Download PDF
By his Amended General Form of Complaint dated and filed on 14th June, 2012 the claimant seek the following reliefs: 1. A declaration that claimant has the right to counsel of his choice under Section 36 and freedom under Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to associate with other staff to make a demand for the handbooks commonly referred to in the company letters of appointment, being a statutory document also provided for by Section 7 of the Labour Act, LFN, 1990. 2. A declaration that the demand as referred to in relief (1) above is not anti-organizational and thus the measure taken by the defendant to terminate claimant appointment in pursuance thereof is unconstitutional and contrary to Section 40 of the Constitution of the Federal Republic of Nigeria (as amended). 3. An order setting aside the defendant’s letter of termination of claimant’s appointment dated 21/6/10. 4. An award of N10,000,000.00 (Ten Million Naira) only as general damages for defendant’s wrongful termination of claimant’s appointment and/or for the infraction of his right to brief counsel and to associate with the co-staff to make a demand for the handbook commonly referred to in the company letters of appointment. Accompanying the Complaint is Statement of Facts, List of Document, Statement of Claimant’s Witness on Oath all dated 14th June, 2012. In reaction, the defendant filed an Amended Statement of Defence, Witness Statement on Oath and List of Documents. The claimant’s case is that he was a permanent staff of the defendant by virtue of a letter of employment dated 3/9/2002. That the defendant gave impression in the letter of appointment that the terms and conditions of his employment were as contained in its Employment Handbook. That although the letter of employment was personal, reference to the company Handbook was common denominator in all the letters of appointment issued to each worker of the defendant. That on resumption of duty he found that the information about the Handbook was a ruse as no such handbook existed in the defendant company. That after several demands to no avail, he and other leaders including Mr. Justin Igboanugo and Mr. Adedeji Badusi who were then existing staff of the defendant, on behalf of the workers briefed a Solicitor, Chief S.W. Baidi, to write and formally demand the Handbook from the defendant. That despite the Solicitor’s letter dated 7th May, 2010 demanding the Handbook, the defendant refused or failed to issue the Handbook to the staff, instead the defendant began to intimidate him and other arrow heads through serial termination of their appointments while others in same struggle were allowed to continue in employment. He pleaded a termination letter dated 21/6/10. That the termination of his appointment is a weapon of vendetta to avenge him on his legitimate demand for a handbook which the defendant provided at the time of termination of his appointment. That he will rely on his Solicitor’s letter dated 4th June, 2010 to show his complaint of victimization and intimidation. That he has the right to join his co-staff to make a demand for the handbook which they all have common interest in. The case of the defendant is that the contract of employment of the claimant and other staff of the defendant were personal to them with the terms and conditions thereof governing their relationship. That the defendant has always had and still has an employment handbook for its employees which is reviewed periodically and upgraded in line with modern day needs and international requirements for better enhancement of work environment ultimately aimed at maximizing staff welfare and growth of the organization. That the employment handbook has always been available for all the staff of the defendant to read in the event copies are not available to go around at a particular time. The defendant also pleaded that in addition to having a staff handbook, it has always implemented it in its relationship with its employees and all other conditions/benefits as contained in the defendant’s employment handbook had always been available to the claimant prior to termination of his appointment. In support of these averments the defendant pleaded copy of its internal memo dated 1st November, 2005, copy of its employment handbook, proof of medical facility treatment of the claimant by the defendant, proof of continuous education and training of the claimant and details or proof of claimant’s final entitlement and severance benefit. The defendant pleads that it did not intimidate or wrongfully terminated the appointment of the claimant. That the employment of the claimant was terminated in accordance with the letter of appointment and condition of service with the defendant and in accordance with existing laws of the land, governing industrial and ancillary matters, as his services as stated in his letter of termination was no longer required by the defendant. That prior to termination of appointment of the claimant, he had been issued queries following obvious misconduct to