Review of some of the Significant Decisions – Labour & Employment 2019 – Folabi Kuti

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In the period under review, the underlying jurisprudence of the employment court (the National Industrial Court of Nigeria- NICN) on workplace issues, has been restless. Where some principles have been clarified and strengthened, a few other areas clamour for unanimity on the mind of the labour court.

To be sure, there are signposts that the NICN has continued to contribute to the development of a progressively evolving labour law jurisprudence. The most significant strides have been recorded in the areas of workers’ protection and job security, workers’ participation vis-à-vis the influence of labour on management decision making, and fortifying the court’s resistance to interference with parties’ freedom of contract; excepting  in deserving cases to protect a weaker party (more often than not, the vulnerable worker) in accordance with the letters of the court’s enabling law. Some of the court’s decisions have also advanced increasing engagement with employees as a pivotal factor of production. Some of the more noteworthy decisions of the past year are examined here.

The case against high-compensatory regime of damages for a wrongfully terminated worker in the labour court (at the NICN) which some recent decisions of the Court of Appeal appear have championed may not, in all cases, hold to deny a successful litigant of appropriate  award of damages with the lucid clarification in Emana I.Edet v Fidelity Bank Plc[1]. Here the NICN, still placing reliance on a more recent decision of the Court of Appeal in Promasidor (Nig.) Ltd v Asikhia[2], recognised the distinction between the somewhat limited scope of award of damages for a wrong arising from the termination of employment (often the failure to give the requisite notice) and an award of (general) damages for alleged unproven malpractice, holding that in deserving cases, both can be awarded.

In a landmark decision around unfair labour practice, the NICN in Ekeoma Ajah v Fidelity Bank[3] resolved, in the main, a recondite legal issue on the effect of a new policy on a party who had attained the exit point in an organization. The question was whether an employee after attaining 14 years and 11 months in service; and serving notice indicating her option to retire and take benefit of a certain policy extant at the time of serving the notice, should to her detriment, be subject to the employer’s sudden policy making those entitlements only due upon completion of 15 years in service. The Court examined the details of this case thoroughly and thoughtfully, calling in aid availing equities in: (i) pronouncing against the employee being subjected to a retroactive policy; (ii) holding the employer estopped from avoiding contractual obligations; and that in any event (iii) the principle of arithmetical approximation would nonetheless avail the claimant in deeming her to have served the 15 years on the date the new policy was issued.

Chucks Ajukwu v Blueche Lomado & Logistics Limited[4], Gbite Adegoke v Ecobank Nig. Ltd[5]  Toluwase v MID Atlantic Sea Foods Company Limited[6] , Oyama Friday v P.W Nig. Ltd[7], Onifade Oluwatoyin v IBDC Plc[8], and  Friday  Godwin v Anthony Rocks Limited[9] all considered workplace injuries and accident in ascertaining the ambit of the duty of care owed to sustain a claim for damages in negligence. Ajukwu failed to establish that the negligent conduct of the defendants led to the collapse of a vessel crane cutting off his thumb. Adegoke, a bank manager, on a road trip to Lagos on official assignment was attacked by armed robbers and sustained a spinal cord injury from the gunshots received during the attack. The court held, inter alia, that the bank did not owe him a duty to provide police protection on that trip, similar to what was normally provided by the defendant when moving huge sums of cash from one branch to another.

Some of these cases brought to the fore the seeming uncertainty around compensable damages. Toluwase was awarded the sum of the sum of ₦3,000,000.00 (Three Million Naira) as compensation for the eye injury he sustained in the course of his employment with the defendants. For workplace injury causing total loss of vision in his right eye, Friday was awarded the sum of ₦5,000,000.00 (Five Million Naira). Oluwatoyin succeeded in establishing negligence on the part of his employer for injury (electric shock) sustained in the course of work which, in turn, led to the amputation of his arms.

