NICN - JUDGMENT
IN THE NATIONAL INDUSTRIAL COURT OF
NIGERIA
IN THE LAGOS JUDICIAL
DIVISION
HOLDEN AT IKOYI,
LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE JOYCE A.O. DAMACHI
Date: 17th
September 2024
SUIT NO: NICN/LA/347/2023
BETWEEN
ADEFISOYE STEPHEN
ABIODUN ------------------CLAIMANT
AND
SAFARI SUPPORT WEST
LIMITED --------------- DEFENDANT
O.A Jegede Esq
Claimant Counsel
P.E
Ebenezer Esq Defendant Counsel
Obafemi
Oluwole Esq Defendant
JUDGMENT
1. INTRODUCTION
2. By a General Form of Complaint dated
and filed on 14th December 2023. The Claimant is seeking the
following reliefs:
a) A DECLARATION that the termination of
the Claimant’s employment by a letter of termination dated 20th
November 2023, by the Defendant is unjust, unlawful and against international
best practices.
b) A DECELARATION that the extension of
the Claimant’s probation period by the Defendant is illegal, unjust and against
international best practices.
c) AN ORDER OF COURT directing the
Defendant to immediately restore the Claimant’s employment which the Defendant
terminated unjustly, unlawfully, and in bad faith on the 20th
November 2023 by a letter of termination of employment.
d) AN ORDER OF COURT directing the
Defendant to immediately confirm the employment of the Claimant and back date
same to the 26th September 2023 when the 3 months was to elapse.
e) AN ORDER OF COURT directing the
Defendant to immediately pay the arrears of the accrued sum which was meant to
have been paid by the Defendant upon confirmation of the Claimant’s employment,
for the months of 26th of October 2023 to 26th of
November 2023; which amounts to N450,000
(an equivalent of $600).
f)
AN ORDER
OF COURT directing the Defendant to pay the accrued salary of N1,500,000 ($2000) from the month of
December 2023 until the determination of the case.
g) AN ORDER OF COURT directing the
Defendant to pay the sum of N750,000 to
the Claimant being the sum for the cost of this action.
3. The case of the Claimant
5. He stated
further that in the employment contract,
though a probation period was mentioned, there was no specific duration for the
probation. That by an email sent to the Claimant on 12 June 2023, one LISA
V the former Head of Human Resources Dept. stated that the period of probation
was agreed to be 3 months wherein there would be an increase of his salary from
$1700 to $2000. Unfortunately, his employment was not confirmed till his termination.
On being verbally informed of the extension of his probation he verbally
protested to 2 officers he was reporting directly to. He was informed that his
confirmation was extended not because of poor performance but because company’s
planned integration with the Ghana platform was not yet complete.
6. He avers that
he was not given a company handbook or organogram stating company hierarchy and
was made to believe that as Head of Customer Care West Africa he was to receive
instruction from the global Head of Customer support and not a Country Manager.
7. That Sometime
in November 2023, the Country Manager Nigeria invited him to an end of year
planning meeting to which he did not attend due to his work load and on the 20th
of November his appointment was terminated. He was pressurized to sign off his
employment rights otherwise his salary would not be paid. During the pendency
of his employment, his performance was never reviewed neither was there any
complaint from any member of the Defendant.
8. THE DEFENDANT’S CASE
9. The
Defendant stated that they offer consulting services to 22bet which is not
their subsidiary. The Defendant stated that through an
employment contract dated 22nd
June, 2023 the Claimant resumed work on 26th of June, 2023. The Defendant had duly informed the Claimant
that he would be on probation and in the contract of employment it was clearly
stated in the termination clause that the Employer may Terminate the Employees contract of Employment without
notice before confirmation if the employer is not satisfied with the
performance of the employee.
10. That the Defendant never entered an agreement on the
duration of the probation period all that was communicated to the Claimant was
that “after three (3) months of the Claimant employment,” The Defendant
contended there was no agreement reached between the Claimant and the
Defendant, at any time, that the so-called e-mail from one Lisa V to bind the
Defendant on the issue of a three (3) months extension was not authorized in
anyway by the Defendant, she was just a technical consultant to the Defendant.
11. That precisely on the 10th of October, 2023 the
Claimant was informed by one Fikayo
Ogunfuye of his performance falling below the company’s standard and that his
probation period even though it might be extended, he was to work harder, to
meet the Defendant’s satisfactory requirement, to gain confirmation, and the
said confirmation during that period was not automatic. This position the
Claimant accepted.
12. The Defendant denies the averment of
the Claimant that he complained to the international head of HRD on his
probation extension and was told the company was yet to complete the
integration with the Ghana platform in addition, there was no misgivings from
the Nigeria Country Manager on the Claimant’s employment. Defendant also denied
the Claimant’s averment that his
termination is connected with the non attendance of the end of year meeting.
Rather the employment was termination as a result of his unsatisfactory
performance which was not good enough to earn him a confirmation.
13. The Defendant states it did not by any
means force the Claimant to sign any agreement to cover any illegal
termination, this allegation is unfounded and untrue.
14. That by the provision of the contract
of employment the Defendant can terminate the employment if not satisfied with
the performance of the Claimant without notice before the confirmation of the
Claimant appointment, and the Defendant had duly complied with the terms, hence
the issue of undue termination of employment cannot arise.
15. At the
trial which commenced on 23rd
April, 2024, the Claimant testified as CW1 and as the sole witness, he
adopted his Witness Statement on Oath filed on 14th December, 2023 as his evidence in chief. The Witness also tendered the following
documents:
i.
Employment contracts
dated 22nd of June, 2023 as Exhibit C1
ii.
Electronic mail dated
12th of June, 2023 as Exhibit
C2
iii.
Skype chats between
the Claimant and Vladimir Aleksejevs as Exhibit C3
iv.
Letter of termination
dated 20th November, 2023 as Exhibit C4
v.