which he refused to answer. That the claimant’s entitlement or severance benefits have been worked out in accordance with his contract of service with the defendant. That by the claimant’s letter of termination of contract of employment with the defendant, he was entitled to call at the Accounts Department to collect his full and final entitlements. That the claimant has not approached the accounts department of the defendant to collect his entitlement or severance benefits which includes one month in lieu of termination as advised in his letter of termination. The defendant further pleaded that the queries issued to the claimant and the subsequent termination of his employment contract is not discriminatory and does not violate the claimant’s right to assemble freely with his co-staff for the protection of his common interest in the company, neither does it have to associate freely with other staff to protect his interest in the defendant company. That it is not aware of any purported collective demand for a handbook and improved working condition of service nor did it stop or prevent the claimant from exercising his constitutional right to associate freely with other staff of the defendant to protect his interest. That it appreciates or encourages labour union meetings among its staff and employees and has registered trade/labour unions for both junior and senior staff of the defendant company. That it is the responsibility of the registered trade union to discuss or demand the interest and welfare packages of its members with the defendant company. That the termination of the appointment of the claimant is in line with his letter of appointment and that it does not avenge its staff or the claimant for that matter. That the claimant has not suffered any damages attributable to the defendant. That the claimant is not entitled to the reliefs sought as they are vexatious, misconceived, frivolous, untenable and lacking in merit. The trial in this case commenced on 11th July, 2012 with the claimant testifying on his behalf as PW1. He adopted his statement on oath as his evidence in-chief the facts of which are in consonance with the statement of facts. During cross-examination, the PW1 stated that he joined the defendant in March, 2001 as a house keeper but his appointment was terminated in 2010 having worked for 9 years with the defendant. That during his employment he attended the defendant’s hospital for medical treatment but did not attend any training during his employment. The PW1 later admitted attending workshop when he was shown a certificate of workshop attendance. He also said that during his employment his salary was not increased and did not receive any benefit from defendant. That the defendant has notice board in the premises but he has never gone to the notice board to read about any information. That if there is any notice on the board his colleagues will tell him. That he was given two queries by the defendant. During re-examination PW1 stated that he cannot remember why he was queried. The claimant thereafter closed his case. The defendant called Babajide Omisore as its witness who testified on its behalf as DW1. He adopted his witness statement on oath as the evidence in-chief. He also adopted the list of documents to support his case. During cross-examination the DW1 stated that he was employed on 28th January, 2002 and as at that time he was not given a staff handbook. That by 1st November, 2010 there was a handbook for the defendant. That he did not know when the claimant was employed nor when his employment was terminated. That there was no existing handbook before the 1st November, 2010 in the defendant’s company. That it is not true that the defendant do not allow union activities. He stated that he did not know the names of union executive s nor the last set of union officials before the closure of the defendant company. That he is not sure of the condition of service which the claimant was sacked. He stated tht it is not wrong for the claimant to ask for handbook referred to in his letter of employment. That he did not know if the claimant’s counsel demanded for a handbook from the defendant. That he did not know whether it is because the claimant demand of the handbook that led to his termination. That the demand for a handbook by the claimant is not anti-organizational. That Mr. Kefas Zakka was his predecessor in office. There was no re-examination. At the close of their case, the parties were ordered to file their Final Written Address. The defendant final written address is dated 4/12/2012 filed same date while the claimant’s final written address is dated 17/12/12. The defendant formulated a lone issue for determination i.e. “whether the claimant has made out a case to entitle him to the reliefs sought in this suit”. Learned Counsel submitted that the claimant has not made out a case to entitle him to the reliefs sought in this suit. He submitted that having worked for 8 years the claimant became entitled to terminal benefit which is contained in the letter of 