By Folabi Kuti
Unarguably, the ex cathedra decision of the Court of Appeal, Nigeria in Appeal No. CA/L/1091/2016 Sahara Energy Resources Limited v Mrs. Olawunmi Oyebola, delivered on December 3, 2020, represents perhaps the single most significant decision on the employment landscape in 2020. Here, the final court on labour and employment matters, in a significant shift from some of its previous disapproving decisions, affirmed the latitude, within set parameters, of the National Industrial Court of Nigeria (NICN/the Court) to depart from orthodoxy common law prescriptions, restricting the quantum of damages to remedy deserving wrongful termination cases. Instructive though, is the incremental approach with which the NICN, roundabout the same timeline of 2020, has also continued to apply its statutory powers to apply equity in many deserving cases. A good number of noteworthy cases will be recapped to bear this out.
In Captain Benedict Olusoji Akanni v. The Nigerian Army & 3 Ors (Unreported Suit No. NICN/ABJ/125/2018, judgment delivered May 27, 2020; per Hon-Justice B.B Kanyip PhD, President, NICN), the NICN awarded N75 million for loss of expectation and psychological trauma, as a result of the arbitrary and illegal actions of the 1st defendant. Similarly, in Ugochukwu Edmund Okwu v Zenith Bank Plc (Unreported Suit No. NICN/LA/85/2017, judgment delivered September 10, 2020 ; per Hon-Justice R.H Gwandu) upon a finding that a suspension without pay for 77 months was inhumane and tantamount to unfair labour practice, the NICN, awarded the sum of N33,194,245.70 (Thirty-three Million, One Hundred and Ninety-Four thousand, Two Hundred and Forty-Five Naira, Seventy Kobo) in favour of the claimant. The rationale was hinged on arrears of salary from the date of suspension to the day the claimant retired. Still on NICN’s high watermark compensatory damages, in apparently deserving cases, Chukwudoro v Oiltest Well Services Limited (Unreported Suit No. NICN/EN/53/2013, judgment delivered September 28, 2020; per HonJustice O.O Arowosegbe) and Osazuwa v International Tobacco Company & Anor (Unreported Suit No. NICN/EN/25/2016, judgment delivered September 29, 2020; per Hon-Justice O.O Arowosegbe) are standalone seminal judgments. The NICN, inter alia, greatly expounded the broad scope of discriminatory practices that will amount to unfair labour practices; deserving of ‘penalties that must have a dissuasive effect on potential perpetrators of discrimination’.
Similarly, the NICN intervened to award the sum of N10,000,000.00 (Ten Million Naira) to an academic in Dr Ebong v University of Uyo (Unreported Suit No. NICN/UY/33/2017, judgment delivered September 28, 2020; per Hon-Justice M.A Namtari). The amount was awarded as exemplary and aggravated damages for the cruelty the hapless academicclaimant was made to endure in the hands of the defendant from 2002 till 2020 when an order of reinstatement was made.
In Godwin v Nigerian Bottling Company Ltd (Unreported Suit No. NICN/MAID/01/2017, judgment delivered May 8, 2020; per Hon-Justice K.I Amadi) the NICN made a finding of wrongful dismissal, which it commuted to termination without loss of terminal benefits. The Court further awarded the sum of N6,962,715.98, (Six Million Nine Hundred and Sixty- two Thousand, Seven Hundred and Fifteen Naira, Ninety-Eight Kobo) being an aggregate of the claimant’s basic salary for two years, and an additional sum of N3,481,357.99, (Three Million, Four Hundred and Eighty-one Thousand, Three Hundred and Fifty-Seven Naira, Ninety-Nine Kobo) being the claimant’s annual salary for one year as terminal benefits.
In Olaleye v Polaris Bank Limited & Ors (Unreported Suit No. NICN/LA/24/2011, judgment delivered December 15, 2020; per Hon-Justice I.G Nweneka), the Court awarded the sum of N5,000,000.00 [five million naira] as aggravated damages for the defendants’ wrongful conduct in holding-up the claimant’s confirmation after the stipulated sixmonth probationary period and for wrongful termination of his employment.