‘Agreement
on termination of the employment contract’ dated 20th November, 2023
as Exhibit C5
vi.
Letter of demand dated 22nd of
November, 2023 as Exhibit C6
vii.
Verifying Affidavit
dated 23rd April, 2023 as Exhibit C7
viii.
Reply of the Defendant,
dated 23rd November, 2023, to the Claimant’s Letter of demand as
Exhibit C8
16. Upon tendering the Exhibit C8, the Court
admitted same and requested Counsels on both sides to address the Court on its
admissibility following its objection by the Defense Counsel.
17. The
Claimant’s Witness was cross-examined. The Claimant reexamine his witness and
he was discharged. The Defendant on the 24th of April 2024 entered
its defense and called the following witnesses; 1) OWOSENI ABIODUN DW1 & 2) FIKAYO OGUNFUYE DW2. The witnesses
relied on EXHIBIT C1; EXHIBIT C4;
18. The DW1
& DW2 were cross-examined and discharged. The Defendant did not reexamine
their witnesses. The Court adjourned for
Adoption of Final Written Addresses. The Defendant filed their Final Written
Address on the 15th May 2024.
The Claimant filed his Final written Address on the 07th June 2024. The Defendants filed their Reply on
Points of Law on the 19th
June 2024.
20. In
addressing the Court, Counsel to the Defendants raised 3 issues for
determination to wit;
a) Whether
EXH C8 as admitted by the Court during trial of this suit is admissible in
evidence.
b) Whether
in the absence of a confirmation by the Defendant, the Claimant is entitled to
the reliefs being sought.
c) Whether
the Defendant can validly terminate the Claimant’s employment during the
probation period.
21. Issue
1. He
argued that admissibility of documentary evidence is as provided for in S.
83-97 of the evidence Act and Courts have a duty to admit documents which are
legally admissible not ones that are legally inadmissible-OMEGA BANK v
O.B.C. Ltd (2005) LPELR 2636 SC. He
stated further that a photocopy of a document is inadmissible without a proper
foundation as to the non existence of the originals laid, admission of such
without explanation offends S.97 Evidence Act- and should be rejected by the Court.
JONGBO v AKANDE (2019) LPELR 48494 CA; OLUKADE v ALADE (1976) LPELR 2527 SC.
22. LDC
submitted that CC tendered a doc which was not pleaded during cross
examination, it was a photocopy, no foundation was laid and DC objected to its
admissibility, the CC urged the court to admit it on grounds of relevancy. LDC
called in aid ACB LTD v GWAGWADA (1994) LPELR 204 SC that evidence must
be relevant to be admissible, if irrelevant its admission does not advance the
case of the party. The Supreme Court has held also that not every relevant fact
is admissible and for a document to be admitted in evidence it must be relevant
as well as pass the test for admissibility and if not it is inadmissible by law
as decided in IFARAMOYE v STATE (2017) LPELR-42031(SC) on whether
every relevant fact is admissible, per AMINA ADAMU AUGIE, JSC (pp. 33 - 34
Paras C - B).
23. LDC
submitted that as decided by the Court,
a document may be termed relevant but not necessarily admissible and as
such the Court has the duty not to act upon such document. In the instant case,
the Claimant relied on a document not pleaded, he failed to lay proper
foundation despite the objection of the Defendant Counsel rather than lay
foundation for its admissibility he argued that it is relevant. The said
document was actually frontloaded by the Defendant who deemed it fit not to
rely on same while giving evidence since It is not relevant to the issue for
determination and the Claimant picked up the photocopy of the document, failed
to properly lay foundation, without any certificate of compliance as provided
by Section 84 of the Evidence Act, 2011 and went ahead tendered a photocopy of
the document, by so doing the court having admitted the document has the duty
not to attach any weight or act on same as it is by law an inadmissible
evidence, he urge the Court to so hold in the interest of justice.
24. ISSUE
2: Whether
in the absence of a confirmation by the Defendant, the Claimant is entitled to
the reliefs being sought?
25. LDC
stated that in law the purpose of probation is to give an employer an assurance
that the employee is fit and proper for a permanent appointment-IHEZUKWU v.
UNIVERSITY OF JOS & ORS (1990) LPELR-1461(SC), per OLAJIDE OLATAWURA, JSC (Pp 32 - 32 Paras D - F) once
the condition laid down for the termination of appointment during the
probationary period is satisfied or complied with an employee cannot
justifiably complain- Olayinka
Kusamotu v. Wemabod Estate Ltd. (1976) 11 S.C.279.
26. The Claimant was on the extended probation period
at the time of termination of his employment on the 20th of November, 2023, and same was duly communicated
to him which he confirmed during cross examination that “at the receipt of the message I
became aware that the company is planning to move my probation forward because
of a milestone they have not achieved,” this goes to show that the
Claimant was fully aware that he was still on probation (he was not confirmed)
at the time his employment was terminated. SIMEON
v. COLLEGE OF EDUCATION EKIADOLOR BENIN (2014) LPELR-23320(CA), Per PHILOMENA MBUA EKPE, JCA (Pp 42 - 43
Paras D - B) on probationary appointment held that: "The term temporary appointment means the employee will be placed
on probation until his employer is satisfied with his conduct to be given a
permanent appointment…. The essence of a probationary appointment is that the
employer retains the right not to confirm the appointment until after a
specific period. That to my mind applies in this case where the employer did
not think it fit to confirm the employment of the appellant until the said
appointment was terminated."
27. The
employment contract stated clearly that “the Employer may terminate the Employee’s
contract without notice before the confirmation of the Employee’s appointment
if the employer is not satisfied with the performance of the Employee”
the Claimant despite being aware of the dissatisfaction of the Defendant, which
led to the extension of probation period (which the Claimant informed the Court
that he was aware of and) which is within the probation period.
a.