21st June, 2010 addressed to the claimant. He pointed out that the defendant in its amended statement of defence, the defendant categorically admitted the claimant’s entitlement to terminal benefits having worked for 8 years. That despite a clear advice to go to the Accounts Department to collect his entitlements, the claimant failed to do so instead he instituted this suit for damages and declaratory reliefs, hence there is no justification whatsoever for this suit. He also submitted that the claimant has not claimed his merited entitlements in his relief to this suit. Learned Counsel for the defendant urged the court to order the claimant to proceed to collect his merited long service benefit instead of chasing uncertain reliefs notwithstanding that he did not claim same in his reliefs. On the declaratory reliefs sought by the claimant, Learned Counsel to the defendant conceded that the claimant has a constitutional right of choice of counsel and to associate with other staff of the defendant to make legitimate demands including the demand for handbook referred to in the claimant’s employment letter dated 3rd September, 2002. He submitted that it is in recognition of the necessity for staff to know their working conditions/benefits that it refers its employees at entry point to its handbook. That the defendant’s handbook has always been available and that on occasions when the book is undergoing reviews, staff are advised appropriately on how to follow up on information concerning their conditions or benefits. He referred the court in proof of his contention to paragraph 3 of its amended statement of defence, copy of the defendant’s internal memo dated 1st November, 2005, copy of defendant’s staff handbook and 2004 edition of the defendant’s handbook filed in defence to a sister suit before this court in Suit No. NICN/LA/25/2012 between Justin Igboanugu v. Dangote Cement Plc. He submitted that the defendant has over 300 staff in its Apapa Cement terminal where the claimant worked prior to its closure and it is literally impossible to run a place like that without properly laid down rules of service. On the termination of the claimant’s appointment, Learned Counsel submitted that the claimant’s termination letter clearly stated that his services were no longer required by the defendant. That at disengagement the claimant was directed to proceed to Accounts Office to pick up his terminal benefits. Counsel referred the court to document listed as 5 in the list of document to submit that it contains details of the claimant’s final entitlement which is a clear evidence in itself of the existence of a handbook from where benefits and entitlements are computed. That the claimant had been queried twice by the defendant while in service but the queries has nothing to do with the claimant’s right to a counsel or association with his fellow staff or the termination of his employment. That there was nothing unconstitutional about the claimant’s termination as it was done in accordance with the terms of engagement. Learned Counsel also submitted that assuming without conceding that the claimant’s employment was terminated for reasons insinuated by the claimant, the relief of setting aside the claimant’s termination which imports reinstatement has clearly been overtaken by subsequent even of the total closure of the place of work. He submitted that motive for termination is not relevant in contract of employment citing the case of Ajayi v. Texaco [1987] 3 NWLR pt. 62 p. 577, Olaniyan v. University of Lagos [1985] 2 NWLR (pt. 9) p. 599. Learned Counsel also submitted that the court cannot compel the employer to retain the service of an employee, therefore, the court cannot grant a declaration against the employer to retain an employee citing the case of Nfor v. Ashaka Cement Co. Ltd [1994] 1 NWLR (pt. 319) p. 222, Calabar Cement Co. Ltd v. Daniel [1991] 4 NWLR (pt. 188) p. 750. On the claim for general damages the Learned Counsel submitted, that no breach has been occasioned by the claimant’s termination to entitle him to damages as claimed because the claimant’s employment was terminated in accordance with his terms of employment. He cited the case of Araromi Rubber Estates Ltd v. Orogun [1999] 1 NWLR (pt. 586) p. 302, Union Beverages Ltd v. Owolabi [1998] 2 NWLR (pt. 68) p. 128, Ajayi v. Texaco [1987] 3 NWLR (pt. 62) p. 577. He finally urged the court to refuse the relief seeking award of damages as same is unmerited. In conclusion, Learned Counsel urged the court to hold that this suit lacks merit and to accordingly strike it out with cost. Learned Counsel for the claimant formulated the following issue for determination: “whether the claimant is not entitled to damages, or an order to set aside the defendant’s letter of termination of his appointment dated 21st June, 2010 when the defendant concedes that the claimant has the constitutional right of choice of counsel as well as right to associate with other staff of the company to make legitimate demands, which include demand for a handbook referred