, 2023 respectively, when they were wrongfully dismissed till the time the judgment is delivered being damages for breach of contract of employment and wrongful dismissal.

h. AN ORDER OF THE COURT directing the defendant to pay to the 3^rd claimant the sum of five million naira (?5,000,000.00) each day for each of the four social media platforms that the defendant advertisement bears the 3^rd claimant picture, starting from the 13^th of September 2023 until the adverts are taken down from its four social media platforms.

i. AN ORDER OF THE COURT directing the defendant to ensure that the 1^st, 2^nd, and 4^th claimants are paid the sum of eighteen thousand, one hundred and forty-four naira (?18,144,00.00); eighteen thousand one hundred and forty-four naira (?18,144,00); and four thousand three and twenty naira (?4,320,00k) respectively being their pension with the Pension Trust Fund.

j. AN ORDER OF THE COURT directing the defendant to refund the sum of five thousand, seven hundred and sixty naira (?5,760.00k) and three thousand eight hundred and forty naira (?3,840.00) to the 3^rd and 5^th claimants respectively being the amount the defendant deducted from their August salary as pension knowing fully well that they did not have pension fund account.

k. AN ORDER 0F THE COURT directing the defendant to ensure that the 1^st, 2^nd and 4^th claimants are paid the sum of seventy- five thousand, seven hundred- and thirty-naira forty-three kobo (?975,730.43k); seventy-five thousand seven hundred- and thirty-naira forty-three kobo (?75,730.43k); and eighteen thousand thirty-one-naira five kobo (?18,031.05k, respectively being the accruing interest from their pension with the Pension Trust Fund.

l. Two million five hundred thousand naira (?2,500,000.00k) being the cost of this suit.

BRIEF FACTS OF CASE

2. Claimants counsel averred that claimants were former employees of the defendant holding different offices with 1^st claimant as Senior Accountant with employment number 087; 2^nd claimant as MIS Executive with employment number 232; 3^rd claimant as Milling Supervisor with employment number 053; 4^thclaimant as Human Resource Assistant with employment number 020; and 5^th claimant as Welder with employment number 078. The defendant is a limited liability company registered under the Companies and Allied Matters Act. It carries out the business of rice milling at Kpatsuwa village, Mokwa Local Government Area, Niger State. Claimants averred that as employees of the defendant company, they work for the Defendant faithfully with dedication, loyalty and commitment at all material times until on the 14^th and 18^th of September 2023 when the Management of the defendant summarily dismissed them. Claimants stated that prior to their summary dismissal, the entire employees of the defendant through their representatives had on several occasions demanded from the defendant Management on the need for upward review of their salaries as provided in Section 4.1 of the Defendant Employee Handbook. The said section 4.1 clearly provides for the welfare of the staff, but the defendant Management was unwilling to implement this provision. That when all efforts failed, the employees held a peaceful meeting where it was resolved that the Management should be giving seven working days’ notice to meet the employees demand. Claimants further averred that on 13^th, 14^thand 18^th September 2023, they were issued and served with termination letters. Claimants stated that out of all those who attended the meeting, only five of them were dismissed summarily without any query or fair hearing being afforded them.

3 Claimants stated that in compliance with the Pension Reform Act of 2014 they have been contributing to the Pension Trust Fund through deductions of specified amounts from their monthly salaries. In the month of August 2023, the 3^rd and 5^th claimants had their pension contributions deducted of five thousand, seven hundred and sixty naira (?5,760.00k) and three thousand eight hundred and forty naira (?3,840.00k) respectively despite not having a pension fund account while 1^st, 2^nd, and 4^th claimants statement of account with the Pension Trust Fund amounts to eighteen thousand one hundred and forty four naira (?18,144.00k); eighteen thousand one hundred and forty four naira (?18,144.00k); and four thousand, three hundred and twenty naira (?4,320.00k) respectively. And when the accruing interest is factored in as at the time of filing this suit it sums up to seventy-five thousand seven hundred- and thirty-naira forty-three kobo (?75,730.43); seventy five thousand seven hundred and thirty naira forty three kobo (?75,730.43); and eighteen thousand thirty one naira five kobo (?18,031.05). Claimants further made a case that 3^rd claimant discovered that defendant was using his photograph to promote and advertise its products in its four social media platforms without his consent.

4. The defendant on the other hand denies the claimants assertions in their Statement of Facts. Defendant stated that its workers salary was reviewed by an increment of 20% in the month of August 2023. Defendant contended that it was the claimants who went about distributing letters threatening to close down the operations of the Defendant by way of coordinating a meeting and unlawfully sharing Defendant’s data to third parties. Defendant further stated that claimants hacked into their website and into its privacy and started revealing some confidential information to their co-employees. Defendant further stated that 2^nd Claimant drafted a letter to the Management entitled “Notification of a Week Workers Strike” and append the forged the signature of the Village Head on it. Defendant avers that these are the reasons that necessitated the invitation of the police men attached to the defendant vicinity to intervene into the matter and which finally resulted in the termination of the claimants appointments.

5. In Claimants’ Reply to Defendant’s Statement of Defence, Claimants strengthened their averments in their Statement of Facts and denied all accusations of breached of fidelity insisting that defendant should increase their pay to reflect economic realities of the day and not 20% increase. Claimant stated that they never hacked defendant’s website as doing so is a crime under the Cybercrime Act but that their action was a unanimous decision of over 70% of staff of the defendant. Claimants denied any act of forgery and insisted that Defendant is the one owing 2^nd, 4^th, and 5^th Claimants for work done in September and a table was used to explained it.