Hence the termination of employment was duly
carried out, in accordance with the terms of the employment contract between
both parties.
b.
There is nothing before the Court that shows
that the Defendant had confirmed the employment of the Claimant, he was paid
his probationary salary and he was not confirmed at the time of the termination
of employment. Therefore the Claimant is not entitled to the reliefs being
sought in this case, we urge this Honourable Court to so hold.
28. ISSUE 3: Whether the Defendant can
terminate the Claimant employment during probation?
29. The
issue of whether or not an employee’s employment can be terminated during
probation was answered in the positive at the Court of appeal in SEVEN-UP
BOTTLING CO PLC v. AJAYI (2007) LPELR-8765(CA), " Per GEORGE OLADEINDE SHOREMI, JCA (Pp 26 - 28
Paras F - B) response to the question or issue-“Whether an employer can
terminate the appointment of an employee during a probationary period”? held
that:-
i.
"On issue
III it is in evidence that both parties agree that the appointment of the
Respondent was not confirmed before termination, the fact that the respondent
spent 16 months in the company notwithstanding. I have earlier set out the
provision probation when the probationary period was supposed to be six months,
the period may be extended at the discretion of Management for a further period
not exceeding 3 months if the employee services are not considered to be up to
the standard required, the employment will cease at the end of the trial
period. During probation, either party may terminate the contract as set out in
the letter of engagement. The trial Court was wrong to infer that because the
Respondent's appointment was not confirmed after 9 months probation and payment
of one month's salary in lieu of notice, Respondent has confirmed the appellant
by conduct. There is no where in the record that the Respondent even asked the
appellant to confirm his appointment after the probationary period. The
cardinal presumption is that the parties have intended what they have in fact
said so that their words must be construed as they stand. That is to say the
meaning of the document or of a particular part of it is to be sought in the
document itself? One must consider the meaning of the words used not what one
may guess to be the intention of the parties. Confirmation of the Respondent
appointment is at the discretion of the Appellant therefore there is no basis
to hold that by conduct, the appellant had confirmed the appointment of the
Respondent. I again answer Issue 3 in the negative and in favour of the Appellant”
30. In the
above cited case the reason behind the extension of
probation period to Three (3) months was because the employee’s services were
not considered to be up to the standard required and his employment was
termination before confirmation, in this case the Defendant extended the
probation period for another Three(3) months
because the claimant failed to meet desired expectation which was to the
knowledge of the Claimant, and he did not by any means dispute same. He was
given time to improve but the Defendant were still not satisfied with the
Claimant’s performance which resulted in the termination of his employment.
31. As
earlier stated in issue 2 above, the employment contract stated clearly that “the
Employer may terminate the Employee’s contract without notice before the
confirmation of the Employee’s appointment if the employer is not satisfied
with the performance of the Employee”. The terms of the contract are clear and shows
that parties agreed that termination of employment could be made before confirmation
and as such the Defendant had duly terminated the employment in accordance with
the agreed terms of Parties.
32. In GILE & ORS
v. UNIVERSITY OF AGRICULTURE MAKURDI & ORS (2015) LPELR-45808(CA) the effect of acceptance of salary in lieu
of notice of termination is that it has brought
about a mutual determination of the contract between the parties. The Defendant had duly paid up
the Salary of the Claimant up till the month of the termination of his
employment which by their agreed contract, that is the only entitlement of the
Claimant and as such the Defendant is not liable for any other form of payment
to the Claimant, Defense counsel urged the Honourable Court to dismiss the
claims of the Claimant which appears to be frivolous and a gold digging attempt
to fleece the Defendant.
33. CLAIMANT’S FINAL ADDRESS
34. The
Claimant submitted 4 questions for determination:
1
Whether Exhibit C8 is
admissible in law, without laying foundation for its admissibility.
2
Whether 22bet as a product of
the Defendant has the locus to offer the Claimant employment.
3
Whether the extension of the
Claimant’s probation period was unlawful and unjust.
4
Whether the termination of the
Claimant’s employment by the Defendant was wrongful and unlawful.
35. ISSUE ONE: WHETHER EXHIBIT C8 IS ADMISSIBLE IN LAW,
WITHOUT LAYING FOUNDATION FOR ITS ADMISSIBILITY.
36. Exhibit C8 is a
photocopy of the Defendant’s reply to the
Claimant’s Letter of demand dated 23rd November, 2023 it was
pleaded, attached and referred to by DW1 in his written statement on oath as
‘exhibit 3’ and stated under oath that he shall rely on the said letter (now
Exhibit C8) at the trial of this suit the Claimant’s Counsel during cross-examination,
tendered a copy of the letter which the Court then marked as Exhibit C8.
37. He
argued that even though proper foundation was not laid since it was a secondary
evidence and Sections 232 and 233 of the
Evidence Act, 2011 provides for the admissibility of a secondary document
during cross examination. For the sake of contradicting DW1 in the instant
case, the Claimant’s Counsel, took liberty to show DW1 the contradictions by
showing Exhibit C8 to the Defendant; who confirmed same as emanating from the
Defendant. Furthermore, the admissibility of a document under cross-examination
is completely permissible and unimpeachable if the purpose is to tender a
previous statement made in writing by a party to the proceeding or witness in
order to contradict or discredit his evidence on oath before the Court, as in
the instant case. This was the decision of the Supreme Court in the case of IPINLAIYE II v OLUKOTUN (1996) 6 NWLR (PT.
453) 148 AT 169, PARA. H. Claimant’s Counsel cited OGU .Vs. M. T. & M. C.
S. LTD (2011) 8 NWLR (PT. 1249) 345 CA where it was held that once a piece
of evidence is relevant it is admissible in evidence irrespective of how it was
obtained, the probative value, the importance, relevancy and gravity of such
evidence is what should be considered by the trial Court.