Much less straightforward, with respect, is the rationale for the denial of an appreciable amount of the sum which he claimed; on the premise that the court was yet to be confronted with such a situation and consequent award of such a sum as that claimed.[10] With respect, the resignation of the court in this regard suggests the fettering of judicial discretion[11]. Litigants and counsel are entitled to the expectation that a case can be decided on its peculiar fact pattern which may be completely unique. The facts of Oluwatoyin’s case evoke deep emotion and, oddly enough, said facts were perhaps given their most compelling expression by the court which nevertheless significantly whittled down his claim for a compensatory sum of =N=850,000,000.00 Million. In describing the near-vegetative condition of the claimant on account of his workplace injury, the court summed it up pitiably thus: I watched the Claimant while testifying in chief. He has no hands and no arms. He joined the services of the Defendants as a complete human being but got disengaged as an incomplete being. For all intents and practical purposes, the Claimant will forever be dependent on somebody virtually 24 hours a day and seven days a week. He needs a person to bath, feed, dress him. He needs an assistance to use the toilet. He needs an assistance to even scratch his body in event of an insect bite. Should he find himself in a place of public disturbance or riot, the Claimant is right on his own and all alone to fend for his dear life. The appearance of the Claimant at trial was one of a sorry state. One cannot but think aloud as to how much could be awarded in damages to be able to put the Claimant back in his position before the accident leading to the amputation of his both arms. The claimant was nonetheless awarded the sum of =N=150,000,000.00 Million for the permanent injury he suffered as a result of the negligence of the defendants, against the sum of =N= 850,000,000.00 Million sought.

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Friday Godwin, in turn, was awarded the sum of Ten Million Naira (=N=10,000,000.00) of the One Hundred Million Naira (=N=100,000,000.00) sought as general damages for permanent injury sustained from an industrial crusher while in the employ of the 1st defendant. The court recorded his plight thus: I observed that the claimant throughout the trial had his right hand static, he could not move it, which might be due to the wasting of the right shoulder and upper limb, inability to flex and extend the right shoulder and elbow as stated in UBTH medical report as well as the other two from Fate Medical Center and Millennium Hospitals. I equally observed that his right ear lobe was chopped off. It is better imagined than to experience the pain and trauma he must be going through as a result of the injury he sustained, which permanently led to the loss of his right ear lobe/external ear and paralysis of his entire right hand from his shoulder down to his fingertips as stated supra. The import of which is that he can no longer use his right hand. His injuries are such that cannot be quantified in monetary term. The paralysis of his right hand has taken life and means of his livelihood from him.

In the light of inflationary trends that can now be safely said to characterise the Nigerian economy with no indications of abating, the damages awarded in the preceding case were sadly but undeniably inadequate. Perhaps on a related note, this writer is not unmindful of decisions of the appellate court that have sought to whittle down the stable gains made by the NICN in applying appropriate sanctions to erring employers by way of significant compensatory damages. The Court of Appeal has often reduced compensatory damages awarded by the NICN and in other cases, outright deprecated the lower court for making such, in the appellate court’s views, exorbitant awards. It would be moot to speculate as to whether these influences of the Court of Appeal have had the effect of tempering the disposition of the court as seen in Oluwatoyin’s, Friday’s and a slew of similar matters decided in the year under review. It however suffices to say that the NICN remains the court that is most favourably placed to ensure that damages awarded in deserving cases, truly reflect the justice of the case vis-à-vis socio-economic realities faced by litigants who appear before it.

The apex court had an opportunity to make clarifications to a vexed legal issue arising out of the Public Officers Protection Act in National Revenue Mobilization Allocation and Fiscal Commission. v. Ajibola Johnson[12]. The court made plain that the limitation provision in the Act[13], mandating that an action can only be instituted against public officers within three months of the accrual of the cause of action, will not apply to contracts of service. This laudable exposition came to the rescue of the otherwise stale claims in Hon. Emeka Mbonu v. Etche Local Government Council[14], Mr. Ibiwari Lovde Jack v. Niger-Delta Development Commission (NDDC)[15] , Alukwe Okpara v AG, Rivers State[16] and Agu v Federal Civil Service Commission[17]. This, even as the NICN, faced with a similar objection as to limitation of action, reached a diametrically opposed view in Bari v Ministry of Local Government, Kano[18] .

Drawing a balance between its normative role and evolving dynamics in the world of work, the NICN, in Samson Systems & Investment Ltd v Nabih Chamchoum[19] held a business covenant which restricted the defendant from visiting Nigeria for a minimum of 5 years for employment or business after his resignation from the claimant, as unreasonable in terms of time and width. Perhaps underscoring the importance of submitting proper issues for adjudication in adversarial, and not inquisitorial court settings, an almost identical restraint of trade fact scenario emerged in Captain Chergui v Dana Airlines Ltd[20], where the court held the claimant strictly bound to the terms of his contract with the defendant.

