NICN - JUDGMENT
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP: HON. JUSTICE S. A. YELWA
THIS TUESDAY,14TH DAY OF OCTOBER,
2024
SUIT NO: NICN/LA/242/2023
BETWEEN
BITMARTE C-BIT INDUSTRIES LIMITED
–---------------- CLAIMANT
AND
OLARINDE OLAMIDE
VICTORIA–--------------------------- DEFENDANT
LEGAL REPRESENTATION
Mmemsoma Emmanuel
Esq. for the Claimant
Temitope Elusogbin
Esq. with Tolulope
Elusogbin Esq. for
the Defendant
JUDGMENT
1.0 This
action was commenced by a General Form of Complaint dated and filed 18th
August, 2023, wherein the Claimant sought from this court against the Defendant
the following reliefs;
i. A DECLARATION by this Honourable Court
that the Spring Rock Group Personnel Handbook duly read, understood and
acknowledged by the Defendant is binding on the Defendant as part of her terms
of employment with the Claimant.
ii. An Order of this Honourable Court directing the
Defendant to pay the sum of N478, 500.00 (Four Hundred and Seventy-Eight
Thousand, Five Hundred Naira) which is the payment of two-months gross salary
in lieu of notice of resignation to the Claimant.
iii. An Order of this Honourable C ourt awarding
damages in the sum of N1, 000,000.00k (One Million Naira) to the Claimant for
failure of the Defendant to issue the appropriate resignation notice.
iv. Cost of this suit in the sum of N300, 000.00
(Three Hundred Thousand Naira) only.
The
Defendant filed her memorandum of appearance and statement of defence dated 23rd
but filed 24th January, 2024.
CASE
OF THE CLAIMANT
1.1 The
Claimant averred that by a letter dated 8th December, 2022, the
claimant entered into a contract for service with the Defendant as an Associate
Accountant with annual salary of N3,300,00.00 (Three Million, Three Hundred
Thousand Naira) with other benefits and allowances. At the inception of the Defendant’s
Contract, she was availed the Employee Handbook for more information about the
conditions of her employment, the rules and regulations of the Claimant the
content of which was duly confirmed and acknowledged by the Defendant having
read and accepted the terms contained therein by signing the acknowledgement
form on the 22nd of Decenmber,2023.
1.2
However, on the 14th of April, 2023, the Defendant sent a
mail to the Claimant to terminate her employment with the Claimant in breach of
the Claimant’s Handbook by failing to give the Claimant requite length of
notice or making payment in lieu of notice. The Defendant by her letter of
resignation proposed to the company to keep her two weeks salary for the month
of April, 2023 and upon receipt of same, the Claimant sent an email to the
Defendant pointing the Defendant to due process, that is rather than resigning
with immediate effect in lieu of two weeks, what is required from her is 2
month notice or 2 month salary in lieu of notice which in case of the Defendant
is the sum of 478, 500.00 (Four Hundred and Seventy-Eight Thousand, Five
Hundred Naira) for termination of the employment, which are clearly spelt out
in the SpringRock Group Handbook which content the Defendant confirmed and
acknowledged. The Defendant has however failed and refused to comply with the
aforesaid conditions. The action of Defendant resigning without the requisite
notice as prescribed in the terms of her contract with the Claimant occasioned
damages to the Claimant, thus, being displeased with this act of the Defendant,
initiated this suit.
CASE
OF THE DEFENDANT
1.3 The Defendant averred that she was not emp
loyed
by any of the companies referred to in the Employee Handbook as contended by
the Claimant, and that she is not contractually bound by the terms and policies
contained in the said Handbook as the handbook was specifically stated to apply
to Spring Rock Group and its subsidiaries and the Claimant was not stated to be
one of the subsidiaries of Spring Rock Group. The Defendant stated that the
terms of her employment is as stated in the Claimant’s Offer of Employment
letter dated 8th December, 2022 which sets out terms to which the
Defendant accepted by signing her acceptance on a copy of the letter.
1.4 The letter of employment specifically referred
to the applicability of the Employee Handbook of BITMARTE C-BIT INDUSTRIES
LIMITED which the Claimant never made available to her, and that she was made
to acknowledge receipt of a copy of a completely different Employee Handbook
after resuming work with the claimant. The acknowledgment of the Employee
Handbook after resuming work with the Claimant does not constitute a novation
of contract between the parties, and that there is no privity of contract
between her and the Spring Rock Group. The Defendant stated that in March 2022,
she was paid half salary due to the transition to remote work contrary to the
terms of her employment with the Claimant. The Defendant contends that Claimant
owes her the sum of N95,567.63 being withheld 50% of her due and payable salary
for the month of March 2023. The Defendant’s terms of employment were not
subsequently amended by the Claimant whilst 50% salary was paid to her.