In Segun Awofiraye v First Bank of Nigeria Limited (Unreported Suit No. NICN/LA/192/2017, judgment delivered September 10, 2020; per Hon-Justice R.H Gwandu), the defendant falsely represented, as held by the Court, that the claimant’s resignation would be treated as early retirement with incentives. This induced the hapless Awofiraye to turn in his resignation letter after 30 years of service; only to have the defendants turn around and deny his benefits, whilst also confronting him with an unpaid staff loan of N5, 876,884.16. The Court, on an even scale of justice, awarded the claimant a ‘gross pay, basic and benefits of N30,353,826.26’ being one year emoluments as damages for breach and violation of the terms of claimant’s appointment.’
In Festus Oluwagbenga v Ondo State Judicial Service Commission & Ors (Unreported Suit No. NICNAK/11/2018, judgment delivered February 5, 2020; per Hon-Justice O.O Oyewumi) the NICN awarded the sum of (Two Million Naira) N2,000,000.00 to the claimant as exemplary and/or aggravated damages. This came upon a finding of ‘career stagnation and regression, financial misfortune, emotional trauma, disorder, shame and ridicule caused by the defendants to the claimant since September, 2017 on the footing of the unfair labour practice in the form of malicious/unlawful suspension without pay, demotion, reduction in salary, rank, cadre and withholding of salaries and emoluments as Senior Magistrate I grade level 14, diminution of right retrospectively which claimant was subjected to by the defendants’.
Similarly, in two similar cases which turned on a finding of forced resignation amounting to constructive dismissal, the claimant in each case was awarded the sum of N1 Million only being general damages for constructive dismissal. The cases are Fadipe v Cedarcrest (Unreported Suit No. NICN/ABJ/147/2018, judgment delivered July 8, 2020; per Hon-Justice B.B Kanyip PhD, PNICN) and Lucia Balonwu v Voluntary Services Limited (Unreported Suit No. NICN/ABJ/280/2018, judgment delivered July 22, 2020; per HonJustice B.B Kanyip PhD, PNICN).
Suffice to state that the NICN, within the 2020 timeline, has considerably expanded the horizon of factual circumstances that will amount to unfair labour practice; deprecating the same, and awarding compensatory damages in many cases. Like in Johnson v Law Union & Rock Insurance Plc (Unreported Suit No. NICN/ABJ/45/2016, judgment delivered May 26, 2020; per Hon-Justice E.N Agbakoba). Here, the Court held that the denial of annual leave entitlement amounted to unfair labour practice. The sum of N9, 683, 540.88 (Nine Million, Six Hundred and eighty-three thousand, Five Hundred and Forty Naira Eighty-eight Kobo), representing two years’ salary, was awarded to the claimant as compensation for the denial of the enjoyment of his annual leave throughout his employment with the defendant. A similar finding -in principle- was reached in Abdullahi v National Bulk Electricity Trading Plc & Ors (Unreported Suit No. NICN/ABJ/349/2018, judgment delivered March 11, 2020; per Hon-Justice O.O Oyewumi).
Despite the rationale for high watermark compensatory damages in deserving cases, a few cases within the 2020 timeline may have, advertently, heightened a concern as to the potential width of the emerging principle and the seeming uncertainty as to its limits. In Comrade Eze v Comrade Sale & 2 Ors, (Unreported Suit No. NICN/CA/53/2017, judgment delivered October 12, 2020; per Hon-Justice O.Y Anuwe ), upon a finding of denial of freedom of association and suspension from office, the claimant was compensated with the sum of N 50 million as general damages.
Equity came in handy in Okorafor v Continental Transport Technic Ltd (Unreported Suit No. NICN/LA/339/2015, judgment delivered June 30, 2020; per Hon-Justice N.C.S Ogbuanya). Here, upon a masterly analysis of the intricacies of a guised termination targeted at denying a long-serving employee his terminal benefits, the Court rightly and conceivably concluded that the termination was wrongful and constituted an unfair labour practice. The termination was ordered converted to a retirement, and the defendant company ordered to pay the claimant/former employee his earned terminal benefits. The NICN, within the same spirit it seems, decided the case of Okoebor v Ecobank Nigeria Limited (Unreported Suit No. NICN/ABJ/317/2017, judgment delivered June 3, 2020; per Hon-Justice Kado Sanusi) in similar fashion.