38. ISSUE TWO: WHETHER 22BET AS A PRODUCT OF THE
DEFENDANT HAS THE LOCUS TO OFFER THE CLAIMANT EMPLOYMENT.
39. CC
argued that Exhibit C1, an annexure to the employment contract of the
Defendant, which is titled “Job Offer
for Stephen Adefioye” by 22BET, dated 12th of June, 2023 lacks
the locus to form an employment contract. Since only juristic persons can enter
a contract-Section 78 of the Companies
and Allied Matters Act, 2020. DW1 identified 22bet as product of the
Defendant and not a Company or a business name, 22bet is therefore
non-juristic and lacks the locus to enter into a contractual engagement.
CC urged the Court to discountenance the said annexure titled “Job Offer for Stephen Adefioye” by
22BET, dated 12th of June, 2023, and declare same as unbinding on
the Claimant.
40. ISSUE THREE: WHETHER THE EXTENSION OF THE
CLAIMANT’S PROBATION PERIOD WAS UNLAWFUL AND UNJUST.
41. CC
stated that the only valid employment contract is the one with the Defendant
which did not state the probation period. In (paragraph 2) Exhibit C8, the
Defendant admitted that the employment contract with the Claimant, did not
specify the period of the probation. The only place where there was a
specific probation period was a job offer from 22BET, which is a non-juristic
person, not a party in this suit and identified as a product by DW1 and as a
Client by DW2. CC referred to SECTION
7 LABOUR LAW ACT 2004 (L1 LFN 2004) which provides that, such change must
be communicated in writing to the employee (Claimant) not more than one month.
42. The
Defendants witnesses and Exhibit C8, claimed to have had a meeting with the
Claimant on 10th of October, 2023, the said meeting and the
resolution were not reduced into writing, nor was notice of the change
or extension of the probation period in writing and this DW1 stated during
cross examination which Defendant claimed to have been the means of informing
the Claimant of the extension of the probation from 3months to six months. See AMANZE v UNION BANK, delivered on 29TH JUNE
2021 BY HON. JUSTICE I. J. ESSIEN OF THE NATIONAL INDUSTRIAL COURT, LAGOS
DIVISION: “unless there are reasons to extend the probation period which
must be in writing and duly notified to the employee, the defendant is
under a duty to confirm the employee after the period of probation..”
43. In
paragraph 8 of the DW1’s statement on oath, “…he was informed by Fikayo
Ogunfuye of his performance falling below the company's standard and that his
probation period even though it might be extended, he was to work
harder, to which the Defendant did not extend the probation period. The
Court of Appeal held where an employer had delayed unnecessarily
in making up his mind whether to terminate or confirm an employee’s
probationary appointment by keeping him in his employment and continuing to pay
him for months after the probationary period had expired, he would be deemed by
operation of law to have confirmed the employee’s appointment, and the doctrine
of ‘estoppel by conduct’ would operate
to prevent the employer from alleging and treating him as if he was still on
probation. Delay defeats equity. OBAFEMI AWOLOWO UNIVERSITY v ONABANJO [1991] 5 NWLR (PT.193) 549; THE COUNCIL OF FEDERAL POLYTECHNIC, EDE
& ORS. v JOHNSON K. OLOWOOKERE [2014] 49 NLLR (PT. 161) 144 AT 170 – 171,
PARAS. D – E.
44. ISSUE FOUR: WHETHER THE TERMINATION OF THE CLAIMANT’S
EMPLOYMENT BY THE DEFENDANT WAS WRONGFUL AND UNLAWFUL.
45. The
Defendant by Exhibit C1 reserves the right to terminate during the probation
period if not satisfied with his performance which is the basis of the said termination.
He posed two cogent questions: 1.
Was the Claimant still under probation when his employment was terminated?
2. Was
there any proof to tell whether or not the performance of the Claimant was
unsatisfactory or did not meet up with the quality standard of the Defendant? 3.
Was the Claimant even informed of the quality standard of the Defendant save
his job description as spelt out in Exhibit C1?
46. LCC submitted that the Claimant at
the time of the said termination was no more a probationary staff by law he had
become a full staff of the Defendant. See THE
COUNCIL OF FEDERAL POLYTECHNIC, EDE & ORS. v JOHNSON K. OLOWOOKERE [Supra].
In view of Exhibit C1 which did not state the specific time or period of the
probation and then affirmed by exhibit C8. CC is of the opinion that the
Claimant was no more a probationary staff but a confirmed staff of the
Defendant.
47. On the
second question, in Exhibit C3, The Claimant’s immediate boss whom he reported
to, Vladimir Aleksejevs, an individual identified by DW1 and DW2 as a
staff of the Defendant, had in his Skype chat unequivocally stated that there
was no complaint whatsoever on his performance and meeting up with the quality
standard of the Defendant. LCC submitted there was uncertainty as to the
yardstick used in rating the performance of the Claimant because the Claimant
in his evidence in chief stated that there was no complaint from Vladimir
Aleksejevs the officer he was directly answerable to, and Head of International
Customer Support, on the other hand, the Defendant claimed to have had a one-on-one, verbal meeting with the Claimant
stating that his performance was low but same was not communicated to the
Claimant in writing.
48. LCC
submitted that Defendant was out to use and dump the Claimant’s employment hence the one-on-one
verbal meeting with the Claimant on 10th October, 2023 otherwise,
the allegations which formed the basis for the termination are serious enough
to cause the Claimant to be served with a written query by the Defendant, if
there was any. He submitted that the Defendant failed to put in writing claims
of low or poor performance and to prove same, as opined by HON. JUSTICE R. H. GWANDU OF THE NATIONAL INDUSTRIAL COURT, LAGOS
DIVISION in SUIT NO.:NICN/LA/178/2019; NKECHI CATHERINE OGBONNAH vs. MIKANO
INTERNATIONAL LIMITED, delivered on 13th JUNE, 2023.