EVIDENCE AT TRIAL

6. The trial in this suit commenced on the 15th March 2024. Claimants opened his case by calling Akala Collins Olawale (2^nd Claimant) as CW1 who adopted his Written Statement on Oath, tendered documents which were admitted as exhibits and marked as Exhibits A-P. CW1 was subsequently crossed examined by learned counsel for the defendant. On the 13^th May, 2024 Claimants called Bamidele Adereti (1^st claimant) as CW2. Witness adopted his Witness Statement on Oath and was crossed examined. On 28^th May, 2024 claimant called Olanrewaju Suleiman as CW3 who adopted his Witness Statement on Oath and was crossed examined and after which the case of the claimant was closed. On 27^th June, 2024, the defendant opened its case by calling one Adam Muhammad Raji as DW1, this witness adopted his Witness Statement on Oath and was cross-examined. On Friday 5^th July, 2024, defendant called one Usman Abdulrahman as DW2 who also adopted his Witness Statement on Oath and tendered documents which were admitted as Exhibits and marked as Exhibits Abdulrahman 1, 2, 3, 4, 5, 6, 7, and 8 and listed on the list of documents as No. 1, 2, 4, 5, 6, 7, 9 and 10. Witness was subsequently crossed examined. Defendant also called one Zubairu Salihu as DW3 who adopted his Witness Statement on Oath and tendered a document which was admitted as Exhibit and marked as Exhibit Saliu1 (not Exhibit Zubairu as wrongly captured in Defendant’s counsel final written address) and was subsequently crossed examined. DW4 is one Umar Yahaya, he testified by adopting his Witness Statement on Oath and was equally crossed examined after which Defendant’s case was closed.

DEFENDANT FINAL WRITTEN SUBMISSIONS

7. Learned counsel to Defendant in accordance with the Rules of this Court filed Defendant Final Written Address on the 14^th August, 2024 wherein he formulated a sole issue for the determination of Court as follows:

Whether having regards to the pleadings and evidence led before this Honourable Court, the claimant has proved their claims against the defendant to be entitled to the reliefs sought.

8. Arguing on the sole issue, learned counsel submitted that having regard to the state of evidence before this Court, the claimants are not entitled to the reliefs claimed as it is trite that burden of proof is always on the claimants and can only shift to the defendant where the claimants have discharged this burden. He cited Section 136(1) (2) of the Evidence Act cap E14 LFN 2004; Daodu v. NNPC &Ors [1998] LPELR-927(SC). He contended that the claimants’ summary dismissal was lawful and in accordance with the provision of Section 2.4 g and j of the Employee Handbook and paragraph 10(b) of their Employment Agreement which were tendered as exhibits before the Court. He noted that the above exhibits prohibited holding of meetings of any kind in the defendant’s premises without the approval of the management and as such breached of such guideline which will automatically lead to summary dismissal of any employee. He submitted that holding such meeting coordinated within the defendant’s premises without clearance was unauthorized and unlawful having violated section 2.4 g and j supra. He cited the case of Isheno v. Julius Berger (Nig) Plc [2008] LPELR-1544(SC).

9. Learned counsel noted that the testimony of CW1, during cross examination whether they served exhibit E on the defendant and he affirmed, but when asked further to produce the acknowledged copy of the said exhibit, he couldn’t and further admitted that there was no approval obtained from the defendant to hold the meeting. He noted that this testimony further admitted that according to exhibit D, holding a meeting without consent of the management amount to gross misconduct. Counsel also noted that CW3 admitted during cross examination that he is familiar with the conditions of service and as such it is apparent that he was very much familiar with the employee hand book. He contended that the claimants signed their employment agreement. The employee is required to abide by the rules of engagement and terms of service of the defendant. Hence any action that violates the laid down rules and conditions as in the letter will amount to misconduct which will lead to summary dismissal as in this suit. He cited the case of Oguejiofor v. Access Bank [2020] LPELR-49583 (CA).

10. Learned counsel submitted further that a master can dismiss an employee under a contract of employment in a master/servant relationship at any time and for any reason or for no reason at all, provided the terms of contract of service is complied with citing the case of Fakuade v. O.A.U T.H Complex Management Board [1993] LPELR-1233 (SC). Counsel therefore submitted that the claimants summary dismissal was done in accordance with the defendant’s terms and conditions which the claimants violated.

11 Learned counsel also contended that claimants’ reliefs b, d and f are not within the jurisdiction of this Court because the above-mentioned reliefs are fundamental Enforcement issues which can only be entertained by the Federal High Court, citing the case of Ironbar v. Federal Mortgage Finance [2009] 46 WRN 154 @169 lines 5-10. Counsel therefore urged the Court to resolve this issue in favour of the defendant.

12. In conclusion counsel submitted that claimants failed to prove their case and thereby not entitled to any reliefs claimed.

CLAIMANTS’ COUNSEL FINAL WRITTEN ADDRESS

13. In response to the defendant’s final written address, learned counsel on behalf of the claimants filed his Final Written Address on 23^rd September, 2024 wherein he formulated eight (8) issues for the determination of this Court thus;

a. Whether from the totality of evidence adduced, the defendant’s act of summarily dismissing the claimant without giving them fair hearing and without considering their fundamental rights to peaceful assembly and association does not amount to wrongful termination.

b. Whether from the totality of evidence adduced, the defendant act of summarily dismissing the claimants on the grounds that they did not obtain approval from its management before holding the peaceful meeting is not a blatant violation of their fundamental rights to peaceful assembly and association as guaranteed by the provisions of the constitution of the federal republic of Nigeria (CFRN) 1999 amended, the African Charter on Human and Peoples Rights, Universal Declaration on Human Rights (UDHR) 1948.