At the time of termination of the claimant’s employment, he had worked for a cumulative period of nine (9) years. The defendant had pegged the threshold for entitlement to gratuity, to a consecutive period of 9 years of employment; prior to determination/termination. The bank claimed that the claimant fell short of this by a few days. After an exhaustive examination of the disputed day-count, the Court, applying the doctrine of arithmetical approximation, held that the defendant had served for a cumulative period of nine (9) years and therefore was qualified for gratuity – which was ordered to be paid, in addition to other reliefs.
Unrelenting as the efforts of the labour court were within the 2020 timeline, it was also afforded the opportunity to deal decisively with what appears to be a disturbing trend in the pharmaceutical industry. This relates to a requirement that employees complete an exit clearance or ‘successful disengagement’ process as condition precedent to the release of their original educational certificates; collected by the employer at the start of employment. These employment disputes involving 3 pharmaceutical companies, across two divisions of the NICN, returned with similar holdings of unfair labour practice. The fact patterns are strikingly similar to many which are known anecdotally throughout the world of work.
Pharmacists are engaged as medical/sales representatives, and at the point of engagement, asked to submit the originals of their university certificates. The companies keep them, and these employees only become entitled to their return, upon ‘successful clearance’ when their contract of employment is ended; either through resignation or termination. The 3 cases where the court was opportune to deal with this unscrupulous practice were: Mr. Adebayo v Superior Pharmaceutical Ltd (Unreported Suit No. NICN/AK/62/2018, judgment delivered on February 17 2020; per Hon-Justice A.A Adewemimo); Pharm. Obateru Olufemi Abidemi v Fidson Healthcare Plc (Unreported Suit No. NICN/AK/06/2018, judgment delivered on February 17 2020; per Hon-Justice A.A Adewemimo); and Seagreen Pharmaceuticals Ltd v Adaji Gabriel (Unreported Suit No. NICN/KD/16/2017, judgment delivered on December 1, 2020; per Hon-Justice S.O Adeniyi).
In all 3 cases, the NICN deprecated the practice of holding over these certificates, ordering their immediate release, whilst also awarding damages against the affected companies. The court had cause in a separate case to pronounce again on some variant of this practice; albeit in a different hue and industry. This involved the procurement of an employee’s certificate (as a qualified Mining Engineer) to enable an employer ‘hold the same out’, in compliance with a statutory precondition, needed to evince that it (employer) can carry out mining activities. The claimant/employee in Engr Tarfa Dzarma Garba v Ashaka Cement Plc & Anor(Unreported Suit No. NICN/BAU/13/2017, judgment delivered February 28, 2020; per Hon-Justice K.I Amadi) was so held out as a Supervising Mining Engineer when in fact he did not so act/work. Much less straightforward, with respect, is the ratio decidendi, to compensate this former employee, relying on section 19(d) of the National Industrial Court Act 2006, with the sum of N2,000,000:00 ‘for the period he was held out to be the supervising mining engineer during which period he did not so act’. On the facts as accepted, it appeared that the moral compass pointed unswervingly to not rewarding either of the two wrongdoers.
The Court also provided additional guidance regarding minimal thresholds for claims (and/or defence) of compensatory damages attending upon workplace injuries and accident. In Daniel v Seven-Up Bottling Co. Ltd (Unreported Suit No. NICN/KD/13/2019, judgment delivered October 13, 2020; per Hon-Justice O.O Adeniyi), the Court dismissed a claim for compensation or damages on the ground that the Claimant failed to ‘satisfactorily pinpoint any real or concrete injuries he suffered’. The claimant in Bamidele v Nigeria Electricity Liability Management Limited/GTE (Unreported Suit No. NICN/AK/14/2018, judgment delivered January 16, 2020; per Hon-Justice A.A Adewemimo) had gone to rectify an electrical fault on a pole, when a high-tension wire fell on his head, causing him severe burns. Not only did the defendants abandon the claimant to his travails, but there was also a finding of breach of duty of care. The claimant was awarded the sum of N20,000,000.00 [Twenty million naira] as general damages.
In Chigozie Esther v Covenant University & 2 Ors (Unreported Suit No. NICN/IB/52/2017, judgment delivered March 03, 2020; per Hon-Justice J.D Peters) the claims against the defendants were in ”Negligence for the failure of the defendants to keep the kitchen in safe condition to prevent it from being slippery …’. The claimant made a case for negligence leading to a workplace injury suffered, but neither pleaded nor proved the particulars of negligence as required. The case, understandably, was dismissed.