1.5 The
Defendant contended that even if the Spring Rock Staff Handbook forms part of
her contract with the Claimant (which is strenuously denied), the provision of
the said Handbook does not stipulate that the Defendant should pay any money to
her employer upon resignation. On the contrary, the said Handbook stipulates a
forfeiture. The Defendant further contended that the terms of the said Handbook
in relation to resignation of appointments by an employee is onerous,
unconscionable, extravagant and exorbitant and out of proportion to the
interest of the Claimant in the enforcement of the employment obligations and
in violation of international best practices of Labour relations and a
violation of domestic and international Labour Laws and Conventions applicable
to Nigeria. Also, the Defendant averred that there is no place in the contract
of employment for the Defendant to pay the Claimant money in lieu of notice.
TRIAL
1.6 Trial
commenced on 29th April, 2024
where CW1 testified and adopted his witness statement on oath sworn to
on 18/8/2023, and in that course, tendered the following documents as exhibits
without being objected to by the defendant except that counsel raised an
observation that the Spring Rock Group Hand book is a photocopy rather than
original and that foundation has not been laid. However, counsel reserved his
argument against the document until at the final written address stage of the
case. The documents tendered were admitted in evidence and marked as follows:
1. Letter of employment/acceptance letter dated
8/12/2022- Exhibit BM1.
2. Spring-Rock Group Personnel Handbook- Exhibit BM2.
3. Spring-Rock Group Personnel Acknowledgment Form-
Exhibit BM3.
4. Resignation letter dated 19th April,
2023- Exhibit BM4.
5. Demand for payment in lieu of notice dated 20th
April, 2023 BM5
6. Email of Defendant’s counsel dated 29th
April, 2023- Exhibit BM6.
7. Email dated 5th May, 2023- Exhibit BM7.
8. Certificate of identification- Exhibit BM8.
CW1 was cross examined upon conclusion of the
evidence and the case of the claimant was closed.
1.7 On
26/6/2024, the defendant opened her case having testified as DW1, after
adopting her written statement on oaths, the witness was shown Exhibit BM1 and
BM2 if she can identify both and same identified by the witness. The witness was
cross examined and subsequently, closed her case and the case was adjourned to
24/7/2024 for adoption of final written addresses of counsel.
DEFENDANT’S FINAL WRITTEN ADDRESS
1.8
Defendant filed her final written address on 8th July, 2024,
wherein counsel submitted the following issues for determination;
1. Whether the Defendant was in breach of the terms of
Exhibit BM1.
2. Whether the provisions of Exhibit BM2 governs the
contract of employment of the Defendant.
3. Whether the provisions of Exhibit BM2 is enforceable
against the Defendant.
Learned counsel submitted that in issue one, that
by a Contract of Employment dated 8th December 2022, and accepted by
the Defendant on the 18th December, 2022, the Defendant was engaged
by the Claimant in its employment. The terms of the Defendant’s contract of
employment are stated in EXHIBIT BM 1, which also provides for termination of
the employment and states as follows:
“Probation
A probation period will apply for the first 6
months of your employment, during this period, we will access your progress and
satisfactory performance in your job function. During this probationary period,
the company may terminate employment immediately, with or without cause and
with or without notice.”
Exhibit BM 1 further stated under the clause “Legal
Observation” as follows:
“Legal Observation
Benefits and
status are as per bitMARTe C-Bit Industries Employee Handbook. The benefits
stated herein are in place at the time of presentation of your offer letter.
bitMARTe C-Bit, however reserves the right to alter, reduce, remove or
otherwise change these benefits should the need arise. Any changes in benefits
will be communicated to you.”
1.9 It is
the submission of counsel that BM1, was silent about the rights of an employee
to terminate his/her employment with the Claimant. In the absence of provisions
in BM1 for the Employee to terminate her employment, counsel submitted that so
long as the Employee is within the probationary period, she may also terminate
the employment immediately, with or without cause and with or without notice.
1.10 Counsel
submitted that in the instant case, the Defendant did forfeit 2 weeks’ pay in
lieu of notice of termination. The statutory provisions governing employment in
Nigeria is the Labour Act LFN 1990. Section 11 of the Labour Act, LFN states
inter alia;
(1) Either
party to a contract of employment may terminate the contract on the expiration
of notice given by him to the other party of his intention to do so.
(2) The
notice to be given for the purposes of subsection (1) of this section shall be
(a) one day,
where the contract has continued for a period of three months or less;
(b) one
week, where the contract has continued for more than three months but less than
2 years.