c. Whether from the totality of evidence adduced, the defendant’s act of bringing policemen to march the claimants around like criminals and forcing them to accept and sign dismissal letters is not a blatant violation of their right to dignity of their persons as guaranteed by the provisions of the Constitution of the Federal Republic of Nigeria (CFRN) 1999, amended the African Charter on Human and Peoples Rights (ACHPR) (Ratification and enforcement ) Act chapter A9 (chapter 10 LFN 1990) and the Universal Declaration of Human Rights (UDHR) 1948.

d. Whether from the totality of evidence adduced the defendant ‘s act of using the 3^rd claimant’s picture to advertise its products on the four social media platforms without the consent of the 3^rd claimant is not a blatant violation of his right to privacy as guaranteed by the provision of the Constitution of the Federal Republic of Nigeria 1999 as amended (CFRN), the African Charter on Human and People’s Rights (ACHPR). Ratification and enforcement ACT chapter A9 (chapter 10 LFN 1990 and the Universal Declaration of Human Rights (UDHR)1948.

e. Whether from the totality of evidence adduce, the 1^st 2^nd and 4^th claimants are not entitled to their pension with the pension trust fund with accruing interest as stipulated in the Pension Reform Act 2014.

f. Whether from the totality of evidence adduce the 3^rd and 5^th claimants are not entitled to the sum of five thousand seven hundred and sixty naira (5,760.00k) and three thousand eight hundred and forty naira (3,840.00k) respectively being the amount that the defendant deducted from their salary on august 2023 salary as pension contribution knowing fully well that they did not have pension fund account.

g. Whether the defendant has proved it allegation of hacking its website against the claimants

h. Whether from the totality of evidence adduced the claimants are indebted to the defendant as alleged.

14. As regards the first issue on whether from the totality of evidence adduce the defendant’s act of summarily dismissing the claimant without giving them fair hearing and without considering their fundamental rights to peaceful assembly and association does not amount to wrongful termination. Claimants counsel submitted that claimants were dismissed on ground that they held meeting on the defendant premises on the 14^th day of September 2023 without obtaining consent and the defendant justifies the dismissal by relying on section 5.4 of its staff handbook which stipulates summary dismissal for gross misconduct for any staff violating the provision. Claimants’ counsel submitted that Claimants were not giving a fair hearing even though they conducted the meeting in the defendant premises, defendant ought to have called Claimants to hear from them or issue them query before issuing them letter of termination contrary to defendant argument that since Claimants breached the defendant’s employee hand book there was no need for any query before they were summarily dismissed. Claimant counsel submitted that in the case of Savanah Bank Plc v Fakokun (2002)1NWLR (PT 749) 544 ratio 5 an employer is bound to give reasons for lawfully terminating a contract of service, he must also give reasons for summarily dismissing the servant. In the instant case, the allegation of gross misconduct given as a reason for summary dismissal of the Claimants which borders on criminal allegation was not proved.

15. On issue two, the claimant argued that the defendant act of summarily dismissing the claimants on the ground that they held a meeting without approval from its management is a blatant violation of their fundamental rights to peaceful assembly. See section 40 of the constitution of the federal republic of Nigeria as amended 1999; Article 11 of the African charter on human and people rights (ACHPR) (ratification and enforcement Act chapter A9 chapter 10 LFN 1990; Article 20(1) of the universal declaration of human right (UDHR) 1948; and section 45 of the trade unions Act

16. Arguing on issue three, learned counsel on behalf of the claimant submitted that the claimants have the right to their dignity of persons and should not be subjected to any inhuman and degrading treatment just because they are employees as provided in Section 34(1) of the Constitution. Counsel noted that the defendant’s submissions about Claimants not being threatened and force to sign their letters of dismissal was false. Counsel submitted that such denial is mere general denial and in law does not amount to denial. Counsel cited the case Jacobson Engineering Ltd v. UBA Ltd [1993] 3 NWLR (pt.283) 586. Counsel argued that defendant’s pleadings in paragraph 14 of its statement of defence that the Police are part of the securities that maintained peace and order in Defendant’s premises was false, as the defendant’s act of bringing policemen to march the claimants around is a total violation of their right to dignity of persons.

17. Learned Claimant counsel submitted on issue four that from the totality of evidence adduced as to the use of the 3^rd claimant’s picture for advertisement of its products without his consent is a violation of his privacy as provided in the Constitution and African Charter on Human and People Rights (ACHPR) (Ratification and Enforcement) Act (chapter10 LFN 1990) and the Universal Declaration of Human Rights (UDHR)1948. Counsel submitted that defendant’s defence that the 3^rd claimant consented prior to his dismissal but failed to explain how and when he gave his implied consent. He noted that DW2’s statement on oath which states that the picture was taken down from the platforms but still existed on fake social media platforms shows admission of liability. He submitted that the 3^rd claimant’s photo is his personal data and as such he is entitled to its property and its privacy as he was neither aware that the defendant wanted to use his photo to advertise its business nor was he given the opportunity to consent or object to the use of his photo.

18. Counsel further submitted that with regards to paragraph 16, 17, 18, 20 and 21 of CW3’s statement of oath that it is not a defect, mistake or error that he deposed to the facts and circumstances of the 1^st 2^nd 4^th and 5^th claimants’ case due to the fact that this suit is a joint suit, therefore he had personal knowledge of the facts of the case. He relied on Section 115 of the Evidence Act, 2011 as amended; British-American Insurance Co. Ltd v. Edema Sillo [1993] 2 NWLR (pt. 277) 570-637, ratio 4; Okonjo v. Odje[1985] NWLR 10 SC. 267. He submitted that the law is certain that the era of striking out a proceeding on curable technical mistake or irregularities is gone, particularly where the irregularity does no harm to the opposite side or creates injustice. Counsel therefore urges the Court to so hold and resolve this issue in favour of the claimants.