49. On the
third question; LCC stated that The Defendant who alleged the Claimant’s
performance was low, poor and not up to quality standard, did not show or
inform the Claimant of any quality standard handbook during his employment, not
even a handbook. CC submitted that the termination of the Claimant’s
employment by way of Exhibit C4 is unlawful, unjust and against international
best practice.
50. DEFENDANT’S REPLY ON POINTS OF LAW
51. Whether
Exhibit C8 is admissible in law, without laying foundation for its
admissibility. The LDC submitted that the court should
disregard EXH C8 in its entirety as it is inadmissible for the reasons that the
due process of law was not followed by the claimant in tendering EXH C8- in addition, the statements in Exh C8 do not
contradict the witness but the defendant opted not to rely on it during trial
because it was not relevant to the Defendant’s case. JONGBO v AKANDE (2019)
LPELR 48494 CA. The defendant failed to lay proper foundation neither did
it refer to the content of the document and how relevant the document was. S.
232-233 Evidence Act.
52. (2) Whether 22bet as a product of the Defendant
has the locus to offer the Claimant employment. The Defendant
agrees that 22BET (who is not a product of the Defendant but a client) has the
locus to offer the claimant employment. The Claimant having signed the
agreement of 22BET, he is bound by the terms of the agreement and is estopped
from raising objections at this stage. NASARAWA STATE GOVT v MAFFC NIG LTD
(2018) LPELR. The Claimant having benefited from the contract with 22BET
cannot claim it is not a juristic person. Claimant has benefited from the
contract without objection and the probation period in that contract is stated
to be 6 months and claimant under cross examination admitted he had worked for
4 months before his termination. Clearly the claimants termination was within
his probation period.
53. (3)
Whether the extension of the Claimant’s probation period was unlawful and
unjust. Defendant’s submits that the extension was just
and lawful. There was no specific probation period, the only stated period was
with 22BET a client of the defendant. The defendant had 2 considerations
(though not in writing) that after 3 months there would be a salary increase
which might lead to confirmation subject to good performance; and that the 3
months will be extended by another 3 months owing to his performance falling
below standard to which the claimant agreed and continued to carry out his
duties.
54. DC
submitted that no written agreement exists to show the probation period and
Claimant relied on a probation period not contained in his employment contract.
The defendant extended the probation period and the claimant did not oppose
same and only holds out that the extension was not reduced into writing. The claimant
had prior knowledge of the extension before his termination. LDC submitted that
S. 7 Labour Act applies to terms in an employment contract, but there is no
provision for probation period in this employment save for one stated in the
22BET contract which is 6 months.
55. (4)Whether
the termination of the Claimant’s employment by the Defendant was wrongful and
unlawful. The LDC stated that the termination was not
wrongful and unlawful. He referred to the TERMINATION CLAUSE which provides
that the employer may terminate the employment without notice before
confirmation of the appointment if he is not satisfied with employees’
performance. The claimant was to be on probation for 6 months and he was
terminated in the 4th month therefore the termination was neither
wrongful or unlawful. The burden of proof lies on the claimant who asserts that
he was wrongfully and unlawfully terminated - OKOMU OIL PALM v ISERHIENRHIEN
(2001) LPELR 2471 SC. The Defendant had duly complied with the contract,
the entitlements of the claimant were all paid in compliance with the
employment contract. In the absence of any breach of the employment contract
the termination was lawful.
56. DECISION
Before going into the merits of
the case, during trial the Learned Defence Counsel raised an objection to the
admissibility of the document admitted and marked as EXH C8. According to
Defence CounseL, exhibit C8 was tendered in evidence without proper foundation
being laid, so it is inadmissible being a photocopy of the original. LCC in
response contends that exhibit C8 is relevant and was pleaded so it is
admissible given that it was tendered to contradict the testimony/ evidence of
DW1. What really is EXH C8, it is a reply from the Defendant to the Claimant’s
counsel dated 23rd November, 2023 signed by one Olajumoke Odudimu.
It was pleaded in paragraph 16 of the Statement of Defence and it was referred
to by DW1 & DW2 in their respective Witness Statements on Oath. However,
though pleaded and frontloaded by the Defence, it was not tendered at trial by
the Defendant.
57. The
contents have the same facts of the case as pleaded by parties but certain
paragraphs state facts which are relevant and of benefit to the Court in aiding
it to resolve the matters in dispute between the parties. Para 2 disclosed that
a period of 3 months was communicated to the Claimant by LISA the then HR and
Fikayo Ogunfoye Country Director (DW1); Para 4 stated that Claimant accepted
the extension of probation period on same pre-confirmation salary. In addition,
the Defendant also reverberated some facts that it raised in its defence.
58. The
rules of Evidence may have been faulted because foundation of the document was
not laid by the Claimant, during cross examination CC showed DW1 a photocopy,
DW1 confirmed he is aware of the letter, that it emanated from the Defendant
and it was a response to EXH C6. No foundation was laid on the whereabouts of
the original. In law, what governs the admissibility of evidence at trial is
relevancy – Aondoakaa v Obot (2022) 5
NWLR (Pt. 1824) 523; documentary evidence is admitted when it satisfies
three major requirements, namely, is the evidence pleaded, is it relevant and
is it admissible. DC has argued that exhibit C8 was not pleaded by the Claimant
and did not fall under the category of exceptions to the admissibility of
secondary evidence enumerated in Section
89 of the Evidence Act (as amended).
59. The
fact that the Claimant did not directly state in his pleadings that “he founds
and would be relying on” the document constituting exhibit C8 does not in
itself mean that the said document was not pleaded by him. Once there are facts
in his pleadings that mentions or alludes to such document or to its existence,
it satisfies the requirement of the document being pleaded. See M.M.A.