1.11 Counsel
submitted that it is not in dispute that the Defendant has worked for the
Claimant for less than 6 months. It has also been clearly admitted by the
Claimant’s witness under cross-examination that the Defendant was under
probation and has not been confirmed. In the instant case, the Defendant
resigned with immediate effect by her resignation letter dated 19th
April, 2023. Counsel further submitted that by forfeiting 2 weeks salary to the
Claimant in lieu of notice is sufficient and in accordance with extant law, and
urged the Honourable Court should resolve Issue No.1 in favour of the
Defendant.
1.12 Counsel
contended that it is settled law that “employee has an immutable right to end a
contract of employment by resignation”. Counsel referred to the case of W.A.E.C.
v. Oshionebo (2006) 12 NWLR (Pt. 994) 258 CA, where the court dwelt
extensively on the legal implications of both employee’s resignation with
immediate effect and employee’s notice of retirement. Counsel also referred to Yesufu
v. Gov. Edo State (2001) 13 NWLR (Pt. 731) 517 SC. The right of an
employee to resign at will is founded on the principle of law that the law
cannot foist an unwilling servant over a master and vice versa, and in effect,
a resignation automatically takes effect upon the delivery or receipt of the
letter of resignation to the employer.
1.13 The
Supreme Court in Yesufu v. Gov. Edo State [2001] 13 NWLR (Pt. 731) 517 SC
held that a notice of resignation of an employment becomes effective and valid
the moment it is received by the employer or authority to whom it is addressed.
This is because there is absolute power to resign and no discretion to refuse
to accept and it is not necessary for the person to whom the notice of
resignation is addressed to reply that the resignation is accepted. And, for
completeness, an employer cannot reject or refuse to accept a resignation
letter because it falls short of the required notice stipulated in the
employment contract or for any other reason at all.
1.14 Learned
counsel submitted that issues 2 and 3 will be argued together and stated that
by virtue of the provisions of BM1, the relevant employee handbook was bitMARTe
C-Bit Industries Employee Handbook. This document was never tendered in
evidence. There was also no mention that Exhibit BM 2 is BM1. It is the
submission of counsel that BM 2 is extraneous to the Contract of Employment and
is therefore inapplicable to govern the Contract of Employment between the
parties. Furthermore, counsel submitted that the Claimant has failed to prove that
the Claimant is;
(a) A Subsidiary of the Spring-Rock Group.
(b) Spring-Rock Group is a holding company under
the Companies and Allied Matters Act 2000.
(c) Spring-Rock Group is incorporated as a Holding
Company in Nigeria or anywhere else.
(d) Is wholly owned by Spring-Rock Group.
1.15 Counsel
submitted that a subsidiary company is a corporate structure with separate
legal personality status. It is statutorily regulated and incorporated for
profit maximization under the Companies and Allied Matters Act (CAMA), which is
the law that regulates the incorporation of companies in Nigeria. A subsidiary
company cannot be registered where no holding company is in existence.
1.16
Counsel submitted that in the circumstance, Claimant has failed to link
BM 2 with the Contract of Employment, which counsel argued that the document
does not govern the Contract of Employment between the parties. Furthermore,
under Cross-Examination, the Claimant’s witness has failed to show that
bitMARTe C-Bit Industries Limited was mentioned anywhere in BM 2. It is the
submission of counsel therefore that the exclusion of bitMARTe C-Bit Industries
Limited in the long list of companies said to be subsidiaries of Spring Rock
Group in Exhibit BM 2 is irrefutable prove that BM 2 is not applicable to
employees of bitMARTe C-Bit Industries Limited. Therefore, it is the submission
of counsel on issues 2 and 3 that Exhibit BM 2 is extraneous to BM 1 and its
provisions does not apply to the Contract of Employment whatsoever.
1.17 Counsel
submitted further that assuming without conceding that the Defendant signed an
Acknowledgement Form (BM 3,) 2 weeks after resuming her employment with the
Claimant, BM 1 does not govern the Contract of Employment on the grounds of
Privity of Contract. No evidence was proffered by the Claimant that the
Defendant and Spring Rock Group entered into any contract of employment. The
courts have maintained that generally, a contract cannot be enforced by a
person who is not a party to same even if made for his benefit.