In Ukpong v CGCOC Group of Companies Ltd. (Unreported Suit No. NICN/CA/24/2019, judgment delivered January 24, 2020; per Hon-Justice M.N Esowe) the claimant’s left hand was severely damaged as a result of an industrial accident due to the defendant’s negligence. The Court awarded the sum of Five Million Naira (N5,000,000.00) as general damages for the loss of amenities of life. In Ojeikhoa v Nicon Luxury Services Ltd & Anor. (Unreported Suit No. NICN/ABJ/446/2016, judgment delivered June 30, 2020; per Hon-Justice R.B Haastrup) the Court rightly invoked the provisions of Section 19(d) of the National Industrial Court Act, 2006 in awarding the sum of N5, 000, 000.00(Five Million Naira) as compensation. The claimant lost his foot in the course of employment with the 2 nd defendant.
In Adetayo v Nigeria Breweries Plc (Unreported Suit No. NICN/LA/617/2017, judgment delivered December 14, 2020; per Hon-Justice Elizabeth A. Oji, PhD) the claim was for compensation for the physical impairment allegedly suffered by the claimant while in the employment of the defendant as a machine operator. The claim failed as the Court held that the claimant failed to place evidence establishing the exact nature of his job; predisposing him to the said physical impairment – Lumber Spondylosis R/O Back Strain.
In 2020, the NICN also had cause to construe statutory intent as applied to specific matters in controversy. In Abodunrin Etti v Lagos State Judicial Service Commission (Unreported Suit No. NICN/LA/674/2018, judgment delivered September 30, 2020; per Hon-Justice Mustapha Tijani) the claimant challenged the validity of his retirement as a Magistrate relying on the 35-year timeline threshold indicated in the Public Service Rules, as opposed to the 60-year retirement age stipulated in the Magistrates’ Court Law, Lagos. The Court’s judgment in this case is commendably authoritative for its thorough examination wherein it found the claimant’s case proved.
The decisions in Incorporated Trustees of Human Development Initiatives (HDI) & 39 ors v. Governor of Abia State & 73 ors (Unreported Suit No. NICN/ABJ/47/2019, judgment delivered on 23rd January 2020; per Hon-Justice B.B Kanyip PhD, PNICN); and Barrister Bala James Nggilari v Adamawa State Government (Unreported Suit No. NICN/ABJ/47/2019, judgment delivered on 23rd January 2020; per Hon-Justice B.B Kanyip PhD, PNICN) offer a rich discourse/treatise on the interpretation of seemingly far-flung but interrelated constitutional provisions.
Pronouncing that State pension laws made pursuant to section 124(5) of the 1999 Constitution were valid and constitutional, the Court held that the exclusive legislative power of the National Assembly under section 4(3) of the Constitution was not absolute. A fortiori, it subjects the exclusive legislative power of the National Assembly to other provisions of the Constitution. Section 124(5) (which endows the states’ House of Assembly with power to make laws on pension or gratuity in respect of specified officeholders) is one such provision; thus section 124(5) overrides the exclusivity of legislative power of the National Assembly.
The Companies and Allied Matters Act (CAMA) is a legislation that, by jurisdictional apportionment, gets squarely interpreted at the Federal High Court, even as there are vestiges of jurisdictional power suitable for the NICN in appropriate circumstances. The claimant in Onyejiaka v Mr Oluwakemi Balogun (Liquidator of Woolworths Retail Stores) (Unreported Suit No. NICN/LA/200/2014, judgment delivered June 3, 2020; per Hon-Justice O.A Obaseki-Osaghae), rode roughshod over these principles, and accordingly the suit was struck out for failure to obtain leave of the Federal High Court (in accordance with section 567) to bring an action against the Liquidator of a Company.