Inc. v N.M.A (2012) 18 NWLR (Pt. 1333) 506. Nweze JSC in OMISORE V AREGBESOLA
(2015) 15 NWLR (Pt. 1482) pg 1 @ 281 Para D-E said evidence obtained in
cross examination on matters that are pleaded i.e on matters on which issues
are joined is admissible.
60. The
Supreme Court has equally held that a judge has a right to look at a document
in the file which was not tendered as an exhibit-Agbahomovo v Eduyegbe
(1999) 3 NWLR pt 594 pg 170@183, para D-E. In Otuo v Nteogwuile(1996) 4 NWLR Pt 440 Pg 56 the CA held that
once a doc has been tendered as an exhibit, the Court has a right and duty to
refer to any portion of the doc in order to arrive at a just decision. This
Court noted much earlier that exhibit C8 is relevant in resolving facts in
issue between the parties, it was pleaded and frontloaded by the Defendant,
even alluded to by the Claimant in his pleadings.
61. So in the interest of justice and by the powers conferred on the Court
by virtue of Section 12(2)(b) of the
National Industrial Court Act and Order
5 Rule 6(2)(b) of the National Industrial Court of Nigeria (Civil Procedure)
Rules, 2017 which permits the Court to depart from the provisions of the
Evidence Act in the interest of justice and admit documents at trial, this
Court is of the considered view that the interest of justice requires such
departure in relation to the admissibility of exhibit C8. See Adegboye v UBA Plc (2022) LPELR-58778(CA).
Accordingly, the LDC’s objection to the admissibility of exhibit C8 is hereby
overruled, and the said document remains admitted in evidence and marked as
exhibit C8. I so rule. The Court would subsequently determine what weight to
attach to the said document.
62. It is
on record that the Claimant seeks as part of his reliefs, declaratory reliefs,
which require the Claimant to succeed on the strength of his case and not the
absence of a defence or the weakness of the defence to the suit. See Adamu (Rtd) v Nigerian Airforce & Anor
(2022) LPELR-56587 (SC). Relief 1 is for a declaration that
the termination of the Claimant’s employment was unjust, unlawful and against
international best practices. It is trite that a person on probation
can justifiably be categorized as an employee. Generally, probation is the testing of a person's abilities or
behaviour to find out if he or she is suitable. It is a suspension of a final
appointment to an office until a person temporarily appointed has by his
conduct proved himself to be fit to fill it -TOTAL v ONUOHA (2001) 11 NWLR (Pt. 725) 634. In other words, an unconfirmed
employee is entitled to employment rights. In the ZIMBABWEAN Case KWANGWARI
V CBZ HH-79-03 it was held that the Courts require employers to justify the
dismissal of probationary employees in much the same way as they are required
to do in the case of any other employee, with the possible proviso that the Court
may be disposed to accept, in the case of the dismissal of a probationary
employee, reasons slightly less compelling than they would require in the case
of long standing employee before dismissal is embarked upon, the general
principle is that the employees should be timeously informed of his deficiency,
be told how to rectify it and be given a reasonable opportunity to improve
before any action is taken against him.
63. The claimant alluded that
no evidence was placed before the court to show the yardstick for accessing the
Claimant’s performance that led to his termination. During cross examination,
DW1 was asked “in your termination letter EXH C4, you spoke of quality
standard, now is the quality standard same as job description?” he answered
“it is part of the quality standard” he was also asked “was there any
code of conduct that spells out other quality standard?” he answered “NO”. It is therefore atypical for the termination
to be accessed on a non-existent or a subjective quality standard. There was no
reason adduced as to why he was terminated other than that he did not meet
expectation. Even when he asked his boss if there were concerns or
dissatisfaction with his work, he was told in Exh C3 “there is nothing
from me so far, because the migration we planned on Sep 1 delayed and it will
be Nov 1, this is for Ghana there are no dissatisfaction from me because there are simply not much work for you now.”
He was not informed of his deficiency he was just invited to a one on one meeting
and told to work harder, the areas for improvement were left vague.
64. On the issue
of the Quality standard referred to in the termination letter, DW1 stated under
cross examination that there was no code of conduct to spell out quality
standard nor was there an organogram in the defendant stating hierarchy and he
was made to believe that as Head of Customer Care West Africa he was to receive
instruction from the global Head of Customer support and not a Country Manager.
During the pendency of his employment, his performance was never reviewed
neither was there any complaint from any member of the Defendant. It would have
been a different ball game if the Defendant in exhibit C4 (termination letter)
had accused the Claimant of failing to discharge the roles spelt out in exhibit
C1 as his job description. To state that CW1 did not meet the desired quality
standards which was never spelt out nor produced before the Court is inviting
the Court to embark on a voyage of discovery which the law frowns at.
65. This court is convinced based on the
facts presented that the defendant can validly terminate the employment during
probation as clearly stated in the termination clause in Exh C1 but since his
termination was preceded by a reason the defendant is expected to adduce
evidence on the plausibility of the reason vis a vis the term of the employment
contract or the code of conduct binding the parties. This element was not
satisfactorily established therefore this court declares that the termination
was unjust and unlawful and against international best practice. I so hold.
66. LCC
raised a question whether 22 BET has the locus to offer the claimant
employment. In para 3 of the Statement of material Facts, the claimant stated
that he was served with employment contracts (from both the defendant and 22Bet
on 26th June 2023. In his WSOO, Para 2 he stated that the defendant
has a subsidiary organization which primarily is into sport betting known as
22Bet. Exh C2 is a job offer from 22Bet offering the same position as mentioned
in Exh C1 “head of customer support for west Africa”. As stated in his paper Labour
Adjudication in Nigerian: the present
and the future Hon Justice B.B. Kanyip PhD, the Hon President of the
NICN said
the
reality of the world of work has gone far beyond the binary relationships
hitherto known of employment relationships. The injunction of the ILO that a
triangular employment relationship is a disguised or objectively ambiguous
employment relationship which is meant to either mask the identity of the
employer ….or mask the form in which the relationship is established.