to in the claimant’s appointment letter dated 3rd September, 2002.” Learned Counsel submitted that the defendant having conceded in its final address that the claimant has a constitutional right of choice of counsel and right of association with other staff of the defendant and having conceded that there is nothing anti-organizational about staff legitimate demands, the reliefs (i) and (ii) need no further proof. He urged the court to grant the two declaratory reliefs in the claimant’s Amended General Form of Complaint and Amended Statement of Facts all dated 14th June, 2012. Concerning claim for general damages of N10,000,000.00, Learned Counsel submitted that general damages are the losses that flow naturally from the defendant’s act and their quantum need not be pleaded nor proved because they are generally presumed by law citing Gari v. Sairafina Nig Ltd [2008] All FWLR (pt. 399) p. 434 at 477, Elf Petroleum Nig. Ltd v. Umah [2006] All FWLR (pt. 343) p. 1761. He submitted that if it is conceded that the claimant has a right of association with co-staff to demand the said handbook, then it is wrongful for the defendant to terminate his appointment for that legitimate demand. That there was also breach of a fundamental term of the contract as a result of the defendant’s failure or refusal to provide the handbook to the claimant, therefore the claimant is entitled to general damages. He referred to the case of Araromi Rubber Estate Ltd v. Orogun [1999] 1 NWLR (pt. 586) p. 302 to buttress the point that by the behavior or motive of the defendant in getting rid of the claimant for the simple reason of his legitimate demand for the handbook he is entitled to an award of general damages as claimed. Learned Counsel submitted that the claim for damages was predicated on two grounds as may be distilled in relief (iv), that is, (i) defendant’s wrongful termination of claimant’s appointment and (ii) infraction of his right to brief counsel and to associate with his co-staff to make a demand for the handbook constitutes the bedrock of the contract, and the failure by the defendant to provide same constitute breach of a fundamental term of the contract. He cited the case of Eliochim (Nig) Ltd v. Victor Mbadiwe [1986] 1 NWLR (pt. 14) p. 47 at p. 65 on the award of damages. Learned Counsel submitted that from paragraph 7 of the claimant’s reply dated 14th June, 2012 the claimant was punished in the form of termination of his appointment for exercising his constitutional right to associate with others to demand defendant handbook through his lawyer. That the only way to punish the defendant for high-handedness and flagrant disregard of claimant’s fundamental right is to award aggravated damages in favour of the claimant. On the claim for an order to set aside the letter of termination, Learned Counsel submitted that the said order is not synonymous with an order for reinstatement. He submitted that where it is found that the termination of claimant’s appointment was a vendetta to avenge him of his legitimate demand for the company’s handbook, then the letter of termination cannot be allowed to stand in the interest of justice. On claim for terminal benefits, Learned Counsel referred to the argument of the defendant counsel that the claimant should proceed to collect his merited long service benefits to submit that the defendant failed to state which handbook the claimant’s entitlements were work out from. He submitted that there was no existing handbook throughout the duration of the claimant’s employment as none was tendered in evidence. He pointed out that the defendant’s request in paragraph 5.12 (iv) of its final written address is a subtle way to introduce extraneous matters that do not form part of the pleadings and evidence before the court. That the said document was never pleaded or tendered or referred to by the parties during evidence. That it is too late to bring in through the back door a document which the opposite party never had opportunity to see or read at all and the use of the said document will infringe on the claimant’s constitutional right to fair hearing. In conclusion, Learned Counsel urged the court to grant the reliefs sought in this action. I have carefully considered the processes filed, the argument of the parties and the judicial authorities cited by counsel for both parties. In my considered view two issues arise in this case: 1. Whether the claimant has the constitutional right to assemble freely and associate with other staff to protect his interest and to demand for staff handbook. 