The claimant company in Dreamworld Leisures Limited v Jude Attoh (Unreported Suit No. NICN/LA/494/2019, judgment delivered July 22, 2020; per Hon-Justice Ikechi Gerald Nweneka) sought to, inter alia, restrain the defendant from parading himself as the Managing Director of the claimant company; having been suspended at a board of directors’ meeting. The Court upheld the defendants objection to the suit; being an action exclusively within the jurisdiction of the Federal High Court. Contrariwise, the NICN in Sogo v HEBN Publishers Plc (Unreported Suit No. NICN/IB/41/2018, judgment delivered March 12, 2020; per Hon-Justice J.D Peters) agreed that the purported termination of the claimant’s employment as Managing Director (MD/CEO) of the defendant is inconsistent with Clauses 56 and 60 of the Memorandum and Articles of Association of the defendant, Section 262(1) & (2) of the Companies and Allied Matters Act, and therefore wrongful, unlawful, invalid, null and void and of no legal effect.
The Court in Omotosho & Ors v Mr Seyi Akinwunmi (Receiver/Manager, Evans Medical Plc) (Unreported Suit No. NICN/LA/526/2018, judgment delivered April 27, 2020; per HonJustice Ikechi Gerald Nweneka) rightly upheld the general intent of Section 390[b] of the CAMA, as the duty to ensure, as first-line charge, the payment of salaries and allowances of employees of companies under receivership.
In a series of cases, the NICN frowned deprecated the veiled, and unproven ground of ‘restructuring’, ‘reorganization’ and/or ‘redundancy’ given by the employer as reason for termination of the claimants’ employments. The cases are Okoh v Pamela Steele Associates Ltd (Unreported Suit No. NICN/ABJ/57/2019, judgment delivered September 23, 2020; per Hon-Justice O.O Oyewumi); Yakawu & Anor v Federal Housing Authority (Unreported Suit No. NICN/ABJ/38/2014, judgment delivered July 22, 2020; per HonJustice Sanusi Kado); and Oladejo Elizabeth v NTA-Star TV Network Ltd (Unreported Suit No. NICN/ABJ/259/2018, judgment delivered on December 17 2020; per Hon-Justice B.B Kanyip PhD, PNICN).
The cases of Abe Adewunmi Babalola v. Equinox Int’l Resources Ltd (Unreported Suit No.NICN/166/2015; Judgment delivered on 17th June 2020; per Hon-Justice N.C.S Ogbuanya); and Akindele v Netconstruct Nigeria Limited (Unreported Suit No. NICN/LA/559/2017, judgment delivered September 08, 2020; per Hon-Justice N.C.S Ogbuanya) restated the principle that there is no fractional payment of salaries in periodic employment. The Court’s illuminating proposition, further applied in Akindele’s availed an employer a convenient balance of holding an employee to his bargain. The ‘four weeks’ notice period an exiting employee gave the employer, was held ineffectual and contrary to the ‘three months’ notice’ in the contract of parties. The employee was in the circumstance held to have resigned without notice, and liable to pay a sum equivalent to one-month salary to the employer.
On the public interest litigation front, the Court heard and dismissed a fundamental rights action in Incorporated Trustees of Laws and Rights Awareness Initiative v Federal Government of Nigeria (Unreported Suit No.NICN/ABJ/292/2019; Judgment delivered on 21stMay 2020; per Hon-Justice O.Y Anuwe). The claimant sought a pronouncement, inter alia, that the failure of the Federal Government to ensure the payment of a federal minimum wage of N30,000 as prescribed in the National Minimum Wage Act 2019 amounted to forced labour of its employees, and a violation of their right to human dignity. The Court found that there was no concrete and convincing evidence to establish that the Respondent pays less than the minimum wage to the workers.
Similarly, in Lawyers Alert Initiative for the Protection of the Rights of Children, Women and the Indigent v Attorney General of the Federation (Unreported Suit No.NICN/ABJ/37/2019; Judgment delivered on June 20 2020; per Hon-Justice B.B Kanyip PhD, PNICN) the applicant, a Human Rights non-governmental organization complained of non-compliance with the provisions of section 21(1) of the HIV and AIDS (AntiDiscrimination) Act 2014. It alleged that the non-compliance by employers of labour, invariably violated the rights of Persons Living with and Affected by HIV and AIDS. It instituted the action praying the Court for an order compelling the Attorney General of the Federation to ensure employers of labour (Ministries, Agencies and Departments, including the Private Sector) develop and register HIV & AIDS workplace policies with the Minister of Labour & Employment. The action however failed on twin grounds of lack of standing to institute the action, as well as for failure to prove vital requirements of the said HIV and AIDS (Anti-Discrimination) Act 2014.