67. From
the totality of the Claimant’s pleadings and evidence, it is clear that the
Claimant was in the know that 22Bet was an agent of a disclosed principal, in
this case, the Defendant. See Mbata v
Amanze (2018) 15 NWLR (Pt. 1643) 570 at 584, paras. A-C. The Claimant pleaded that 22Bet was a
subsidiary of the Defendant and entered into a contract of employment with him
as did the Defendant only to turn around in his address to contend that 22Bet
is not a juristic person and lacks the locus to enter into contracts. Counsel’s
address no matter how articulate or brilliant cannot take the place of
pleadings or evidence – Bature v Chedi
(2021) LPELR-(CA). Clearly there is evidence of a disguised employment
between the three parties. For Section 78
of the CAMA, 2020, to be applicable in the instant case, the Claimant would
be required to prove that 22Bet is a foreign company and proceed further to
separate its acts within Nigeria from those discharged or performed outside
Nigeria, to make those undertaken in Nigeria qualify as void. This has not been
done, and is not the case, a careful examination of exhibit C1 and C2 reveal
that their contents are essentially similar, such that even where exhibit C2 is
set aside for emanating from a non-juristic entity, the Claimant is still bound
by exhibit C1.
68. Given
the fact that the Claimant knew beyond doubt in relating with officials of
22Bet that he was in an employment relationship with the Defendant, he
invariably knew unmistakably who his employer was. It is the finding of this
court that the Claimant had an
employment contract (both from the defendant and 22BET) dated 22 June 2023 it
was signed by a Director of the
defendant PAVEL KOZLOVSKIY via email, he was appointed as the head of Customer
Support for West Africa both for the defendant and 22BET. Both parties tendered
both document EXH C1 & EXH C2. Facts
not undisputed need no further proof. An admission that is clear and
unequivocal is binding on the maker who cannot be heard to change the same to
suit his new case -AL HASSAN v ISHAKU (2016) 10 NWLR (Pt. 1520) pg 230
@298-299.
69. The
employment contract binding the claimant has been established to be EXH C1 & EXH C2, it was pleaded by the claimant, the defendant in its SOD initially
denied that the author of EXH C2 LISA was NOT authorized to issue it, (because
she was just a technical consultant to the defendant), interestingly in EXH C8
which was a reply to the demand letter, the Defendant stated in para 2 that
LISA was the head of HR and speaking
further on the period of probation, same paragraph 2 revealed “SHE HAD COMMUNICATED A PERIOD OF 3 MONTHS TO
THE CLAIMANT AS HIS PROBATION PERIOD”. However, the court has carefully read
EXH C2 and there is no mention of extension of probation period in that
document. All the same, exhibit C2 was entered into on behalf of the Defendant
by 22Bet, as an agent of a disclosed principal which also makes it a binding
contract on the Claimant, as it would be the Defendant that would be liable for
any breach by 22Bet while the latter acts as its agent – GTB v Noble (2019) 14 NWLR (Pt. 1693) 389 at 413, paras. A-B. For this
reason, LCC’s submissions that 22BET being a product of the Defendant is a
non-juristic person and therefore lacks locus to enter into a contractual
engagement is hereby discountenanced. I so hold.
70. The
claimant raised a question for determination whether the extension of the
probation period was unlawful and unjust and sought a declaration that the
extension was illegal and unjust. Probation is a precursor to confirmation,
the claimant never pleaded that his employment was confirmed, paragraph 8 of
the claimants WSOO alludes to that fact. At what point was the probation period
extended, it’s important to note that the offer letter from 22Bet under the
column for Salary provided that “1700$ net (the salary can be increased
AFTER THE Probation period based on the performance” EXH C2 did not
extend probation period, it stated “Dear Stephen, as we agree, the
salary will be $2000 & after the 3 months, please confirm the changes”.
71. What the
court can deduce is that both EXHs C1 and C2 confirmed the duration of the
probation to be 3 months after which would result in increase of the Claimant’s
salary from $1700 to $2000. So back to the question at what point was the
probation period extended? Was it extended at the one-on-one meeting with DW2?
Was the increase or extension reduced to writing? Did claimant raise objections
to the extension? I think Exh C3 answers this. Unilateral alteration
of the fundamental terms of contracts is forbidden under the modern
jurisprudence of employment law in Nigeria as ushered in by SS. 254C-(1)(f)-(h)
of the Constitution and 13 & 15 of the National
Industrial Court Act [NICA].
72. Even
before the Third Alteration Act, S. 7(1)(h)&(2)(a)-(b) of
the Labour Act [LA] though, permitted the
employer ostensibly to unilaterally alter the fundamental terms of contract but
nonetheless, insisted this must be communicated to the worker or employee
within one month thereof. I think it goes beyond argument, that even though
imperfectly, the intent of S. 7(1)(h)&(2)(a)-(b) of the LA, is
to enable the worker or employee to size-up the situation and make up his mind
whether or not to accept the unilateral alteration. In effect, though
imperfectly, the law in Nigeria even before the Third Alteration Act was
that, unilateral alteration of the fundamental terms of employment contract was
illegal. Unilateral alteration of fundamental terms of contracts has always
been illegal.
73. In
interpreting S.7 (2) of the Labour Act such a major change in the status of the
employment relationship had to be formally communicated to the employee.
Besides when a thing is said to be extended then it means it had a period tied
to its existence, in para 6 of the SOD the Defendant stated that “he (referring
to claimant) was informed by Fikayo Ogunfuye (DW1) on 10/October/2023 of his
performance falling below the company standard and that his probation period
even though it might be extended, he had to work harder.”