19. Arguing on issue five, learned counsel submitted that the totality of evidence adduced by the 1^st ,2^nd, and 4^th claimants they are entitled to their pension with accrued interest as stipulated in the Pension Reform Act 2014, as they have been enrolled and the defendant never denied that fact. He urged that court to resolve this issue in favour of the 1^st, 2^nd and 4^th claimants.

20. Regarding issue six, learned counsel submitted that the defendant deducted the sum of N5,760.00K and N3,840.00K respectively as pension contribution of the 3^rd and 5^th claimants knowing that they neither enrolled for Pension nor have a pension scheme and as such they are entitled to refund.

21. Learned counsel argued on issue seven that the defendant has not proved its allegation that the claimants hacked into its website and encroached into its privacy. It is the position of the law that in any civil or criminal proceedings where an allegation of criminal offence is raised, it must be proved beyond reasonable doubt. See Section 135(1) of the Evidence Act. He noted that DW2 was asked during cross examination if he saw the claimants hacked into the account but failed to give any reasonable answer. And secondly, DW2 was not present at the venue of the peaceful meeting hence, he cannot testify of what transpired at the venue. Counsel contended that a print-out of an email cannot be a proof beyond reasonable doubt that the claimants hacked into the defendant’s website. He stated that assuming but not conceding that the claimants leaked the defendant’s confidential information to their co-employees, the email print-out is not the defendant’s confidential information and as such, the defendant’s allegation that the claimants leaked same was baseless, unfounded and unsubstantiated. He urged the Court to so hold and resolve this issue in favour of the claimant.

22. Arguing on issue eight, counsel submitted that the 3^rd claimant did not obtain any loan from the defendant, but rather the 1^st,2^nd,4^th and 5^th claimant did. However, defendant withheld their September salaries to offset the loan. Counsel argued that the discrepancy in the defendant’s exhibit A is understandable. He noted that DW2 during cross examination stated that he worked for the defendant for two years. He also noted that DW2’s inexperience was also visible when he wrongly stated two conflicting amounts as the 1^st claimant’s monthly salary. He urged the Court to resolve issue seven in favour of the claimant.

23. In response to the claimants’ final written address, the defendant filed a reply on points of law dated 3^rd October, 2024 wherein he submitted in respect of the claimant’s paragraph 4.04-4.10 of their submissions that the willful disobedience of lawful and reasonable order of an employer by the employee is a definite act of misconduct which attracts summary dismissal at common law. Citing the cases of UBN v. Soares [2012] 11 NWLR (pt. 1312) 550 CA; Sule v. Nigerian Cotton Board [1985] 2NWLR (pt.5) 17.

24. He submitted in respect to paragraphs 4.27 - 4.38 of the claimant’s submission that the defendants brought police to march the claimant around like criminals is totally misleading and goes to no issue and must be discountenanced by this Court. He maintained that the claimants were not forcibly removed or treated like criminals, but rather signed their dismissal letters voluntarily without coercion, duress or threat. He noted that the claimants’ inability to substantiate this assertion with proof and evidence during the hearing renders it devoid of probative value, and as such the Court should dismiss same. See Ogbehor v. Ihasee [2013] 42 WRN; E.S.C.C v. Geofrey [2006] 18 NWLR (pt. 1011) 298

25. Learned Counsel in reply to the claimants’ paragraphs 4.40 and 4.50 of their submissions maintains that the claimants counsel erroneously argued that the defendant used the 3^rd claimant’s picture on its social media platforms for advertisement without his consent which was not true as he consented to the used of his image and after his dismissal, the defendant directed that his image be put down. Counsel also maintain that the claimants’ paragraphs 4.58-4.65 was argued in error as the Pension Reform Act 2014 in Section 11(3), (6) and 7 empowers the defendant to deduct monthly contribution of employees to the pension fund which it did and issue a notice to all employees and even invited pension officials to facilitate the opening of accounts, however, some employees failed to comply including the claimants in this suit. He noted that the 1^st 2^nd and 4^th claimants did comply with the directives with pin no: PIN1101330736017 with pension name: veritas pension, PIN11013087193, Pension name Stanbic IBT and PIN 210034366995 Pension name Access pension respectively, while the 3^rd and 5^th defendants failed to do so.

26. In conclusion, counsel submitted that having regards to the pleadings, evidence and admitted documents before this Court, as submitted above, he therefore urged the Court to dismiss the claims of the claimants for lack of merit.

COURT’S DECISION

27. I have carefully read through the Originating processes and the accompanying documents, the Amended Statement of Defence, Reply to Statement of Defence together with all other accompanying documents and the Final Written Addresses of parties. I have been able to deduced from the facts and evidence presented, as well as issues formulated by both parties that the lone and germane issue for determination is as follows-

Whether having regards to the totality of evidence adduced before this court the claimants has proven their case to be entitle to the reliefs sought.

28. A perusal of the Originating processes before this court clearly leaves no one in doubt that the Claimants in this case are seeking for declaratory reliefs. And it must be noted that a claim for declaratory relief is a discretionary remedy which is neither granted as a matter of course nor on admission of the adverse party. Thus, a claimant seeking such must rely on the strength of his or her own case and not on the weakness of the defendant by leading credible evidence in support of his case. See TSY Ltd v. Nwachukwu [2024]13 NWLR (Pt. 1954)147@173-174, Paras F-A (SC); Aliyu v. Namadi [2023]8 NWLR (Pt. 1885)161@214, Paras C-E (SC) Adamu v. Nigerian Airforce [2022] 5NWLR (Pt 1822)159@177, Paras F-G; 178, Paras E-G (SC) and; Adesina v. AirFrance [2022]8 NWLR (Pt. 1833)523@555-556, Paras H-B. In cases such as in the instant case claimant has the onus to prove his case as the law requires. Indeed, Claimant is only entitled to rely on aspects of the defendant’s case that supports his case. See Hanatu v. Amadiu [2020]9 NWLR (Pt. 1728)115@128, Paras A-C (SC); C.D.C (Nig) Ltd v. SCOA (Nig) Ltd [2007]6 NWLR (Pt. 1030)300@327, Paras A-F (SC).