In Captain Umusu v Azikel Air Limited (Unreported Suit No.NICN/ABJ/340/2018; Judgment delivered on February 26, 2020; per Hon-Justice K.D Damulak) an employee who took benefit of a Training Bond was held to his bargain. The court found that having worked for less than one month upon completion of the training, contrary to the terms of the Bond with employer, he was liable to return the outstanding amount incurred for his training under the Bond. The facts in Irokotv.com Limited v Michael Ugwu (Unreported Suit No.NICN/LA/169/2015; Judgment delivered on November 12, 2020; per Hon-Justice J.D Peters ) are different. An attempt by the employer to import a noncompete clause into the contract of parties, two months after start of the employment relationship, and when the employee had been led to substantially alter his position, was held invalid and unenforceable; being a covenant in restraint of trade and against public policy.
In Prof. Brown v University of Port Harcourt (Unreported Suit No.NICN/PHC/02/2017; Judgment delivered on March 20 2020; per Hon-Justice F.I Olalere)the NICN intervened to restore the rank of Professor of Pharmaceutics and the entitlements to the rank. The defendant, through a retrospective disciplinary action had wrongfully withdrawn these rights on a flimsy wrong that had always been within its knowledge and which it had condoned. In similar thrust, the NICN intervened in Dr Eze v Federal University Otuoke (Unreported Suit No.NICN/YEN/07/2019; Judgment delivered on June 29, 2020; per HonJustice B.A Alkali), by declaring as a nullity an attempt to reclassify the claimants’ appointment from associate professor on pensionable basis to a Lecturer 1 on contract basis.
The decision of the NICN in James Edet v Paramount Frozen Ltd (Unreported Suit No.NICN/CA/32/2017; Judgment delivered on July 9, 2020; per Hon-Justice M.N Esowe), is also significant for more reasons than one. Faced with an issue formulated on an unsigned letter of termination, the NICN, relying on a recent Supreme Court decision upholding the validity of an unsigned document in certain circumstances, departed from what has appeared a settled position in pronouncing such documents as worthless. The Court also delivered a highly lucid analysis on when the NICN will not have jurisdiction in tenancy matters relating to the claim of recovering of premises of a service tenant who entered possession of a property by virtue of employment.
With yet same admirable lucidity, the Court, in First Bank of Nigeria Limited v Adejumoke Wright (Unreported Suit No.NICN/LA/300/2017; Judgment delivered on December 14, 2020; , per Hon-Justice Elizabeth Oji PhD), inter alia, perceptively distilled that upon resignation, as opposed to termination of employment, an outstanding staff loan, subject to the contract of parties, becomes immediately payable. Resignation, as found in the instant case, was held to constitute an event of default.
In Silvio Vallejo v Brittania-U Nigeria Limited (Unreported Suit No. NICN/LA/515/2014; Judgment delivered on January 16, 2020; per Hon-Justice O.A Obaseki-Osaghae), the NICN restated the position that a party cannot unilaterally alter the contents of a contract in the absence of an agreement from the other party. The proposition, as reaffirmed in the fact of the instant case, helped to secure the claim for arrears and sums outstanding on claimant’s salaries. The NICN in Shile v Iron Products Industries Ltd (Unreported Suit No.NICN/LA/236/2019; Judgment delivered on December 3, 2020; per Hon-Justice (Dr) I. Essien) reaffirmed the position that an employee cannot be compelled to join a union. The Court restrained the defendant from terminating or dismissing any of the claimants for failure to join a trade union or association by whatever name so called.
In 2020, unmitigated global disruption brought dramatic changes to the world of work. These changes are yet unfolding. It is the morning of a new year. As the world continues to grapple with the incessant waves, disputes, inevitably from the impact of the global public health crisis on companies’ balance sheets, will abound. To fire, or to fire? That, with all the emphasis, is not the only question. The emerging workforce trends and workplace flexibility etc are some of the novel particularities that may form/shape the thrust of employment disputes or adjudicatory process in 2021. There is still much work ahead for the courts, and the legislature. Time, wearingly, is the vaccine.
– Folabi Kuti is private lawyer
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