Counsel cited Dunlop Pneumatic Tyre Co Ltd v
Selfridge & Co Ltd [1915] AC 847; where the plaintiff sold tyres to
a certain dealer on the understanding that he would not resell below a certain
price and that in the event of a sale to customers the dealer would extract the
same promise from them. The dealers sold tyres to Selfridge who agreed to pay
Dunlop 5 pounds for each tyre they sold below the restricted price. Selfridge
sold some tyres below the restricted price and Dunlop brought an action to enforce
the promise to pay 5 pounds for each tyre sold below the restricted price. The
court held that while Selfridge had breached the contract with the dealer, the
Dunlop company was not a party to the contract and had furnished no
consideration. This doctrine is also applied in Nigeria by the Supreme Court in
Chuba lkpeazu v. African Continental Bank (1965) NMLR 374 at 379 The
doctrine was also applied in Union Bank of Nigeria (UBN) PLC. V. Sparkling
Breweries Ltd. & Ors. (2001) LLJR-SC.
1.18 It is
the submission of counsel that it should be noted that just as a person who is
not a party to a Contract cannot bring an action under it, a contract cannot be
enforced against a person who is not a party to the contract. Only a party to a
contract can enforce it or have it enforced against them. He referred the court
to llesa Local Planning Authority
(LPA) v. Olayide (1994) 5 NWLR (pt. 342) 91, the respondent tried
unsuccessfully to make the appellant liable for a contract between him and the
governor of Oyo State. Also, it was held in Mercantile Bank v. Abusonwan
(1987) LLJR-S that an action may not be brought against a stranger to a
contract. Counsel further submitted that the Contract of Employment is with a
recognizable and known corporate entity bitMARTe C-Bit Industries Limited.
Spring Rock Group has not been identified and is unknown to the Defendant.
Defendant testified under Cross examination as follows:
“I
have no contract with SpringRock Group. I was employed by bitMARTe C-Bit
Industries Limited. ... was not aware of it as SpringRock”
1.19
Counsel submitted that there is no privity of contract between the
Defendant and SPRINGROCK as the Company that employed the Defendant is BITMARTE
C-BIT INDUSTRIES LIMITED. It is therefore clear that there is no privity of
contract between the Defendant and Spring-Rock Group. The Defendant contended
that she is not contractually bound by the terms and policies stated in the
Handbook (BM 2) as it was said to apply to SPRINGROCK GROUP and any of its
subsidiaries and the Claimant was not stated to be one of the subsidiaries of
SPRINGROCK GROUP. It is in evidence that several weeks after the resumption of
work with the Claimant, the Defendant was given an employee handbook titled BM2
to sign. The Claimant has not proved that BITMARTE C-BIT INDUSTRIES LIMITED is
a subsidiary of SPRINGROCK and therefore the said SPRINGROCK HANDBOOK (BM 2)
does not apply to the Defendant as the Defendant was never an employee of
SPRINGROCK.
Counsel therefore urged the Honourable Court to
resolve issues 2 and 3 in favour of the Defendant and to dismiss the Claims of
the Claimant in its entirety.
1.20 Learned
counsel submitted that regarding compensation, the Defendant received salary
payments from January 2023- March 2023. However, in March 2023, she was only
paid half of the agreed upon salary due to the transition to remote work which
was not in accordance with the Contract of Employment. The Defendant contended
that the Claimant owes her the sum of N95,567.63 being withheld 50% of her due
and payable salary for the month of March 2023. Counsel urged the Honourable
court to order the refund of the said N95,567.63 to the Defendant with interest
at the prevailing bank rate.
1.21 The
Defendant stated that the terms in the said Handbook in relation to resignation
of appointments by an employee is onerous, unconscionable, extravagant and out
of proportion to the interest of the Claimant in the enforcement of employment
obligations and in violation of international best practices of Labour
relations and a violation of domestic and international Labour Laws and
Conventions applicable to Nigeria. The Defendant shall ask this Honourable
Court to declare the said terms null and void and/or unenforceable against the
Defendant in the circumstances. Counsel therefore urged the Honourable Court to
hold that the Claimant is not entitled to any relief sought by him, owing to
the circumstances of the resignation of the Defendant.
CLAIMANT’S FINAL WRITTEN ADDRESS
1.22
Claimant filed its final written address on 23rd July, 2024,
wherein counsel submitted the following issues for determination;
1. Whether Exhibit BM2 having been duly acknowledged
by the Defendant is binding on the Defendant as part of her terms of
employment.
2. Whether the Claimant is entitled to the reliefs
sought against the Defendant via the general form of complaint and the
statement of facts both dated 18th August, 2023.
Counsel submitted that it is trite law that the
onus placed on a party seeking the court to grant judgment for him in respect
of any relief is to show the existence of any facts-rights or liability –
supporting those reliefs. Counsel referred the court to the cases of Okoye
vs. Nwakwo (2005) FWLR 156 pg. 992 Chevron (Nig) Ltd vs. Omoregha (2015) 16 NWLR
1485) 586. Also, Sections 131 & 133 of the Evidence Act, 2011,
quoted hereunder verbatim
Section 131– Whoever desires any court to give
judgment as to any legal right or liability dependent on the existence of facts
which he asserts shall prove that those fact exist.