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It is also instructive to look at the paradigm shift from, I daresay, a customarily settled position of law. This shift is as represented by the radically altering decision in Bello Ibrahim v Ecobank Plc[21]. In a very influential passage[22], perhaps in anticipation of the critique to follow, the Court ‘demystified’, as it were, the common law rule that reinstatement cannot avail as a possible remedy in the breach of master and servant contractual relationship. The holding of the court unswervingly points in one direction – a probable reversal of the decision if submitted to the higher court for review.

The unfettered right of an employee to resign even in the face of express stipulations to the contrary in the employer’s handbook was reiterated in Adigwe v FBN Mortgages Limited[23]. Relying on citation of cases expounding on the principle, the court cast its decision in the light of international best labour practices and the applicable International Labour Organisation Convention; lest such a practice be deemed to amount to forced labour. Curiously, Fajuyitan v Guinea Insurance Plc[24] reached a divergent position with regard to an employee tendering a letter of resignation when facing disciplinary hearing and the Employee Handbook stipulating otherwise.

Consistent with the thrust of the court’s previous decisions in matters with similar fact patterns, ASP Kiriben v Nigeria Police Force[25] hinted at how gratuity is ascertained with exactitude and particularised in a claim. Yunus Adewale Adefowope v MTN Nigeria Communications Ltd[26] and Kayode Tijani v FRA Williams (Jr)[27] gave imprimatur that payment in lieu of notice period must be made contemporaneously with the termination, otherwise termination, in the circumstance, would be wrongful. Okonyia v UBA[28], inter alia, emphasized the distinction between termination/dismissal that is wrongful and termination/dismissal that is unlawful/illegal and ensuing court orders attending upon each incident. Jonathan Pigden v Tolu Ogunkoya[29] affirmed that remuneration alone may not suffice as establishing a contract of employment as to confer jurisdiction on disputes arising from a contract of employment/service which the NICN has jurisdiction over.

In the realm of trade unionism and trade disputes, Joachim v Union Registrars Limited[30] fortifies the constitutional protection of (employees’) freedom of association, and more importantly, the protection of the employee from persecution or termination of employment on account of trade union activities. National Union of Hotels and Personal Services Workers[31] stresses the need to exhaust the first-course grievance remedial processes of Part I of the Trade Disputes Act (TDA) 2004 (in intra-union and inter-union trade disputes) before the appellate jurisdiction of the NICN can be invoked, whilst the court in First Bank of Nigeria Plc v Nnaemeka Eminike[32] inter alia,  recognized that a dispute arising from terminal benefits would qualify as a trade dispute eminently qualified to be referred to the Industrial Arbitration Panel  under the applicable laws. The court took time to clarify labour rights inuring at three levels: pre-employment rights i.e. those rights that arise prior to the start of employment e.g. rights inuring to job applicants; employment rights i.e. rights arising during the pendency of an employment; and post-employment rights i.e. rights inuring at the end of the employment such as pension rights.

In all, the labour court has had an eventful year adjudicating on varied issues that often characterise the disputes in the world of work, whilst also stimulating insights into the shape of things to come (legal impact of new technologies in the workplace etc).

Folabi Kuti is a Partner in the law offices of Perchstone & Graeys.

Footnotes

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[1] (Unreported Suit No. NICN/LA/276/2014, judgment delivered on 17th December, 2019; per Hon. Justice B. B Kanyip (Ph.D)

[2] [2019] LPELR-46443(CA)

[3] Unreported Suit No. NICN/LA/588/2017, judgment delivered on 14th May 2019; per Ogbuanya J.

[4] Unreported Suit No. NICN/LA/510/2017, judgment delivered on 4th February 2019; per Oji J.

[5] Unreported Suit No. NICN/LA/407/2016, judgment delivered on 4th April 2019; per Peters J.

[6] Unreported Suit No. NICN/LA/283/2014, judgment delivered on 11th June, 2019; per Amadi J.

[7] Unreported Suit No. NICN/ABJ/235/2014, judgment delivered on 8th October 2019; per Anuwe J.

[8] Unreported Suit No. NICN/AB/08/2015, judgment delivered on 19th March 2019; per Peters J.

[9] Unreported Suit No. NICN/AK/46/2014, judgment delivered on 4th April 2019; per Oyewumi J.