29. Also in employment matters the law is recondite that in the determination of employment rights, it is the employee who complains that his employment contract has been breached that has the burden to place before the court the terms and conditions of his employment that provides for his rights and obligations. See Okoebor v Police Council [2003] 12 NWLR (Pt 834) 444, Okomu Oil Palm Co v Iserhienrhien [2001] 6 NWLR (Pt. 710) 660 at 673, Idoniboye-Obe v. NNPC [2003] 2 NWLR (Pt. 805) 589 at 630. This is in consonance with the law that whoever desires the court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exist in accordance with Section 131 (1) & (2) of the Evidence Act 2011. See Calabar Co-operative Ltd v Ekpo [2008] 1-2 SC 229 at 255.

30. Before delving into the nitty gritty of the Claimants’ complaint before this court, I wish to remind parties that contract of employment is classified in the Nigerian legal system into three categories, to wit: i) one regarded as purely master and servant; ; ii) one in which a servant hold office at the pleasure of the master - durante bene placito; and one that is regulated by statute which in common legal parlance is clog with statutory flavour. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599; Olanrewaju v. Afribank (Nig.) Plc (2001) 13 NWLR (Pt. 731) 691; Iderima v. R.S.C.S.C. (2005) 16 NWLR (Pt. 951) 378; C.B.N. v. Igwillo (2007) 14 NWLR (Pt. 1054) 393; Longe v. F.B.N Plc [2010] 6 NWLR (Pt. 1189) 1. At this juncture, I must concede to parties as submitted that the relationship between the Claimants in this case and the Defendant is a master and servant relationship. Also admitted by Defendant is the fact that were summarily dismissed from their employment by the defendant. A fact admitted by the defendant should be taken as established and should form one of the agreed facts of the case.6 See Solana v. Olusanya (1975) 6 SC 55; Maduabuchukwu v. Umunakwe (1990) 2NWLR (Pt. 134) 598; Daniel v. Iroeri (1985) 1 NWLR (Pt. 3) 541; Ibanga v. Usanga (1982) 5 SC 103; Akpapuna v. Nzeka (1983) 2 SCNLR 12. In considering this case I am mindful also that labour rights inure at three levels: pre-employment rights, that is those rights that arise prior to the start of an employment; employment rights, that is those rights that arise during the pendency of an employment; and post-employment rights i.e. rights inuring at the end of the employment such as pension rights and the like. See Akande v. Lilygate Nig. Ltd Unreported Suit No. NICN/LA/209/2016.

31. The claimants in this suit pleaded and relied on the “Employment Offer Letter” which is the offer of employment marked as Exhibit ‘A’ and which is the bedrock of their relationship with the defendant. This is replicated in the cases of the 2^nd, 3^rd, 4^th, and 5^th Claimants as this fact was admitted by Defendant in paragraph 1 of the Amended Statement of Defence. See section 124 of the Evidence Act 2011. It is the case of the Claimants that because of the harsh economic realities they decided to make a case to the Defendant together with other employees demanding an improved condition of service as part of their labour welfare. To achieve this, Claimants with others decided to hold a peaceful meeting and which was done in the defendant premises which came up with a resolution to give Defendant a notice of an impending strike if their labour welfare is not giving a positive outlook. See Exhibit E.

32. On its part, Defendant contended that the act of holding a meeting in the premises of the Defendant constitute a ‘prohibited activity’ contrary to section 2.4 (j) of Defendant’s Employee Handbook which is Marked as Exhibit ‘D’ (aka Abdulrahman 4) and punishable under section 5.4 of Exhibit D. Counsel to Defendant to further buttress his point by referring this court to the case of Isheno v. Julius Berger (Nig.) Plc (2008) LPELR-1544 where the Supreme Court held that an employer who fires an employee in compliance with the terms and conditions of their contract of employment, there is nothing the court can do.

33. Learned counsel to defendant further submitted in Paragraph 4.13 of his final written address that the Claimants not only accepted their letter of offer of employment but signed their employment agreement that require them to abide by the rules of engagements and terms of service of the defendant as contained in the Handbook or risk dismissal. Defence counsel submitted that an employer has the right to fire at any time with or without reason. Counsel refers this court to Oguejiofor v. Access Bank [2020] LPELR-49583(CA).

34. Let me digress a bit and observe that Section 7 of the National Industrial Court Act (NICA), 2006 conferred on this court exclusive jurisdiction to adjudicate on civil causes and matters relating to labour, including trade unions and industrial relations; and environment and conditions of work, health, safety and welfare of labour, and matter incidental thereof amongst others. These provisions as provided in the most inordinate and over bloated manner were reinforced and strengthened by section 254C (1) of the Constitution (Third Alteration) Amendment Act, 2010. In specific reference to this case, section 254C (1) (a) of the Constitution (Third Alteration) Amendment Act, 2010 provides that this Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith. The combined effects of section 7 of the NICA, 2006 and section 254C (1) of the Constitution (Third Alteration) Amendment Act, 2010 are that the present jurisdiction of this court is exclusive to it and cannot be shared with other courts. See John v. Igbo-Ekiti Local Government Area (2013)7 NWLR (Pt. 1352) 1.