(2)- When a
person is bound to prove the existence of any fact, it is said that the burden
of proof lies on him”
Section l33-(1) – In a civil case, the burden of
first proving existence or non-existence of a fact lies on the party against
whom the judgment of the court would be given if no evidence were adduced on
either side. Regard being had to presumption that may arise on the pleadings
1.23 Counsel
submitted that by virtue of a letter dated 8th December, 2022, the
Claimant offered the Defendant employment as an Associate Accountant 1, which
offer was accepted by the Defendant on the 17th of December, 2022
and as stated by the Defendant, she resumed on the 19th of December,
2022. In the said offer which was tendered and marked as Exhibit BM1, the terms
and conditions for working with the Claimant were stated therein and same was
duly accepted by the Defendant .Counsel referred to paragraph 3 of the said
Exhibit BM1 thus;
“...in addition to the information below, you can
find more detailed information in the Employee Handbook which would be issued
and also pasted on the company group Hub, in the Employee Services Section”
The Exhibit BM1 further stated under the clause,
Legal Observation as follows: Benefits and status are as per bitMARTe C-Bt
Industries Employee Handbook”.
Further to the above, counsel submitted that the
heading of the said Exhibit BM3 after the logo of bitMART reads...
SPRINGROCK PERSONNEL HANDBOOK ACKNOWLEDGEMENT
1.24
Learned counsel submitted that the Defendant cannot after having
accepted the offer for employment and having enjoyed benefits under the said
contract come at this stage to state that she was not aware that the said
Handbook was binding on her nor that she was not aware of the SpringRock Group.
The Defendant in this suit being literate and after having read and
understanding same before appending her signature, and also in fact as at the
time of signing the said agreement, admitted during cross-examination that she
never raised an issue or observation against the said handbook when same was
given to her, should not be allowed at this stage, claim that the said handbook
was not binding on her as it does not form part of her contract with the
Claimant.
1.25
Counsel submitted that paragraph 1 of the introductory part of Exhibit
BM2 reads thus;
“..As a
result, the SPRINGROCK GROUP, same comprising all SpringRock entities
registered in Nigeria (including but not limited to ...and C-Bit Industries
Limited (altogether called SPRINGROCK), prepared this Handbook to provide you
with an overview of its policies, benefits and rules of engagement.”
1.26 Counsel
submitted that from the foregoing, it is vividly clear that the Handbook being
referred to in the Defendant’s contract of employment is that of the SpringRock
group which the Claimant is part of. Counsel urged the Honourable court to hold
that the Exhibit BM2 is binding on employees of bitMarte C-Bit Industries
Limited and that same forms part of the contract of employment duly accepted by
the Defendant in this suit.
1.27 Counsel
further submitted that it is settled law that written contract agreement freely
entered into by parties is binding on them and a court of law is equally bound
by the terms of any written contract entered into by parties. Counsel referred the Honourable court to the case of Olaniyan
& Ors., v. UNILAG & Anor (1985) NWLR (pt.9) 599 where Karibi-Whyte JSC stated
thus;
“contract
of employment like all other contracts, their creation and termination are both
subject to the general principle governing the law of contract. Hence where the
contract of employment is in writing,
the parties are bound by the express terms and conditions so stipulated”
Also, Section 9 (7) of the Labour Act LFN 1990
which is the law regulating employment in Nigeria states as follows “(7) – a
contract shall be terminated –
(a) -by the
expiry of the period for which it was made
(b) - .....
(c) By
notice in accordance with Section 11 of this Act or in any other way in which a
contract is legally terminable or held to be terminated.”
1.28 It is
the submission of counsel that by the above section of the Labour Act, the
provision guiding the termination of employment is not Section 11 of the Act
but rather the Termination Clause in the handbook, duly signed and acknowledged
by the Defendant. Counsel referred the Honourable court to the case of Minting
Plc. V. Olaleye (2020 LPELR 50409(CA), where the court Per Mohammed
Lawal Garba, JCA (Pp13-15 Paras B-E) held that;
“There is no doubt that the parties in the appeal
agree that the relationship between them was one of the contract of service
between an employer and employee based on an offer by the employer and an
unqualified acceptance by the employee of all the terms and conditions offered
and accepted by the parties therefore formed the foundation which governed and
regulated the agreement and relationship between them. Therefore, in the
contract of employment, the parties are bound by the terms and conditions
freely agreed to by them and each will be liable for the unilateral breach of
any of the terms and conditions in the course of relationship..”