[10] The injunction is apt in the circumstance: “If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and that will be bad for both.” Lord Denning, Packer v Packer [1954] P. 15

[11] Per Oseji, JCA in Enabore Properties Ltd V. Peace-Cover Nig. Ltd & Ors (2014) LPELR-22585 (CA)– “the awesome power of a Judge in the exercise of judicial discretion should not be under-estimated provided such exercise of discretion is done judicially and judiciously. In UBN PLC V. ASTRA BUILDERS (2010) 41 NSCOR 1016 @ 1038-1039 the Supreme Court per Adekeye JSC held that: “An exercise of discretion is an act or deed based on one’s personal judgment in accordance with one’s conscience, free and unfettered by any external influence or suggestions. A judicial discretion means the power exercised in an official capacity in a manner which appears to be just and proper under a given situation. It must not flow from or be bound by previous decision of another Court in which a discretion was exercised. It is in short an antithesis to the doctrine of stare decisis. There is no hard and fast rule as to the exercise of a judicial discretion by a Court for if it happens, discretion becomes fettered.” ( Pp. 46-47, paras. G).

[12] [2019] 2 NWLR (Pt. 1656) 247 @ 270-271

[13] Cap P41, Laws of the Federation of Nigeria (LFN) 2004

[14] Unreported Suit No: NICN/ABJ/365/2014, ruling delivered on 5th March 2019; per Danjidda J.,

[15] Unreported Suit No. NICN/PH/87/2017, judgment delivered on 19th September 2019; per Kola-Olalere J. The suit was nonetheless held to be statute-barred on account of the wider provisions of the Niger-Delta Development Commission (NDDC) Act, CAP N86, LFN, 2004.

[16] Unreported Suit No. NICN/PH/87/2017, judgment delivered on 14th October 2019; per Kola-Olalere J.

The suit was nonetheless held to be statute-barred on the applicability of the 6-year timescale prescribed by Section 16 of the Limitation Law of Rivers State

[17] Unreported Suit No. NICN/ABJ/355/2014, judgment delivered on 17th October 2019; per Anuwe J.

[18] Unreported Suit No. NICN/LA/574/2017, judgment delivered on 10th December 2019; per Isele J.

[19] Unreported Suit No. NICN/LA/87/2015, judgment delivered on 13th March 2019; per Obaseki-Osaghae

[20] Unreported Suit No. NICN/LA/129/2015, judgment delivered on 25th February 2019; per Obaseki-Osaghae J.

[21] Unreported Suit No. NICN/ABJ/144/2018, judgment delivered on 17th December 2019; per Sanusi Kado J.

[22] Paragraph 69 of the Judgment

[23] Unreported Suit No. NICN/LA/526/2016, judgment delivered on 9th July 2019; per Kanyip J. (as he then was, now President, NICN)

[24] Unreported Suit No. NICN/LA/209/2012, judgment delivered on 21st March 2019; per Obaseki-Osaghae J.

[25] Unreported Suit No. NICN/LA/209/2012, judgment delivered on 3rd December, 2019; per Hon. Justice B. B Kanyip (Ph.D)  (President, NICN

[26] Unreported Suit No. NICN/LA/526/2016, judgment delivered on 15th May 2019; per Kanyip J. (as he then was, now President, NICN)

[27] Unreported Suit No. NICN/LA/130/2015, judgment delivered on 9th July 2019; per Kanyip J. (as he then was, now President, NICN)

[28] Unreported Suit No. NICN/AWK/09/2014, judgment delivered on 9th July, 2019; per Targema (Ph.D.) J.

[29] Unreported Suit No. NICN/LA/303/2018, judgment delivered on 20th March, 2019; per Oji (Ph.D.) J.

[30] Unreported Suit No. NICN/LA/139/2014, judgment delivered on 17th December, 2019; per Hon. Justice B. B Kanyip (Ph.D)  (President, NICN

[31] Unreported Suit No. NICN/ABJ/207/2018, judgment delivered on 4th July 2019; per Kanyip J. (as he then was, now President, NICN)

[32] Unreported Suit No. NICN/ABJ/195/2018, judgment delivered on 12th April 2019; Panel consisting of Hon Justice B.B Kanyip, Ph.D (now, President, NICN) ,  Hon. Justice R. B. Haastrup and Hon. Justice Sanusi Kado

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