35. From the foregoing discuss, one can see that since the promulgation of the Third Alteration Act 2010, there has been an increasing influence of International Labour Organisation (ILO) jurisprudence in the adjudication of labour disputes, a product of the statutory and constitutional mandate of this court in virtue of section 7(6) of the NIC Act 2006 and section 254C(1)(f) and (h), and (2) of the 1999 Constitution, which permit this Court to, when adjudicating, apply international best practices in labour and the Treaties, Conventions, Recommendations and Protocols on labour ratified by Nigeria. This legislative mandate of this Court has been affirmed and reiterated by the Court of Appeal. His Lordship Nimpar, JCA in Ferdinand Dapaah & anor v. Stella Ayam Odey [2018] LPELR-46151(CA) takes cognizance and recognized the constitutional power of the NICN to rely and apply international conventions which have close bearing to the claims related to workplace and labour matters.

36. And His Lordship Ogakwu, JCA, in the lead judgment in Sahara Energy Resources Ltd v. Mrs Olawunmi Oyebola [2020] LPELR-51806(CA), went a step further in reading section 254C(1)(f) and (h), and (2) of the 1999 Constitution as imposing an “obligation on [this] Court to now apply good or international best practices in adjudication”. From the foregoing, there is no gainsaying that a new labour jurisprudence is now with us, different from what it was in the past. And without any fear of contradiction, nowhere is the increasing influence of ILO jurisprudence more pronounced than in litigation as to unfair labour practices. This can even be seen in the manner in which section 254C(1)(f) of the 1999 Constitution is couched. The section confers exclusive jurisdiction on this court in civil causes and matters “relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters.” The concept of unfair labour practice must be seen as the law’s attempt to denounce practices that are unfair in the workplace. In Dr Awkadigwe Fredrick Ikenna v. Dr Olusegun Olaopa & 2 ors Unreported Suit No. NICN/EN/26/2019, the judgment of which was delivered on 27 February 2020, this court while following the ratio of Ogakwu, JCA in Sahara Energy Resources Ltd (Supra) also held that this court “has the sacred duty to prevent unfair labour practice.”

37. The claimants, in the instant case, vide Exhibits “F, G, H, and I” were summarily dismissed by the defendant for ‘coordinating a meeting’ in Defendant premises without the permission of Defendant and or its management. Defendant relied on section 2.4 (g) (j) and section 5.4 of Exhibit ‘D’.

38. Counsel to the defendant in paragraphs 4.4, 4.5 and 4.6 of Defendant’s Final Written Address justified this very act of the Defendant. The Claimants counsel however see the act of the Defendant as a clear breached of the Claimants fundamental rights to peaceful assembly and association.

39. Though neither the Constitution nor any enactment in Nigeria defines unfair labour practices, it must, however, be noted that while the notion of unfair labour practices relates more to employees (unfair practice being seen from the prism of the actions of the employer), there is nothing in principle that says that employees cannot act unfairly in the workplace (as by unlawful industrial actions) as to warrant their actions being challenged on the ground of the unfair labour practice principle. In other words, the unfair labour practice concept is thus a catch-all phrase for litigating the numerous wrongdoings in the workplace. The wrongdoings may relate to rights at work, which are often treated on the basis of, and as, human rights for the simple reason that they attach on the basis of our humanity. It is also worth noting that though Nigeria has not ratified the Termination of Employment Convention, 1982 (No. 158) (C.158) and its accompanying Termination of Employment Recommendation, 1982 (No. 166) (R.166) of the ILO, but by virtue of section 254C (2) of the Constitution this court has the jurisdiction and power to invoke its provisions.

40. It follows therefore that when the provisions of these instruments are closely considered, the issues they cover easily qualify as issues of fair or unfair labour practices as enjoined in section 254C (1) (f). Instances are therefore abound of unfair labour practices such as the termination of the employment of an employee for union membership or participation in union activities (Article 5 of C.158) is an unfair labour practice; failure to terminate an employment for misconduct within reasonable time must be deemed as waiver or condonation by the employer (paragraph 10 of R.166) — any subsequent termination must thus qualify as unfair labour practice. In like manner, this court severally had the opportunity to declare certain acts of employers against employees as unfair labour practices. For instance, in the case of Mr Olabode Oguntale & 64 ors v. Globacom [2013] 30 NLLR (Pt. 85) 49 NIC the court held as unjust, exploitative and unfair labour practice the respondent’s failure to issue the claimants with written particulars of the terms of their contract of employment; the respondent having to stop the issuing of pay-slips to the claimants and many of such. In NUPENG v. Management of NICOTES Services Ltd (2010) 20 NLLR (Pt. 56)61 the court held that preventing employees from joining unions or participating in union activities constituted an unfair labour practice.

41. In the light of the foregoing, I have closely taken a look at the Kiara Rice Mills Ltd Employee Handbook/Condition of Service marked as Exhibit D and Abdulrahman 4 tendered by both parties respectively. I have also studied the content of the said Exhibit D especially section 2.4 (g) and the punishment as provided for in section 5.4 which states: “The Management may summarily dismiss any employee found guilty of serious misconduct vide 2.4 above. In such cases, no notice will be given.”

42. It is the defendant’s contention that the claimants held a meeting in its premises on the 14^th September, 2023 without the approval of the management which contravenes the provision of Section 2.4 (g) and (j) of the Employee Handbook and paragraph 10(b) of their Employment Agreement. In other words, the price the Claimants had to pay, going by the condition of service between them and the Defendant, is to pay the supreme price of summary dismissal from their employment and which Defendant without notice effected vide letters dated 18^th September, 2023.

43. Let me weigh in and look at Defendant’s reasoning in the context of ILO’s Decent Work instrument. The ILO defines decent work as productive work for women and men in conditions of freedom, equity, security and human dignity. It means that work is considered decent when it pays a fair wage or income; guarantees a secure form of employment and safe working environment or conditions; better prospects for personal development and social integration and allows workers participate in the decisions that affect their lives and work conditions. See Nigeria Decent Work Country Programme III (DWCP) 2023 – 2027 and www.ilo.org.)