1.29
Counsel submitted that the termination clause as it relates to the
Defendant states thus:
“Where an exempt Employee (whether a probationary
or regular Employee) intends to resign his/her employment with SPRINGROCK, the
exempt employee shall give SPRINGROCK at least 2 months written notice in
advance of such resignation. In lieu of the aforesaid notice, the exempt
Employee shall be liable to forfeit an amount equal to 2-months gross salary to
SPRINGROCK”
1.30 Counsel
submitted that the Defendant was appointed as an Associate Accountant 1, which
falls under the category of an exempt employee according to the Company’s
handbook. It is also in evidence that the Defendant was still on probation when
she resigned from the company with ‘immediate effect’, which is in
contravention of the Defendant’s contract with the Claimant. And as such the
Claimant is entitled to 2 months gross salary from the Defendant due to
wrongful termination of Contract. It is without doubt that an employee can
terminate his/her employment with the employer and the employer cannot force an
unwilling employee to stay, however, such termination ought to be done according
to the law or the terms in the Employment contract, and in the present case,
the SpringRock Group Handbook is the terms regulating the employment between
the Claimant and the Defendant.
1.31 Learned
counsel submitted that it is general knowledge that a company’s requirement for
an employee to give appropriate notice is to give the Company enough time to
find a replacement for the role that is being vacated. And in the event that
such employee intends to leave with immediate notice, the payment in lieu of
the notice is used to engage a freelance professional on a short-term
arrangement to fill the position until another permanent staff is employed to
fill the vacancy. In this case, the decision of the Defendant who occupied a
position of an Assistant Accountant 1, (a functioning position) in the company
to terminate her employment with immediate effect in a functioning company
created a vacancy in the company which needed to be filled with urgency and
with attendant huge cost pending the employment of a permanent staff. And as
such the company is entitled to the payment in lieu of the notice.
1.32 Counsel
contended that it is trite that where there exists a contract between parties
and the said contract has been breached by one party, the wronged party is
entitled to breach of the said contract. The act of the Defendant in this suit
failing to give the requisite notice as contained in her contract of employment
and the Handbook is in clear breach of her contract with the Claimant and as
such the Claimant is entitled to damages for the breach of the said contract.
Counsel referred the Honourable Court to the case of Iwununne vs.
Egbuchulem & Ors. (2016) LPELR-40515(CA), where the Court of Appeal
held that:
“On the allegation that the damages was not proved
by Credible evidence, Appellants Counsel appeared to have forgotten that
general damages need not be specifically pleaded or proved. As the same tends
to flow from the act/conduct of the defendant complained against...”
1.33 It is
the submission of counsel that on the claims of the defendant for a refund,
Order 32 Rule 4 and 5 of the NICN Rules states thus;
“4. Where any Defendant seeks to rely upon a ground
as supporting a right of set- off or counterclaim, the Defendant shall in
defence state specifically that the Defendant does so by supporting a right of
set- off or counterclaim.”
DECISION OF THE COURT
1.34 Upon
careful perusal of the pleadings filed by the parties, the evidence adduced,
the exhibits tendered and the submissions of respective counsel, I note that
the Claimant formulated two issues for determination which state thus;
1. Whether Exhibit BM2 having been duly acknowledged
by the Defendant is binding on the Defendant as part of her terms of
employment.
2. Whether the Claimant is entitled to the reliefs
sought against the Defendant via the general form of complaint and the
statement of facts both dated 18th August, 2023. And I will prefer
to take them as they are, in determining the case at hand.
1.35 It is
pertinent to observe that by determining the reliefs raised by the Claimant,
recourse shall be made in particular, to Exhibit BM2. Now, let me quickly refer
to the first paragraph of page 1, of the introduction of Exhibit BM2 which
states thus;
“Providing up to date and consistent information is
an important part of fostering a strong and healthy work environment. As a
result, the SPRINGROCK GROUP, same comprising all SpringRock entities
registered in Nigeria (including but not limited to SpringRock Energy Limited,
Spring Rock M Consults Ltd., SpringRock Crystal industries Ltd., SpringRock
Gemini Resources Limited, Spring Rock E&P Investments Ltd. and SpringRock
Alliance World Limited), all Pentium entities registered in Nigeria (including
but not limited to Pentium Energy Resources Ltd., Pentium Beta Industries Ltd.,
Pentium Exploration & Production Ltd., and Pentium Theta Resources
Limited), Alliance SpringRock Energy LLC (USA), SpringRock Energy Limited
(Mauritius), SpringRock Energy Limited (Seychelles), SpringRock Energy Kenya
Limited, Spring Rock Energy Ghana Limited, SpringRock Cybele Limited (Ghana),
5C Ltd. and C-Bit Industries Limited (altogether called “SPRINGROCK’), prepared
this Handbook to provide you with an overview of its policies, benefits and
rules of engagement”.