74. The
evidence on the alleged extension of the Claimant’s probationary period is
shaky and appears improbable. The Claimant was employed on 26th June
2024 and said under Cross Examination that “my understanding is that my salary
will be increased after 3 months and my probation would be completed after the
said 3 months”. As at 10 October, 2023 when the one-on-one meeting took place,
the Claimant had spent well above 3 month and a week in the Defendant’s
employment, exhibits C1 and C2 provide for a 3 months probationary period. Thus
giving the impression of a deemed confirmation as argued by LCC. Though it
appears that the Defence stance is that it needed time to appraise the
Claimant’s performance during the probationary period so the delay. More so, after
he was informed of the possibility that his employment would not be confirmed,
in Exh C3 Claimant reached out to Vladimir
on 11 October 2023 (his boss) to confirm “if there are concerns or
dissatisfaction” with his work as head of customer support for west Africa and
he got a replied in the negative.
75. It is
the law that documentary evidence is the hanger on which oral evidence rests,
and no oral evidence can be permitted to vary the contents of a document – Shuaibu v Muazu (2014) 8 NWLR (Pt. 1409) 207
at pp. 318-319, paras. G-A, Nwafor v EFCC (2021) 13 NWLR (Pt. 1794) 548.
Exhibit C3 speaks for itself. There was nothing formal/in writing to the
claimant that his probation period had been extended, he had received no
reasons neither was he certain of his employment status with the defendant
Company. S. 7 of the Labour Act provides
for the written particulars that should be included in the terms of employment,
section S. 7 (1) (c) provides for the nature of the employment. While S. 7(2)
places a responsibility on the employer to inform the employee of the changes,
the fact that the Claimant was kept in the dark or doubt about his confirmation
status was not fair or just, it smacked unfair labour practice. It is
obvious that the extension of claimant’s probation period was unjust and
unlawful. I so hold.
76. The Claimant
seeks in reliefs 3 & 4 orders to
restore and confirm his employment, as stated earlier the defendant terminated the employment
EXH C4 based on low performance but failed to provide the claimant with a
quality or standard code neither was any tendered before this court, which
makes the termination unlawful. The Claimant is basically asking for
reinstatement. Learned Claimant’s counsel, in pushing for this remedy, forgot
the legal status of the employment in issue; that it is not a statutory
employment, but that governed by common law. Although the relief of
reinstatement is not exclusive to statutory employment, unlike statutory
employment, it is not automatically awarded in employment governed by common
law. Such requires particularized facts and evidence to ground its application.
I find that no pleading evidencing special circumstances of such entitlement
was made available by the Claimant.
77. While common
law principles seem to resist reinstatement in master-servant relationship, our
Courts have ordered reinstatement when it is shown that the termination of the
servant’s employment was done as a victim of trade union activities, when the
law does not support the circumstances and procedure the employee services was
terminated; and when the employment enjoys statutory flavor. See Management of Dangote Industries
Limited v National Union of Food, Beverages & tobacco Employees NLLR
(Pt.37) 25, Ecobank v. Bello (Unreported Judgment delivered by Honourable Justice SANUSI KADO in Suit No NICN/ABJ/ 144/2018 on
the 12/05/2020). University of Lagos v Aigoro (1985) 1 NWLR Part 1 at 143.
78. By the pleadings and the evidence adduced by the
claimant and viewed against the law as stated, it is my determination that the
termination of the Claimant’s employment is only wrongful. I so find and
hold. In a case for wrongful termination of employment
without statutory flavour, the remedy open to the Claimant is a claim for
damages not reinstatement. For its wrongful act, an
employer who terminates the contract with its employee in an unlawful manner
will be liable to damages for the breach of contract – Obanye v UBN Plc
(2018) 17 NWLR (Pt. 1648) 375. To therefore make an order of reinstatement in favor of the
Claimant would amount to the Court fostering a willing employee on an unwilling
employer. The Supreme Court made the point very clear in Agwu
& Ors v. Julius Berger (Nig.) Plc (2019) LPELR-47625(SC).
79. A Court cannot impose or foist an employee on an unwilling
employer. The remedy is always an award of damages where the termination is
held to be wrongful. But certainly not a declaration that the termination is
null and void. This is why there cannot be a relief for specific performance
like an order for re-instatement. See Ziideeh
v R.S.C.S.C. (2007) 3 NWLR (Pt. 1022) 554. It
will amount to an undue judicial interference in labour and employment
relations. This Court will decline making an order for reinstatement of the
Claimant. In conclusion Relief 3 fails and 4 cannot stand on any
foundation so it fails as well and I hereby decline to
make the order as prayed. I so hold.
80. Relief 5 is an
order to pay arrears of accrued sum meant to be paid by defendant upon
confirmation. Relief 6 seeks for payment of salary of $2000 for month of
December 2023 till determination of the case. As earlier stated, relief 4
failed and so Relief 5 has no foundation to stand.
81. It is hereby declared that the termination of the
contract of employment of the claimant by letter of termination dated
20/11/2023 is unjust, wrongful and against international practises.
82. The extension of the probation period was unjust and wrongful.
83. The
court finds that the termination of the Claimants' employment was wrongful, but
there is no claim for damages in
this suit and so the Court cannot award what is not claimed. See
Nwoye v FAAN (2019) 5 NWLR (Pt. 1665) 193 at 215. the
court not being a Father Christmas cannot grant what is not asked for by a
litigant. See David John Chia and Anor v
Philip Bem Gbe and Others (2010) LPELR-3910(CA) where it was held that “the court is no Father Christmas and never
grants orders not prayed for.”
84. Reliefs 3-6 fails.
85. Cost of
litigation in the sum of five Hundred Thousand Naira (N500,000.00) to be
paid by the Defendant to the Claimant within 30 days. Thereafter, simple
interest at the rate of 10% per annum will be paid till the judgment debt is liquidated.
86. Judgement is entered accordingly.
Hon. Justice
Joyce A. O. Damachi
Judge