44. In today’s world, I still cannot fathom and comprehend how the holding of a meeting of a union of workers to seek labour welfare can be seen as a serious misconduct deserving of a dismissal. In other words, employers such as the defendant should note that human beings remain human even when they come to work, and so are entitled to basic dignity in the workplace as well. See Ferdinand Dapaah & anor v. Stella Ayam Odey [2018] LPELR-46151(CA). This court in the case of Adesanya Adeyemi Joachim v. Union Registrars Limited Unreported Suit No. NICN/LA/139/2014 the judgment of which was delivered on 17 December 2019 had held as unfair labour practice the termination of the claimant’s employment on grounds of trade union activities. I am of the opinion that the provisions of section 2.4 and 4.5 of Exhibit D does not only constitute an unfair labour practice but also fall short of the ILO’s Decent Work requirement of freedom, equity, security and human dignity. It follows therefore that claimants’ reliefs ‘a’, ‘b’, and ‘c’ in the light of the forgoing must be granted and accordingly hereby succeeds. I so hold.

45. Claimants by their relief ‘d’ prayed for a declaration that the defendant’s act of bringing Policemen to march them around like criminals and slave forcing them to sign their termination letters is in violation of their right to dignity of their persons and right to personal liberty. The 2^nd claimant pleaded in paragraph 17 of their statement of facts that at the end of the peaceful meeting they had on the 13^th September, 2023, three Police Officers, one with a gun stood close to him in less than 0.5 meters away from his head, while the other two were holding a plank in their hands and stood at a distance of 8 feet from him and collected his laptop like a criminal. The important question that comes to mind is whether the defendant’s action contravenes the provision of Section 34(1) of the 1999 Constitution as amended that guarantees the right to dignity of human person. The courts have interpreted this right to mean thatevery individual is entitled to be treated with respect and dignity, and to be protected from any form of degradation, humiliation, or mistreatment. See Ezeigbo v. Asco Inv. Ltd. (2022) 8 NWLR (Pt. 1832) 367. I have perused the exhibits before this Court and the evidence adduced and I find no evidence or connection between the defendant’s action and the said Section 34(1). The law is trite that the burden of proof lies on the party who assert a fact to discharge that burden by leading cogent and credible evidence with a view of establishing his case. See Arigbabu v. Oyegunugu [2019] LPELR-47381 CA; Inua v. FBN Plc [2016] 2NWLR (pt. 1495) 89 (CA). Section 123 of the Evidence Act 2011 provides that a court may take judicial notice of any matter which is of common knowledge within the area where the court is sitting. It is of common knowledge that every Police Officer has a right to carry gun. The fact that a police officer was holding a gun does not necessary mean that the claimants were being threatened. The Defendant in its defence vehemently denies this and the submission in support of it. And the claimants have not placed any credible evidence before this Court to prove that they were threatened by the said Police Officer(s). it is trite that where a trial court holds that there is no evidence against a defendant, as in this case the proper order which the court ought to make is that of dismissal of the claim against such defendant. This is because the onus is on the claimant to prove his case against the defendant on preponderance of evidence. The court has to dismiss a claim where the claimant fails to discharge the onus placed on him. See Akinboro v. Lemboye (2002) 10 NWLR (Pt. 774) 65. I am also mindful that I am bound by the principles of evidence. See 12 NICA, 2006. It has been held that the Court cannot speculate or conjecture in any case as it must be guided by credible evidence. See SHARING CROSS EDUCATIONAL SERVICE LTD v. UMARU ADAMU ENTERPRISES LTD & ORS (2015) LPELR-24661(CA); ASCON v. AKINBAMI (2008) ALL FWLR (401) 932, 950. It is in the light of this that I find and hold that the claimants’ reliefs ‘d’ fails and is hereby dismissed. This I so hold.

46. Claimants by their relief ‘e’ claims the sum of Two Hundred Million Naira (?200,000,000.00) as damages. The law is settled that damages are awarded where a wrong is established. See section 19 (d) NICA, 2006. I have held above that the summary dismissal of the claimants was wrongful, and as a general principle of law, the remedy available to the claimants for wrongful dismissal lies in damages. See the case of Sahara Energy Ltd v. Oyebola [2020] LPELR-51806(CA).

47. The Supreme Court had cause to explain the quagmire usually associated with cases such as this where claimant after succeeding goes home with nothing but a one-month salary in lieu of notice. According to the Supreme Court in SKYE BANK PLC v. ADEGUN (2024) LPELR-62219(SC) @ 48 – 50 the new labour jurisprudence with the 3rd Alteration to the 1999 Constitution and the provisions of the law in that regard, particularly Section 7(6) of the National Industrial Court Act, 2006 mandates that every Court shall have recourse to good or international best practices in labour or industrial relations. The court held in the following words:

“I do not think the courts should continue to use the former settled position of the law which is that no matter how hurtful, unreasonable or wrongful the termination of appointment is, the employee is only entitled to one month’s salary in lieu of notice to determine the quantum of damages. Every case must be determined on its facts.”

The court further held that:

“There is no doubt that the policy of the legislature to introduce new labour relations principles and international best practices into the adjudication of the law in employment and labour relations in yet a fluid policy, merely pointing the judex to the new road to follow, there must not be confusion. The award of general damages to compensate the employee whose character has been besmirched and whose ability to work upon wrongful dismissal has been greatly diminished cannot be by rule of thumb, but must be based on sound legal principles.”