36 Flowing
from the above, it is pertinent to note that BITMARTE C-BIT INDUSTRIES LIMITED
is the Claimant in this suit while C-BIT INDUSTRIES LIMITED is what is referred
to in Exhibit BM2.
In law, once parties on their own free will and
volition enter into a written agreement, they are in law, bound to honour and
be bound by the terms of their agreement and therefore their relationship and
subsequent disagreements must be resolved in accordance with their agreement
and the court cannot go outside the terms as agreed upon by the parties. It was
held in Ahmed V. CBN (2012) LPELR- 9341(SC), that parties are
bound by the terms of their contract and the court cannot read into such
contract what was not within the contemplation of the parties except where
fraud, duress or misrepresentation can be established.
1.38 It is
instructive to add that the terms of contract between the parties are clothed
with some degree of sanctity and if any question should arise with regard to
the contract, the terms in any document which constitute the contract are
arguably the guide to its interpretation. It is not within the purview of the
court to rewrite a contract for the parties. See Minaj Holdings Ltd V
Amcon(2015) LPELR – 24650 (CA).
The courts
therefore, in determining whether there has been a breach of that contract are
enjoined to confine themselves to the plain words and meaning derived from the
document. See Oyamenda V Abdulrahman (2013) LPELR – 22744 (CA).
By Exhibit BM1, (which is the Employment offer and
acceptance letter dated 8/12/2022) there was no provision for an employee to
terminate his/her employment. Exhibit BM1 on probation states thus:
“A probation will apply for the first 6 months of
your employment. During this period, we
will access your progress and satisfactory performance in your job function.
During this probationary period, the company may
terminate employment immediately, with or without cause and with or without
notice.”
1.39 Where
no provision is made, recourse shall be had to the Labour Act, since it is
simply the issue of notice that is now in contention in this case between the
parties as to where does the obligation tilts.
Section 11 of the Labour Act provides for notice or
payment in lieu of notice by either party before the contract of employment is
terminated. An employer does not need to provide a reason for termination but
would need to substantiate same if a reason is given. The position of the law
is that either party can terminate the contract as a willing employer cannot be
forced on an unwilling employee and vice versa.
The aforementioned Section 11 CLEARLY SPECIFIES HOW
AN EMPLOYER CAN TERMINATE THE EMPLOYMENT OF HIS/HER EMPLOYEE.
Termination
of contracts by notice:
(1) Either party to a contract of employment may
terminate the contract on the expiration of notice given by him to the other
party of his intention to do so.
(2) The notice to be given for the purposes of
subsection (1) of this section shall be-
(a) One day, where the contract has continued for a
period of three months or less;
(b) One week, where the contract had continued for more
than three months but less than two years;
(c) two weeks, where the contract has continued for a
period of two years but less than five years; and
(d) One month, where the contract had continued for
five years or more.
(3) Any notice for a period of one week or more shall
be in writing.
(4) The periods of notice specified in subsection (2)
of this section exclude the day on which notice is given.
(5) Nothing in this section affects any right of either
party to a contract to treat the contract as terminable without notice by
reason of such conduct by the other party as would have enabled him so to treat
it before the making of this Act.
(6) Nothing in this section shall prevent either party
to a contract from waiving his right to notice on any occasion, or from
accepting a payment in lieu of notice.
(7) All wages payable in money shall be paid on or
before the expiry of any period of notice.
(8) If an employer gives notice to terminate the
contract of employment of a worker who has been continuously employed for three
months or more, the employer shall not be liable under this section to make any
payment in respect of a period during which the worker is absent from work with
the leave of the employer granted at the request of the worker
(9) In the calculation of a payment in lieu of
notice, only that part of the wages which a worker receives in money, exclusive
of overtime and other allowances, shall be taken into account.
1.40 In the
instant case, the Defendant was employed by the claimant on 8th
December, 2022 vide Exhibit BM1 and subsequently resigned from the position on
19th April, 2023 ie Exhibit BM4, during which she was still on
probation. Therefore, the Defendant had
been in the employment of the Claimant for four (4) months to which Section 11
(2)(b) of the Labour Act provides thus:
(b) One
week, where the contract had continued for more than three months but less than
two years;
By Exhibit BM4, the Defendant forfeited two (2)
weeks salary in lieu of notice to the Claimant, which by Section 11 (2) (b) of
the Labour Act is valid and within the purview of the extant law.