2. Whether the termination of the claimant’s employment was wrongful. The claimant in this case was employed by the defendant as a Housekeeper by virtue of a letter of appointment dated 3rd September, 2002. In the said letter the terms and conditions of employment were stated to be in accordance with the letter of employment and Employee Handbook. According to the letter of employment the claimant agreed to resume work at the defendant’s office on 19th September, 2002. During the period of his employment the claimant was not furnished with any Employee Handbook. Also in the course of his employment the claimant underwent training and used the defendant’s hospital for medical treatment. Through his Solicitor’s letter dated 7th May, 2010 the claimant and the other staff complained about indiscriminate termination of staff appointment without notice, double standard employed by the defendant to review salary and to provide a Handbook for the staff.. He therefore, urged the defendant in the said letter to work out favourable working conditions to be contained in a handbook, to stop victimization of the writers of the letter, to review the salary of staff, to stop indiscriminate termination of staff appointment and to stop disparity in management and lower cadre welfare packages. The 1999 Constitution of the Federal Republic of Nigeria (as amended) guarantees the right to fair-hearing and to freedom of peaceful assembly and association. Section 36 and 40 provides for right of fair hearing and right to peaceful assembly and association. Therefore, the claimant and every worker herein have the right to organize along with his co-workers or to form a trade union of their choice. Besides the constitutional provisions, the claimant has the right under his contract of employment to demand for the issuance of the Employee Handbook which is conspicuously incorporated into his contract of employment and which is meant to further regulate his employment Concerning the validity of the termination of the claimant’s employment, it is important to reproduce the relevant part of the letter of employment. It states: “This appointment can be terminated by either party during the period of probation by giving two weeks’ notice or pay the basic salary for the two weeks in lieu of notice and one month on either side or pay the monthly salary in lieu after your confirmation”. By its letter of 21st June, 2010 the defendant terminated the claimant’s employment without notice but advised him to call at Accounts Office to collect his final entitlements accordingly. In its Internal Memo to the Head of Accounts dated 19th July, 2010 concerning the claimant’s final entitlements the defendant computed the claimant’s final entitlement including his one month salary in lieu of notice. It is in evidence that since his disengagement, the claimant has not called at the defendant’s Accounts Office to claim his entitlements. The defendant stated in paragraph 7 (b) of its statement of defence that the claimant was issued with queries over misconduct as evidenced in its internal memo dated 28th May, 2010 and 7th June, 2010. These facts were admitted by the claimant during cross-examination. The claimant claimed that the defendant terminated his employment because of his demand for the employee handbook. It has not been show to this court that the termination of the claimant’s employment is directly connected to his demand for Employee Handbook. The two queries mentioned above issued to the claimant made no mention of the claimant’s letter of demand for Employee Handbook but in relation with the claimant’s schedule of duties at the defendant. Therefore, this court is not convinced that the claimant’s request for Employee Handbook is linked with the termination of his employment. An employer had unfettered right to hire and fire his employee with or without reason provided it is in accordance with the provisions of the employment terms. Furthermore, an employer of labour does not have any obligation to retain the services of any unwanted employee, and may terminate the appointment of the employee without any reason. See Angel Shipping & Dyeing Ltd v. Ajah [2000] 13 NWLR (pt. 685) p. 532, N.R.W Ind. Ltd v. Akingbulugbe [2011] 11 NWLR (pt. 1257) p. 131. In the circumstance, my finding is that the claimant’s employment was lawfully terminated by the defendant. The claimant argued that the motive of the defendant in getting rid of him is attributable to the reason that he demanded for the employee handbook. Where a contract has been properly terminated, intention and motive becomes irrelevant. In the instant case, by the letter of employment, no reason needed to be given for the termination of the claimant’s employment. See N.R.W Ind. Ltd. v. Akingbulugbe (Supra) p. 153, Nfor v. Ashaka Cement Co. Ltd [1994] 1 NWLR (pt. 319) p. 222, Olatunbosun v. N.I.S.E.R Council [1988] 3 NWLR (pt. 80) p. 25. Concerning the claimant’s claim for general damages, I have earlier held that the claimant’s employment was lawfully terminated, therefore, he is not entitled to the relief of general damages. For the avoidance of doubt I hold as follows: 1. The termination of the claimant’s appointment is not wrongful. 2. The claimant’s claim for general damages therefore fails. 3. The claimant should proceed to the defendant’s Accounts Department and collect his final entitlements as computed in line with his contract of employment. I make no order as to cost. Judgment is entered accordingly. …………………………………… Hon. Justice J. T. Agbadu Fishim Judge