48. I am also not unmindful of the decision of the same court in the case of Dangote Cement Plc v. Peter Atom Ager (2024) LPELR-61800(SC) where the court reiterated the settled common law position that the law is now firmly established that the quantum of damages a claimant would be entitled to is the sum or amount of money to be paid in lieu of the requisite notice for the proper termination of the employment. We should note that the cause of action in this case arose prior to the Third Alteration Act 2010, and so, as enjoined in the case of Isaac Obiuweubi v. CBN [2011] LPELR-2185(SC) that a case is decided by the law applicable at the time the cause of action arose. Given the Skye Bank Plc’s advice, it is arguable that Dangote Cement Plc’s position will apply to pre-Third Alteration and not post Third Alteration causes or matters.

49. The Claimants in this case has shown that they have suffered damages much more than the ordinary for the trauma, psychological, emotional and mental pain caused after being unreasonably summarily dismissed from service. The court in SKYE BANK PLC v. ADEGUN (Supra) made reference to the case of BRITISH AIRWAYS v. MAKANJUOLA (1993) 8 NWLR Pt. 311 Pg. 276 at 288 per Ubaezonu JCA, where the Court awarded the equivalent of two years’ salary to the employee whose employment was wrongfully terminated after unfounded allegations of malpractice which carried a stigma on the character of the employee. With humility, I adopt the reasoning and holding of the Supreme Court in Skye Bank Plc v. Adigun (Supra) that two-year monthly salary as captured in Exhibit ‘e’ for each of the claimants is adequate as damages. This I so hold.

50. Claimants also claims the sum of Two Hundred Million Naira (?200,000,000.00) in their relief ‘f’ as compensation for violation of their right to peaceful assembly and right to dignity of their persons. I have in relief ‘e’ awarded damages to each of the claimants. The law is that if all the losses suffered by a plaintiff have been Compensated for by an award of special damage, the court should refrain from awarding general damages to the plaintiff in order to avoid double compensation. See Kerewi v. Odegbesan (1965) 1 All N.L.R. 95 at 99; Railway Corporation v. Odemuyiwa (1974) N.M.L.R. 115; Lagos City Council v. Unachukwu (1978) 3 S.C. 199, at 206-207. In the light of the foregoing, I see no reason in granting this relief as to do that will amount to double compensation. Accordingly, claimants’ relief (f) hereby fails. I so hold.

51. The claimants claim by their relief ‘g’ cannot be sustain in view of the order made in relief ‘e’ above as it is subsumed. It is in view of this that I find that the claimants’ relief ‘g’ fails. I so hold.

52. The 3^rd claimant claims the sum of 5 million naira for each day the four social media platforms had his picture appeared for advertisement. 3^rd claimant averred in paragraph 40 of their pleadings that he was surprised to see his picture on the defendant’s social media pages. The defendant on the other hand contended that the 3^rd claimant consented that his picture be used for advertisement. It is trite that while the legal burden in civil cases is always not static, the evidential burden of proving a particular fact in pleadings is on the party asserting the existence of a fact. See the cases of Odom v. PDP & Ors [2015] LPELR-24351 (SC) 1@43-44, para-B; Oni v. Ojogbogbo [2015] LPELR-4 (CA). In proving his claim, 3^rd claimant tendered Exhibit N which are his pictures used on the defendant’s four social media platforms. Now the question that comes to mind is whether there was any agreement between the 3^rd claimant and the defendant. I am mindful of the fact that Court cannot act on mere speculation or conjecture but parties are expected to prove their case on the preponderance of evidence. I have perused the documents tendered by the claimants and there is nothing to show that there was any agreement in the Letter of Employment, Employment Agreement and the Employee Handbook to suggest that it is part of the condition of service. For the Defendant to argue that consent was sought it behooves on Defendant to adduce such evidence to rebut the evidence led by 3^rd claimant. Preponderance of evidence means that the evidence of the party on whom lies the onus of proof is more likely to be true than that of the adverse party. It is used interchangeably with balance of probabilities. It also means that one side’s position outweighs the other when all admissible evidence before the court is put on an imaginary scale. See Odofin v. Mogaji (1978) 4 SC 91; Omorhirhi v. Enatevwere (1988) 1 NWLR (Pt. 73) 746. In the absence of Defendant proving otherwise, I am left with no option than to hold that 3^rd claimant has on the preponderance of evidence discharge the burden of proof on him and therefore entitle to compensation. I accordingly hereby award the sum of ?600, 000. 00 as compensation to the 3^rd claimant. Relief ‘h’ hereby succeeds. I so hold.

53. By the claimants’ relief ‘i’ as it relates to the 1^st 2^nd and 4^th claimants as regards their monthly pension contributions. I am amazed that 1^st, 2^nd, and 4^th Claimants fail to bring any evidence from their pension administrators having confirmed who their pension managers are to help the court in making an informed decision. I therefore find that the 1^st 2^nd and 4^th claimants’ relief ‘i’ fail for want of prove. However, in considering relief ‘j’ which is similar to relief ‘i’ I have no hesitation in ordering that the claim succeeds as Defendant did not contest the fact that 3^rd and 5^th Claimants have no pension administrators. Therefore relief ‘j’ succeeds. I so find.

54. Having resolved and held that relief ‘i’ fails it goes without saying that relief ‘k’ which is ancillary to ‘i’ must automatically fail. It is in view of this that I find that relief ‘k’ fails. I so hold.

55. The claimant claims the sum of Two million, five hundred thousand naira as cost of action. It is the law of common place that cost follows event and a successful party is entitled to cost. It is usually awarded at the discretion of the Court. The Court in doing so must exercise its discretion judicially and judiciously. See the case of Ogada Industries Ltd & Anor v. Union Homes Saving and Loans Plc & Ors [2019] LPELR-48334 (CA). Accordingly, I hereby award the sum of ?500, 000.00 as cost in favour of the Claimants. I so find.

56. Judgment is hereby entered.

………………………………

Hon. Justice E. D. Subilim

JUDGE

17/12/2024

Color

WD