By Exhibit BM1 on legal observation which states
thus:
“Benefits and status are as per bitMARTe C-Bit
Industries Employee Handbook. The benefits stated herein are in place at the
time of presentation of your offer letter. bitMARTe C-Bit, however, reserves
the right to alter, reduce, remove or otherwise change these benefits should
the need arise. Any changes in benefits will be communicated to you.”
1.41 The
question that begs for answer is; could it be right to say that Exhibit BM2
entitled “SpringRock Group Personnel Hand book” forms part of the contractual
agreements between the parties which content stands to out-weight Exhibit BM1
looking closely at the “Introduction” provision on page 1 of the said BM 2?
This particular aspect contains the comprehensive list of companies that are
under spring group that prepared BM 2. This exhibit was stated to have been
brought to the attention of the defendant much later after all have been done
between the claimant and the defendant regarding the formalization of their
contract of employment.
1.42 On a
critical assessment of the list, I am unable to see the full name of the
claimant as presented in this case. In this regard therefore, I agree with the
latin expression that “..expressor premis
exclusion” in relation to the meaning to be given to Exhibit BM 1 as it
never refer to Exhibit BM 2. Certainly,
I am not persuaded by the arguments of the counsel for the claimant with
regards to the applicability of BM 2. There has not been any evidence led by
the claimant showing that the claimant is a subsidiary company to Spring Rock
Group.
1.43 From
the circumstances of this case the most only and weightier document worthy of
note for the regulation of the contract between the parties is Exhibit BM 1
which content is so plain and without any liability while considering the
resignation of the defendant from the claimant’s employment. On this premise, I
find the defendant not in breach of the terms thereof.
The cases cited by the claimant’s counsel among
others including MOBIL PRODUCTION (NIG) unLTD Vs AYENI (2010) 4 NWLR PT 1185
P586 @606, PETERSIDE Vs IMB (NIG) LTD (1993) 2 NWLR PT278 P712 @712 PARAG-H and
ABIOYE Vs YAKUBU (1991) 5 NWLR PT 190 P 130 reiterating the principles of rules
of interpretation are not in full fours with the instant case on simple ground
that in the instant case, there is no relationship between Exhibit BM1 and BM
2 in terms of their sources about the
parties and so there is nothing to show that the defendant is in breach of
Exhibit BM I, after all the decision of the apex court in the case of; ADEGOKE
MOTORS LTD Vs ADESANYA (1989) 3 NWLR PT 109 P.250 is to the effect that a case
is only an authority for what it decides and nothing more. Where the facts of
the earlier case differ from the facts of the later case, the decision in the
former cannot serve as precedent in the later case.
1.44 It is
my view that Exhibit BM2 does not govern the Contract of Employment of the
Defendant simply because the said exhibit was brought to the attention of the
defendant at a much later time and the defendant was asked to sign as was done
in Exhibit BM 3 on 22/12/2022 under the caption; “springrock personnel
handbook acknowledgement” Doing this by the claimant against the defendant
to my mind qualifies to be an unfair labour practice to which this court being
a labour court have not been allowing over the years particularly in the cases
of: INEH MONDAY MGBETI Vs UNITY BANK PLC unreported NICN/LA/98/2014 judgment
delivered on 21/2/2017, where it was held to be an unfair labour practice where
Employer reserved the right to reject resignation by the Employee on the ground
of the fact that the employee was a subject of an investigation exercise in
respect of some breaches.
1.45 In the
same vein, the case of EKEOMA AJAH Vs FIDELITY BANK unreported,
NICN/LA/588/2017 judgment delivered on 14/5/2019 wherein instance of unfair
labour practice by which an employee was subjected to a retroactive policy so
as to deny the employee his benefit was considered an unfair labour practice.
In the instant case, it is in evidence that the
defendant is being owed half a month salary which not captured to be in
contract agreement. In the whole, it is crystal clear that Exhibit BM1 governs
the contract of employment between the Claimant and the Defendant. Therefore,
the provisions of Exhibit BM2 is not enforceable against the Defendant and I so
hold. All issues I set out above are hereby resoled in favour of the defendant.
1.46 Upon
resolving the issues against the Claimant I find that all the reliefs sought by
the Claimant are not grantable and as such they fail. This case is hereby
dismissed. It is trite that a successful party in a case is entitled to cost
which should not be denied except for good reasons. See MAYA Vs OSHONTOKUN
(2001) 11 NWLR PT 723 P.62 @85 PARA F, (CA) and also ORDER 55, RULES 1-5 of the
Rules of this court, 2017. To that extent, I award cost of N100,000 (One
Hundred Thousand Naira) only against the claimant and in favour of the
defendant.
Judgment is entered accordingly.
..................................................
HON. JUSTICE S. A. YELWA
(JUDGE)